Is The Court Hostile to Religion?

By Richard N. Ostling

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.

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."

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.

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.

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."

With reporting by Steven Holmes/Washington and Andrea Sachs/New York