Justice Sandra Day O'Connor says she is "very worried" about the status of the free exercise clause of the First Amendment in the wake of decisions made by the U.S. Supreme Court in recent years. Speaking May 31 at a Conference on Religion in Public Life commemorating the bicentennial of the Bill of Rights, O'Connor said, "I'm sure it's no surprise to you that the court is narrowly and deeply divided" on church-state matters. "And given the current composition, I do not believe it's going to abate."
O'Connor's own views on the free exercise clause appear to have been changing. In the 1988 case of Lyng vs. Northwest Indian Cemetery Protective Association, the court said the government had a right to build a road near ground in California that is sacred to three Native American tribes, even though the project "could have devastating effects on traditional Indian religious practices."
Writing for the majority in that case, O'Connor said that "the First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion."
However, O'Connor was dismayed with thecourt's 1990 decision in Oregon vs. Smith, which said that states may restrict religious activity through "generally applicable and otherwise valid" laws. In a dissenting opinion in that case, O'Connor wrote that the majority ruling was "incompatible with our nation's fundamental commitment to individual religious liberty."
In her talk here, O'Connor described her proposed "endorsement test" to replace the three-part test the court first developed in 1971 to determine whether a government practice constitutes an unconstitutional establishment of religion.
The current test says a government practice does not violate the establishment clause if it has a secular purpose, if the "principal or primary effect" neither advances nor inhibits religion and if it does not foster "excessive government entanglement with religion."
O'Connor's test would be based on whether the intent of a law is to endorse religion and whether it would be perceived as endorsing religion.
"We live in a pluralistic society, with people of widely divergent religious backgrounds or with none at all," O'Connor said. "Government cannot endorse beliefs of one group without sending a clear message to non-adherents that they're outsiders."
O'Connor said she doesn't believe her proposed test "leads to or results in government hostility to religion. The government can, of course, acknowledge the role of religion in society without endorsing one over others."
In the fall term, the Supreme Court will review a case from Providence, R.I., in which two federal courts ruled that prayers at a public school graduation violated the clause.
The Justice Department has urged the court to use the case as an occasion for reviewing or revising its current set of standards for an establishment of religion.
"The religion clauses and the separation of church and state are of continuing and special importance to me," said O'Connor, who has been on the court for 10 years.
The associate justice remarked that the language of the religion clauses of the First Amendment "is deceptively simple, but those 16 words have bedeviled courts, Congress and commentators for the last 200 years."