The Bush administration filed a brief on behalf of the Providence School Committee asking the Court to hear the case. In urging the Court to accept the case, the Bush administration's solicitor general, Kenneth W. Starr, argued that government should be permitted to sponsor ceremonies that reflect "the heritage of a deeply religious people."
The committee and the Bush administration are attempting to convince the Court to overturn the traditional Lemon v. Kurtzman (1971) three-prong standard of review of whether a governmental practice violates the establishment are attempting to convince the Court to overturn the traditional Lemon v. Kurtzman (1971) three-prong standard of review of whether a governmental practice violates the establishment clause and replace it with a different framework of analysis which would focus on "whether anyone who does not choose to participate in the practice would feel coerced."
Justice O'Connor believes that the Lemon test should be replaced with an endorsement test "under which Government may not endorse religion in a way that sends a message to nonadherents that they are not full members of the political community." Justice Kennedy's dissenting opinion in the County of Allegheny v. A.C.L.U. (which declared unconstitutional the display of a nativity scene in a Pittsburgh courthouse) stated that the majority opinion reflected "an unjustified hostility toward religion" and that "substantial revision of our Establish ment Clause doctrine may be in order." In his dissent, Justice Kennedy was joined by Chief Justice Rehnquist, Justice Scalia and Justice White. The five members who constituted the majority were Justices Blackmun Marshall, Stevens, O'Connor and Brennan. Justice Brennan retired last summer.
Justice David Souter has since filled the vacant slot on the Court. Justice Souter has yet to vote on a church-state case as an associate justice on the Supreme Court. While serving as New Hampshire's attorney general, Souter defended the state legislature's attempt in 1975 to reinstate "the traditional Lord's Prayer" in the schools. He also defended a 1978 gubernatorial order which required state employees to fly flags at half-staff on Good Friday to "memorialize the death of Christ on the Cross." In both of those cases, federal courts rejected Souter's arguments.
At his confirmation hearing before the Senate Judiciary Committee last September, Justice Souter, then a federal appeals court judge, was asked his view of the Court's approach to church-state issues. His answer indicated his awareness of the debate on th e Court and some sympathy for criticism of Lemon v. Kurtzman. The Court announced it would likely hear the Providence case during the fall and a decision is expected early next year.
Almost thirty years ago, in 1962, the Court outlawed official prayers in public school as a violation of the Establishment Clause. The Court, then dominated by liberals, concluded that the Establishment Clause required a strict separation of church and state. The Court of 1991 is a conservative Court. Chief Justice Rehnquist and other conservatives have long disputed the separation of church and state doctrine. According to Rehnquist, the First Amendment prohibits only the establishment of a national church or mandatory contributions to religion. Otherwise, Rehnquist says, government may encourage and support religion in general. Last summer, in a landmark case, Board of Education v. Mergens, the Court blessed the establishment of Bible clubs in federally funded public schools. Is the Court now ready to open the door to organized prayer in public school by permitting the inclusion of prayers that mention God at high school graduation ceremonies? Stay tuned.