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Senator’s fish sign
may lose legal fight
Constitutional experts discuss
By Mary Adamski
that case, Pele vs. geothermal
power, and military chaplains
Star-Bulletin
Display of a religious symbol on a lawmaker's office door, an issue that arose during the 1999 Legislature, might not survive a constitutional challenge, top constitutional scholars told a University of Hawaii audience.
"A legislator is very free to speak as a private person, he can have a bumper sticker on his car," said Kathleen Sullivan, dean of Stanford Law School. "I would advise a zero tolerance of such expression in a government context."
Sullivan was one of three panelists speaking yesterday at a symposium on recent U.S. Supreme Court decisions concerning religious freedom. About 150 people attended the session, held in conjunction with lectures this week by U.S. Supreme Court Justice Antonin Scalia at the UH's William S. Richardson School of Law.
Questions from the audience reflected local issues including the lawmaker's door display, which the state attorney general's office advised was permissible, and a modern clash between native Hawaiian beliefs about Pele and technology.
If the question of the Christian fish symbol on state Sen. David Matsuura's door had reached the high court, Sullivan said, the test it would apply would be whether a reasonable observer would view it as government endorsement of the religion. "Or would you interpret it as a person taking advantage of the forum the government makes available? There's lots of speech, and religion is just part of it."
University of Southern California law professor Erwin Chemerinsky said, "There's a vast difference between using one symbol and displaying symbols from a variety of religions. When you have symbols of more than one, it does not involve a symbolic endorsement.
"If a legislator has a cross, his constituents who are not Christian will feel 'this is not my legislator.' If there is a prayer at a ceremony, a person not of that belief will feel 'this isn't my ceremony,' " Chemerinsky said.
One question involved a Hawaiian group's court challenge against a geothermal energy project on the Big Island on the grounds that it was an affront to volcano goddess Pele. The Hawaii Supreme Court found the plaintiffs failed to prove harm to Pele or that there was religious significance in the drill site.
"The decision-makers ought to be incredibly sensitive to people who will be spiritually harmed," said Notre Dame University law professor William Kelley.
Chemerinsky agreed that "the more different (a belief) is, the more empathy is necessary."
A military officer asked whether the tradition of military chaplains isn't a violation of the doctrine of separation of church and state.
Chemerinsky said because military personnel don't have freedom to leave their assignments "it would raise a question of free exercise of religion -- unless the military provides chaplains, they can't practice their religion. It's the same as chaplains in prison."
Kelley said it is a tradition accepted because it is not found offensive, but "if we are going to be strict, we ought not spend a dime. The government could facilitate access to clergy who are privately paid. But if we draw a hard line against establishment of religion, the pledge of allegiance must go, the coinage of the country must go."
Earlier, the scholars scrutinized the role of Justice Scalia in recent decisions concerning religion. The conservative justice, who participated in the law school's Jurists in the Classroom program this week, was not present for the symposium, sponsored by the UH Law Review.
"The Constitution must evolve," said Chemerinsky, voicing an opposite view from Scalia's earlier remarks deriding proponents of change as wanting a "morphing Constitution."
"With the technical advances, the value changes, the social needs, we can't be guided in 2000 by 1791," Chemerinsky said. For example, constitutional language about electing the president refers to "he." Would that mean a law must be passed to provide for election of a woman president, he mused.
University of Hawaii
Ka Leo O Hawaii
