Concern is mounting in the organized Jewish community that the U.S. Supreme Court’s decision to consider whether prayers mentioning God can be recited at public school graduation ceremonies could result in weakening constitutional guarantees of separation between church and state.
This is exactly the outcome the Bush administration appears to want, and it is why it filed a brief urging the court to take up an appeal by the Providence (R.I.) School Committee of two lower federal court rulings.
These rulings said that an invocation by a rabbi at the Nathan Bishop Middle School in Providence violated the establishment clause of the First Amendment, because by mentioning God it was an official endorsement of religion.
The high court agreed March 18 to hear the case, Lee vs. Weisman, next fall.
Legal experts at Jewish organizations fear the decision may signal the court’s willingness to erase many of the boundaries that now exist between church and state.
If the court were to go along with the administration’s thinking, it could mean there would be “nothing left of the establishment clause,” said Marc Stern, legal director for the American Jewish Congress.
Samuel Rabinove, legal director for the American Jewish Committee, and Steven Freeman, his counterpart at the Anti-Defamation League of B’nai B’rith, also expressed fear of an erosion of the establishment clause.
None of the legal experts believe the court would restore organized prayer to the schools.
But, Stern warned, it could mean that religious symbols could be allowed on public property seasonally or even permanently, and it could open the door to a re-examination of prohibitions on federal aid to parochial schools.
20-YEAR PRECEDENT AT STAKE
The case centers around the 1971 Lemon vs. Kurtzman decision, which for 20 years has been the standard for deciding whether a policy or practice violated the establishment clause.
Lemon vs. Kurtzman sets a three-part test requiring proof that a policy or practice have “a secular purpose,” that “its principal or primary effect must be one that neither advances nor inhibits religion” and that it does not foster an “excessive entanglement with religion.”
In the Providence case, the 1st U.S. Circuit Court of Appeals in Boston found that the graduation prayer failed to meet the second part of the test, because it was an advancement of religion.
During the 1989 ceremony, Rabbi Leslie Gutterman of Temple Beth El in Providence thanked God “for the legacy of America where diversity is celebrated.”
The suit against the school board was filed by Daniel Weisman, a professor of social work at Rhode Island College, whose daughter, Deborah, was one of the graduates. While his family is Jewish, Weisman maintained that non-Jewish students could have been offended by the prayer.
Three years earlier when his older daughter, Merith, graduated, Weisman complained to the superintendent because an invocation speaker thanked Jesus for the students’ accomplishments.
Orthodox Jewish groups take a different view of the case than the secular Jewish organizations, although they maintain they strongly support the separation of church and state.
Legal experts for Agudath Israel of America and the Union of Orthodox Jewish Congregations of America find no problems with the Providence rabbi’s prayers.
ORTHODOX MORE FLEXIBLE
William Rapfogel, executive director of the Orthodox Union’s Institute for Public Affairs, said that while the Orthodox Union opposes prayer in public schools, “we think there can be some tolerance on occasions like graduations.”
He said prayers such as the one the Providence rabbi offered are recited at many public school graduations, including some in New York.
But prayers at graduation ceremonies must show sensitivity for the audience, Rapfogel said. He said this could mean perhaps having a rabbi and a priest participate if the graduates include both Jews and Catholics.
Each case is different, and without this sensitivity it is “better not to do it,” he said.
Rapfogel said the Providence school may not have exhibited this sensitivity in view of Weis-man’s complaint earlier about the Christian prayer at his older daughter’s graduation.
David Zwiebel, Agudath Israel’s director of government affairs, said the case could have a positive outcome if it led to a re-evaluation of government aid to religious schools. In this area, the establishment clause “has been interpreted too restrictively,” Zwiebel said
The Reagan administration had sought to convince the Supreme Court to be less restrictive on the establishment clause. The Bush administration apparently believes that in the Providence case, it has found the vehicle to accomplish this.
The Justice Department brief urging the Supreme Court to hear the case argued that Lemon vs. Kurtzman has been applied too rigidly. This has led to a “persistent tendency to invalidate practices with substantial historical sanctions,” the brief said.
Stern of AJCongress, which has been involved in the Weisman case from the beginning, said the administration urged a hearing because of a “need to satisfy a narrow political consideration” and not “for the highest of motives.”
“The administration has not been friendly to the view of at least the majority of Jewish organizations” on church-state issues, said Rabinove of AJCommittee.
FOCUS ON NEW JUSTICE
There is also” a feeling that the” court itself wants to change at least some of the restrictions on religion in governmental settings.
In the Providence case, all eyes will be on the newest justice, David Souter, who replaced Justice William Brennan, the court’s most ardent defender of the First Amendment.
At his confirmation hearing last September, Souter said he would be reluctant to overturn a precedent. But questioned closely on Lemon vs. Kurtzman, he indicated he was aware of the difficulties in applying the three-part test.
“If I were to go to the court, I would not go with a personal agenda to foster” a re-examination of Lemon vs. Kurtzman, Souter said.
But he added, “Neither would I go in ignorance of the difficulty which has arisen in the administration of Kurtzman.”
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