Wobbly wall.

Supreme Court Justice Thurgood Marshall announced his retirement in June 1991 while I was attending the biennial conference of the American Civil Liberties Union, held in Burling ton, Vermont. I immediately drafted resolutions, which were passed unanimously, commending Marshall for his many years of service to civil liberties and civil rights and urging President Bush to appoint as his successor someone with a comparable devotion to the Bill of Rights. What we got instead was Clarence Thomas.

Thomas was the swing vote in several important five to,four rulings in the Court term recently ended. In major civil-rights cases, Thomas cast the deciding vote against voting rights for ethnic minorities, affirmative action to remedy past discrimination, and school desegregation. Of particular interest to this column was Thomas' deciding vote in Rosenberger v. University of Virginia, handed down on the Court's last day, June 29.

In Rosenberger, the Court ruled that the university founded by Thomas Jefferson could not refuse to use mandatory student activity fees to subsidize a student religious publication. Thomas, Rehnquist, Scalia, and Kennedy, joined hesitantly by O'Connor, held that denying the subsidy denied the conservative religious students "their right to free speech"

Justice Souter wrote a strong and eloquent dissent, joined by Stevens, Ginsberg, and Breyer. Souter stated: "The Court today, for the first time, approves direct funding of core religious activities by an arm of the State. It does so, however, only after erroneous treatment of some familiar principles of law implementing the First Amendment's Establishment and speech clauses, and by viewing the funds in question as beyond the reach of the Establishment Clause's funding restrictions as such" He added that "using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money"

Thomas' concurring opinion was a broad attack on the traditional understanding of church state separation. Had Marshall not been replaced by a third rate ultraconservative, Rosenberger would have gone the other way, all of which highlights the crucial importance of electing only presidents who fully respect the Bill of Rights.

J. Brent Walker, general counsel for the Baptist Joint Committee on Public Affairs (whose amicus brief to the Court was joined by the American Humanist Association) said of the ruling: "This is a sad day for religious liberty. For the first time, the Supreme Court has sanctioned funding of religion with public funds. Our founders understood that, for religion to be meaningful, it must be voluntary, freed from government assistance and control"

Rosenberger is sure to heat up the already intense struggle raging over proposals supported by Catholic bishops, televangelist Pat Robertson's Christian Coalition, and many Republican Party leaders for massive federal and/or state tax support for sectarian private schools through tuition vouchers. Robertson mouthpiece and legal strategist Jay Sekulow said the ruling clears the way for vouchers, but National School Board Association counsel August Steinhilber said that the ruling clearly distinguishes between student activity fees and taxes.

Defenders of church state separation and public education will obviously need to step up efforts to oppose voucher plans in Congress and state legislatures. If you want to help, support such groups as the American Humanist Association and Americans for Religious Liberty.

While we are on the subject of vouchers, I would like to highly recommend a new book, The Case Against School Choice: Politics, Markets, and Fools by Kevin B. Smith and Kenneth J. Meier (Armonk, NY: M. E. Sharper available for $19.95 plus $2.00 shipping from ARL, P.O. Box 6656, Silver Spring, MD 20916). Political scientists Smith and Meier carefully examine the so called bible of voucher promoters, John Chubb and Terry Moe's Politics, Markets, and America's Schools (Brookings Institute, 1990), which attributes alleged public school failings to democracy and bureaucracy and offers ill defined "school choice,' markets, and vouchers as the remedy. Smith and Meier show conclusively in this well documented study both that U.S. public schools are improving and that the Chubb Moe recommendations are close to worthless. Smith and Meier also show that the German, Japanese, and Dutch school models are hardly something Americans should want to emulate, and that Maggie Thatcher's British school choice plan has since 1988 created more problems than it could ever solve. The authors also make clear that the minority of parents who favor voucher plans are more interested in denominational indoctrination and avoiding public school integration than in educational quality. This rich sourcebook is a devastating critique of voucher plans without ever mentioning the First Amendment.

Back to the Supreme Court. On June 29, the Court ruled seven to two in Capitol Square Review and Advisory Board v. Pinette that Ohio officials could not bar the Ku Klux Klan from placing a large cross on a public square adjoining the state capitol, especially as the state had already permitted a Christmas tree and a Menorah to be displayed there. The Court held that Capitol Square in Columbus is a public forum and therefore that free speech principles trumped establishment clause considerations. (The American Humanist Association joined Americans for Religious Liberty and the Council on Religious Freedom in an amicus brief to the Supreme Court supporting the view that no religious symbols should be placed on the Capitol Square.)

Also in its final week, the Court made two "nonrulings" of some significance. It vacated a Ninth Circuit U.S. Court of Appeals ruling applicable to Idaho and eight other western states that barred student-led graduation prayers. This ruling leaves these nine states with no clear guidance for dealing with the fundamentalist drive to allow students to do what the Supreme Court in 1992 ruled school officials and school-selected clergy could not do. In the second nonruling, the Court vacated a Second Circuit decision that the town of Trumbull, Connecticut, could bar the Knights of Columbus from placing a creche on the town green.

Defenders of church state separation have a right to feel glum but no reason to despair. As of July 1, only two states--Wisconsin and Ohio--have moved to tax citizens for voucher support for sectarian schools, though the Pennsylvania legislature and Congress were still facing serious pressures from the Catholic bishops and Christian Coalition lobbies. The threats to separation are serious but they can be turned back--with a lot of effort.

Edd Doerr is president of the American Humanist Association and executive director of Americans for Religious Liberty.