High court to take look at religion

November 30, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Promising a new round in one of the most enduring constitutional controversies, the Supreme Court agreed yesterday to consider reducing the high legal wall it has maintained for 22 years between religion and government.

In a brief order in a New York case, the court accepted an invitation to review afresh the strict limits it has imposed for years on public support for religious groups. Those limits were fashioned by the court in a 1971 case involving public salary subsidies for parochial school teachers.

But the doctrine has been under increasing challenge within the court itself as some justices -- especially Antonin Scalia -- have argued that it be overruled and replaced by a relaxed rule that lets government take a variety of steps to accommodate religion.

Under the approach the court has been taking since 1971, official aid to religion is unconstitutional if it promotes religion or a particular faith, or if it lets government and religion become "entangled."

New York's highest state court, in a decision last summer, used one part of that formula to strike down a 1989 state law that created a new public school district that serves only about 200 disabled children in a religious community -- the Satmar Hasidic village of Kiryas Joel in Monroe, N.Y.

That law, the state court said, set up "a symbolic union" of government and religion, making it appear that the government endorses the Satmar Hasidic community's religious choices and disapproves of other faith preferences.

The community lives a life separate from the remainder of the residents of Monroe, speaking primarily Yiddish, educating boys and girls separately in parochial schools, and banning television.

When the existing school district refused to continue educating disabled Hasidic pupils in a separate building on the grounds of the Satmar parochial schools, the religious community asked the state legislature for a school district of its own that could qualify for state education aid for the disabled.

The legislature carved out a special district to function solely within the religious community, but the constitutionality of that was challenged in state courts.

In three separate appeals, the Supreme Court was asked not only to let the community keep its separate school district but also to reconsider the formula that the court has used repeatedly to keep government and religion separated.

Five of the current justices have objected publicly to that formula as too restrictive, but those five have never agreed on how to get rid of the formula, or on what to put in its place. In the past two terms, for example, the court faced three separate cases that tested the formula but wound up deciding all three without dealing with the formula as a main issue. It has the option of doing that again in the New York case, of course.

In June, one of those five, Justice Scalia, likened the formula to a ghost that periodically reappears after supposedly being put to death by the justices' criticism.

The formula is known among lawyers and judges as "the Lemon test," taken from one of the names in the 1971 ruling in which it originated.

The Supreme Court is expected to issue a final decision in the new case by next summer. The case will provide an initial test of the constitutional views on religion of the new justice, Ruth Bader Ginsburg.

In other order issues yesterday, the court:

* Agreed to decide whether federal judges have the power to postpone the execution of Death Row inmates long enough to name court-appointed lawyers to challenge a conviction and death sentence. That issue arises in a Texas murder case.

* Left intact a federal appeals court decision that requires colleges to take strong steps to assure that women have equal opportunity to have intercollegiate teams of their own. The case involved a federal judge's order requiring Colorado State University to keep its women's softball team, which was dropped for budget reasons.

* Left undisturbed a $4.3 million jury verdict won by a New York City subway mugger who was paralyzed when a transit system policeman shot him as he ran away from the scene of the crime. A jury ruled that the officer used excessive force to stop the fleeing suspect, who was not armed.

* Agreed to rule on the federal government's right to sue a law firm for wrongdoing in handling the legal affairs of a savings institution that has gone broke and has been taken over by a federal thrift-regulating agency. The issue arises in an appeal by a major Los Angeles-based law firm, O'Melveny & Myers.

* Cleared the way for imprisoned presidential candidate Lyndon H. LaRouche Jr. to collect about $100,000 in federal campaign subsidies despite the Federal Election Commission's conclusion that he has repeatedly used such subsidies fraudulently. A federal appeals court ruled that the law makes it clear that a candidate who promises to use the funds legally is entitled to them even if they are later misused. LaRouche, who has been running for the presidency since 1976, has been convicted and jailed for 15 years for a series of federal crimes based on his campaign fund-raising tactics.

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