Church-State Commandments

The Justices dig in as a constitutional clash looms

It has been 17 years since the Supreme Court spoke out on the Scriptures' place in public schools. In 1963 it struck down two measures providing for Bible readings and the Lord's Prayer in the classroom. Last week the court spoke again on this fundamental issue, ruling that Kentucky's general assembly had gone too far in ordering the posting of the Ten Commandments in public classrooms across the state. The decision is another setback for Americans who want more teaching of moral values in the schools, but it comes at a time when there is growing governmental support for their position. As a result, constitutional scholars expect a major confrontation between the bench and the other two branches.

Kentucky's legislature knew that without some ostensible secular purpose its act would violate the First Amendment prohibition against the establishment of religion by the state. So the lawmakers drafted a sentence to appear on each poster: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." But that did not sway many members of the high court, who themselves sit in a courtroom decorated with artists' renderings of the Commandments. "The preeminent purpose," ruled the majority, was "plainly religious," because the document is "undeniably a sacred text" for Jews and Christians.

Dissenting Justice William Rehnquist chided his brethren for not deferring to the legislature's judgment on the law's purpose. Moreover, wrote the court's leading conservative, "the Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin."

Berkeley Law Professor Jesse Choper suspects that the Justices took the case because they wanted to discourage the increasing encroachments on their church-state doctrine. "They're not going to let people chisel away at the perimeters," says Choper.

The consistency of the federal bench in prayer cases was demonstrated again last week when an appeals court rejected the arguments of a Guilderland, N.Y., group called Students for Voluntary Prayer. The high-schoolers had sought a classroom for informal prayer meetings before school, but had been turned down by officials. The refusal was justified, wrote Judge Irving Kaufman, in part because the students were free to say their prayers at other times and places.

Weary of fighting the courts on the prayer issue, some members of Congress have come up with a solution: bypass them. The Senate has passed a bill that would deprive the federal bench of the power to decide certain "voluntary" school-prayer cases, and backers hope that the rightward swing signaled by the Reagan victory will persuade the reluctant House to give the measure its blessing too. The latest Gallup poll indicates that 76% of Americans are willing to go even further and approve a constitutional amendment allowing school prayers.

Passage of the bill might well cause a constitutional showdown. Congress has the right to limit the federal judiciary's jurisdiction, but some scholars believe that the legislators would be exceeding that power if they took away the authority to enforce something as sacred as the First Amendment. If the bill becomes law, prayer cases could still be tried in state courts, but that might produce a crazy quilt of constitutional interpretations.

Would the Supreme Court permit this restriction of its authority? The last time the court acceded to a limitation of its own jurisdiction was in the 1860s when Congress removed the Supreme Court's right to hear certain habeas corpus appeals. One Senate aide is confident that the court would not act differently today. Says he: "It swats lower courts and state legislatures like flies, but not Congress."

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