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Holding Court with Joan Biskupic

Holding Court
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Friday, March 10, 2000; 11 a.m. EST

This week "Holding Court" took up religion and the law, in light of the fact that religion has been a lightning rod in the presidential campaign and the Supreme Court is scheduled to take up a school prayer case later this month. The court case, the first of its kind before the justices since 1992, will test whether a Texas school district's policy of student-led prayer at football games violates the constitutional requirement for separation of church and state. Dozens of states, religious organizations, civil liberties advocates and others have entered the case to be argued on March 29.

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

She answers your questions on the Supreme Court and legal affairs on Fridays at 11 a.m. EST. The transcript follows:


Joan Biskupic: Religion and prayer are back in the news. We saw how George W. Bush's visit to Bob Jones University set off a firestorm. The House of Representatives is still ensnarled in a dispute over whether anti-Catholic bias played a role in GOP leaders' decision against a Catholic priest and in favor of a Presbyterian minister for House chaplain. The season's political candidates continually face questions on the stump about prayer in schools. And most importantly, for us, the Supreme Court is about to hear its first big school prayer case since 1992. ... So, we'll take questions about religion and the law today and anything else you want to ask about the law generally.


Grand Rapids, Minn.: Does a person have recourse after being stopped by an officer without probable cause? Many stories are surfacing in the area about overzealous cops stopping cars with bogus reasons. My favorite is, "You swerved in your lane." Most are obvious attempts to fill their coffers with DWI fines. The other cases are harrassment of young and/or poor people, many involving vehicle searches.

Joan Biskupic: Your question is probably tied to the recent weeks' discussions about police stops and searches. The courts have allowed police to stop motorists for any sort of minor traffic infraction, such as not using a turn signal or rolling through a stop sign, and then pursue more serious possible wrongdoing (drug use, possession of weapons or contraband). You mention DWI and lane swerving, but it seems to me that if a cop stopped someone for driving erratically and discovered that the driver had been drinking, that's a good thing.


Arlington, Va.: I realize I kinda missed the boat, but I have a question going back to the Hawaii reparations case a couple weeks ago. Framing the issue as "Only people of Native Hawaiian descent can vote for trustees" raises clear constitutional questions. But, couldn't you as easily say "only people who benefit from the trust can vote for trustees," in which case, what's the big deal? Since none of the dissenting opinions seem to mention this issue, obviously this reasoning is flawed, but I don't understand why. I can see where the trust as a whole might have problems but, if you're going to allow the payments, what's the problem with limiting voting for the trustees to those who benefit?

Joan Biskupic: You're right that the trust as a whole could have problems. The people who challenged the voting requirement have suggested they might take on the trust (which provides social services and other aid only to descendants of the original Islanders) itself. But in terms of the description of those qualified to vote for trustees, the justices didn't parse the words the way you did... I think that's because everyone realized that no matter how the voting group was defined, it included only those of a particular ancestry – and that was unconstitutionally discriminatory.


Arlington, Va.: Traditionally religious freedom cases have been waged by people outside of the mainstream such as the Jehovah's Witnesses with the flag salute cases and non-Christians who took on school prayer. Now it seems to be that the majority religion is striking back in an attempt to get prayer back into the schools by whatever method it can. Does this seem like the trend?

Joan Biskupic: Excellent point. It has been the minorities in society who've been most hurt by religious restrictions and sued for their freedom. In the new case at the court, a school district dominated by Christians (many fundamentalists) wants students to be able to pray at football games. ... But the case actually began when Mormon and Catholic students protested the policy (which covered graduations and other events). The challengers won in lower courts. ... So, I think that what is going on now isn't so different from the past. A majority group is pressing for a religious practice that is important to its own religious ideals... and outsiders are trying to block it.


New York, N.Y.: OK – 1st Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." So we've translated that to mean that government institutions can't respect or highlight one religious practice over another – in theory, we're supposed to be secular. With all of these "strict constructionist" jurists running around, why does no one make an issue of prayer before sessions of Congress, or a national Christmas tree or a Menorah? If we're being strict constructionists, should we even have Christmas as a national holiday? Just curious . . .

Joan Biskupic: You raise a lot of interesting points. Whenever I discuss school prayer someone mentions Congress's practice of opening its sessions with a prayer. ... The court has generally distinguished between the atmosphere in schools (where children can be easily influenced, pressured) and that of legislatures (where adults do business). In 1992, when the Supreme Court narrowly struck down prayer at graduation, it referred to its 1983 ruling condoning a prayer in a state legislature: "The atmosphere at the opening session of a state legislature where adults are free to enter and leave with little comment ... cannot compare with the constraining potential of the one school event most important for the student to attend."


Chicago, Ill.: When the court two weeks ago issued its order in Tarver v. Alabama, a habeas death penalty case, denying the petition for certiorari but stating that four justices had voted to hear the case, the press corps noted the deviation from the court's tradition of hearing cases upon the vote of only four justices. The conclusion of the press corps was that the court was deviating from that tradition only on habeas petitions filed on direct appeal to the court instead of after resolution by a federal appellate court. But isn't it likely, given the very reduced number of petitions that the court has granted this term, that it is quietly requiring a vote of five justices to hear ANY case, irrespective of its nature?

And, if so, isn't this probably simply an accommodation to Rehnquist by the other four conservative justices to enable him to, in effect, semi-retire rather than fully retire, and so hold the seat until a Republican is elected president? Isn't this also the real reason that the court no longer discusses cert petitions in conference before voting on them, also certainly reducing the number of petitions granted?

Joan Biskupic: Wow... such a conspiracy you weave. First, I'm certain that it still takes just four votes to grant a routine petition... not for a special writ of habeas, as was at issue in the Tarver electric-chair case you cite. The four-vote requirement for general petitions is actually part of the court rules and often referred to by individual justices. ... Nonetheless, I think they should have made clear that there's a five-vote requirement on original habeas petitions, rather than keep everyone guessing and generating the kinds of theories you offered. About Rehnquist, an old GOP partisan, I do think he's hoping for a Republican and would hate to let a Democratic president name his successor... but I can't imagine that his colleagues would let him change the rules of how cases are accepted so he can "hold the seat" until a GOP president is elected.


Albuquerque, N.M.: Are there any rulings regarding media coverage of "perp walks" by police? Is it a violation of civil rights or privacy in that the accused is to be charged with a crime and is not yet convicted?

Joan Biskupic: Nope, no constitutional rules, if that's what you're talking about. But some newspapers withhold the names and pics of suspects until they're actually charged with a crime.


Alexandria, Va.: Regarding Christmas as a national holiday. There was a case just recently in Cincinnati about this where the judge ruled that while there were religious aspects to the origin of Christmas, it is now also a secular holiday. This case gained some notoriety because the judge included a preface to her decision that was a take-off on "The Grinch Who Stole Christmas."

Joan Biskupic: I like that. Some of the same themes were struck in a recent Maryland case involving Good Friday. The court said that the holiday has become so much a part of secular American tradition, so much a part of students' spring break, that it didn't constitute an "establishment of religion" for government to make it a public school holiday.


Adams Morgan: This question may be a little off topic, but I was wondering: Do you have to pass a special qualifying bar exam or some other test to argue a case before the Supreme Court?

Joan Biskupic: Nope, you only have to be admitted into the Supreme Court bar.... and any lawyer can apply (and routinely get admitted) after three years of practice in any state or the District.


Silver Spring, Md.: As a member of a religious minority (and there are a significant number of us spread among a number of religions as well as a number of folks who do not hold religious beliefs), I heartily endorse prohibitions of sponsored prayer since the prayers inevitably are directed to a deity I don't believe in. This is a founding principle of this country. No one is stopped from praying silently and privately ever. Does the problem arise from the custom in a number of Christian denominations of saying "Let us pray"?

Joan Biskupic: Thanks for your thoughts. As the court itself has said, there is a big difference between private religious speech and government speech that endorses religion – the latter is unconstitutional.


washingtonpost.com: Can you explain some of the details about the Texas school/football game prayer case that's coming up? What are the issues that make it different from other school prayer cases?

Joan Biskupic: Thanks for the on-point question. This case, to be argued March 29, has drawn lots of attention across the country, particularly from the South, where prayer at athletic events is a strong tradition. A school district in Texas is defending a policy that allows student-initiated prayers before football games. The school district says it's a neutral policy that remains in the hands of the students, unlike the graduation-prayer practice struck down in 1992. In that case from Rhode Island, school officials decided that there would be prayer and who would give it.


New York: I go to a private college in New York and many students need your help. Some people were arrested here the other night on drug charges. The school said the students are now in the custody of the police department and are turning the names in of the people they sold drugs to, brought drugs from or used drugs with. Now the school wants anyone who has used, sold, or bought drugs to come forward, so they can receive protection by the college. My question is, can the police do anything to students just by hearsay? Don't they need physical evidence to prosecute? Some students have also received confirmation that the phone lines are tapped by the police. Is that legal? Could you please help us?

sincerely,
concerned students

Joan Biskupic: Interesting tale, I don't give legal advice. ... But generally, even though you're students at a private college, prosecutors would still need as much evidence (witnesses, drugs and other physical evidence) as they would need for any other suspects to bring a case. Also, police can't wire-tap phones without a court order.


Washington, D.C.: Will you be running any kind of article on the upcoming school prayer case? I would like to know more about it, who is involved, etc. If not you, do you know where I can find out more information?

washingtonpost.com: That's a hot case, and you can certainly find information about it here. Check our Supreme Court Special Report – particularly the March docket page. The case is scheduled for oral argument on March 29; you'll find lower court opinions and 11 amicus briefs on the case (in PDF format).

Joan Biskupic: Yes, we'll provide lots of information on this case over the next couple of weeks. Watch the Web site. Also, watch in June, when we're likely to see a ruling. The case was brought by two mothers and their children, who were objecting to the imposition of various religious practices in the Santa Fe public schools (the district is near Houston). A lower court that heard the case noted that there was prayer at graduation, prayer before every football and baseball game, a dominance of Christian clubs and on-campus distribution of Bibles by the Gideons.


Washington, D.C.: What ever happened to that judge – I think in Alabama – who wanted to display the Ten Commandments in the courtroom? There was a big hubub – I think they even made it an issue in the gubernatorial race – and since then, nothing. Is this an issue that comes up a lot?

Joan Biskupic: That judge continues to be in hot water with financial accusations (related to the legal defense fund he set up) but the latest stories we have seem to indicate that the state supreme court dismissed his case (without ever hearing its merits). ... All sorts of religious issues are popping up this campaign season. This morning when I was checking various news-services I noticed that local political candidates throughout the country are having to answer questions about school prayer.


South Portland, Maine: Is it ethical and/or lawful for attorney(s) to share class action lawsuit earnings with broker consultants? Broker consultant found international plaintiff (a country), and local and multi-state and multi national plaintiffs (migrant workers) and did consultation work throughout the entire case, etc., etc.

Joan Biskupic: This question and several others I'm getting today relate to personal or particularly local legal situations that I know nothing about and definitely wouldn't give legal advice on.... So, here's a reminder to those of you sending in questions to stick to more general legal dilemmas, the Supreme Court.... the law and politics – topics that all the readers today can appreciate. Thanks.


Alexandria, Va.: Last week, the SCT unanimously ruled that states couldn't regulate oil tankers. Setting aside how rare it is that the court can agree on anything, what do you think the impact of this ruling will be on the coordinate efforts of states and the federal government to protect the environment?

Joan Biskupic: Good question. Washington state said afterward that the decision – invalidating some of the regulations it passed in the wake of the Exxon Valdez spill – tied states' hands to protect the Puget Sound environment... But I'm not so sure. The ruling essentially affirmed a 1978 court decision that said that Congress has clearly carved out maritime trade and the regulation of vessels for the feds. Other environmental statutes might be interpreted differently.... Overall, however, this area of the law concerning when Congress has preempted the states is important; today's Congress is generally more conservative than the states (and often gridlocked), and the states increasingly are acting to protect their own environments.


Virginia Beach, Va.: I don't see the issue of "influencing" or "pressuring" children in constrained settings like mandatory public school playing much of a role in this case – we are talking about adults and high school grads at a graduation ceremony. It will be interesting to see how the more strict separationists justify their decision in this upcoming case, because the "what about the children?!" line isn't going to fly.

Joan Biskupic: This new case is focused only on football games. In fact, the justices removed a question about graduation prayer from the case. I think the vote is going to be very close.


Athens, Ohio: Will the Texas school prayer case have much of an impact since it is so limited in scope? Also what is the probability that the court will consider this as a states' rights case?

Joan Biskupic: The ruling is likely to be narrowly written to apply to sports events, if not just football. BUT, however the justices rule will likely open the door to more legal wrangling over prayer in other school contexts, including the classroom itself. This issue seems to be with Americans (and the court) forever. ... I don't think the justices will look at it through the prism of states' rights. When they re-wrote the legal question, they said they would be taking up whether prayer at football games violated the First Amendment's establishment clause.



Joan Biskupic: That's it for today. I know lots of questions are pending, but most of those involve personal cases, which we're not going to air here. Thanks to all who participated. ...... Next week, we'll look at the Clinton bench and the possible appointees of Gore and Bush. One of the most recurring questions here is who the candidates would appoint; now that we're down to two leading contenders, we'll look more deeply at that. .... Also, with yesterday's approval of Clinton nominees Marsha Berzon and Richard Paez, we'll delve into the politics between the White House and Senate over nominations as they now stand.


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