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High Court Rejects 'Moment of Silence' Appeal

December 02, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — In another setback for those trying to bring prayer back to the public schools, the Supreme Court Tuesday rejected an attempt by New Jersey legislators to require a "moment of silence" at the beginning of each school day.

The justices ruled unanimously that the two legislators who once headed the state Assembly and Senate had no legal standing to bring an appeal to the high court.

Officials Accepted Defeat

Two lower courts had earlier rejected the "moment of silence" law because it injected religion into public education. Other top state officials, including the governor, attorney general and current legislative leaders, had acquiesced in the defeat.

Left unanswered by Tuesday's decision is the question of whether any such state law will pass muster if it suggests--but does not explicitly say--that students may pray in school. In 1985, the court threw out an Alabama statute providing a daily period for "voluntary prayer" because the justices concluded that it was clearly religious in its intent. However, five justices, including the now-retired Lewis F. Powell Jr., said that they would support a similar law without the religious overtones.

Also left unclear is why the Supreme Court agreed to hear this case at all. Because current state leaders refused to file an appeal, most legal experts said that the justices could not rule on the case. Nevertheless, after letting the case sit on its docket for nearly a year, the justices announced in January that they would review the lower court ruling and hear arguments on its merits.

Still, the outcome was no surprise even to the lawyers who brought the appeal.

"We thought they would go this way all along," said Washington attorney Carter Phillips, who represented the two legislators in their unsuccessful appeal. But he expressed optimism that the court eventually will uphold such a law.

'Proper Case' Needed

"We think the votes are there. We just need a proper case to bring forward," Phillips said.

Since the Supreme Court first struck down public school prayer in 1962, it has consistently rejected state efforts to mix religion with public education, whether through prayer or through instruction in subjects such as "creationism."

The New Jersey legislators tried to avoid constitutional problems by avoiding any mention of God, religion or prayer. The 1982 measure said that schools must "observe a one-minute period of silence to be used solely at the discretion of the individual student . . . for quiet and private contemplation or introspection."

Before the law could take effect, several parents and the American Civil Liberties Union filed suit, and a federal court struck down the law. In 1985, Assembly Speaker Alan J. Karcher and Senate President Carmen Orechio, as leaders of the Legislature, challenged this decision in a federal appeals court in Philadelphia. However, in a 2-1 ruling, the appeals court upheld the judgment, concluding that the law appeared to have no purpose other than to encourage prayer.

Soon after, both Karcher and Orechio lost their leadership posts. The new Legislature refused to pursue a high court appeal, but the two legislators did so on their own.

Because the two legislators no longer can represent the Assembly and Senate, "they lack authority to pursue this appeal on behalf of the legislature," Justice Sandra Day O'Connor wrote for the court (Karcher vs. May, 85-1551).

In other rulings Tuesday, the court:

--Dealt a setback to environmentalists by ruling that citizens may sue polluters only for "ongoing violations" of the Clean Water Act, not past violations. Suits by citizens are viewed as a vital enforcement tool during an era when governments are not aggressively enforcing environmental laws.

Meat Processor Sued

From 1981 to 1984, Gwaltney of Smithfield, a Virginia meat processor, had dumped pollutants into a tributary of the James River in repeated violations of federal law. But, when the Chesapeake Bay Foundation filed suit in June, 1984, the company said that it had stopped polluting the month before. Two lower courts concluded that the company's repeated dumping meant it was "in violation of" the law, but the high court disagreed. In writing for a unanimous court, Justice Thurgood Marshall said the suit must show that the violations are continuing (Gwaltney vs. Chesapeake Bay Foundation, 86-473).

--Ruled that federal courts have no authority to overturn an arbitrator's decision in a dispute between a company and a union employee. A paper company worker who operated dangerous equipment was found smoking marijuana in the company parking lot and was fired. But an arbitrator appointed to settle union-management disputes said that he should be reinstated. The company took the case to a federal court, which ruled that the worker may be fired for his violation of drug policies. However, on an 8-0 vote, the justices said that the company must abide by the decision of the arbitrator (United Paperworkers vs. Misco, 86-651).

Supreme Court nominee Anthony Kennedy denies discussing legal issues with the White House before his nomination. Page 20.

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