Supreme Court sets stage for historic shift on accommodating religion

March 19, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court set the stage yesterday for a possible historic shift in its approach to government efforts to accommodate religion as a factor in American life.

In a new test case from Providence, R.I., the court said it would decide whether it is unconstitutional to say prayers at public school graduation exercises -- a practice that is widespread. But the case could go well beyond that issue and reshape a key part of the Constitution's "religion" clauses.

In a brief order, the court will be considering a request -- backed by the Bush administration -- to write a new constitutional formula that would determine when government has moved too close to religion.

A new formula, if written in the way the administration is suggesting, could put into doubt many if not all of the court's rulings going back to 1962 banning school prayers and a wide variety of other forms of public recognition or support for churches or other religious institutions.

The court will be re-examining the meaning of the clause in the First Amendment forbidding the government to pass any law or take any official action that would create "an establishment of religion."

That is one of two religion clauses in the First Amendment. The other one guarantees that the government will not interfere with "the free exercise" of religion. In April, the court issued a sweeping decision on the meaning of the "free exercise" clause, narrowing it considerably as a shield against government coercion or control.

The Rhode Island case appears to offer the justices an opportunity to make another new start, this time on the so-called "establishment" clause.

That is the clause under which the court has forbidden the saying of prayers out loud at public schools, reading the Bible at schools, displaying religious symbols or staging religious rituals in public classrooms, direct subsidies of parochial schools, or government sponsorship of religious holiday displays.

The Providence school board has argued in the new appeal that the court should only bar government accommodation of religion when that actually coerces someone in their religious beliefs or practices.

The Bush administration, supporting the school board, said the court should adopt a formula under which government may make positive gestures toward religion unless this comes in the form of direct aid to a particular religion or compels someone to take part in religious activity involuntarily.

Both the school board appeal and the administration plea in support of it urge the justices to abandon the three-part formula that the court has followed for years in deciding whether government action crosses over the "wall of separation" between church and state.

Under that formula, any government tie to or support of religion is unconstitutional if it fails any one of three tests: If the purpose or aim behind it is religious, if it has the practical effect of promoting religion, or if it causes the government to become "entangled" with religion.

The Supreme Court reaffirmed that approach less than two years ago, but it did so by a bare 5-4 majority. Since then, one of the five in the majority, Justice William J. Brennan Jr., has retired, and has been replaced by Justice David H. Souter. It thus appears that Justice Souter may hold the key vote on the Providence case.

That case (Lee vs. Weisman, No. 90-1014) will come up for a hearing next fall or winter. A final decision is not likely before the following spring.

The case grew out of an invocation and a benediction delivered by a rabbi at a middle school graduation ceremony in Providence in June 1989. In both of those prayers, Rabbi Leslie Gutterman made his pleas to God, and that reference to the deity is what led a lower court to rule that the prayers were unconstitutional because they had the "primary effect" of promoting religion.

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