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September 08, 2005 - Image 83

Resource type:
Text
Publication:
The Detroit Jewish News, 2005-09-08

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-.A

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about the potential for coercion in
such school prayer.
Rehnquist's opinions made uncom-
fortable the large majority of the
American Jewish community that
seeks a strong wall separating church
and state. Orthodox groups often
took the alternative view, seeking
increased governmental support and
funding for religion.
Even among -the Orthodox, howev-
er, Rehnquist had a mixed record. He
believed religion should not get any
special treatment, either positive or
negative. Free exercise protections
were limited under Rehnquist, requir-
ing religious-liberty advocates to seek
congressionally mandated protections
for areas like prison accommodations
and land use.
"You've got this mixed verdict,"
said Nathan Lewin, the counsel for
the National Jewish Coalition on Law
and Public Affairs, an Orthodox
group. "Jewish groups have been able
to operate better in terms of estab-
lishment-clause constraints, but the
harm that the Rehnquist court has
done to the free-exercise clause is
))
enormous.
Rehnquist wrote the 1986 majority
opinion that found an Orthodox
rabbi in the Air Force could be denied
the right to wear a yarmulke. "I think
he had less sensitivity to the religious
needs of minorities than other jus-
tices," said Lewin, who argued for the
rabbi, Simcha Goldman, in the case.
In 1990, Rehnquist joined Justice
Antonin Scalia in a ruling against two
Native Americans who sought unem-
ployment compensation after being
fired from their jobs for smoking pey-
ote as part of a religious ceremony.
The court found religious beliefs do
not excuse people from compliance
with a valid law. The majority opinion
said allowing exceptions for laws that
affect religion would require exemp-
tions for most civic obligations, from
compulsory military service to pay-
ment of taxes.
"We've been in very different terri-
tory since," Saperstein said. We have
a long way to go to get back to where
we were.
The ruling was widely criticized in
Washington, and Congress passed the
Religious Freedom Restoration Act in
1993, with support from Jewish
groups. The law said government
could not burden religious exercise
without a compelling government
interest. The court found the act
unconstitutional in 1997, saying
Congress could not enact legislation
that infringed on states' rights.

A narrower law, the Religious Land
Use and Institutionalized Persons Act,
passed Congress in 2000. The
Supreme Court upheld one aspect of
the new law, which allowed for greater
religious accommodations for prisons
earlier this year. The second part,
requiring a compelling reason for gov-
ernment to deny religious organiza-
tions reasonable land use, may also be
challenged in the future.
Rehnquist was first nominated to
the Supreme Court in 1971 by
President Richard Nixon. He was ele-
vated to chief justice in 1986 by
-
President Ronald Reagan.
Many expected the Rehnquist court
to overturn the legal right to an abor-
tion. That never happened, but
Saperstein said Rehnquist "prevailed
around the margins" by approving
waiting periods and parental notifica-
tions for abortion.
"It's done a remarkable amount of
what it was expected to do," Douglas
Laycock, a religious liberty scholar at
the University of Texas School of Law,
said of the court. That includes
restricting habeas corpus review for
prisoners, upholding the death penal-
ty and creating obstacles to federal
civil rights cases.
But, Laycock said, it will likely be
best remembered for rulings that
bucked the conservative trend. That
includes the 2003 rulings that decrim-
inalized sodomy and legalized the
concept of affirmative action.
Rehnquist himself took positions
against both reforms. He did, howev-
er, write the majority opinion in 1993
that found increased penalties for hate
crimes constitutional.
The court will also be remembered
for its affirmation in 2000 of Bush's
win in Florida and of the presidency.
Rehnquist wrote that much-analyzed
opinion, which seemed to contradict
his decades of service to states rights
in its quashing of decisions by
Florida's Supreme Court.
Rehnquist also presided over the
Senate impeachment trial of President
Bill Clinton in 1999.
Supreme Court scholars said
Rehnquist was not openly devout and
that he was not driven by a social
agenda. Instead, they said, he was
motivated by a belief in states' rights.
"He seemed to be very deferential
in religion areas to allowing the gov-
ernment to regulate as it wishes," said
Green, a professor at the Willamette
University College of Law in Oregon.
"Sometimes that means infringing
religious liberty, sometimes that
means bringing down the wall." ❑

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