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- LAW, Page 80Is the Court Hostile to Religion?
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- A conservative bloc of Justices speaks out on church and state
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- Christmas came under sharp scrutiny last week at the U.S.
- Supreme Court, and some groups got coal in their stockings. In
- a ruling that confused more Americans than it enlightened, the
- Justices held that the annual display of a Jewish Hanukkah
- menorah next to a Christmas tree outside Pittsburgh's
- City-County building was constitutional; yet in the same
- decision, they concluded that a Catholic-sponsored creche
- depicting the Nativity in the county courthouse one block away
- was not. The tenuous principle governing the decision seemed to
- be the so-called reindeer rule, suggested in 1984 by the court's
- decision that a government-owned creche in Pawtucket, R.I., was
- constitutional because it was flanked by such secular
- paraphernalia as Santa's house and reindeer and therefore would
- not be seen as an endorsement of a religious faith. Apparently,
- the Pittsburgh creche did not have enough secular camouflage.
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- Such hairsplitting is sure to keep judges, local
- politicians, priests and rabbis scratching their heads over
- Yuletide and Hanukkah dos and don'ts for many holidays to come.
- But far more than cradles and reindeer is at stake after last
- week's decision. The creche and menorah case, County of
- Allegheny v. A.C.L.U., saw the emergence of an outspoken bloc
- of four conservative Justices, just one vote shy of a majority,
- who are openly intent on challenging long-established views on
- the separation between church and state. The creche dissent in
- the Allegheny decision brought together Justices Anthony
- Kennedy, Antonin Scalia, Byron White and Chief Justice William
- Rehnquist, all of whom favor a sweeping reinterpretation of what
- the Bill of Rights means by forbidding government "establishment
- of religion."
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- The conservative dissent, which would have allowed the
- creche, was written by Kennedy, 52, the court's newest member.
- Kennedy contended that the majority ruling by Harry Blackmun,
- and in effect a whole train of Supreme Court decisions,
- "reflects an unjustified hostility toward religion." In his
- opinion, Kennedy proposed that the court apply two new tests to
- determine the constitutionality of links between the government
- and religion. First, Kennedy wrote, "government may not coerce
- anyone to support or participate in any religion or its
- exercise." Second, the court should outlaw only those "direct
- benefits" that tend to create a state religion.
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- Blackmun's creche ban was based on more sweeping standards,
- in accordance with legal precedents, that said the government
- could neither endorse nor support any religion. Kennedy's
- position and his vehemence troubled liberal court observers. If
- his view prevails, says Lee Boothby, counsel to Americans United
- for Separation of Church and State, "we would be litigating
- hundreds of cases we thought we had settled." One more vote --
- perhaps a Bush appointment to the court -- would give these
- Justices the clout to undo 40 years of church-state law on
- everything from school prayer to public aid for church agencies.
- For now, the swing vote belongs to Sandra Day O'Connor, who
- voted for the menorah and against the creche last week.
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- Although Kennedy and company appear to defend religion,
- many legal scholars continue to maintain that faith is better
- protected by separation, since doing otherwise forces government
- to emphasize the secular. It would be better, contends law
- professor Douglas Laycock of the University of Texas, for the
- court to simply rule that "the government shouldn't celebrate
- religious holidays at all."
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