The organized Jewish community appears almost as divided as the Supreme Court on questions surrounding the separation of church and state.
Jewish groups responded with mixed reactions to two Supreme Court ruling issued last week in cases that had been closely watched because of their potential ramifications on church-state separation.
Although many Jewish groups expressed disappointment with the decisions that together give more leeway to religious expression in public forums, others, primarily in the Orthodox community, applauded the rulings.
There was disagreement over the extent of the future impact the decisions would have on the proverbial wall of separation outlined in the Constitution.
In two separate decisions, the court ruled that the free speech rights of a student-run religious publication that had asked for funding from a state school and of the Ku Klux Klan, which had wanted to erect a cross on public property, were violated when their requests were denied.
In Rosenberger vs. Rectors and Visitors of the University of Virginia, a sharply divided court said in a 5-4 judgment that the state-funded University of Virginia must use a portion of a student activities fund to subsidize the religious magazine Wide Awake.
In a second decision, the court ruled in Capitol Square Review and Advisory Board vs. Pinette that the Ku Klux Klan had a right to erect a 10-foot cross in a public square in front of the Ohio Statehouse.
Writing for the majority on the Rosenberger case, Justice Anthony Kennedy said the school’s guideline prohibiting the magazine’s funding “evokes a sweeping restriction on student thought and inquiry” and is a “denial of their right of free speech guaranteed by the First Amendment.”
Chief Justice William Rehnquist and Justices Clarence Thomas, Sandra Day O’Connor and Antonin Scalia joined Kennedy, while Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens and Stephen Breyer dissented.
In Pinette, Sclia, joined by Rehnquist, Thomas and Kennedy, said the square was a public forum used for all types of speech, and that the government was not favoring one religion over another.
“Private religious speech cannot be subject to veto by those who see favoritism where there is none,” Scalia wrote.
In a concurring opinion, Justices O’Connor, Souter and Breyer said the state must make it clear that it is not endorsing religion.
Stevens and Ginsburg dissented.
In an interesting reflection of the court, opinion in the Jewish community was mixed on the decisions.
“These two cases together shrink the Establishment Clause,” Samuel Rabinove, legal director for the American Jewish Committee said, referring to the Constitution’s First Amendment prohibition of the government establishment of religion.
Rabinove said the decision in Rosenberger was more damaging than the ruling in Pinette.
“It certainly is a blow,” he said of the university case, adding, “Thomas Jefferson, who disestablished the Anglican Church in Virginia and who founded [the University of Virginia] must be turning over in his grave.”
Rabinove said he believed that the decision favors the standard of free speech over the high wall between church and state.
“I think they are stretching the free speech protection at the expense of the Establishment Clause,” he said.
Officials of the Anti-Defamation League expressed similar sentiments, saying they were “disappointed” in both rulings.
The overarching result of the two cases “diminishes church-state separation and sets the stage for divisive and really unfortunate conflicts in a campus and in a municipality context,” said Michael Lieberman, ADL’s Washington counsel.
The Pinette ruling, in particular, could create conflict and competition for space around government sites, he said.
However, the American Jewish Congress, although disappointed with the decisions, said the blow to church-state separation was not that severe.
“We would have preferred that the decisions go the other way, but I don’t think it dealt any bodily blow to the Establishment Clause,” said Lois Waldman, co- director of the organization’s legal affairs department.
“We’re still going to be able to fight a lot of things on the Establishment Clause,” she added.
Although the decision in the University of Virginia case allows the school to fund the magazine indirectly by paying its printing costs, it still bans direct government funding of religion, Waldman said.
In the Orthodox world, attorney Nathan Lewin, who has argued a number of religious freedom cases, welcomed the decisions and said they would benefit the Jewish community for years to come.
“It is a very welcome attitude on the part of the Supreme Court majority to recognize that religious expression is entitled to the same respect as secular expression,” he said, adding he was “gratified” by the rulings.
Lewin had helped the Lubavitch movement file an amicus brief in the Pinette case, supporting the Klan’s right to free speech.
The Lubavitchers sponsor a number of menorah displays across the country during Chanukah, and therefore were particularly interested in the Ohio case.
Lewin also said the decisions tore away at what he called a misconception that the separation of church and state means discrimination against religion and religious speech.
David Zwiebel, governmental affairs director and general counsel for the fervently Orthodox Agudath Israel, said the rulings were “healthy developments” for religious speech.
“I think we are pleased on balance with the direction the cases seem to be pointing,” he said.
“It points in a direction of greater accommodation of religious concerns and expression, and if that means we’re moving toward a more flexible view of separation, I think that’s positive development,” Zwiebel added.
Several officials in the Jewish community commented on the potential impact of last week’s decisions on other controversial church-state issues, such as school prayer and school choice vouchers.
The decision could have a mixed effect on future wrangling over school prayer in public schools, a controversy that is opposed by most in the Jewish community.
AJCongress’ Waldman said she did not see the rulings as opening the door to school prayer.
And Rabinove of the AJCommittee said the court’s latest decisions could weaken the case for proponents of a school prayer amendment because they show that the court is not “hostile” to religion, as school prayer proponents have claimed.
“What the court has done in both cases makes it clear that there is no need to amend the Bill of Rights to ensure religious expression,” he said.
But opinion was mixed on the impact of the rulings for school choice vouchers.
Agudah’s Zwiebel said he though that the decision in the Rosenberger case opened the door for further discussion on school choice vouchers.
Many in the Orthodox community, including Agudah Israel, favor government programs that would give money to parents so they could decide where their children go to school, including parochial schools.
“The case comes a step closer to what some might have thought would be prohibited,” Zwiebel said, noting that in the university case, the court has allowed a government entity, the school, to fund a religious organization, the magazine.
Although Kennedy said in the majority opinion that the court was not addressing an expenditure from a tax fund for religious purposes, Zwiebel said Kennedy’s “disclaimer” does not touch the voucher situation because the money would go to parents rather than a government institution.
But ADL’s Lieberman read it differently.
The “silver lining” in the University of Virginia decision is that the court “was very clear” in its ruling that it was not opening the door to government- funded voucher program, Lieberman said.