The U.S. Supreme Court’s interpretations of the First Amendment’s religion clauses are “rigidly secularist,” logically “incoherent,” and overdue for revision, Robert H. Bork contended in speeches made before his nomination to the U.S. Supreme Court.
Judge Bork, currently a member of the U.S. Court of Appeals for the District of Columbia Circuit, made those observations in nearly identical speeches at the University of Chicago in 1984 and the Brookings Institution in 1985. The Senate Judiciary Committee, which will begin considering his nomination on Sept. 15, has released the texts of the addresses.
The speeches offer the first clear indication of Judge Bork’s views on religion and the law, which had been a major unknown in the debate over his nomination to succeed Associate Justice Lewis F. Powell Jr., a pragmatic moderate who retired from the Court in June.
In the speeches, Judge Bork4strongly criticized the three-part test established by the Court in the 1971 case Lemon v. Kurtzman for determining whether a state action violates the First Amendment’s prohibition of government establishment of religion. Under that test, such an action must have a secular purpose; must have a primary effect that neither advances nor inhibits religion; and must not foster excessive state entanglement with religion.
Lemon Test Criticized
The Lemon test, Judge Bork said, is “obviously designed to erase all traces of religion in governmental action” and “is not useful in enforcing the values underlying the establishment clause.”
In support of his argument on the weakness of the test, Judge Bork cited the Court’s ruling in 1985 that struck down the widespread practice of sending public-school teachers to religious schools to teach federally funded remedial courses.8That ruling, he said, “illustrates ... the power of the three-part test to outlaw programs that had not resulted in any advancement of religion but seem entirely worthy.”
Judge Bork also questioned the Court’s “expansive interpretation” of the First Amendment’s other religion clause, which guarantees free exercise of religion. Under the Court’s interpretation, state action violates the clause if it burdens an individual’s beliefs, but such a burden is permissible if the action is necessary to achieve a “compelling” state interest.
According to Judge Bork, the Court’s tests for the establishment and free-exercise clauses “have brought the two [clauses] into conflict.’' He noted that in the landmark case Wisconsin v. Yoder, the Court ruled that Amish children had a right under the free-exercise clause to be exempt from laws requiring school attendance beyond the 8th grade.
“Had Wisconsin attempted to grant the exemption voluntarily, byel10lstatute,” he said, “there is little doubt under existing doctrine that the exemption could have been successfully challenged as an establishment of religion.”
Core Values
Judge Bork suggested that in future cases the Court should “attempt to discern the core of the values the framers [of the Constitution] intended to guard and apply it to today’s world.”
“A relaxation of current rigidly secularist doctrine would ... permit some sensible things to be done,” he said. “Not much would be endangered if ... public-school teachers were permitted to teach remedial reading to that portion of educationally deprived children who attend religious schools.”
“I suspect that the greatest perceived change would be in the re-introduction of some religion in public schools and some greater religious symbolism in our public life,” he continued. “It is contended that such4symbolism creates political divisiveness, and no doubt it does, but that argument assumes that it is only the presence of religion and not the absence of religion that divides people. The deliberate and thorough-going exclusion of religion is seen as an affront and has itself become the great cause of divisiveness.”
A.C.L.U. Opposes Nomination
In a related development, the governing board of the American Civil Liberties Union announced last week that it had voted 61 to 3 to oppose Judge Bork’s nomination.
The group has suspended its policy of not taking a stand on nominations to any federal office only once before--in 1971, when it voted to oppose President Nixon’s nomination of William H. Rehnquist to the Court. From now on, officials of the group said, the aclu will oppose any nominee to the Supreme Court whose judicial philosophy would threaten to jeopardize the Court’s “unique role in protecting civil liberties.”
