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Index of Issues:
  • ABORTION
  • RELIGIOUS DISPLAYS ON PUBLIC GROUNDS
  • GAY RIGHTS & GAY MARRIAGE
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    Within minutes of Justice Sandra Day O'Connor's announcement that she will retire, religious activists were rallying for battle. "We've been preparing for this for over a year. We've stockpiled our weapons," said Lanier Swann, director of government relations of the conservative organization Concerned Women for America.

    The court seat that Swann and others thought they would be battling over, however, was that of Chief Justice William Rehnquist. Rehnquist, a solid conservative, would be replaced by another trusted conservative, and the Court's balance would be maintained. And while that retirement would have ignited a ferocious battle, O'Connor's ratchets it to Def-con 4.

    Why? Because O'Connor is considered a centrist, casting the deciding vote in cases that riled conservative activists--including this week's decision outlawing the display of the Ten Commandments. She also cast important votes in cases involving abortion rights and religion in public schools, where she sided with the majority in barring clergy-led prayer at public high school graduations.

    That tendency led liberals like the Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State, to praise O'Connor. "I give her enormous credit for being a moderate conservative," he said Friday.

    But her swing vote also swung the other way at times--for instance, when she was the deciding factor in the Court's decision to allow government funding for school vouchers.

    Some constitutional experts, however, don't expect much to change with her retirement.

    "She was a reliable, consistent states-rights conservative," said Richard Garnett, a professor at Notre Dame Law School.

    For months, the catch-phrase of choice among religious conservatives concerned about the direction of the Supreme Court has been "judicial activism." In their view, the court has overstepped its boundaries, choosing to set progressive social policy rather than respect the Constitution or traditional religious values. Liberals, meanwhile, praised O'Connor and called on Bush to nominate a similarly centrist justice.

    Abortion

    Overview: Still the granddaddy of culture-war issues, O'Connor cast the swing vote in Stenberg v. Carhart, a 2000 case striking down Nebraska's ban on partial-birth abortions. In other cases, she consistently voted to uphold Roe v. Wade while accepting limitations on its scope.

    What's At Stake: Conservatives would love to continue chipping away at Roe v. Wade and eventually overturn it. In an email to supporters, former presidential candidate Gary Bauer implicitly took aim at O'Connor's stance in writing: "The public is increasingly disturbed by a Supreme Court. that finds partial-birth abortion to be a cherished right."

    Liberals want to prevent that and fear they are losing the battle to preserve abortion rights. Their attitude is summed up in a Ms. Magazine headline about the coming Supreme Court battle: "Hanging by a thread." In a statement, the Religious Coalition for Reproductive Rights acknowledged the challenges they'll face: "We urge the nation's leaders to avoid a confrontation over this deeply private issue and refuse to have a litmus test on abortion or any other single issue. We simply ask that the next Supreme Court justice be a person who will uphold our fundamental Constitutional rights and is distinguished by a record of fairness and integrity, respect for both legal traditions and contemporary needs, and the ability to weigh competing considerations."

    Analysis: Even conservatives like Cizik admit that O'Connor's retirement will not tip the balance on Roe v. Wade. But with a case about parental notification of abortion set to be argued before the Court in its next term, O'Connor's absence could be felt immediately.

    Religious Displays on Public Grounds

    Overview: Just this week, the Court issued two decisions regarding public displays of the Ten Commandments, allowing Ten Commandments monuments outside the Texas state Capitol while forbidding them inside Kentucky courthouses. In both cases, O'Connor voted with the liberal justices against the public displays.

    In Garnett's view, this issue may be O'Connor's greatest legacy because she introduced the "reasonable observer" test: What message does a public display send to the reasonable observer? If that message is one of government endorsement of religion, the display is inappropriate; if it's seen as a personal or private display of religion that happens to be on public grounds, it is OK.
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