High Court Could Relax Church-State Line

THE Supreme Court hears arguments Nov. 6 in a case that offers a clear opportunity to redraw the line that separates church and state.Supreme Court decisions in recent years indicate that most of the justices may be ready to take that opportunity to relax church-state separation in some degree. The case is Lee v. Weisman, a lawsuit challenging a prayer offered by a rabbi at a public middle-school commencement ceremony in Rhode Island. Of all the cases on the Supreme Court docket so far this year, many legal scholars see this one as the most likely vehicle for a major shift in court doctrine. A district court and federal appeals court have each ruled the rabbi's prayers to be an unconstitutional "establishment" of religion by government. But the lower courts used the reigning definition of "establishment" set by the Supreme Court 20 years ago. More recent opinions of the justices show erosion in support for this definition. If a new doctrine of church-state separation emerges from Lee v. Weisman, which should be decided by next summer, "it will undoubtedly be more permissive to the state," according to Neal Devins of William and Mary law school in Williamsburg, Va. The court's reading of the constitutional guarantee of the free exercise of religion - the close twin of the establishment ban - was radically altered in 1989. In a case that involved native Americans who use the drug peyote in traditional rituals, the court ruled that government policies not aimed at restricting religious practice could be constitutional even if they in fact infringed on the free exercise of religion.

Schools bear brunt The greatest impact of the Lee v. Weisman case will be felt in schools. The largest category of church-state court cases concerns state aid to private schools, says Mr. Devins. The next-largest category concerns religion in public schools. School officials should be able to draw some new guidance from the decision, even if the court avoids drawing new guidelines and merely upholds the prayer as an insignificant ceremonial gesture. The message would then be that the court is simply not too concerned about church-state entanglement, says Devins, so schools need not worry too much about it either. Currently, public prayer is not allowed in public schools or comparable government enterprises. In 1985, the court struck down a statute in Alabama that created a moment of silence "for prayer" in public schools. But the court majority suggested that a more neutral moment of silence could still pass constitutional muster if it did not explicitly encourage prayer. Strict modern establishment-of-religion doctrine was set in a 1971 Supreme Court decision in Lemon v. Kurtzman. The so-called Lemon test requires government to show that any policy or action meets three criteria: a nonreligious purpose, a nonreligious principal effect, and no excessive entanglement of church and state. The Bush administration is arguing for a more simple and permissive test: That establishment of religion occurs only where government coercion is involved. Four of the justices have shown some sympathy for the coercion test: Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia, and Byron White. It's not clear that the Lemon test has any supporters on the court anymore. The middle ground has been defined by Justice Sandra Day O'Connor. She wrote a concurring opinion in a 1984 decision in Lynch v. Tennessee that has become a strong strain in court opinion. The nub of her test is whether government endorses religion and "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders...." From the time the Constitution was drafted, says Georgetown law professor Mark Tushnet, Americans have debated whether the establishment and free-exercise of religion clauses of the First Amendment barred only government coercion or demanded strict government neutrality. Church-state separation was not much at issue until well into the 20th century. The court did not apply the establishment clause to the states until 1947. At the time, state governments were already tending toward strict separation, says Mr. Tushnet, but with wide variation. Some states had stricter curbs than now on state funding of church schools, he says, while some states endorsed prayer in public schools. Now, says Tushnet, "there's a good chance that a [court] majority will adopt a coercion test," throwing open a number of questions about what schools can do. The court could adopt a coercion test, however, and still find the Rhode Island rabbi's prayer unconstitutional, since the students were in a sense coerced into listening to it.

History of the case In June 1989, as Deborah Weisman was graduating from eighth grade in a Providence, R.I., public school, her principal invited Rabbi Leslie Gutterman to deliver an invocation and benediction at the ceremony. Such prayers are common in the Providence school district's middle and high school commencement ceremonies. His prayers were entirely nonsectarian - addressing "God of the Free, Hope of the Brave but clearly religious in the most general sense. Deborah's father, Daniel Weisman, sued for an injunction to stop the prayer beforehand. The injunction was denied, but he won the case itself - so far.