Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, July 3, 1995 TAG: 9507030028
SECTION: EDITORIAL PAGE: A10 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Long
In its overreach, the "conservative" majority raised the troubling possibility that it holds in too little regard not only Americans' personal liberties but also the distribution of powers among branches and levels of government.
By a 5-4 vote, the court invalidated the University of Virginia's longstanding policy of not using money from a student-publications fee to fund religious material. If the fee subsidizes any student publication on any subject, the court ruled, it must also subsidize publications that are explicitly religious in nature.
Thus did the court (1) trample on the First Amendment's stricture against government-established religion, (2) redefine "free exercise of religion" in an absurdly literal way to include a right to government-enforced financial support, and (3) micromanage a state agency's reasonable effort to avoid entangling itself in religious sectarianism.
Will the court now be ordering state colleges and universities to subsidize Satanic groups, publications that promote atheism and every mountebank who clothes himself in the garb of religion?
Perhaps not. Apparently in an effort to keep the wavering Sandra Day O'Connor on board, Anthony Kennedy in his majority opinion noted that the money at UVa came from student fees rather than direct state appropriation, and went to the printers of the material rather than to the sponsoring student groups.
As a practical matter, this may be a signal that a slight revision of UVa procedures would meet with the court's, or at least swing-vote O'Connor's, satisfaction.
That's hardly assured, however, and as a logical matter, the observations are irrelevant. The fee is mandatory. The money is collected by the university. And the fact that it isn't run through the organizations' checkbooks doesn't alter the purposes for which the money goes.
What's more, the court could have found in favor of the plaintiff, an evangelic Christian organization, on a narrower issue. The court could have concluded that the university, which did fund religion-oriented "cultural" publications, misapplied its own policy. (The policy was not to fund proselytizing religious publications.)
If intervention in the internal affairs of a university is one kind of overreach, another is rewriting the Bill of Rights when there is no need.
Curiously, Virginia Gov. George Allen - so quick otherwise to criticize federal intervention in state affairs - has not directed his ire toward the high court for its intervention. Indeed, Attorney General James Gilmore, Allen's running mate in 1993, supported the lawsuit against his own client, UVa, and was quick to praise last week's decision. Pat Robertson will be pleased.
A subtler overreach came in the court's 5-4 declaration last week that race cannot be a primary factor in drawing election-district boundaries.
The likely effect - fewer of the crazily shaped districts designed to ensure the election of racial and ethnic minorities (and simultaneously to isolate them so they would have little impact in adjoining districts) - is devoutly to be wished. Except as a remedy for demonstrable discrimination, as has occurred in some rural localities of Southside Virginia, race is not a good basis for districting.
Indeed, racial gerrymandering has aggravated rather than eased racial polarization, and the Supreme Court needed to put the brakes on this technique.
A more cautious court, however, could simply have told the U.S. Justice Department to cool it - to stop forcing states, under the department's maximalist view of the Voting Rights Act, to draw minority-majority districts wherever and whenever remotely imaginable.
A more cautious court could thereby have avoided entering a political thicket that previous courts have wisely steered clear of. Heretofore, courts have insisted that congressional, legislative and local districts be contiguous and of equal population, but beyond that have let the politicians do the political business of actually drawing the lines.
As with the UVa decision, what's next? Will the court now move to other factors that go into political districting - incumbent protection, partisan advantage, community of economic interest, geography - and say how much weight a legislature or local council is to give each of them?
In a third case, the court upheld another government agency's invasion of the privacy of high-school students. The justices validated an Oregon school district's policy of mandatory, random drug tests for students who want to play team sports.
Until now, such governmental invasion of bodily privacy has been allowed only where there was cause to suspect drug use, or for specific occupations where public safety was involved.
The validation of the Oregon policy, on a 6-3 vote, was bad enough. Even worse was the overreach of five of the six justices who, though it was not necessary to decide the case, indicated that it's OK to test not only high-school athletes at random but all high-school students. There is a difference between private employers and the government demanding such tests.
There's also a difference between desirable results (maintaining official neutrality toward religions, ending the worst excesses of race-conscious policymaking, reducing drug use among teen-agers), and a set of rulings mandating unnecessarily intrusive interventions for seeking the results. Some of these justices are opining as if they wear jackboots under their gowns.
by CNB