Court Asked to Weaken Standards for Gauging Church-state Breaches

Many Jewish groups are worried that the constitutional wall of separation between church and state could be severely breached if the Supreme Court agrees with the positions advanced by the Bush administration Wednesday in a case involving a Rhode Island high school graduation ceremony.

The administration wants the increasingly conservative court to scrap a 20-year-old test for determining when public involvement with religion is unconstitutional. It argued that such involvement should only be barred when the government attempts to coerce religious activity.

The issue came up when the high court heard oral argument Wednesday in the case of Lee vs. Weisman, in which the Providence (R.I.) School Committee is seeking to have a ruling by the U.S. Court of Appeals in Boston overturned.

The appeals court ruled that a rabbi’s mention of God during an invocation and benediction at a 1989 Providence Middle School graduation ceremony violated the First Amendment’s Establishment Clause. That clause, which says that “Congress shall make no law respecting the establishment of religion,” is considered binding also on state and local governments.

The appeals court agreed with Daniel Weisman, a Rhode Island College professor whose daughter, Deborah, was one of the graduates, that prayers should not be offered at the Providence middle or high school graduation ceremonies.

Weisman complained in 1986 when his older daughter, Merith, graduated from the same school and a commencement speaker thanked Jesus for the students’ accomplishments. When a rabbi was brought in for his younger daughter’s graduation, Weisman, who is Jewish, sued the school board.

He believes that no clergy should officiate at public school graduation exercises.

Several organizations jointly filed a brief supporting Weisman’s position, including the American Jewish Congress, American Jewish Committee, Anti-Defamation League, the National Jewish Community Relations Advisory Council, as well as numerous non-Jewish groups.

COLPA, the National Jewish Commission on Law and Public Affairs, which represents Orthodox Jewish organizations, has filed a brief supporting the school board.

It argues that the three-part test established in the Supreme Court’s 1971 Lemon vs. Kurtzman ruling has been used by those intolerant of religion. Specifically, COLPA said the Lemon test has been used unsuccessfully to challenge the laws regulating kosher food.

DIFFERENT FROM PRAYER IN CLASS?

The Lemon test requires that for a religious practice to be considered constitutional, it must have a secular purpose, must neither advance nor inhibit religion, and must not foster an excessive entanglement with religion.

But in their oral arguments before the Supreme Court, Solicitor General kenneth Starr, representing the Bush administration, and Charles Cooper, a Washington lawyer representing the school board, maintained that prayers at commencement exercises are no different from those recited at the opening of session of Congress of at the inauguration of a U.S. president.

Starr said such public acknowledgements of God have been an American tradition since the founding of the United States.

But he and Cooper agreed that if the prayer used at the Providence graduation was recited by a teacher in class, it would be unconstitutional.

Sandra Blanding, a Warwick, R.I., lawyer representing Weisman, maintained that a graduation is no different than a classroom, since it is part of the school program.

While Blanding argued for maintaining the Lemon test, she stressed that even if coercion were the criteria in this case, the children were coerced into participating in the prayer if they wanted to attend their graduation.

Blanding argued that prayer is different than the public display of creches or menorahs, which the court has allowed in certain circumstances.

“Prayer is inherently religious, not like a Christmas creche or a menorah,” she said. “It is active, it is worship, not just the acknowledgment of religion.”

But Cooper argued at one point that it would be all right for a state to adopt an official religion such as Christianity, as long as people were not coerced into practicing it.

While many of the Jewish and Christian groups have been expressing fear that the Supreme Court will use this case to end the Lemon test, some drew comfort from the questions of some of the justices. But they said this was not a sure-fire prediction on how they would vote.

Michael Lieberman, associate director and counsel in ADL’s Washington office, said all the justices seem to have their individual views on the First Amendment.

He said Justice David Souter seemed to indicate that applying the coercion test in this case would be too extreme.

David Saperstein, co-director and counsel of Reform Judaism’s Religious Action Center, expressed fear that a majority of the court wants to redefine the entire First Amendment.

He said whether the Lemon test remains or is removed depends on Justice Sandra Day O’Connor and the two newest justices, Souter and Clarence Thomas. Thomas did not ask any questions Wednesday.