“Confusing” is how Justice Sandra Day O’Connor described the Supreme Court’s philosophy on religion cases earlier this year. Some of that confusion surfaced last month as the high court heard oral arguments in a landmark commencement-prayer case that could have far-reaching implications in the relationship between church and state.

At issue in Lee v. Weisman is whether a rabbi’s invocation and benediction at a Providence, Rhode Island, high-school graduation ceremony amounted to an unconstitutional establishment of religion. Arguing on behalf of the school, attorney Charles Cooper urged the justices to overturn lower-court decisions that ruled the prayer impermissible. Noting that the Court opened its session with the words “God save the United States and this honorable Court,” Cooper said that if the lower judgments were upheld, then the commencement prayer “pales to the constitutional threat of the opening prayer we just witnessed.”

Attorney Sandra Blanding, representing the family that is challenging the commencement ceremony, argued that the prayers were a “message promoting religion,” something always inappropriate in a public-school setting where children, who are “more impressionable than adults,” are present.

The Bush administration’s solicitor general, Kenneth Starr, also appeared before the Court, arguing in favor of the prayers, which he said were “a far cry from the practices the founding fathers wanted to stop with the establishment clause.” It is, however, the apparent lack of consensus on the Court as to what exactly constitutes a violation of the establishment clause that forms the major issue in the case.

Cooper and Starr asked the Court to scrap its two-decade-old Lemon test as the determinant for church/state issues. That test says a government act is constitutional as long as it has a secular purpose, its primary effect neither advances nor inhibits religion, and it does not excessively entangle church and state. Instead, the attorneys proposed a “coercion test,” which would allow more government accommodation of religion, as long as no one is coerced into participating.

During the arguments, the justices were unusually vigorous in their questioning. How would one define coercion? Would a sectarian prayer be coercive? Would a coercion test make the Constitution’s free-exercise clause redundant? Is there a distinction between graduation prayers and the motto “In God We Trust” on our coins? Would the coercion test invalidate virtually all of the Court’s previous establishment decisions?

Cooper and Starr denied that adoption of the coercion test would lead directly to classroom prayers. However, Cooper seemed to leave open that possibility. Starr conceded that prayers in the classroom setting would exert a “powerful, subtle, indirect coercive pressure” on children that prayers at a “ceremonial event” would not.

Blanding urged the Court to maintain the Lemon test, arguing that the coercion test would “set the stage for radical changes” between government officials and religion. Emphasizing the current confusion on the Court, Justice Antonin Scalia rhetorically asked Blanding “which version” of the Lemontest she preferred, one that suggests that a primary effect of an act cannot advance religion, or one that says that the primary effect cannot. “We’ve used both depending on if we want to uphold or not uphold,” he said wryly.

Recently confirmed Justice Clarence Thomas was the only justice who remained silent during the arguments. The Court is expected to hand down its decision sometime next spring.

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Abortion And The Court

The high court appears on the brink of taking up the volatile issue of abortion again. Last month a coalition of the nation’s strongest abortion-rights advocates asked the justices to state quickly and clearly whether abortion remains a constitutional right. The coalition, which includes Planned Parenthood, the American Civil Liberties Union, and the National Abortion Rights Action League, made their request in a petition asking the Supreme Court to review the constitutionality of a Pennsylvania law that places several restrictions on abortion.

Late in September the Third Circuit Court of Appeals upheld major provisions of the law, including mandated parental consent before a minor’s abortion, a 24-hour waiting period before an abortion, and a requirement that doctors inform women about fetal development and alternatives to abortion.

Pennsylvania attorney general Ernie Preate said he would appeal to the Supreme Court one portion of the circuit court’s ruling, which struck down the law’s requirement that married women inform their husbands before an abortion. Both advocates and opponents of abortion say the Court could use this case to overturn its 1973 Roe v. Wade decision. If the justices agree to hear the case, they could add it to their 1991–92 docket, setting the stage for a decision by next June—at the height of the 1992 campaign season.

“Com For Porn”

Congress once again declined to set restrictions on federal funds for art when a House-Senate conference committee emerged from closed-door meetings with what political observers have dubbed the great “com for porn” exchange. Prior to the deal, the House of Representatives had voted for the second time in two days in favor of a nonbinding measure to prohibit the National Endowment for the Arts (NEA) from funding “patently offensive” art and performances. The Senate had passed similar binding restrictions in September (CT, Oct. 28, 1991, p. 35).

However, during conference committee meetings on the 1992 Interior Department appropriations bill, Rep. Sidney Yates (D-Ill.) fashioned a compromise that dropped the Senate restrictions in exchange for a promise from the House not to raise cattle-grazing fees on public lands.

Future fights over the issue are assured. Days after Congress completed its work, the NEA announced new grants that included money for two performance artists whose sexually explicit works have generated controversy in the past.

Veto Victory

President Bush handed the prolife movement a victory last month with his veto of a bill that would have lifted regulations that prohibit federally financed family-planning clinics from counseling or referring for abortion. The House of Representatives fell 12 votes short of overriding the veto. Earlier in the month Bush said the Title X regulations should be interpreted to allow physicians to discuss abortion with patients in federally supported clinics but prohibit abortion counseling and referral by nonphysicians.

Dc People

Attorney General-designate William Barr testified during his Senate confirmation hearings last month that he believes the Supreme Court’s Roe v. Wade decision legalizing abortion was “wrongly decided” and should be overturned. “There is a right to privacy in the Constitution,” Barr said, “I do not believe the right to privacy extends to abortion.”

President Bush has nominated Kay James, former Health and Human Services assistant secretary for public affairs, to become associate director of the Office of National Drug Control Policy.

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