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Supreme Court Watch

June 28, 2000 at 12:00 AM EDT

MARGARET WARNER: For an explanation of the Court’s reasoning in those two abortion decisions and its rulings in two other closely watched cases involving the Boy Scouts and federal aid to parochial schools, we turn to NewsHour regular Jan Crawford Greenburg, national legal correspondent for the Chicago Tribune. All right. We’ve just heard two partisans argue about this case. Justice Breyer wrote the majority opinion. On what basis, let’s take first the Nebraska case, on what basis did he find this anti-partial birth abortion law unconstitutional?

JAN CRAWFORD GREENBURG: First of all, he said it was just too broad, that it constituted an undue burden. We heard that language earlier, an undue burden on a woman’s right to choose to have an abortion because the law swept too broadly and it really encompassed other forms, other more common forms of abortion. As a result there’s that undue burden. Secondly, he said there’s no exception for a doctor to perform it if the mother’s health is at stake. For those two reasons, standing on their own, he said the law was unconstitutional.

MARGARET WARNER: Now, when this case was argued, many observers were wondering whether the court would go so far as to say, “look, a state cannot prohibit one method. That’s between a woman and her doctor.” Did the Court go this far or did they leave the door open to a more tightly worded ban on a specific procedure?

JAN CRAWFORD GREENBURG: Well, I think if you look at Justice O’Connor’s concurring opinion, there is some room there because she emphasizes that if the statutes had been more precisely written to use the medical terminology for this type of abortion and if they did include that exception for the mother’s health, then she might find them constitutional. She pointed to three state laws that, for example, were more precisely drawn.

MARGARET WARNER: Now, all four dissenters, each one wrote his own opinion, but the big surprise was Justice Kennedy who in the landmark case, the Casey case in ’92, had supported the woman’s right to have an abortion. What was his reasoning in dissenting here?

JAN CRAWFORD GREENBURG: Well, he’s not saying that he doesn’t support a woman’s right to abortion. In fact, you could say today that O’Connor was the big surprise today. Kennedy’s point was Casey, that 1992 case that kind of upheld the idea of Roe, that it was misapplied today, that this case, as he understood it, did not constitutes an undue burden, that there were other forms of safe abortions that are available to women. He was especially critical of O’Connor, his fellow moderate, who I think, you know, he thought had certainly walked away and really gone the wrong way on this. Now, the other three dissenting justices more openly attacked Roe. They said Roe versus Wade was wrongly decided. That should be up to the states to decide whether or not a woman has a right to an abortion and the federal judiciary has no place getting involved.

MARGARET WARNER: Now, the Colorado protesters’ case, again we just heard two people argue about it. But this was Justice Stevens, wasn’t it?


MARGARET WARNER: Justice Stevens. What was his legal reasoning in saying this wasn’t a free speech case?

JAN CRAWFORD GREENBURG: Well, he acknowledged that both sides had an important interest, that the protesters certainly have their First Amendment rights to protest and speak freely but then he said, you know, the state has these incredibly important interests as well. For example, to protect vulnerable people as they’re seeking medical treatment, going in to these clinics. So, looking at the Colorado law that was at issue today, Justice Stevens concluded that it didn’t target a specific type of speech and that the state had a legitimate interest for passing it.

MARGARET WARNER: Okay. Let’s turn now to the Boy Scout case. I’ll just quickly recap. This case was brought by an assistant scoutmaster in New Jersey who was ousted from the scouts when they found out through a newspaper article that he was gay and the New Jersey Supreme Court had said that violated New Jersey’s anti-discrimination law.


MARGARET WARNER: Justice Rehnquist wrote the majority here. On what basis did he side with the Scouts?

JAN CRAWFORD GREENBURG: Well, he said the Boy Scouts didn’t have to comply with that law. He pointed to their First Amendment rights of free speech and free association. He said the Boy Scouts engaged in this kind of express I have activity. Part of their message is to instill moral values in young boys. And the Boy Scouts said that part of that moral values is teaching that they oppose homosexuality. As the Chief Justice wrote today, if the Boy Scouts were forced to accept Mr. Dale as a troop leader, they would have to change their message and the message that they were trying to convey. And that violated the organization’s rights to associate with whomever they may want and to choose their own leaders in violation of the First Amendment.

MARGARET WARNER: How did Rehnquist square that with earlier Supreme Court decisions that have thrown out that kind of argument, for instance, all male clubs who wanted to exclude women and said, hey, being an all male club is who we are and what we are?

JAN CRAWFORD GREENBURG: Mr. Dale relied on those cases and stressed that the Court had rejected those arguments saying that the Rotarys and the Jaycees had to admit women. The Court said that’s different. Those cases, those clubs weren’t organized, it wasn’t part of their message to discriminate against women or to oppose women, whereas here today, the Boy Scouts had an argument that their message was that homosexuality is wrong, that it’s not morally straight and forcing them to accept Mr. Dale as a leader, unlike the Rotarys and Jaycees, would make them change their message.

MARGARET WARNER: Is the court putting homosexuality in a different category than either race or gender when it comes to being able to have the protection of civil rights laws?

JAN CRAWFORD GREENBURG: I don’t know that this decision goes that far. You could say that it was limited to gays and limited– some I think would argue limited to Boy Scouts. But it’s interesting. That’s an interesting point because in dissent Justice Stevens says that really the only way he could see to explain what the majority decided was that they think homosexuals are just so different than the rest of society because he didn’t believe that the boy scouts had really ever made opposing homosexuals a big part of their message. They never really openly talked about homosexuality to troops. So he just didn’t buy that argument at all.

MARGARET WARNER: Does this decision… Well, did the Court address whether the Boy Scouts could also oust a boy who was discovered to be gay?

JAN CRAWFORD GREENBURG: This case focused more on the troop leaders themselves. That was really at issue. Certainly it’s on the table and how other troops will react and whether or not another thing that came up during argument was whether or not schools that support Boy Scouts would continue to do so. That’s all still on the table.

MARGARET WARNER: All right. The last ruling we’re going to look at tonight, 6-3 ruling upholding this federal law that for years has let or required public school districts who get money for special audio-visual materials and textbooks to also share that with private schools in their district. And for years it seemed to work, but the appeals court in Louisiana had thrown it out when computers got involved. Why? What was the distinction there?

JAN CRAWFORD GREENBURG: Well, because they looked at some of the earlier rulings by the Supreme Court, and in fact, in that appeals court decision before they announced what they were doing, they said they were walking into the vast desert of the Court’s rulings in this area because they’re all over the place, very confused. But today the Court said that program was constitutional and it specifically overruled two of those cases that the lower court had looked to. Those two cases prohibited instructional materials to go be shared with religious schools and also prohibited state school buses, government school buses being used for field trips. The thinking was those could be diverted maybe to some religious uses.

MARGARET WARNER: Wasn’t that the reasoning here, that computers also, that once the kids are the Internet, they could be directed to religious sites?

JAN CRAWFORD GREENBURG: Those were the cases that were most closely on point, but the Court rejected that rationale today, that kind of diversion issue today, and shows that technology maybe has kind of outpaced some of these rulings, but they gave different reasons why they thought this program was, in fact, constitutional. Justice Thomas, in a very strong, sweeping opinion, joined by three other Justices, wrote a plurality opinion suggesting that we should look at all these programs simply on whether or not they’re neutrally administered, a green light for vouchers. But he didn’t get a majority. There was another opinion by Justice O’Connor joined by Justice Breyer that upheld the program on a more limited basis and focused more exclusively on the fact that they were rejecting that old thinking.

MARGARET WARNER: And Justice Souter wrote the dissent, and his main argument?

JAN CRAWFORD GREENBURG: Justice Souter has been long opposed to this kind of effort to expand to go into this neutrality area. He very much took that square on and said, “that’s the wrong way to look at the Constitution. The framers require a much higher wall separating the church and the state.”

MARGARET WARNER: All right. Jan, thank you very much.