In speeches delivered before his nomination to the Supreme Court, Robert H. Bork repeatedly criticized the court's rulings on separation of church and state, declaring that many decisions represent a "rigidly secularist doctrine."
Bork disagrees with the criteria used by the court in deciding a wide range of church-state issues, including decisions that outlawed formal prayer in public schools.
Rebutting the argument that such practices are too divisive, Bork said, "The deliberate and thoroughgoing exclusion of religion is seen as an affront and has itself become the great cause of divisiveness."
Texts of speeches delivered at the University of Chicago in 1984 and at the Brookings Institution in Washington a year later were made available recently by the Senate Judiciary Committee, which is scheduled to begin considering the Bork nomination Sept. 15.
The speeches offer the first clear picture of Bork's views on church-state relations, which have been a large question mark in the debate over his nomination. Bork, who describes himself as a "generic Protestant," is currently a federal appeals court judge in the District of Columbia.
In his speeches, he criticized the three-part test used by the Supreme Court in deciding whether laws violate the First Amendment ban on government "establishment" of religion. The court has ruled that laws must have a secular purpose and the primary effect of neither advancing nor inhibiting religion, and must avoid excessive government entanglement with religion.
"Those tenets are obviously designed to erase all traces of religion in governmental action," Bork said.
He cited what he viewed as evidence that the First Amendment "was not intended to prohibit the nondiscriminatory advancement of religion, so long as religious belief was not made a requirement in any way." Bork criticized the court's 1985 ruling against a New York City program in which public school teachers gave remedial education instruction in private and parochial schools. He said the program, which failed to meet the court's test of "excessive entanglement," was widely praised and caused no one any harm.
"A relaxation of current rigidly secularist doctrine would, in the first place, permit some sensible things to be done," he argued. "I suspect that the greatest perceived change would be in the reintroduction of some religion into public schools and some greater religious symbolism in our public life."
According to Bork, the court's church-state criteria are contradicted by constitutionally permissible practices such as paid chaplains in legislatures. He contended that it is also beyond the ability of courts to determine whether a government action primarily advances or inhibits religion.
And he added that the excessive-entanglement test is "impossible to satisfy. Government is inevitably entangled with religion," he said, citing state supervision of educational standards in church-run schools.
Concluding that the three-part test is "not useful in enforcing the values underlying the establishment clause," Bork asserted that church-state decisions should be based instead on a determination of what the founding fathers intended "with respect to specific practices" when they drafted the First Amendment.
The texts do not spell out Bork's views of what the framers might have intended in cases such as school prayer and aid to church schools. But he did note that under a narrower interpretation, the no-establishment clause "might have been read merely to preclude the recognition of an official church, or to prevent discriminatory aid to one or a few religions."
Bork questioned the court's "expansive interpretation" of the First Amendment's other religion clause, which guarantees "free exercise" of religion. Under this clause, the court has granted Amish parents, for instance, exemptions from compulsory education laws. The Amish say their religious tenets are violated by sending their children to school beyond the eighth grade.