News Analysis; Brennan Defended Religious Freedom, but Opposed Any Link with Government

Justice William Brennan, whose remarkable tenure of nearly 34 years on the Supreme Court ended with his announced retirement last week, disagreed with those who maintained that a judge should interpret the law, not make it.

In his view, to interpret is in fact to create.

The 84-year-old jurist found in the precise but open-ended language of the U.S. Constitution an opportunity for creative decisions. He used the document as an instrument to protect people’s rights and balance them where they conflicted, but never to suppress them.

There were countless examples throughout his long career. Three of his opinions in recent years conveyed the essence of Brennan’s judicial philosophy and happened to be of serious concern to Jews.

Two of them involved the display of religious symbols on public property, which Brennan saw as a violation of the First Amendment’s prohibition against government establishment of religion.

A third concerned the right of a U.S. Air Force officer to wear a yarmulka while on duty, a practice Brennan believed should be protected by the First Amendment’s guarantee of “free exercise” of religion.

In recent years, as the Supreme Court grew more conservative, Brennan found himself on the losing side in these cases and others like them.

He found himself in the minority when the Supreme Court ruled 5-4, on March 5, 1984, that the city of Pawtucket, R.I., could put up a nativity scene as part of an officially sponsored Christmas display without violating the Constitution.

OPPOSED CRECHES AND MENORAHS ALIKE

The court majority maintained that the city’s creche, surrounded as it was by replicas of reindeer, Santa Claus and other seasonal paraphernalia, was not an overtly religious symbol.

Brennan argued that Pawtucket’s maintenance and display at public expense of a symbol as distinctly sectarian as a creche “is plainly contrary to the purposes and values” of the First Amendment’s Establishment Clause, which mandates a separation of church and state.

He said it was ingenuous “to pretend, as the court does, that the otherwise secular setting of Pawtucket’s nativity scene dilutes in some fashion its singular religiosity.”

Shortly before Christmas 1986, the Greater Pittsburgh Chapter of the American Civil Liberties Union sued to ban the display of an 18-foot-high menorah owned by the Chabad Hasidic movement next to a 45-foot-high Christmas tree outside Pittsburgh’s City Hall.

The ACLU, supported by several Jewish groups, also objected to a creche in the Pittsburgh courthouse.

Three years later, the Supreme Court ruled 5-4 that the creche was unconstitutional. But at the same time, it decided by a 6-3 majority that posting a Chanukah menorah and Christmas tree outside City Hall was constitutionally permissible, because they were part of a seasonal display that “has attained secular status in our society.”

Brennan agreed with the majority that the creche should be barred. But he also felt the menorah should not be allowed, arguing that to define it as a secular — and therefore permissible — symbol was to devalue its religious significance. In what has come to be known as the “yarmulka case,” the high court denied Capt. Simcha Goldman, an Orthodox Jew on duty with the Air Force as a clinical psychologist, the right to wear a skullcap, which would violate an Air Force regulation forbidding the wearing of headgear indoors.

In his dissenting opinion, Brennan stressed that the issue was one of free exercise of religion, a constitutional guarantee that should supersede a military dress code.

“If Dr. Goldman wanted to wear a hat to keep his head warm or to cover a bald spot, I would join the majority,” the justice wrote.

He explained: “Mere personal preferences in dress are not constitutionally protected. The First Amendment, however, restrains the government’s ability to prevent an Orthodox Jewish serviceman from, or punish him for, wearing a yarmulka.”

He added in his dissent that “the contention that the discipline of the armed forces will be subverted if Orthodox Jews are allowed to wear yarmulkas with their uniforms surpasses belief.” Brennan’s view was eventually vindicate when Congress adopted a law allowing the wearing of “neat, unobtrusive and conservative” religious apparel by armed forces personnel, as long as it does not interfere with military operations.