Watching the U.S. Supreme Court for hints


WASHINGTON, Oct. 2 (JTA) — Despite a dearth of high-profile cases on the Supreme Court’s docket this term, Jewish groups are watching a number of Supreme Court actions that could affect school prayer, religious liberty and vouchers.

The fate of prayer at graduation ceremonies remains unclear as the court, in one of its first acts on opening day Monday, refused to hear a case challenging the right of public school students to choose a classmate to give a prayer or other message at high school graduations.

The Florida county policy involved in the case, Adler vs. Duvall County School Board, allows a student to decide the message’s content with no review by school officials.

The justices Monday ordered a federal appeals court to restudy the case in light of their decision in June to bar student-led prayers at public high school football games.

The move suggests that the justices are leaning toward extending their position on student-led prayer at football games to student-led prayer at graduation ceremonies, according to Jeffrey Sinensky, the American Jewish Committee’s legal counsel and director of domestic policy.

“We are cautiously optimistic,” said Sinensky, whose organization is one of many in the Jewish community that opposes prayer at public school events.

In 1992, the Supreme Court barred clergy-led prayers at public school graduation ceremonies. But its stand on student-led prayers has been less clear.

In 1993, the justices refused to review a federal appeals court ruling that allowed student-led prayers at graduation ceremonies. That ruling conflicts with another federal appeals court decision barring student-led graduation prayers.

The court’s latest action, coupled with its June decision on prayer, may have implications for school vouchers, which provide government funds for students to attend parochial or private schools.

The nationally debated voucher issue continues to be of concern for those most adamantly opposed to violating the separation of church and state — though some traditional anti-voucher groups are now rethinking the issue.

In its prayer case, the court had rejected the school’s use of a student to lead prayer at football games as a “circuit breaker,” or a way to show that the school was not directly endorsing prayer.

That same approach is often used in voucher cases, where the parent is considered the “circuit breaker,” and the argument is made that the government is not actually giving money directly to private schools.

The high court does not have a vouchers case before it this term, but several are working their way up from lower courts.

The justices have had the chance to rule on the constitutionality of vouchers in the past few years, but so far have chosen to sidestep the issue by declining specific cases.

A voucher case currently in the 6th Circuit Court of Appeals could make it on to the Supreme Court docket later in the term.

Jewish groups also are watching several cases that deal with the breadth of congressional power to regulate intrastate activities.

In recent years, the court has struck down certain civil rights laws, such as the Religious Freedom Restoration Act, arguing that Congress had exceeded its authority.

A wide spectrum of Jewish and civil rights groups had lobbied hard for that 1993 legislative initiative, and were disappointed to see it derailed by the Supreme Court.

Congress passed a pared-down version of that act this session but that legislation could face challenges if the court continues in its direction toward limiting Congress’ role vis-a-vis the states.

The Anti-Defamation League and the American Jewish Congress are among Jewish groups closely watching these cases.

“We want Congress to have robust authority to act on broad anti-discrimination issues,” said Michael Lieberman, Washington counsel for the ADL.

Long-term implications of such a scaling-back of congressional authority may force some Jewish groups to do some rethinking on where they should focus their resources, shifting their efforts to state lobbying, said Marc Stern, co-director of the AJCongress’ legal department.

Court watchers are looking even further ahead to the make-up of a future court.

Although there are no immediate vacancies on the Supreme Court now, the next president could play a major role in appointing new justices, which in recent years, has been controlled by a 5-4 conservative majority.

The new appointments could change the court’s ideological makeup, affecting issues watched by the Jewish community such as church-state separation, abortion and the balance of power between the federal government and the states.

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