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TIME: Almanac 1995
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<text id=89TT1879>
<title>
July 17, 1989: Is The Court Hostile To Religion?
</title>
<history>
TIME--The Weekly Newsmagazine--1989
July 17, 1989 Death By Gun
</history>
<article>
<source>Time Magazine</source>
<hdr>
LAW, Page 80
Is the Court Hostile to Religion?
</hdr><body>
<p>A conservative bloc of Justices speaks out on church and state
</p>
<p> Christmas came under sharp scrutiny last week at the U.S.
Supreme Court, and some groups got coal in their stockings. In
a ruling that confused more Americans than it enlightened, the
Justices held that the annual display of a Jewish Hanukkah
menorah next to a Christmas tree outside Pittsburgh's
City-County building was constitutional; yet in the same
decision, they concluded that a Catholic-sponsored creche
depicting the Nativity in the county courthouse one block away
was not. The tenuous principle governing the decision seemed to
be the so-called reindeer rule, suggested in 1984 by the court's
decision that a government-owned creche in Pawtucket, R.I., was
constitutional because it was flanked by such secular
paraphernalia as Santa's house and reindeer and therefore would
not be seen as an endorsement of a religious faith. Apparently,
the Pittsburgh creche did not have enough secular camouflage.
</p>
<p> Such hairsplitting is sure to keep judges, local
politicians, priests and rabbis scratching their heads over
Yuletide and Hanukkah dos and don'ts for many holidays to come.
But far more than cradles and reindeer is at stake after last
week's decision. The creche and menorah case, County of
Allegheny v. A.C.L.U., saw the emergence of an outspoken bloc
of four conservative Justices, just one vote shy of a majority,
who are openly intent on challenging long-established views on
the separation between church and state. The creche dissent in
the Allegheny decision brought together Justices Anthony
Kennedy, Antonin Scalia, Byron White and Chief Justice William
Rehnquist, all of whom favor a sweeping reinterpretation of what
the Bill of Rights means by forbidding government "establishment
of religion."
</p>
<p> The conservative dissent, which would have allowed the
creche, was written by Kennedy, 52, the court's newest member.
Kennedy contended that the majority ruling by Harry Blackmun,
and in effect a whole train of Supreme Court decisions,
"reflects an unjustified hostility toward religion." In his
opinion, Kennedy proposed that the court apply two new tests to
determine the constitutionality of links between the government
and religion. First, Kennedy wrote, "government may not coerce
anyone to support or participate in any religion or its
exercise." Second, the court should outlaw only those "direct
benefits" that tend to create a state religion.
</p>
<p> Blackmun's creche ban was based on more sweeping standards,
in accordance with legal precedents, that said the government
could neither endorse nor support any religion. Kennedy's
position and his vehemence troubled liberal court observers. If
his view prevails, says Lee Boothby, counsel to Americans United
for Separation of Church and State, "we would be litigating
hundreds of cases we thought we had settled." One more vote --
perhaps a Bush appointment to the court -- would give these
Justices the clout to undo 40 years of church-state law on
everything from school prayer to public aid for church agencies.
For now, the swing vote belongs to Sandra Day O'Connor, who
voted for the menorah and against the creche last week.
</p>
<p> Although Kennedy and company appear to defend religion,
many legal scholars continue to maintain that faith is better
protected by separation, since doing otherwise forces government
to emphasize the secular. It would be better, contends law
professor Douglas Laycock of the University of Texas, for the
court to simply rule that "the government shouldn't celebrate
religious holidays at all."
</p>
</body></article>
</text>