In safe hands

Anyone who paid attention to the late William H. Rehnquist's dissent in Wallace v. Jaffree in 1985 would have known which way the judicial winds would eventually blow through the U.S. Supreme Court on issues of religious freedom.

In Wallace, the Burger court struck down 6-3 as unconstitutional an Alabama law requiring that each school day begin with a moment of "silent meditation or voluntary prayer." The Alabama legislature had added the latter three words to existing law.

The Burger majority said the added words were inserted for "a religious purpose," impermissible under guidelines the court had laid down earlier in Lemon v. Kurtzman.

In his lengthy dissent-in effect a detailed history of the evolution of church-and-state law, Mr. Rehnquist, then still an associate justice (appointed by President Nixon and confirmed in 1972), said: "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history."

He went on to demonstrate how earlier landmark interpretations by the court of the so-called Establishment Clause had veered from the intent of the Constitution's framers. James Madison and other writers of the founding documents proposed that no individual's rights "shall be abridged on account of religious belief or worship, nor shall any national religion be established." That is what they meant regarding the prohibition against the establishment of a religion, not that the government should be totally neutral in matters involving religion, he argued.

Fourteen years after the Constitution was adopted, he noted, Thomas Jefferson wrote a letter to Baptists in Connecticut concerned about religious liberty. The letter said the prohibition against establishment was intended to erect "a wall of separation between church and state." That phrase is not in the Constitution but has gained equivalent meaning in many court cases over the years, including important high court rulings from 1947 on.

History shows "a far different picture of [the Establishment Clause] than the highly simplified 'wall of separation between church and state,'" Justice Rehnquist asserted.

With his appointment as Chief Justice by Ronald Reagan in 1986, and with new allies on the bench, the court slowly turned and looked more favorably on his judicial philosophy in many, but not all, religion-related cases.

Fittingly, his final opinion, in June, upheld a Ten Commandments display in Texas. Mr. Rehnquist died Sept. 3 at age 80 of thyroid cancer at his home, after serving on the high court for 33 years.

Mr. Rehnquist was born Oct. 1, 1924, in Wisconsin to Swedish immigrant parents with Lutheran roots. Following Army service in World War II, he earned master's degrees from both Stanford and Harvard, and a law degree from Stanford in 1952 (where he was top of his class and briefly dated the future first female Supreme Court justice, Sandra Day O'Connor). He worked 13 years in private law practice in Phoenix, Ariz., where he and his wife were active in Lutheran volunteer work. He served as a U.S. assistant attorney general in Washington for two years before being named to the high court. His wife died of cancer in 1991. He later moved from Bethesda, Md., to Virginia, where he was a member of Lutheran Church of the Redeemer in McLean.

In his first decade on the court, he often was the lone dissenter. He and colleague Byron White dissented in the 1973 Roe v. Wade case, which legalized abortion with virtually no restrictions. In 1992, the Rehnquist court fell just one vote short of having that decision overruled.

Despite differences, he commanded the respect of the other justices for his low-key but efficient leadership, his high intelligence, impartiality, patience, and wry humor. Perhaps the greatest strains in relationships came during the 1999 Clinton impeachment trial and the Bush-Gore 2000 election uproar, both major constitutional crises.

Mr. Rehnquist had little to do in presiding over the five-week-long trial in which the Senate tried and acquitted President Clinton on charges of perjury and obstruction of justice. "I did nothing in particular and I did it very well," Mr. Rehnquist later told TV interviewer Charlie Rose.

In the 2000 election, then-Gov. George W. Bush won Florida and its critical 25 electoral votes by a margin of 2,000 votes. A recount shaved it to 327; Sen. Al Gore was confident another recount would find him victorious. Following weeks of sensational legal wrangling, the Florida Supreme Court decided to allow another recount. The next day, Dec. 9, Chief Justice Rehnquist and Justices Scalia, O'Connor, Kennedy, and Thomas voted to issue a stay, halting the recount. Their majority ruling on Dec. 12 held that a lack of uniform county standards for tabulating ballots meant another recount would violate the Constitution's guarantee of equal protection, and it was too late to fix the problem. The election was over, but not the controversy.

In a concurring opinion, Mr. Rehnquist and Justices Scalia and Thomas also contended the Florida high court had usurped the state legislature's constitutional authority to determine the rules for conducting elections.

The Rehnquist legacy will be known for its opinions favoring a strict interpretation of constitutional standards, less federal intrusion in state government, and greater flexibility in matters of religion.

Said Kevin Hasson, head of the conservative Becket Fund for Religious Liberty: "Farewell to a man of principle. The Beckett Fund sometimes disagreed with him about what the Constitution meant, but we never doubted it was in safe hands."

Cleanup project

For all the positive aspects of Chief Justice William Rehnquist's legacy, some religious liberty advocates point to a drawback: He cleaned up the First Amendment's Free Exercise Clause.

This is a drawback, says Kevin Hasson of the Becket Fund for Religious Liberty, because the Free Exercise Clause is "a constitutional provision that is designed to be untidy."

The late jurist often did not see it that way, and religious freedom advocates will be watching for fewer housekeeping habits from Chief Justice-designate John Roberts.

As both an associate justice and then as chief justice, said Mr. Hasson, "Rehnquist always wanted to read the Free Exercise Clause narrowly." The result was that he often sided with the government against religious minorities. A couple of prominent examples:

Both cases involved small religious minorities whose beliefs and practices were disdained by the majority. Neither case may seem revolutionary, but advocates of religious liberty say their consequences could be large. For example, before Smith, argues Mr. Hasson, it would have been both unconstitutional and dumb for a dry county to outlaw the serving of communion wine to minors. "Now it would just be dumb," he said.

The common thread in these and many other cases was Mr. Rehnquist's belief that the Free Exercise Clause merely prevented the government from singling out a particular religion for attack. But if a routine function of government-unemployment compensation rules in Indiana, drug laws in Oregon-collided with a citizen's religious conscience, then conscience would lose. This may make society seem tidier, but when it came to the free exercise of religion, the Constitution's framers thought a bit of a mess was in order. -Timothy Lamer