Breyer's Views on Church-State Separation Stir Concern

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During hearings on his nomination to the U.S. Supreme Court, several senators expressed concern about Judge Stephen G. Breyer's views on church-state separation in public and private education. But the nominee's responses allayed fears that he disfavors home schooling or private religious education.

The Senate Judiciary Committee unanimously approved the nomination last month. It was scheduled for debate by the full Senate last week, and Judge Breyer is expected to win confirmation easily.

At his confirmation hearings, Judge Breyer, who was nominated to replace retiring Associate Justice Harry A. Blackmun, endorsed the concept of a high "wall'' of separation between church and state. That places him in the moderate-to-liberal majority on the High Court that has opposed efforts to make it easier for government to aid religious schools or to allow more religious activity in public schools.

"The reason there was that wall, the reason which has become so much more important, perhaps even more now than it was then [when the Constitution was written], is that we are a country of so many different people, of so many different religions,'' Judge Breyer told the Judiciary Committee on July 12.

"It isn't surprising to me that the rules become stricter and stricter the more the education of children is involved,'' he added. "There are difficult line-drawing problems.''

Appellate Opinion Criticized

The nominee's opinion in a 1989 church-state case motivated some home-schooling advocates and private religious educators to oppose his nomination.

In New Life Baptist Church Academy v. Town of East Longmeadow, Judge Breyer, the chief of the U.S. Court of Appeals for the First Circuit, wrote an opinion upholding a Massachusetts school board's authority to review the curriculum and operations of a private church academy.

The church claimed that the town's application of a state law concerning approval of private schools interfered with its right to the free exercise of religion. But Judge Breyer upheld the approval procedure, stating that government had a "compelling'' interest in insuring that children in private schools receive an adequate education.

Michael P. Farris, the president of the Home School Legal Defense Association, testified that Judge Breyer's views on free exercise of religion "are so far beyond the pale of acceptability that his presence on the Supreme Court would represent a clear and present danger to our freedoms.''

"He gratuitously said that home schooling can be constitutionally banned entirely by a state,'' added Mr. Farris, who was a Republican candidate for lieutenant governor of Virginia last year. "It's very dangerous to have someone on the Supreme Court who thinks that that form of education can be constitutionally banned outright.''

Breyer and Lemon

Judge Breyer never explicitly stated that view in his New Life opinion, but he cited previous court cases that allowed states to effectively ban home schools.

During his own testimony, Judge Breyer told senators that he was not biased against home schooling or private religious education.

"There is a consensus opinion that the First Amendment protects the right of people to pass their religion on to their children, and the home-school situation, on its face, seems to fall within that,'' he said.

Several senators attempted to pin down Judge Breyer's views on specific legal issues in education, such as the constitutionality of various forms of graduation prayer.

"How the First Amendment is applied in this area is a matter of great contention legally,'' he said in sidestepping one such question.

Judge Breyer did give lukewarm support to the three-part test, set out in the 1971 Supreme Court case of Lemon v. Kurtzman, that courts use to evaluate the legality of government programs that aid religion. The test, frequently attacked by several current Justices, requires programs affecting religion to be enacted with a secular purpose, to neither advance nor inhibit religion, and to not require excessive entanglement between government and religion.

Judge Breyer said he agreed with the foundation of the criteria, but acknowledged that "how helpful the test is, that is an area of disagreement'' among federal judges and legal scholars.

Vol. 13, Issue 40

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