The Swing Vote

O'Connor was instrumental
on church-state cases

MATTHEW E. BERGER
Jewish Telegraphic Agency

Washington
he modern-day legal guidelines on how
religion fits into the American public
square have largely been the creation of
one woman — Supreme Court Justice Sandra
Day O'Connor.
The U.S. Supreme Court has been fiercely
divided for a quarter-century, with four justices
opposing religious images in the public square
and all federal money to religious organizations,
and with four allowing for both. At the center has
been O'Connor, the first woman on the high
court, who announced her resignation July 1.
O'Connor's view — allowing for religious fund-
ing but crafting strict rules for religious symbols
— has tipped the balance in many of the church-
state cases since she joined the court in 1981. It
has been her analysis that has led to federal fund-
ing for school vouchers, but has limited public
displays of religious symbols.
"She feels government money doesn't make any-
one feel unequal," said Noah Feldman, a law pro-
fessor of New York University. "Symbols have the
capacity to make people feel excluded."
Numerous interest groups, including a wide
range of Jewish organizations, are expected to
mobilize for and against President Bush's choice
to replace O'Connor, 75. The stakes are high,
since a conservative jurist, which Bush has sug-
gested he would nominate, likely would change
the court's stance on some of the issues the Jewish
community cares about.
Alan Dershowitz, a Harvard Law School profes-
sor, said O'Connor "single-handedly kept the wall
of separation between church and state standing.
If she had not been on the court we would have
Christian prayer in the schools, Christian reli-
gious symbols displayed in public places," he
said.
On many issues, O'Connor split the difference
between the court's ideologues. Lawyers and
activists say they often tailored briefs to court her
vote, even including many of her previous opin-
ions as background material, knowing she would
be the swing justice on the issue.
"There was a joke among lawyers that you
would just file briefs in her chambers and ignore
the other eight justices," said Marc Stern, general
counsel for the American Jewish Congress.
O'Connor established an "endorsement test" on
religious symbols in 1984, suggesting that the
message a religious icon conveys is as important
as the intent of those who crafted it. "What is
crucial is that a government practice not have the
effect of communicating a message of government

T

Supreme Court Justice Sandra Day O'Connor and President Bush at the March 3 swearing-in o
Michael Chertoff as secretary of homeland security.

endorsement or disapproval of religion," she
wrote in Lynch v. Donnelly. "It is only practices
having that effect, whether intentionally or unin-
tentionally, that make religion relevant, in reality
or public perception, to status in the political
community."
That analysis led to split decisions on the pub-
lic display of nativity scenes. A creche by itself
was seen as religious, but incorporating other reli-
gious and secular symbols changed the context
and made the display more about a holiday sea-
son.
At the same time, O'Connor sided with conser-
vatives and members of the Orthodox Jewish
community, who argued in favor of permitting
school vouchers and government funding for
computer equipment to religious schools.
"The fact that she was a justice on the court
while this evolution was going on meant it hap-
pened at a more moderate pace and more moder-
ate tone than if you had a bloc of conservative
justices," said Nathan Diament, director of the
Orthodox Union's Institute for Public Affairs.
O'Connor also was a strong proponent of reli-
gious liberty, arguing that the government must
show a compelling interest before infringing on
religious exercise. In one of her final opinions last
month, O'Connor took a strong stance for reli-
gious liberty in arguing against the public display
of the Ten Commandments in two Kentucky
courthouses. "It is true that many Americans find
the Commandments in accord with their personal
belief," she wrote in McCreary County v. ACLU.
"But we do not count heads before enforcing the
First Amendment."
Nathan Lewin, an Orthodox attorney who
argued before the Supreme Court on numerous
occasions, said O'Connor was the observant
Jewish community's best friend on the combina-
tion of the establishment clause and issues tied to
the free exercise of religion. "She is very under-

standing and sympathetic of the needs of reli-
gious minorities and the ability to display those
needs publicly," Lewin said, noting that she dis-
sented in several free-exercise cases.
O'Connor's appointment was historic:
Nominated by President Reagan, she became the
first woman on the high court.
"She's been a role model, a distinguished jurist,
and furthered the advancement of women
through her decisions, personality and presence,"
said Judge Norma Shapiro, a judge on the U.S.
District Court for the Eastern District of
Pennsylvania.
Court analysts say O'Connor made decisions
based on fact, not ideology, and looked at each
case on its merits. She also looked to ensure that
the court did not move too quickly.
Indeed, she provided the swing vote in many of
the civil rights reforms of recent years, including
repealing sodomy laws and upholding the princi-
ple of affirmative action.
"She came in as a moderate conservative," said
Steven Green, former general counsel of
Americans United for Separation of Church and
State. "She quickly fell under the influence of
Justice Lewis Powell, who was the pre-eminent
fence-sitter and saw issues in shades of gray."
When Powell retired in 1987, O'Connor
became the court's center.
O'Connor's moderate positions won her many
fans in the American Jewish community. While
she did not go as far as many liberal Jewish
groups wanted on church-state cases, she was seen
as preventing a total erosion of that constitutional
separation.
Orthodox leaders also cite her as the reason
that vouchers and other programs for religious
schools are available today. "You could well say
that whole line of jurisprudence developments
would not have happened without her," Diament
said.

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