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Court hasn't had the last word on state-sponsorship of prayer

(ran NT LT CT COM HT editions)

The Supreme Court, acting amid the public high school graduation season, has handed a partial, and perhaps only temporary, victory to supporters of state-sponsored prayer in the schools.

At the same time, the court solidified its line of reasoning on the delicate "equal access" issue in a ruling applauded by those on either side of the church-state separation line.

The two actions _ one a ruling, the other a decision not to hear a case _ had been closely watched by religious liberty groups. In the most heated church-state controversy since the 1962 and 1963 rulings barring Bible reading and state-mandated prayers in the schools, those seeking to protect religious liberty hoped the court would clear up some of the confusion that has embroiled public schools across the United States.

It didn't.

And the cases left in doubt the fate of the court's key "Lemon test," which it has traditionally applied in determining whether a practice crosses the line and constitutes undue establishment of religion.

The court still has before it two other major church-state cases, one of which _ known as Zobrest _ is expected to possibly clarify the Lemon standard.

In the first of the actions announced Monday, a unanimous court held that a public school district must rent public school facilities to religious groups during non-school hours if the facilities are open to other groups as well.

The ruling, in Lamb's Chapel vs. Center Moriches Union Free School District, broke no new ground and merely extended earlier court decisions.

The court treated it primarily as a free speech case rather than a church-state case and the unanimous decision was hailed across the religious and political spectrum, from the American Civil Liberties Union to Pat Robertson's American Center for Law and Justice.

At the same time, Justice Byron White's majority opinion also reaffirmed the Lemon standard, giving church-state separationists the hope that despite ringing attacks on the standard by Justices Antonin Scalia and Anthony Kennedy the standard would survive.

Under the Lemon test, a law violates separation of church and state if it fails to have a secular legislative purpose, if its primary purpose is to advance or inhibit religion or if it fosters excessive entanglement between church and state.

The test has been used since 1971.

Scalia, in the school access cases, ridiculed the standard.

"Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys," Scalia wrote in his concurring opinion.

He was joined by Justice Clarence Thomas and endorsed in a separate statement by Kennedy.

Barry Lynn, executive director of Americans United for Separation of Church and State, a strict separationist group, hailed the ruling as "a significant victory for religious free speech."

"As an added bonus, the court was clear that if this activity had been sponsored by the school or had occurred during school hours, a forbidden line would have been crossed."

In the second action, the court refused to hear an appeal of a Texas case allowing student-initiated prayers during public school graduation ceremonies.

The case, Jones vs. Clear Creek Independent School District, has been used by the American Center for Law and Justice to promote prayers during the current graduation season. That campaign, following on the heels of the Supreme Court ruling last year in Lee vs. Weisman that state-sponsored prayers at graduation ceremonies are unconstitutional, has already generated a number of lawsuits.

The court's refusal to hear Jones, however, does not settle the issue nor does it set any kind of national precedent.

The Weisman ruling remains the controlling law in 47 states, while Jones covers the three states _ Texas, Louisiana and Mississippi _ under the jurisdiction of the 5th U.S. Circuit Court of Appeals.

Often, the court will wait to take up an issue until there are a number of conflicting or contradictory lower court rulings _ a likely occurrence, given the controversy surrounding graduation this year.

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