Souter Tells Senate He Believes in Separation of Church and State

Judge David Souter told a Senate panel Friday that if confirmed to serve as a justice on the U.S. Supreme Court, he would not look to restrict the “wall of separation between church and state” guaranteed by the First Amendment to the Constitution.

But Souter gave the Senate Judiciary Committee no indication how he would vote on particular cases dealing with that principle, which has been under attack by conservatives.

He told Sen. Patrick Leahy (D-Vt.) that he accepts “as a personal principle” the view that the Constitution requires government to remain neutral in religion.

But he added that the knows this principle “is subject to much ferment at the moment in trying to delineate its contours.”

At issue is the court’s interpretation of the so-called “Establishment Clause” of the First Amendment, which states that “Congress shall make no law respecting the establishment of religion.”

The court traditionally has interpreted the clause to mean the government should not in any way endorse religious practice, a position supported by most Jewish groups.

Souter, currently a judge on the 1st U.S. Circuit Court of Appeals in Boston, pointed out that some members of the Supreme Court believe the clause means the government is only prohibited from establishing a state religion of favoring one Christian sect over another.

But the judge said the accepts the wider view and does not “have an agenda or a personal desire to bring about re-examination of that position.”

He told the Senate panel that if the issue comes up before the court, as he expects it will, he will listen to the arguments of both sides.

DISCUSSES PEVOTE CASE

Souter told Sen. Arlen Specter (R-Pa.) there are some difficulties with the test the court has used for determining whether a federal or state law has violated the separation of church and state.

But he stressed he would be “loath to talk about scrapping” these standards “without knowing what comes next.”

Souter indicated he was sympathetic with Justice Sandra Day O’Connor’s view in a court ruling last April supporting Oregon’s refusal to make an exception in its drug laws that would allow Native Americans to use peyote in religious rituals.

Jewish groups fear the ruling could be interpreted to allow states to bar such ritual practices as the drinking of Kiddush wine by minors or certain types of kosher slaughter.

O’Connor, who voted with the majority but objected to its reasoning, said that the decision made it too difficult to challenge a generally applicable law as an infringement on the free exercise of religion.

But Souter also noted that there can be conflicts between the Establishment Clause and the accompanying clause, which forbids Congress from making laws “prohibiting the free exercise” of religion.

He gave as an example a court ruling, under the Free Exercise Clause, that allowed Amish parents to be exempted from a state law requiring children to go to school until they were 16.

He said that if the law had been written with a specific exemption for Amish, under the Establishment Clause the court might have ruled against the Amish.

Souter expressed his support for court rulings prohibiting organized prayer in the public schools, but, without indicating his view, pointed out that the court has been more open to a moment of silence.

SPEAKS OF JEWISH FRIENDS

Sen. Paul Simon (D-Ill) personalized the issue when he said that Rep. Dan Glickman (D-Kans.) had described to him how in the fourth grade in Wichita, he had to leave class each morning when the Lord’s Prayer was recited because he was Jewish.

Glickman and his classmates were being told that he was different, Simon said.

Souter agreed that this resulted in making a child feel he was being excluded from the community and should not occur. He said this “appalling fact” was described to him by a Jewish judge who had experienced a similar situation in Manchester, N.H.

Souter spoke of another Jewish friend last Thursday, to explain that the understood the effects of discrimination despite his own privileged background.

He said his close friend, Sen. Warren Rudman (R-N.H.), had described the anti-Semitism he experienced as a young man in New Hampshire.

During 12 years as a trial judge and member of the New Hampshire Supreme Court, Souter has not dealt with the controversial constitutional issues that would come before him on the Supreme Court, if he is confirmed, as is widely expected. He has been on the U.S. Court of Appeals in Boston only since March.

But Souter was questioned closely on his actions as New Hampshire’s attorney general, when he supported then Gov. Meldrim Thomas’ order that flags be flown at half mast on Good Friday and the state’s prosecution of Jehovah’s Witnesses who put a tape over the state’s licence plates.

Souter said he was acting as counsel for the governor and the state. He said as a judge he would agree with the eventual court decisions against the state.

SUPPORT FOR AFFIRMATIVE ACTION

While agreeing to expand somewhat on the church and state issue, Souter gave no hint of how he would deal with Roe vs. Wade, the 1973 landmark case upholding a woman’s right to have an abortion.

He even refused to say whether he considered abortion moral or immoral.

“I have not got any agenda on what should be done with Roe vs. Wade,” he asserted. If it comes before the court, “I will listen to both sides of that case. I have not made up my mind,” he said.

Souter did indicated support for affirmative action, saying it was the judiciary’s responsibility not only to stop discrimination, but to “undo it.”

His testimony before the Senate panel was expected to continue Monday, and a vote by the committee is expected later this week. The confirmation must ultimately be approved by the full Senate.