Wobbly wall.

Author:Doerr, Edd
Position:Separation of church and state

Supreme Court Justice Thurgood Marshall announced his retirement in June 1991 while I was attending the biennial conference of the American Civil Liberties Union, held in Burling ton, Vermont. I immediately drafted resolutions, which were passed unanimously, commending Marshall for his many years of service to civil liberties and civil rights and urging President Bush to appoint as his successor someone with a comparable devotion to the Bill of Rights. What we got instead was Clarence Thomas.

Thomas was the swing vote in several important five to,four rulings in the Court term recently ended. In major civil-rights cases, Thomas cast the deciding vote against voting rights for ethnic minorities, affirmative action to remedy past discrimination, and school desegregation. Of particular interest to this column was Thomas' deciding vote in Rosenberger v. University of Virginia, handed down on the Court's last day, June 29.

In Rosenberger, the Court ruled that the university founded by Thomas Jefferson could not refuse to use mandatory student activity fees to subsidize a student religious publication. Thomas, Rehnquist, Scalia, and Kennedy, joined hesitantly by O'Connor, held that denying the subsidy denied the conservative religious students "their right to free speech"

Justice Souter wrote a strong and eloquent dissent, joined by Stevens, Ginsberg, and Breyer. Souter stated: "The Court today, for the first time, approves direct funding of core religious activities by an arm of the State. It does so, however, only after erroneous treatment of some familiar principles of law implementing the First Amendment's Establishment and speech clauses, and by viewing the funds in question as beyond the reach of the Establishment Clause's funding restrictions as such" He added that "using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money"

Thomas' concurring opinion was a broad attack on the traditional understanding of church state separation. Had Marshall not been replaced by a third rate ultraconservative, Rosenberger would have gone the other way, all of which highlights the crucial importance of electing only presidents who fully respect the Bill of Rights.

J. Brent Walker, general counsel for the Baptist Joint Committee on Public Affairs (whose amicus brief to the Court was joined by the American...

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