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Smith Praises Signs of Change In High Court Religion Stance

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Washington--The Reagan Administration is encouraged by signs that the U.S. Supreme Court will adopt a policy of "benevolent neutrality" toward religion, particularly in cases involving schools, Attorney General William French Smith said in a recent address.

The Court's apparent moves to apply precedents mandating the separation of church and state more loosely than before, particularly in the context of state aid to church-related schools, "are ones that the Administration welcomes," said Mr. Smith at a Feb. 4 dinner in Los Angeles sponsored by the Pepperdine University Law School. The text of his remarks was released here by the Justice Department.

"We would like to see the Court reassess the consequences of its own Establishment Clause precedents and the lower courts' increasing tendency to be hostile toward religion," he said. "If not soon, at some later point the Court may wish to decide that a subtler analysis of the Establishment Clause is in order."

Mr. Smith noted that the Administration advocates such a shift in a friend-of-the-court brief it filed with the Justices in a lawsuit concerning an Alabama statute that permits a moment of silence in public schools during which students may pray or meditate. (See Education Week, Dec. 21, 1983.)

The Court has not yet decided whether to hear the case, Wallace v. Jaffree.

"The policy of the Reagan Administration is to make sure that the hand of government does not suppress this vital freedom," said Mr. Smith, who announced last month that he was quitting his post to return to his law firm.

The resignation will become effective if and when President Reagan's nominee for the position, Edwin Meese 3rd, is confirmed by the Senate.

According to the outgoing Attorney General, the Justices have applied a three-part test for determining whether laws are in accordance with the Establishment Clause "for better than a decade now, [and] to some observers, the results are confusing and inconsistent."

The test, which was established by the Court in 1971, requires that such statutes must have a secular legislative purpose, must have as their principal or primary effect neither the advancement nor the inhibition of religion, and must not foster "an excessive government entanglement with religion."

"The Supreme Court has, for example, approved government aid to church-related colleges but not to sectarian primary and secondary schools," Mr. Smith said. "It has approved government funding of bus transportation to parochial schools, but then struck down such funding of transportation for field trips. It has approved state aid to parochial schools if it takes the form of textbooks, but not if it comes in the guise of other instructional materials, such as maps."

In recent years, he continued, the Court has appeared "uncomfortable" with the test "and even with the view of separation of church and state which underlies the test."

In the term completed last summer, Mr. Smith noted, the Court "applied the standard in a less stringent manner" when, in Mueller v. Allen, it upheld the Minnesota law permitting state income-tax deductions for tuition and other expenses in public and private schools. (See Education Week, July 27, 1983.)

"One must exercise caution in drawing conclusions from the cases," he said. "But the Court seems willing to apply [the standard] more loosely than before, at least in the context of state aid to church-related schools, as the Mueller case suggests."

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