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It was a day for the justices to speak their minds, not just to recite their decisions. For an extraordinary 50 minutes on Wednesday, the members of the Supreme Court took turns venting from the bench before a startled public audience. Justice Clarence Thomas grimly described the “horrifying” partial-birth abortion procedure that the majority had just permitted in Stenberg v. Carhart. Thomas’ voice softened slightly as he announced the decision in Mitchell v. Helms, upholding a federal program that loans equipment to parochial schools. Then Justice Antonin Scalia angrily attacked the majority’s “utterly bizarre” embrace of a law restricting abortion protests in Hill v. Colorado. Then Justice Anthony Kennedy weighed in, calling the decision “profoundly disappointing” to First Amendment advocates. And finally Chief Justice William Rehnquist matter-of-factly dashed the hopes of gay rights groups seeking to crack the Boys Scouts’ exclusion of gays in Boy Scouts of America v. Dale. Rehnquist then offered his traditional end-of-term thanks to the Supreme Court staff and nodded to Marshal Dale Bosley, who gaveled the court to a noisy close until Oct. 2. Minutes later, word came from the Court that the justices had denied the final efforts of Elian Gonzalez’s Miami family to keep the boy from returning to Cuba. It was a dramatic end to a landmark term. Justices usually summarize their decisions in a brief and perfunctory way, rarely reading from dissents. But the strong emotions running through all four of the decisions Wednesday led justices to stage what seemed at times like a point-counterpoint panel discussion on hot-button issues of the day, from abortion to homosexuality to church-state separation. Three justices read from their dissents, surely a modern-day record. As each justice spoke, lawyers for one side or another appeared either crestfallen or elated. On most decision days, no one knows which ruling will be handed down. But on Wednesday, the final day of the term, the process of elimination made the agenda clear, drawing an unusually wide array of lawyers to the Court to hear their cases get decided. “When we were all growing up, this was what we imagined the Supreme Court was like — issuing decisions in timeless constitutional cases and the justices on both sides reading aloud with great fire, conviction, and even raw anger,” said Tom Goldstein a Washington, D.C., Supreme Court lawyer who watches the Court closely. After the drama of the session came the weighty part: sorting out the meaning of the Court’s four decisions, which comprised 18 separate writings by justices spanning 385 pages. By day’s end, it was clear that the justices had significantly rearranged the constitutional landscape in several areas. ABORTION In Stenberg v. Carhart, Justice Stephen Breyer wrote for the majority that Nebraska’s broad ban on the so-called partial-birth abortion procedure posed an “undue burden” on a woman’s right to have an abortion and was unconstitutional. Because the law could also be read to outlaw other types of pre-viability abortion procedures, the majority said that “all those who perform abortion procedures using that method must fear prosecution, conviction and imprisonment.” Breyer also said the law was constitutionally flawed because it makes no exception from the ban to protect the health of women. Joined by Justices John Paul Stevens, Sandra Day O’Connor, David Souter, and Ruth Bader Ginsburg, the majority embraced the 1992 Planned Parenthood v. Casey precedent that saved Roe v. Wade from being overturned. But one of the architects of the Casey decision — Anthony Kennedy — defected on Wednesday, determining that Nebraska’s partial birth abortion ban was constitutional. Kennedy accused the majority of a “basic misunderstanding” of Casey that gives states too little deference in fashioning abortion regulations. “Substantial evidence supports Nebraska’s conclusion that its law denies no woman a safe abortion,” Kennedy wrote. Kennedy’s switch will heighten the importance of the presidential election for those who support abortion rights, said Harvard Law School Professor Laurence Tribe. “In light of Stenberg, we now know that a shift of only one vote would alter the balance on abortion rights in a dramatic way.” Added Janet Benshoof, president of the Center for Reproductive Law and Policy: “The Supreme Court exposed the deception behind these bans. But today’s 5-4 decision also demonstrates that the right to choose is a fragile one.” Thomas’ dissent attacks the Court for ignoring the views of 30 state legislatures and Congress, which have all passed similar bans. “The Court inexplicably holds that the states cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide,” Thomas wrote. Joseph Scheidler of the Pro-Life Action League angrily denounced the Court. “If Americans have no respect for the Supreme Court, the Court has only itself to blame,” Scheidler said. “Today’s decision confirms my suspicion that the very concept of a Supreme Court was a mistake from the beginning.” FREE SPEECH Ruling in Hill v. Colorado, the Court gave an unprecedented level of deference to the wishes of listeners — as opposed to the rights of speakers — in evaluating a law aimed at restricting abortion clinic protests. Writing for the majority, Justice John Paul Stevens said the First Amendment is not violated by a Colorado law that bars people from counseling or distributing leaflets near medical facilities within eight feet of people who do not give their consent. Stevens acknowledged that freedom of speech protects unpopular or unwelcome speech. “But the protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it,” Stevens wrote. The majority also relied on basic privacy interests — the right to be let alone, as Louis Brandeis put it — in justifying the law. He also said the regulation was content-neutral and viewpoint-neutral. “The statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists and missionaries,” said Stevens. Dissenters argued that the decision is a radical departure from the Court’s First Amendment traditions. Kennedy called the ruling “an unprecedented departure from this Court’s teachings respecting unpopular speech in public areas.” Scalia bitterly noted that the Supreme Court upheld the Colorado law on the same day it struck down the Nebraska partial-birth abortion law — thereby immunizing abortion advocates and practitioners to an unprecedented degree. “If protecting people from unwelcome communications … is a compelling state interest, the First Amendment is a dead letter,” said Scalia. Noting that the majority said the law was “narrowly tailored” to achieve the state interest, Scalia added sarcastically, “narrow tailoring must refer not to the standards of Versace but to those of Omar the tentmaker.” Thomas joined the Scalia opinion. BOY SCOUTS By a 5-4 vote, the Court ruled that the Boy Scouts of America are within their First Amendment rights to bar homosexuals as troop leaders. The New Jersey Supreme Court, in a case brought by expelled local scout leader James Dale, said the exclusion violated state laws barring discrimination in public accommodations. Rehnquist’s majority opinion found that forcing the Boy Scouts to accept Dale, whose homosexuality became known in a local newspaper article unrelated to the Scouts, “would significantly burden the organization’s right to oppose or disfavor homosexual conduct.” The majority accepted the organization’s assertion that homosexuality runs contrary to its expressive message as an association. “We cannot doubt that the Boy Scouts sincerely holds this view,” Rehnquist wrote. The interest in protecting the Scouts’ associational freedom outweighs the state’s public accommodations law, Rehnquist added. “The state’s interest,” Rehnquist said, “do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association.” Rehnquist was joined in the majority by O’Connor, Scalia, Kennedy, and Thomas. In addition to criticizing the result, civil rights groups on Wednesday expressed concern about the majority’s acceptance of the Boy Scouts’ assertions about its core beliefs. That approach, they said, would invite other organizations to assert bogus First Amendment justifications for excluding minorities — as groups in the 1950s often did to keep blacks out. “The Court has allowed freedom of association to become a tool by which groups unfairly exclude a group of Americans,” said Ralph Neas, president of the People for the American Way Foundation. CHURCH-STATE SEPARATION The Court in Mitchell v. Helms resolved a longstanding dispute over a federal program that allows public schools to loan federally funded school equipment to parochial schools. A group of parents challenged the law in 1985, prompting a conflicting series of decisions in lower courts. But by 6-3, the Court said the program does not violate the establishment clause of the First Amendment. In ruling this way, the Court struck down parts of two decisions — Meek v. Pittenger from 1975 and Wolman v. Walter from 1977 — which had struck down similar parochial school aid programs as impermissible government aid to religion. Acknowledging that the Court had already moved away from those precedents in recent years, Thomas made the new doctrine official: “Nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs,” Thomas wrote. “This doctrine, born of bigotry, should be buried now.” Rehnquist, Scalia, and Kennedy joined Thomas, and O’Connor wrote a separate concurrence that was joined by Breyer. O’Connor emphasized that under the equipment loan program, no federal funds “ever reach the coffers of religious schools.” Because Thomas’s opinion did not command a majority and because O’Connor stressed that government funds do not go directly to the parochial schools, the impact of the decision on school voucher programs is unclear. “The decision gives no aid or comfort to voucher supporters,” said Barry Lynn, executive director of Americans United for Separation of Church and State. “It deals exclusively with materials on loan, not direct cash subsidies for religious education.” But the Institute for Justice, which has given legal support to pro-voucher groups, said the decision was encouraging. “With school choice, funds are transmitted to parents who then choose to use them at religious or nonreligious schools,” said Matthew Berry, staff attorney for the institute. Under the Court’s reasoning, school choice should present an easier issue.”

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