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Supreme Court Minority Favors Review of Church-State Relations

By Editorial Staff
Published September 1, 1989

The United States Supreme Court may be on the verge of reviewing exactly what the Bill of Rights means by forbidding government “establishment of religion.”

Justice Anthony Kennedy, the newest Supreme Court Appointee, wrote in a conservative dissent to a recent ruling that the Constitution provides for church-state separation in only two instances. First, the “government may not coerce anyone to support or participate in any religion or its exercise.” Second, the court should outlaw any “direct benefits” that tend to create a state religion.

Ever since 1947, when Justice Hugo Black wrote the majority opinion for the Everson case, the phrase “wall of separation between church and state” has become progressively ingrained into the consciousness of the American people. In late twentieth century America, the vast majority of persons have come to assume that church and state should be separated.

Since January 1982, however, the “separation” issue has again become a matter of debate as a result of a federal judge’s ruling in McLean vs. the Arkansas Board of Education, which banned the teaching of creation science in public schools.

The conservative dissent in the court’s controversial County of Allegheny vs. A.C.L.U. case marked the emergence of a minority led by Justices Anthony Kennedy, Antonin Scalia, Byron White, and Chief Justice William Rhenquist. Kennedy claims that the 5-4 majority ruling in the Allegheny case, written by Harry Blackmun, and a whole series of Supreme Court decisions, “reflect an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents.”

Kennedy’s position has worried some liberal activists. Lee Boothby, counsel to Americans United for Separation of Church and State, said that if Kennedy’s position prevails “we would be litigating hundreds of cases we thought we had settled.”

One more vote in favor of freeing restrictions against religion, perhaps from Sandra Day O’Connor or a new Bush appointment to the court, could in effect undo 40 years of laws. Rulings on everything from school prayer to public aid for church agencies could be changed.


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