Remember, Constitution is high court's only `boss'

THE jousters in church and state battles have the rest of the summer to assess their judicial wins and losses and plan strategy for the coming year. The Supreme Court of the United States has spoken clearly, if not with a unified voice. It has said that time set aside in the schools specifically for prayer is unlawful. It has also declared that public aid to parochial schools is unconstitutional.

Further, in a related case, it has stricken a state law that gives priorities to sabbath observances for workers. Only in the area of Christmas religious displays has it nodded to an ``accommodation'' of religion by allowing Nativity scenes on public lands.

What does this mean? Is the court stripping the American government of vital religious and spiritual elements -- central to the lives of so many? Quite the opposite.

These decisions have been made by justices who, probably without exception, have a deep commitment to higher values. The majority have based their rulings on long-honored democratic traditions which protect individual religious observance from being tarnished by secular entanglement.

Do these rulings make it unlawful for youngsters to pray in school? Not at all. The right to free thought, including silent meditation, is paramount. But a prescribed moment for prayer is another matter. First, it debases the sanctity of silent communion. Second, in effect it mandates how and when one should pray.

And what about needy, undereducated children? Should they be denied available public remedial help just because their parents enroll them in private schools?

Of course not. But that help doesn't have to come in the parochial setting. Public education and parochial education have different purposes. The latter serves to perpetuate religious, in most cases denominational, values. These must be cherished and protected -- not infected by government standards or entangled in bureaucratic red tape.

Inevitably, if not sadly, public involvement usually means government control. Americans are constitutionally protected from such intrusion on their precious, private religious affairs.

In the wake of the end-of-session Supreme Court rulings on church and state, those disappointed with results vow to carry the fight through congressional legislation, constitutional amendment, or even reconsideration by a ``new'' court.

Frankly, these issues are generally considered ``hot potatoes'' by lawmakers. School prayer and ``parochiaid'' may garner early committee approval, but a variety of political factors often come into play later to torpedo them.

Undoubtedly, President Reagan will lobby hard during the 1986 congressional campaign, as he has in the past, to accommodate fundamentalists and others who want to give these issues legal status. But his midterm political clout might not be what it was when he was seeking office for himself.

Many ``put religion back in public life'' advocates believe their best chance for success in restoring prayer to the classroom, obtaining public funding for religious schools, and perhaps outlawing abortion (another key plank of the so-called religious right) is through new appointees to the US Supreme Court.

Right now, these forces would settle for one more advocate of their cause to replace one of the five justices who voted against these issues. All of the latter are of retirement age, most well past it.

Get a justice who would be committed to voting the ``right'' way, insists Jerry Falwell of the Moral Majority and some others. What's wrong with that?

Plenty! A cornerstone of a free society is an independent judiciary. There have been various attempts through the years, and of late, within Congress and without, to apply a political ``litmus'' test to prospective judges and justices. So far, these efforts have failed. And well they should.

Whether the thrust comes from the left or the right, from school prayer advocates or opponents, from abortion backers or right-to-lifers, it should be repelled.

In terms of a Supreme Court nomination to fill a vacancy, Ronald Reagan or any other President must resist an issue-oriented appointment. Justices are tapped for an indefinite period. Their overriding responsibility is to uphold the Constitution, not respond to contemporary political pressures.

Obviously, a White House occupant will be drawn to someone of his own ideological leaning. That's fine. But those who would require a predetermined position on specific issues -- regardless of the ramifications of the cases involved -- must realize that this would be tampering with the system of justice.

Retired Associate Justice Potter Stewart of the Supreme Court -- a moderate-to-conservative Republican whose voting record on the high court often confounded those looking for an ideological strain -- insisted he had but one ``boss'': the US Constitution. He perpetually scrutinized the nation's highest law -- and then voted his conscience.

What more can we ask for?

A Thursday column