Behind the Headlines: New Supreme Court Term May See Church-state Separation Redefined
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Behind the Headlines: New Supreme Court Term May See Church-state Separation Redefined

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Jewish groups concerned with maintaining a strict separation between church and state in American are fearful that the U.S. Supreme Court may lower the constitutional barriers to governmental involvement in religion during its 1991-92 term, which opened Monday.

They are carefully eyeing court action on a Rhode Island case, which they fear could seriously weaken the clause of the First Amendment that bars government establishment of religion, in the same way that the court last year weakened the clause guaranteeing free exercise of religion.

Orthodox groups, on the other hand, are looking forward to such a move as a way of bolstering their long-fought campaign for government aid to parochial schools.

The case in question, Lee vs. Weisman, on which the court will hear oral argument Nov. 6, is a seemingly innocuous one involving whether prayers can be allowed at public school graduation exercises.

The Providence (R.I.) School Committee has asked the high court to reverse a decision by the U.S. Court of Appeals in Boston, which ruled that a rabbi’s benediction during a 1989 Providence middle school commencement was an unconstitutional advancement of religion.

The suit against the school board was filed by Daniel Weisman, a professor at Rhode Island College, whose daughter, Deborah, was one of the graduates.

While his family is Jewish, Weisman maintained that non-Jewish students might have been offended by the prayer, in which God was mentioned.

Weisman complained three years earlier, when his older daughter, Merith, graduated from the same school, because a commencement speaker thanked Jesus for the students’ accomplishments.


The American Jewish Congress, the American Jewish Committee, the Anti-Defamation League, and the National Jewish Community Relations Advisory Council have joined in a friend-of-the-court brief supporting Weisman.

The Orthodox position is in a brief filed by COLPA, the National Jewish Commission on Law and Public Affairs, which asks the Supreme Court to overturn the appellate decision.

While both sides differ on whether the commencement prayer should be allowed, they agree that this is not their major concern in the case.

What is important for both sides is whether the ruling will do away with the so-called Lemon test, used for two decades to determine whether a public religious practice constitutes an unconstitutional establishment of religion.

The test, established in the Supreme Court’s 1971 Lemon vs. Kurtzman ruling, says that in order to be considered consitutional, such a religious practice “must have a secular purpose”; “its principal or primary purpose must be one that neither advances nor inhibits religion”; and it must not foster an “excessive entanglement with religion.”

COLPA supports the position of the Bush administration, which wants a new test asking whether anyone who does not want to participate in a religious practice feels coerced into doing so.

“We welcome a re-evaluation” of the Lemon test, said David Zwiebel, general consul for Agudath Israel of America. “We think that the Lemon test often led to inequitable and nonsensical decisions.”

But Marc Stern, co-director of the AJCongress Commission on Law and Social Action, said abandoning the Lemon test would be a “sea change and the end of an era.” He said it would obliterate the separation of church and state.


“Lemon vs. Kurtzman is a pretty good test and draws an intelligent line on what is permissible and what is not,” said Samuel Rabinove, legal director for the AJCommittee. “Those unhappy with it want to have more intrusion by the government in religion.”

Rabinove said the opponents of the Lemon test see it as a bar to school prayer, parochial aid and the setting up of religious symbols, such as creches and menorahs, on public property. He said many church-state cases are not being brought to the Supreme Court until the decision in Lee vs. Weisman comes down.

Supreme Court nominee Clarence Thomas was questioned about his views on Lemon during his Senate confirmation hearing, as was Justice David Souter last year. Both indicated general support while acknowledging the test has problems.

The split this year between secular and Orthodox Jewish groups is a change from last year, when they were united in opposing the court’s erosion of the “free-exercise clause” of the First Amendment, in the so-called “peyote case,” Oregon vs. Smith.

In that ruling, the court ended a 27-year-old practice that required any federal or state law to show a “compelling state interest” if it infringed on religious practices.

A bill by Rep. Stephen Solarz (D-N.Y.) to restore the compelling interest requirement, which initially had wide support, has been bogged down by opponents of abortion, who fear it could be used to overturn anti-abortion laws as an infringement on a woman’s religious right to an abortion.

The new Supreme Court term will also consider one other major case in which Jewish organizations have a major interest.


In the case, RAV vs. St. Paul, the Minnesota State Supreme Court said a St. Paul municipal ordinance that prohibits anyone from placing a racist symbol, such as a burning cross or a swastika, on someone’s property does not violate the constitutional protection of freedom of speech.

ADL and AJCongress have filed opposing briefs in this case, which involves the burning of a cross in front of someone’s house.

Steven Freeman, ADL’s legal director, said his group supports the Minnesota Supreme Court’s ruling, since it was made on narrow grounds that dealt only with expressions of hatred or harassment, which the Constitution does not protect.

But Stern of AJCongress said the ordinance was badly crafted to infringe on freedom of speech. He said that anti-hate measures can be enforced through other means.

During the court term, other cases affecting the Jewish community may come up, including ones dealing with abortion.

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