Supreme Court approaches major decision on public prayer

WASHINGTON — WASHINGTON -- A rabbi's prayers at a public school graduation ceremony in Rhode Island two years ago have led to a major new constitutional confrontation at the Supreme Court over religion in American public life.

The confrontation is sweeping in its potential: It appears possible that the court could be persuaded in the case from Providence to lower, or modify significantly, the "wall of separation" it has long maintained between government and religion.


That is precisely what the Bush administration, along with school officials from Providence, are asking. Those pleas raise the prospect that the final ruling could go well beyond settling just the dispute that is at the center of the new case: the constitutionality of graduation-day prayers at public schools.

That controversy, by itself, is enough to stir up many communities, putting public school officials in the cross fire of local controversy. Organizations representing state and local school boards are pleading with the Supreme Court to resolve the graduation prayers issue in a firm and final way. Lower courts are divided on it.


The case began in June 1989, when Rabbi Leslie Gutterman of Temple Beth El in Providence delivered both the invocation and benediction at commencement exercises at the Nathan Bishop Middle School. He began both prayers by appeals to God -- the prayers that led ultimately to a federal court ruling that the Constitution's First Amendment religion clause had been violated. A student at the school, Deborah Weisman, and her father had sued to register their objections to the prayers at the ceremony.

U.S. District Judge Francis J. Boyle relied on a string of Supreme Court rulings going back to 1962 that, he said, mean that "God has been ruled out of public education as an instrument of inspiration and consolation."

Now that the case is at the Supreme Court, it is taking on the trappings of a landmark case: The federal government is involved, so are big-name lawyers, and "friends of the court" are starting to line up to press the justices to see it as a major case.

In the next week or two, the court is expected to give its initial reaction to the Providence case. The justices are studying the appeal now, pondering whether to hear it.

The Bush administration wants to broaden the scope of the Rhode Island case considerably. Coming into the case to back Providence school officials, the Justice Department has mounted sweeping attack on the court's whole approach to the interpretation of the constitutional clause that forbids the official "establishment" of religion.

The court, the administration complained in an unusual filing last month, has been using a "rigid doctrinal framework" that is confusing to lower courts and leads judges to block state and local officials from taking almost any action to reflect the nation's "religious heritage."

That approach, it argued, should be relaxed, and gestures toward religion by government -- including school boards -- should be allowed unless they actually coerce people into violating their religious views or actually "establish an official church."

Two years ago, a bare 5-4 majority of the court rejected the very suggestion that the administration is pressing anew. But since then, one of the five in the majority -- liberal Justice William J.


Brennan Jr. -- has retired and has been replaced by conservative Justice David H. Souter. This may put the government within reach of a new, sympathetic majority.

The government's filing was unusual because it involved the administration in a Supreme Court case even before the justices had agreed to hear a case.

Ordinarily the government, if it is not a party itself, stays out until it is asked for its views. Once a court agrees to grant review, it is quite common for the federal government to step into a case in which it has an interest.

It sought to justify its rare intervention this time by saying that the Providence case posed a threat to the tradition of acknowledging religion in public ceremonies -- such as presidential inaugurations.

While urging the court to relax the constitutional ban on prayers in public rituals staged by the government, the administration has gone a good deal farther than that. It is asking the court to reconsider a 1971 decision in another Rhode Island case that laid down a three-part formula for judging when government and religion have grown too close.

Under that approach, government support or aid to religion must be struck down if it fails any one of three tests: if the government action had a religious purpose, if its "primary effect" was to promote religion, orif it resulted in "excessive entanglement" of government with religion.


The rabbi's prayers in Providence were found to have violated the second of those tests. By appealing to "a deity" at an "important occasion" at a public school, the rabbi brought about "a symbolic union of the state and schools with religion," Judge Boyle said.

The federal appeals court in Boston agreed with him.

The Providence school officials decided to recruit a Washington lawyer to take the case on to the Supreme Court and wound up with one of the top constitutional advisers in the Reagan administration: former Assistant Attorney General Charles J. Cooper.

Early this year, Mr. Cooper and the school board's Providence lawyer, Joseph A. Rotella, sought to recruit the Bush administration to join in the case, believing that it shared their view that the court should take a new approach and expecting that administration support would increase their chances significantly.

They succeeded, apparently by persuading the administration's top advocate in the Supreme Court -- Solicitor General Kenneth W. Starr -- that the case raised a real prospect of getting the justices to take a new look at the 1971 ruling and that formula for separating church and state.

Mr. Cooper's appeal for the school officials sweeps as broadly as the Bush administration plea. He urges the justices to opt now for a simpler formula: no unconstitutional "establishment of religion" will result from government action unless it involves "direct or indirect government coercion."


There was no "religious indoctrination" when Rabbi Gutterman simply "made reference to God," the appeal argues.