TIME: Almanac 1990/1990 Time Magazine Compact Almanac, The (1991)(Time).iso/time/071789/07178900.046

Text File | 1990-09-17 | 4KB | 64 lines

LAW, Page 80

Is the Court Hostile to Religion?

A conservative bloc of Justices speaks out on church and state


    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.

    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."

    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.

    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.

    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."