Copyright 1993 News World Communications, Inc.  
The Washington Times
November 30, 1993, Tuesday, Final Edition
SECTION: Part A; Pg. A1

LENGTH: 1090 words

HEADLINE: New look at church and state ;
Justices to review landmark '71 test

BYLINE: Michael Hedges; THE WASHINGTON TIMES

BODY:


The Supreme Court said yesterday that it will review the 1971 ruling that has served as its benchmark for most of the church-state issues that have come before the high court ever since.

The court's decision, announced without additional comment, immediately raised the hopes of some religious and private education groups for a new standard in deciding constitutional questions of church and state.

Lawyers and analysts said the court's decision, expected by June, also could have a major impact on school choice efforts.

The high court will review a decision by the New York courts that said the creation of a Hasidic Jewish school district was an unconstitutional government endorsement of religion.

In 1971, in the case of Lemon vs. Kurtzman, the Supreme Court created a test for determining the constitutional limits of government accommodation of religion.

The so-called Lemon test set three standards for measuring the constitutionality of a government law or practice: Does it have a religious purpose? Does it primarily advance or promote religion? Does it excessively entangle government with religion?

"We welcome the Supreme Court's willingness to review that test," said Jim Henderson, staff counsel for the American Center for Law and Justice, a legal group founded by religious broadcaster Pat Robertson largely to fight religious freedom cases.

"The present test embodies something less than whether the government supports a specific religion as a state religion, which is barred by the Constitution. It turns on things like whether someone feels psychologically coerced to participate in a religious act," Mr. Henderson said.

Others, including some civil liberties groups that support the current law, said they are concerned that the high court could erode the delineation between church and state.

"We are somewhat troubled by it," said Steven Green, counsel for Americans United for the Separation of Church and State. "We think it is unnecessary." He said the 1971 standard should remain intact.

The case scheduled for review by the court involves the Kiryas Joel School District, established by New York state legislators in 1989 to accommodate a 12,000-member community of Hasidic Jews who said there was a need for educating disabled children in their Orange County town.

The village is almost exclusively populated by members of the Satmar Hasidic sect, which maintains a community with strict adherence to religious ritual and dress and where boys and girls are educated separately.

Most of the village children attended private religious schools.

Disabled children had gone to a public school, but parents said Hasidic children were uncomfortable in the public school and asked for a separate school for the disabled, financed by the state.

Officials of the New York State School Boards Association challenged creation of the school, saying it was an impermissible concession by the state to the Jewish sect's beliefs.

The New York Court of Appeals found such a school was prohibited by the Lemon ruling. The effect of setting up such a school would be to "yield to the demands of a religious community whose separatist tenets create a tension between the needs of its handicapped children and the need to adhere to certain religious practices," the court said.

Nathan Lewin, attorney for the Hasidic school, said of the Supreme Court's action: "I hope this will ultimately mean that they can continue with a school for Hasidic children that has a secular curriculum. And I think it could have larger implications."

Mr. Lewin and other experts said a change of the Lemon test would make it much easier to set up a choice school system involving government vouchers that could be used at religious schools.

"Certainly if the state of New York can prevail in this case it would have a direct application in some of the other cases where school choice is being challenged," Mr. Henderson said.

"Quite clearly this has application to whether school choice is constitutional," said Mr. Green. "If the present test were changed, it would give impetus to the voucher scheme."

It was apparent in a high court decision this summer that some justices sought to overturn the current church-state standard.

In a unanimous decision June 7, the Supreme Court ruled that a New York school district should give an evangelical church group the same access to its facilities as other groups receive.

The majority opinion in that case cited the First Amendment free-speech rights of the group. But a concurring opinion written by Justice Antonin Scalia and signed by Justice Clarence Thomas also strongly pushed for an overturning of the Lemon vs. Kurtzman standard.

"Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles around after being repeatedly killed and buried, Lemon stalks our establishment clause jurisprudence once again," Justice Scalia wrote.

Justice Anthony Kennedy wrote another concurring opinion in that case, also criticizing the 1971 finding.

But those supporting the Lemon test said it was affirmed in debate prior to the June ruling. "Justice [Byron] White clearly stated 'Lemon is the law' in an exchange with Scalia," Mr. Green said.

Justice White has since retired, replaced by Justice Ruth Bader Ginsburg, first appointee to the Supreme Court by a Democratic president in 26 years.

"At this point, I would say Justice Ginsburg is the key because she is the unknown in this," Mr. Green said. Her record on the federal appellate bench gives no clear signal as to how she would rule in the matter, he added.

Mr. Green said those hoping the 1971 standard holds are buoyed by her record of "being a centrist who favors judicial restraint."

Legal analysts agreed that Justice Scalia, Chief Justice William Rehnquist and Justice Thomas are likely to want a revision of the Lemon standard.

Justices Kennedy and Sandra Day O'Connor have expressed reservations about Lemon, but it is not clear they would vote to change it.

"I do feel fairly confident that Kennedy is willing to see Lemon revised," Mr. Henderson said. "His past writings seem to support that belief."

Three other justices, Harry Blackmun, John Paul Stevens and David Souter, have seemed comfortable with the Lemon test in past decisions.

GRAPHIC: Photo, Lou Grumet is executive director of the New York State School Board Association in Albany.

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