The unexpected resignation of Chief Justice Warren Burger gave President Reagan another opportunity to shape the future of the U.S. Supreme Court. Reagan’s nomination of Associate Justice William Rehnquist to take Burger’s place, coupled with his appointment of Federal Appellate Judge Antonin Scalia to the high court continue the active role he has taken in molding the federal judiciary.

The impact of the recent Supreme Court appointments is uncertain. Observers predict that the elevation of Rehnquist, considered the Court’s most conservative member, and the addition of Scalia, a respected and deeply committed conservative, will tilt the Court to the Right. But the degree of the shift is subject to debate.

Long-time Court watcher Stan Hastey, associate executive director of the Baptist Joint Committee on Public Affairs, said the impact on future high court rulings has been exaggerated, especially in regard to church-and-state cases. “Former Chief Justice Burger had become unhappy with the direction church-state cases had taken in the recent past,” Hastey said. “In the past few years, Burger has positioned himself with the Rehnquist wing on these cases, so his departure and Scalia s arrival may amount to an even swap in this area.”

Forest Montgomery, counsel to the National Association of Evangelicals’ public affairs office in Washington, said it may amount to more than an even swap. He pointed out that Scalia is “one generation younger” than Burger, and could exercise a more persuasive influence on justices who tend to cast swing votes on crucial cases. However, Montgomery said, a major realignment of opinion on the Supreme Court will not occur until “one more Antonin Scalia” is appointed.

Rehnquist’s new post as chief justice provides added visibility for his views of how the U.S. Constitution applies to present-day conflicts. His views ascribe great weight to states’ rights and call into question presuppositions of church-state case law that have been in place for decades. According to observers, Rehnquist’s most telling opinion was his 1985 dissent in the case of Wallace v. Jaffree.

In that ruling, the Court struck down an Alabama law allowing a daily moment of silence “for meditation or voluntary prayer” in public schools. Rehnquist, disagreeing with the majority, called for the Court to scrap its reliance on a three-part test that asks whether a law such as the Alabama statute has a primarily secular purpose, unnecessarily advances religion, or excessively entangles church and state. Instead, Rehnquist said, the Court should base its opinions on the original intent of the Constitution’s framers.

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As chief justice, Rehnquist’s views could have a significant impact. When he votes with the majority, the chief justice determines which justice will write the majority opinion. This could give Rehnquist considerable influence when it comes to framing new law. “In the event he votes in the majority on a key church-state issue down the line, he may choose to write the opinion himself and scrap the line of thinking that calls for a strict ‘wall of separation’ between church and state,” Montgomery said.

It remains unclear what impact Scalia will have on decisions regarding church and state. During his tenure on the U.S. Court of Appeals for the District of Columbia, he did not have an opportunity to rule on an important church-and-state case. However, he is known to oppose abortion on demand. Both Scalia and Rehnquist are churchgoers, Rehnquist a Lutheran and Scalia a Roman Catholic.

Split Rulings

Of keen interest to Court watchers is the degree to which Rehnquist and Scalia might influence the thinking of their fellow justices. Both are known for their formidable intellects and disarming personalities, which could prove persuasive when the voting is close. A polarized high court produced a number of split rulings during its last term. Among them:

Bowers v. Hardwick, in which the Court upheld a Georgia law prohibiting sodomy. The majority ruled that the U.S. Constitution “does not infer a fundamental right upon homosexuals to engage in sodomy.” In the opinion. Associate Justice Byron White defended the principle of basing law on understandings of morality. He warned that “if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”

Bender v. Williamsport, which tested the constitutionality of “equal access,” or allowing high school students to meet voluntarily for prayer and Bible study on public school grounds. The high court let stand a lower court decision permitting such meetings, but the majority refused to address the constitutionality of the equal-access principle. The four dissenting justices said the Court should have ruled on the constitutionality of equal access, indicating they would have upheld the students’ right to meet.

Goldman v. Weinberger, in which the Court denied an air force psychologist the right to wear a yarmulke, or skull cap, although he is an Orthodox Jewish rabbi whose religion requires that his head be covered. The Court said that the military’s interest in preserving order and uniformity outweighed the rabbi’s religious obligations.

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Thornburgh v. American College of Obstetricians and Gynecologists, in which the Court overturned a Pennsylvania law regulating abortion. The five-to-four majority voted that doctors could not be required by law to inform women of abortion alternatives and of the detrimental effects of abortion. Abortion opponents did see a ray of hope in this ruling, however. The dissenting justices issued strong opinions that questioned the logic of the Court’s 1973 decision to legalize abortion.

Bowen v. American Hospital Association, in which a five-to-three ruling struck down the Reagan administration’s “Baby Doe” regulations. The Court said current civil rights law does not authorize the federal government to intervene in decisions made between physicians and parents regarding the treatment of handicapped newborns. The decision does leave intact the traditional regulatory role of state governments in these decisions.

General Agreement

Not all of last term’s rulings were split so narrowly. Three cases involving the right of free speech with sexual content found the judges largely in agreement. In City of Renton v. Playtime Theatres, the Court ruled seven to two that cities have broad rights to regulate the location of adult theatres. By the same margin, the justices ruled that high school administrators could discipline students for using “lewd and vulgar” language while in school. And the Court let stand a lower court ruling striking down an Indianapolis law that defined some pornography as violating women’s civil rights.

In Witters v. Washington Department of Services for the Blind, the justices ruled that a blind student did not unconstitutionally advance religion by using state funds to finance his Christian college education. The case was returned to the Supreme Court of Washington for further review, leaving open the possibility that the student could be denied aid under the far stricter dictates governing the separation of church and state in the Washington state constitution.

The high court also referred Ohio Civil Rights Commission v. Dayton Christian Schools back to the state where it originated. The Court ruled that Ohio officials could investigate a religious school concerning charges of sex discrimination in its employment practices. The school system had fired a pregnant teacher after she contacted an attorney regarding the school’s unwillingness to renew her contract for another year. School officials said the teacher, by contacting a lawyer, had violated a school policy prohibiting employees from taking disputes to outside parties. They also stated the school system’s belief that mothers of preschool-age children should not work outside their homes (CT, Mar. 21, 1986, p. 56).

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The teacher charged the school with unlawful sexual discrimination, and the Ohio Civil Rights Commission sought to investigate. Dayton Christian Schools claimed First Amendment protection from such an investigation because its beliefs are based on religion. But Rehnquist, writing for the Court’s majority, said no rights would be violated merely by an investigation of whether the woman’s claims are true. “Even religious schools cannot claim to be wholly free from some state regulation,” the majority opinion stated.

Next month, the Supreme Court will reconvene for a new term, and observers expect an even stiffer tug of war for the Court’s swing votes. Whether Rehnquist and Scalia will attract those votes may significantly influence the direction of relations between church and state in America.

By Pete Wylie.

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