MIXED Decisions And Emotions: On Separation Of Church And State, There Was A Lot To Like--And A Lot To Loathe About Justice Anthony M. Kennedy.

Author:Boston, Rob

In June 1992, we were all feeling a little uneasy at Americans United.

The Supreme Court had the previous November heard oral arguments in a case from Providence, R.I., concerning school-sponsored prayers during public school graduation ceremonies. We were awaiting a decision.

We didn't have a good feeling about it. The high court was becoming more conservative. Early in 1988, a new justice had taken a seat on the court; his name was Anthony M. Kennedy.

Kennedy had been appointed by President Ronald W. Reagan, but he wasn't Reagan's first choice. Reagan originally named a judge named Robert Bork to the court. But the nomination of Bork, whose views were far to the right, sparked an intense backlash and a Senate fight that consumed several months. In the end, Bork failed to win confirmation, going down by a vote of 42 in favor and 58 against.

Reagan then nominated Douglas H. Ginsburg, a judge on the U.S. Court of Appeals for the District of Columbia Circuit. But Ginsburg's nomination soon collapsed in the wake of reports that he had, in the 1960s and '70s, smoked marijuana.

Kennedy, a federal appeals court judge in California, was Reagan's next nominee, and the third time proved to be the charm. Kennedy sailed onto the court with little controversy, in part because his record was fairly scant and not just on church-state issues. I started working at Americans United just weeks after Kennedy was nominated, and I was charged with the task of looking into his record. There wasn't much to find.

But Kennedy soon gave us cause to worry. In a 1989 case dealing with the display of religious symbols on government property in Allegheny County, Pa., Kennedy groused that the court was on the wrong road when it came to church-state relations. He opined that "substantial revision" of the court's jurisprudence in this area might be necessary.

Flash forward a few years to 1992, and you can tell why we were nervous. The school prayer rulings were at that time 30 years old. They had never been eroded. Speculation was that the court would, at the very least, allow official prayers at events such as graduation. Or it might go further and overturn the cases from 1962 and '63, once again allowing public schools to sponsor daily prayers and Bible reading.

In those pre-internet days, the only way to quickly get a copy of a Supreme Court ruling was to physically go to the court and pick one up. If you were unable to go to the court and wanted to hear breaking news...

To continue reading