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March 12, 1999/24 Adar 5759, Vol. 51, No. 24
Blackmun recalled as liberal jurist
DANIEL KURTZMAN
Jewish Telegraphic Agency
WASHINGTON - Harry Blackmun may best be remembered for authoring the historic 1973 decision legalizing abortion, but his defense of religious liberties stands as no less important in the minds of many Jews.
The retired Supreme Court justice, who died March 4 at the age of 90 following complications from hip replacement surgery, served 24 years on the high court before stepping down in 1994. Appointed by President Nixon in 1970, Blackmun, a lifelong Republican, was expected to serve as a voice of staunch conservatism. But he moved to the left as the years went by and was considered one of the court's more liberal jurists by the time he retired.
A stalwart defender of both a strict separation of church and state and the free exercise of religion, Blackmun opposed mandatory prayer in public schools, the display of sectarian symbols on public property and the use of tax funds for parochial schools. At the same time, he supported wide accommodations for religious practice free from government intrusion or discrimination.
Blackmun "was one of the most eloquent defenders of America's core concept of fundamental liberties and freedom who has ever sat on the Supreme Court," said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism. "In his passionate defense of religious freedom, in the sensitivities to minority religions manifested in his decisions and in his support for the wall separating church and state, he eloquently represented a view that is shared by a substantial number of American Jews - a view that has greatly enhanced the freedoms and opportunities that Jews have enjoyed in America," said Saperstein, who also teaches constitutional law at Georgetown University Law School.
He summed up his church-state philosophy in a concurring opinion he wrote in a 1992 case, Lee vs. Weisman, opposing school-sponsored prayer at graduation ceremonies. "The mixing of government and religion can be a threat to free government, even if no one is forced to participate," he wrote. "When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some."
While most Jewish groups concurred with Blackmun's philosophy on the separation of church and state, some in the Orthodox community viewed him as too inflexible in his opposition to government assistance to religious schools. But his commitment to protecting religious freedom for all Americans was unmistakable.
It was Blackmun's decision in Roe vs. Wade - the controversial abortion ruling that touched off one of the century's most polarizing and emotional political debates - that will endure as his legacy. Marc Stern, co-director of the American Jewish Congress' legal department, called it "unfortunate" that "one opinion sort of marked him for life and after death, too."
Most of the organized Jewish community supports abortion rights, although many Orthodox Jews are opposed. David Zwiebel, general counsel and director of government affairs for the fervently Orthodox Agudath Israel of America, said that while his organization does not support Blackmun's decision on abortion, he is troubled that some of his group's allies in the pro-life camp still invoke Blackmun's name with "disdain and contempt."
"That's quite unfortunate because whatever one's position on the abortion issue, and whatever the quality of that particular opinion, this man built a legacy over 24 years and to think of him only in terms of this one ruling does his memory a disservice," Zwiebel said.
For many in the Jewish community, he will be remembered for his warmth and humanity. Over the years, Blackmun cleared time to speak to a number of Jewish groups, including an appearance before the National Council of Jewish Women, a staunch pro-choice organization.
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