- The Washington Times - Thursday, March 1, 2001

A divided Supreme Court yesterday declared unconstitutional the politically charged 1996 law that barred legal-aid lawyers who get federal funds from challenging welfare-reform laws.

The 5-4 decision came on the same day justices heard arguments regarding a nonsectarian Bible club for young children that met on school grounds, and a case about government limits to a political party's spending on its own candidates.

Yesterday's decision to overturn a Republican-backed act of Congress that curbed spending by the federally funded Legal Services Corp. (LSC), now frees lawyers from restrictions on the kinds of cases they may file for welfare clients or applicants, and ends an outright ban on challenges to the constitutionality of welfare laws.

"We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge," the majority opinion said.

"The [law] prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power. Congress cannot wrest the law from the Constitution which is its source," said the court opinion written by Justice Anthony M. Kennedy, joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

A dissent by Justice Antonin Scalia co-signed by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas attacked the ruling for "improper special solicitude" to the legal profession.

"It also displays, I think, the very fondness for 'reform through the courts' the making of innumerable social judgments through judge-pronounced constitutional imperatives that prompted Congress to restrict publicly funded litigation of this sort," the dissenting opinion said.

The American Civil Liberties Union called the ruling an important victory.

"From the beginning it was apparent that the congressional attack on the legal services program was ideological and punitive," said Steven R. Shapiro, national legal director for the ACLU. "We hope it will encourage a reexamination of the other restrictions… ."

Other rules ban the LSC from political activity or using of federal funds in most criminal cases, for lawsuits involving elective abortion, school desegregation, military desertion or draft laws.

The 1996 welfare law was approved after a major battle to fulfill President Clinton's vow to "end welfare as we know it." During his administration, welfare rolls fell by nearly 60 percent with more than 8 million people cut.

Yesterday's decision could revive challenges to the restrictions that caused many liberals to turn on Mr. Clinton.

The case to recover welfare benefits lost by New York City grandmother Carmen Velazquez was brought by individual legal-aid lawyers and a coalition of nonprofit groups that generally supported Mr. Clinton and the Democrats.

"The LSC and the United States … in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas," Justice Kennedy wrote.

Justice Scalia accused the majority of "a novel and unsupportable interpretation" of the court's First Amendment rulings.

The religion case involves about 20 children, ages 5 to 12, who had parental permission to join the Good News Club at Milford Central School in upstate New York. For more than a year the club was among organizations allowed to use schoolrooms after hours.

Darleen Fournier, the adult leader, said the purpose was to develop moral values through Bible stories, games, Scripture and songs.

School officials ousted the organization on the grounds that its meetings constituted religious worship, which, like political and commercial activity, is banned on school property.

School board attorney Frank W. Miller referred to the gathering as "essentially a religious service."

But Justice Scalia said, "Teaching Scripture, teaching morality, it's a great distortion to call that a worship service, even if you throw in a prayer or two."

Chief Justice Rehnquist pointed out that Boy Scouts and Girl Scouts teach morality.

"What it really excluded was discussion of morality that had a religious perspective," the chief justice said.

"That sounds to me like you've allowed anything but religion. Why doesn't that violate the Constitution?" Justice Breyer demanded.

The Good News Club's attorney, Thomas Marcelle of Delmar, N.Y., said: "Religious worship is essentially a religious viewpoint. If I say 'ha-ha,' I'm allowed in… . If I say 'Hail Mary,' I'm excluded. You can't exclude religious viewpoints even if that viewpoint is expressed in a religious ceremony."

The ACLU called the appeal an "evangelism case" and focused on the usual 3 p.m. meeting time, even though justices said the school board had the right to change those hours.

"An elementary school student is unlikely to perceive any separation at all between church and state when religious instruction takes place in the school building immediately after the final school bell," said Mr. Shapiro.

The second case argued yesterday is an encore in the Colorado Republican Federal Campaign Committee's 14-year battle with the Federal Election Commission (FEC).

The issue before the court this time is whether the FEC can limit the amount of "hard money" the party spends in direct help to a candidate, a dispute stemming from radio ads attacking the voting record of Democrat Tim Wirth when he first ran for the Senate.

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