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82
William Rehnquist's legacy was redefining
church-state separation.
MATTHEW E. BERGER
Jewish Telegraphic Agency
Washington
illiam Rehnquist was often
the sole dissenter- on the
separation of church and
state after he joined the United States
Supreme Court in the early 1970s,
arguing that while religion did not
deserve extra protection, it merited
federal funding.
But now, after leading the
court for 19 years,
.-
Rehnquist's legacy is a court
majority — and the law of ..,„`"
0 z
the land — much closer to 0,,.,
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his perspective.
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"Initially, he was the per- 6:::
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son crying in the wilder-
ness," said Steven Green,
F2
the former general counsel
for the nonpartisan
Americans United for
Separation of Church and
State. "With time, he was able to get
a coalition and move the court in his
direction."
Rehnquist, 80, died Saturday, Sept.
3, after a long battle with thyroid
cancer. His death creates the second
vacancy on the high court; Justice
Sandra Day O'Connor, the first
woman on the court and its moderate
core, announced her resignation on
July 1.
"He was extremely well respected
for his powerful intellect," President
George W. Bush said Sunday. "He
was respected for his deep commit-
ment to the rule of law and his pro-
found devotion to duty."
Defining the line that separates
church and state was one of the hall-
marks of the Rehnquist court. The
chief justice, joined by two other con-
servatives and two centrist jurists,
consistently allowed government
funding of religion, including school
vouchers. But the court stopped short
of allowing public religious exercises
like school prayer, despite Rehnquist's
support for the practice.
At the same time, the Rehnquist
court will be remembered for limiting
special protections for religion and for
undoing protections for religious
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The Chief Justice
expression that were sanctioned by
previous justices.
And, while it was not particularly
progressive on civil rights issues, the
court will likely be remembered for
the times that it bucked the political
trend in recent decades away from
civil liberties, analysts said, notably
decriminalizing sodomy and integrat-
ing state military academies.
Bush moved quickly to fill
Rehnquist's seat. On Monday, he
nominated Justice John
Roberts, whom he had origi-
nally named to replace
O'Connor, for the post of
chief justice.
Rehnquist's deepest
impact may lie in the area of
church-state separation. The
court set a high bar for prov-
ing the government was
Rehnquist endorsing religion, ruling in
1989 that a depiction of the
Nativity in a county court-
house endorsed religion but saying a
menorah and Christmas tree on dis-
play outside the court did not.
"As long as it treats all religions
equally, he would argue nothing in
the establishment clause prevents sup-
porting religion and endorsing reli-
gion," said Rabbi David Saperstein,
the director of the Religious Action
Center of Reform Judaism, who is
also a constitutional law professor at
Georgetown University.
Rehnquist's dissents in school-fund-
ing cases, in which he argued for
greater government aid to parochial
schools and religious institutions,
were at first a lone voice. But as the
court became more conservative
throughout the 1980s, he persuaded
fellow justices to back school vouch-
ers. They were found constitutional in
2002, two years after the court had
allowed state educational equipment
and computers to go to religious
schools.
Rehnquist backed prayer at football
games and graduation ceremonies and
the practice of holding a moment of
silence in public schools. That's where
he lost the center of the court —
Justices O'Connor and Anthony
Kennedy — who were concerned