High Court's School-Prayer Ruling Puts Bush's Voucher Plan in Doubt

UNEXPECTEDLY, the Supreme Court has added bricks to the wall between church and state.

In a decision barring a religious benediction at a public-school graduation, the court passed up a chance to relax the rules separating government and religion.

The decision came down Wednesday, just as the Bush administration was preparing to release its plan for a voucher-style school choice program. The court has left the Bush voucher plan on uncertain terms with the Constitution.

Under the plan, parents can take a $1,000 annual education voucher to any school they choose, including religious schools. The use of these government funds at religious schools requires some delicate footwork to avoid church-state entanglement.

The Bush administration argued, in briefs to the court, for allowing the graduation prayer and loosening the standard that bars religion from much of public life. Most court-watchers thought that the court would loosen the standards, even if the prayer in the case still was not acceptable. That can still happen in a future case.

For most of the past decade, Supreme Court justices have expressed growing discomfort with the church-state separation doctrine spelled out by Chief Justice Warren Burger in 1971. The doctrine was a strict one. Under the so-called "Lemon test," named after the case, government action must neither advance nor inhibit religion, and it must not foster excessive entanglement between church and state.

A number of justices have expressed a willingness to bar the state only from coercing people into religious practice or expression. One of them is Justice Anthony Kennedy, who wrote the majority opinion in the case this week. But Justice Kennedy and the court's slim 5-4 majority decided they did not need to draft new principles to govern church-state relations to decide this case. The element of subtle state coercion in a religious activity was too clear and strong to force broader questions, Kennedy exp lained in his opinion.

But four members of the court signed a forceful, biting, even belittling dissent by Justice Antonin Scalia. Joined by Chief Justice William Rehnquist, Byron White, and Clarence Thomas, Justice Scalia called the majority opinion a "psycho-journey" for defining the social pressures on public-school students at graduation as subtle coercion.

Kennedy made a distinction between the religious invocation in a state legislature, where adults are free to come and go, and a graduation ceremony where students are sometimes asked to stand in prayer.

The case in question, Lee v. Weisman, was brought by the parents of Deborah Weisman when her Providence, R.I., middle school announced that Rabbi Leslie Gutterman would offer a nonsectarian prayer.

Although the Weismans are Jewish, Daniel Weisman recalled the graduation of another of his children when a Christian minister asked the audience to stand in prayer to Christ.

Mr. Weisman says he found it humiliating. Scalia dubbed such concerns "precious." He prefers to define coercion in its more historical sense of "religious orthodoxy and of financial support by force of law and threat of penalty."

No one should be compelled to pray, he wrote, but the opportunity to voluntarily pray together at public occasions fosters religious tolerance: "The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated."

But the swing vote was Kennedy's, and he pulled back from rewriting the past three decades of church-state relations.

August Steinhilber, general counsel to the National Association of School Boards, does not believe that the court is likely to put together a coalition now to lower the wall of separation to only coercion.

"I think they came as close as they ever have before, came up to that brink and did not step over that brink," he says.

"From the tone of the opinion, Kennedy is saying we've gone about as far from a classic separationist doctrine as we are going to go," says Mark Tushnet, law professor at Georgetown University Law Center. But Mr. Tushnet admits that the court could move to a coercion test in a later case.

Neal Devins, professor of law at the College of William and Mary in Williamsburg, Va., speculates that Kennedy favors an only-coercion standard, as he has indicated in strong past opinions.

This latest decision only shows that Kennedy's coercion is a higher wall than that of the four dissenters, Dr. Devins says.

The impact of this decision on schools is significant. Most public schools have already dropped public prayers from their graduation ceremonies, says Mr. Steinhilber, but many still have them.

The bigger stakes are in the limits the decision places on school-choice programs. Public funds will probably have to be funneled through parents and not directly to the religious schools that the parents choose. Also, any parent must have secular as well as religious options.

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