Brennan: An unparalleled religious liberty champion

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WASHINGTON — Former Supreme Court Justice William Brennan will long be remembered as a towering figure of American law and a champion of individual rights who dramatically influenced American life.

Less well-known is that he is the only justice ever to wear a camouflage yarmulke in chambers.

It was 1986. The high court, ruling in an important religious liberty case, had just held that the military — in accordance with its dress code — could bar an Orthodox Jew from wearing a yarmulke while performing his duties in the Air Force.

Brennan wrote a characteristically eloquent dissenting opinion. Shortly thereafter, Congress adopted legislation effectively overturning the court's decision.

Lawmakers who worked for the bill's passage sent Brennan a thank-you note with a camouflage yarmulke used in efforts to enact the measure.

Brennan, as Washington lawyer Nathan Lewin tells it, happily put the yarmulke on his head and promptly forgot about it.

His clerks and secretaries were too timid to say anything, and it wasn't until he arrived home that his wife asked him what that thing was on his head.

"It was very comfortable," Brennan later recalled to Lewin.

Brennan, who died last week at the age of 91, had a unique kinship with the Jewish community.

During his 34-year court tenure, which ended in 1990 and spanned eight administrations, Brennan was the architect of pivotal rulings that strengthened both religious freedom and the principle of church-state separation, enhanced free-speech and free-press protections, and expanded the rights of women and minorities.

Throughout his years on the courts presided over by Chief Justices Earl Warren and Warren Burger, he was also a supporter of abortion rights and of expanding the rights of individuals often forgotten by society — prison inmates, welfare recipients and the mentally disabled.

Rabbi David Saperstein, the director of the Religious Action Center of Reform Judaism, who also teaches church-state law at Georgetown University, said Brennan's vision of liberty and justice "shaped a new order in America that provided Jews and others with more rights, freedoms and opportunities than they have ever known in diaspora life."

His views on church-state separation were reflected in a 1976 opinion, in which he wrote: "The discrete interests of government and religion are mutually best served when each avoids too close a proximity to the other."

During the 1960s, Brennan played major roles in Supreme Court decisions that banned officially sponsored prayers and Bible readings from public schools.

"He was part of majorities that built up a very strong wall of separation that the court has just been chipping away at since he left," said Steve Freeman, director of legal affairs for the Anti-Defamation League.

Brennan argued with equal force for religious liberty.

"In terms of the free exercise of religion, he was the strongest advocate on the court," said Lewin, who has argued numerous religion cases before the high court and served as a court clerk during the 1960s.

In one of the most important rulings this century for the free exercise of religion, Brennan wrote the majority opinion in 1963's Sherbert vs. Verner, stating that only a compelling state interest could justify limitations on religious liberty.

The decision remained intact until 1990, when the court ruled that laws neutral toward religion were valid — even if they infringe on some people's religious beliefs.

That ruling prompted Congress in 1993 to enact the Religious Freedom Restoration Act, which made it harder for government to interfere with religion.

In June a divided court struck down the law as unconstitutional.

Brennan was particularly eloquent in his defense of religious freedom. In his dissent in Goldman vs. Weinberger, the yarmulke case, he wrote:

"Through our Bill of Rights, we pledged ourselves to attain a level of human freedom and dignity that had no parallel in history. Our constitutional commitment to religious freedom and acceptance of religious pluralism is one of our greatest achievements in that noble endeavor.

"Almost 200 years after the First Amendment was drafted, tolerance and respect for all religions still set us apart from most other countries and draws to our shores refugees from religious persecution from around the world."

Some of his opinions on religious matters split the Jewish community. Brennan wrote the majority opinion in Aguilar vs. Felton, a 1985 ruling that banned public school teachers from offering remedial instruction at religiously affiliated schools.

Orthodox Jews criticized the decision, but others including the American Jewish Congress lauded it.

The Supreme Court overturned that decision in June, saying the practice does not damage the church-state wall.