One of the most vexed areas, not only of contemporary constitutional jurisprudence, but of American political life altogether, is the intersection of religion and public life. We are said to be in the midst of a “culture war,” with “blue” secularists and progressives on one side, and “red” orthodox and traditionalist believers on the other. Because of the Supreme Court’s contemporary role in interpreting and applying the First Amendment religion clauses, raising or lowering, plugging or breaching the so-called “wall of separation,” both sides—or, more accurately, all sides—believe that there is a lot at stake in the nomination of John Roberts to the Supreme Court.
Indeed, because in First Amendment religion jurisprudence (as in so many other areas) Sandra Day O’Connor provided a crucial and influential swing vote, her replacement could well change the way the Court treats religion cases. O’Connor herself will be remembered most of all for her articulation of the “endorsement test” in Establishment Clause cases. In Lynch v. Donnelly, a 1984 case dealing with a Christmas crèche in Pawtucket, Rhode Island, O’Connor articulated the Supreme Court’s Establishment Clause doctrine in these novel terms, focusing on whether the government in its actions endorses or disapproves of religion:
Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.
Rather than asking whether the traditional elements of establishment—like coercion, persecution, religious tests for office-holding, or exclusive financial support for one sect or denomination—are present, O’Connor would have judges inquire into the specific context and content of each particular governmental “message.” Pawtucket’s crèche passed muster because it was part of a larger holiday scene, many of whose elements were secular. A few years later, two different holiday displays in Pittsburgh suffered different fates, depending upon the particulars of their settings, characterized by the dissent as involving the Court in “a jurisprudence of minutiae.” Be that as it may, O’Connor has left her mark, as is evident from the odd results of this year’s Ten Commandments cases and the way in which many of the opinions in those two cases adopted her approach.
While progressives and separationists have not always taken comfort from O’Connor’s votes and opinions, they are very concerned that John Roberts will be a predictable member of the conservative bloc of justices (Rehnquist, Scalia, and Thomas, with frequent support from Kennedy). In that case, of course, the conservatives could have a working majority on many First Amendment cases, perhaps being even more accommodating to religious expression in the public square (see, for example, McCreary v. ACLU ) and more willing to offer government support for religious undertakings (see Mitchell v. Helms).
The bill of particulars offered by Roberts’s critics has a very few items and is based largely on one amicus brief he co-authored as Deputy Solicitor General. According to the People for the American Way and the Americans United for the Separation of Church and State, Roberts would:
- Abandon the Lemon test in establishment cases, where the Court has applied it “for more than thirty years”
- Permit clergy-led prayers in public schools
- Allow the government “to acknowledge our ’Nation’s religious heritage’ without limit,” paving the way for Roy Moores all over the country to erect Ten Commandments monuments in public buildings and on public spaces
- Allow the government to fund religious discrimination through the faith-based initiative
Rather than letting these strict separationists be our guides to Roberts’s opinions on First Amendment matters, we ought to examine the whole record, which consists not just of one amicus brief in Lee v. Weisman, but of several other briefs he co-authored while he was in the Solicitor General’s office and three others he co-wrote while he handled an appeal in Renzi v. Connelly School of the Holy Child, a zoning exemption case presenting issues similar to those addressed by Congress in its Religious Land Use and Institutionalized Persons Act of 2000.
It is, of course, fair to note that in all these documents he acted as an attorney representing the position of his client, which means that he does not offer these arguments in his own name. Here’s how Roberts put it in response to a question posed by Senator Joseph Biden in his Appeals Court nomination hearings:
I do not believe that it is proper to infer a lawyer’s personal views from the positions that lawyers may advocate on behalf of a client in litigation… My role as an attorney… was to advocate my client’s positions, not my personal views.
Yes, but… While it may not be appropriate or accurate simply to identify the views taken in any of the briefs with Roberts’s personal views, it remains the fact that, as a political appointee in the Office of the Solicitor General, he could reasonably be expected to agree in broad outline with the position taken by the government in the cases it litigates.
And in the case of Renzi v. Connelly School, which he handled in private practice, he, evidently a pious and observant Catholic, was representing a parochial school. Let me add that in this last case, Roberts, by all accounts one of the premier appellate litigators in the country, faced off against a securities litigation attorney serving as his own counsel. His opponent was clearly out of his league, and the case was not even a close call. It is reasonable to wonder if Roberts made himself available here not because his presumably rather expensive talents were needed, or because the case was intellectually interesting, but because the cause was close to his heart. Nevertheless, even here, he was bound to use arguments that would be most effective in the particular and subordinate context of the Circuit in which he was litigating, rather than those he would find most persuasive if he were judging the case from the Supreme Court bench.
Before we proceed, finally, to examining the evidence, two points are worth noting. First, to the extent that Roberts’s critics hold against him positions taken by the first Bush Administration, they are, of course, likely to oppose any but the most iconoclastic or heterodox “Republican” lawyer. With respect to the First Amendment religion clauses, the positions Roberts took in the briefs are not out of the mainstream of the Republican Party, or of American constitutional jurisprudence altogether. And, of course, even when these positions did not win the assent of the majority on the Court, they were not so far out of bounds as to command no support at all. This leads to my second point. Because, as I just noted, advocacy is not the same as judgment, I will not and cannot simply attribute to Roberts the positions he has taken in these briefs. What I can and will do, however, is argue that these are powerful and plausible positions that deserve to be taken seriously. They are not likely Roberts’s final word on any of the subjects he addressed, but he did not, by his advocacy in any way render himself unworthy of appointment to the nation’s highest court.
The first case in which Roberts participated was Westside v. Mergens, a 1990 case that dealt with the constitutionality of the Equal Access Act, passed by overwhelming Congressional majorities in 1984. A classic attempt to accommodate religion, the Act prohibited public schools that received federal aid and that had established a “limited open forum,” permitting non-curriculum-related student clubs to meet, from discriminating against student-initiated meetings (like Bible clubs) on the basis of the content of their speech. Bridget Mergens, a student at Westside High School in Omaha, Nebraska, was told that she could not start a Christian Club because doing so under the school’s auspices would violate the Establishment Clause. Citing the Equal Access Act, her parents filed suit on her behalf. The United States joined them at the Supreme Court level to defend the constitutionality of the Act against the claim that, in accommodating the free exercise of religion, as required by the law, the school was actually establishing it.
While a substantial portion of the amicus brief is a careful attempt to discern Congressional intent (in the course of which the authors take note of “the deliberate conclusion of a representative body well-suited to evaluating and resolving factual issues,” a conclusion “entitled to deference from the Article III branch with its inherent institutional limitations”), it also offers general accounts of the meaning of the First Amendment religion clauses and of the proper relationship between the judiciary and the legislature. According to the brief, “the origins of the Establishment Clause confirm its intended function of preserving and promoting pluralism and diversity.” Further,
Like the Establishment Clause itself, the Equal Access Act simply safeguards an open forum in which individuals or groups of individuals are free to engage in religious, nonreligious, or irreligious speech, as they see fit. [emphasis mine]
By attempting to limit the access of religious groups to the limited open forum it created, the school is impermissibly attempting to use the Establishment Clause to “police” that forum.
It is hardly outside the mainstream of First Amendment jurisprudence to emphasize the centrality of “free exercise” in understanding the religion clauses. What matters are the rights of individuals: just as the guarantee of free exercise permits them a great range of conscientious freedom, so the prohibition of establishment guarantees that they will not be compelled to profess or support a faith they do not hold.
The brief also carefully notes that the range of opinion that the Equal Access Act requires schools to accommodate is quite wide, extending beyond religious to “nonreligious, or irreligious speech.” While Congress might have exhibited some solicitude for religion in responding to overzealous local attempts to police the boundaries of church and state, it did so in such as way as to accommodate all sorts of expression and belief, secular as well as religious. It did not establish, favor, or “endorse,” religion, let alone a particular denomination.
In explaining its view of what Congress intended, the brief offers an extended criticism of the so-called “Lemon test,” which the courts have from time to time used to discern whether a law runs afoul of the Establishment Clause. According to the test, first articulated in Lemon v. Kurtzman (1971), to pass constitutional muster, a statute must have a secular purpose; its “principal or primary” effect must be neither to advance nor inhibit religion; and it must not foster “excessive entanglement” with religion. According to the brief,
Experience has demonstrated that rigid application of formulaic tests cannot satisfactorily resolve the delicate issues raised by the Establishment Clause. Thus, as Congress specifically concluded, it was the application of mechanical Establishment Clause jurisprudence in the lower courts that misled school boards to suppress free religious speech… Especially when the Lemon test is divorced from the context in which it is spawned—financial aid to highly sectarian institutions—it sweeps within its breadth a whole range of practices and traditions with ancient roots in the history and experience of the American people.
So, yes, John Roberts signed onto this criticism of the Lemon test, which criticism, by the way, is a commonplace of “conservative” First Amendment jurisprudence, and does not in any way distinguish him from Justices Rehnquist, Scalia, Thomas, or even Kennedy.
In large part, the Supreme Court agreed with the government’s arguments, finding that Westside High School is subject to the strictures of the Equal Access Act and that the Act does not violate the Establishment Clause. Sandra Day O’Connor wrote the Court’s opinion, joined in whole by three other justices and in part by two more. Justices Brennan and Marshall concurred in the judgment, while John Paul Stevens was the lone dissenter. Justices Kennedy and Scalia parted company with O’Connor and the plurality with respect to the appropriateness of the “endorsement test,” preferring a more traditional conception of establishment, while Brennan and Marshall argued that schools would have to take special care that their accommodation of student religious expression was not taken for endorsement.
While I would certainly never insist that being on the winning side of the argument before the Supreme Court is the sole—or even an adequate—measure of one’s “mainstream” status, it is clear that in this case, Roberts and his colleagues were in the ballpark, and not in left field. They construed Congressional intent in a manner in which eight justices found plausible. They did not refrain from availing themselves of the “endorsement test” accepted by six justices, even though they did not make much of it, while explicitly rejecting the Lemon test, which it is supposed to gloss. And their insistence upon judicial deference to legislative judgments is echoed in O’Connor’s opinion:
Given the deference due “the duly enacted and carefully considered decision of a coequal and representative branch of our Government”…, we do not lightly second-guess such legislative judgments, particularly where the judgments are based in part on empirical determinations.
It is no wonder that Roberts’s critics do not call attention to his role in this case. It shows him to be an effective advocate of individual liberty broadly understood, not “just” religious liberty. He appears to be willing to countenance a great deal of nonreligious and irreligious competition with religious expression in order to secure its free exercise. This is not the kind of argument a theocrat would make.
Three years later, Roberts co-authored the amicus brief in a similar case, this time dealing with the public use of school property for “social, civic, and recreational meetings and entertainments.” In this case, Lamb’s Chapel, an evangelical church, was denied permission to use a school auditorium to show a film series, featuring Focus on the Family’s James Dobson, on “traditional Christian family values.” Other events held in that venue included concerts by the Southern Harmonize Gospel Singers and the Salvation Army Youth Band, as well as a lecture series sponsored by the local library that featured a psychotherapist addressing issues of “parapsychology and transpersonal psychology and [dealing] with eastern mysticism and metaphysics.”
The brief argues—and the Court unanimously agrees—that while the School District is not obliged to open its property to any public uses and may limit the scope of permissible uses, it may not engage in viewpoint discrimination, permitting some perspectives on permissible issues and forbidding others. While Justices Scalia, Thomas, and Kennedy take issue with their brethren regarding passing references to the Lemon and endorsement tests in Justice White’s opinion for the Court, the brief keeps its eye resolutely on the ball. As far as Roberts and his colleagues are concerned, it is possible that the School District may in some cases restrict religious groups’ use of its property—perhaps ruling out a worship service, which is arguably neither social nor civic nor recreational (though the brief is not that explicit)—but here the topic is perfectly admissible. All that could be objectionable is the religious viewpoint, but ruling out a viewpoint is not permissible under the First Amendment.
In other words, the brief strikes a fine balance between deferring to the judgment of responsible government officials and holding them to constitutional standards. Nothing in the First Amendment requires the school board to make its facilities available to the general public or to open them up to all conceivable uses, but, having created a limited public forum for some uses, the board is forbidden by the First Amendment from engaging in viewpoint discrimination.
Once again, this brief does not help the cause of Roberts’s critics. The government’s position, as articulated by Roberts and his colleagues, won the support of the entire Court. Among the other groups filing briefs on the same side was the ACLU. While some justices sought quite colorfully to address bigger jurisprudential issues, Roberts and his colleagues exhibited a restrained awareness of the difference between trying to win a case and trying to score debating points in an opinion. This is not to say that Roberts would not, on the Court, side with Scalia, Kennedy, and Thomas on these bigger issues, but his primary focus is on the immediate points of law called for by the facts of the case.
Much of the criticism of Roberts is focused on one of the two amicus briefs he helped prepare in Lee v. Weisman, a 1991 case involving prayer at public school graduation ceremonies. Both briefs—one prepared to urge the Court to grant certiorari and the other on the merits of the case itself—undertake a sustained critique of the aforementioned Lemon test, arguing that, outside the context in which it was devised (financial aid to religious school and colleges), the results to which it leads are problematical.
The briefs argue that rather than rely on a relatively new and inconsistently applied doctrinal test, the Court should look for guidance to both the original understanding of the Establishment Clause and the long tradition of the ceremonial recognition on civic occasions. “[T]he contemporaneous understanding of the Clause, as reflected in historical practice” would lead to a concern, above all, with religious liberty and to a focus on “whether the practice at issue provides direct benefits to a religion in a manner that threatens the establishment of an official church or compels persons to participate in a religion or religious exercise contrary to their consciences.” The elements that might cause Establishment Clause concerns are “force and funds,” which are precisely those mentioned by Anthony Kennedy in his Mergens opinion. Such an inquiry would “[shift] the focus away from an evaluation of the religious practice to an assessment of the autonomy of the observers of the practice,… thereby guid[ing] courts away from the treacherous shoals of religious doctrine and symbolism… to the more familiar judicial shores of liberty, on the one hand, and compulsion and constraint, on the other.” The brief would, in other words, move the Court away from the Lemon test back to subjects appropriate for courts.
Indeed, aside from the length and detail of the critique of the Lemon test developed in both briefs, there is little to distinguish their First Amendment theory from that offered by the briefs in Mergens and Lamb’s Chapel. The emphasis is on accommodation of religious liberty, even in public ceremonial settings. The paradigmatic case in this connection is Marsh v. Chambers, a 1983 decision turning back a challenge to legislative prayer. Those who would distinguish graduation invocations from their legislative counterparts point to differences in audience and setting, as well as to the fact that there is not an unbroken tradition of prayer at public school graduations going back to the time of the Founding. The briefs offer plausible responses to all three considerations. Yes, they concede, graduation invocations do not go back to the Founding Era, only 160 years. Furthermore,
The Nation’s tradition of acknowledging its religious heritage is not a series of discontinuous events at isolated institutions—some old and protected, some new and vulnerable—but a complex tapestry of civic culture, with one strand of tradition naturally leading to another as one institution arises from another. Thus, that there were no prayers at public school graduations at the time of the Framing cannot sensibly dispose of their constitutional validity…
The spirit of accommodation provided for in the Constitution is as essential to the vitality of civic life today at it was in the early Republic. The spirit should thus not only inform the assessment of religious invocations during inaugurations and sessions of Congress and this Court; it should be honored throughout the broad sphere in which modern government operates—including in institutions that were once wholly or predominantly in the private sector.
Roberts and his colleagues agree that there is a difference between the classroom setting and a public occasion like an inauguration or a session of Congress. In the former, “young children may be susceptible to influences that might be deemed indirectly coercive,” so that a prayer of the sort treated in Engel v. Vitale (1962) might well be unconstitutional. But a public school graduation ceremony is different, Roberts and his colleagues contend; it is much more like an inauguration or other public ceremony than like a session of a class. Not only is attendance not compulsory, but parents are ordinarily present to address and counter any “outside influences.” Thus “whatever special concerns about subtle coercion may be present in the classroom setting… they do not carry over into the commencement setting, which is more properly understood as a civic ceremony than part of the educational mission.”
As Roberts’s critics note, the Court, in an opinion written by Anthony Kennedy (and joined by four other justices) rejects these arguments. Kennedy emphasizes above all the nature of the Court’s precedents—that is, stare decisis—and denies that there is an analogy between graduation and other public ceremonies. The school setting is sufficient for him to establish at least indirect coercion:
What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.
David Souter’s concurrence, joined by Sandra Day O’Connor and John Paul Stevens, is also revealing, for he makes it clear that what matters most is “the settled law.” Despite the fact that one can make a case for a tradition of this sort of accommodation going back to the Founding and for a reading of the religion clauses that supports the government’s position, “it is not so convincing as to warrant reconsideration of our settled law.”
Yes, John Roberts co-authored two briefs that defend “official” graduation prayers and criticize the very problematical Lemon test. On the basis of a careful reading of the Founding Era record and with great respect for a long tradition of ceremonial acknowledgement of religion, Roberts argued for overturning a line of decisions then at most thirty years old. His position was similar to that taken by the four dissenters (Scalia, Rehnquist, Thomas, and White), now reduced to three in the very similar Santa Fe Independent School District v. Roe case, decided in 2000 (with Ruth Bader Ginsburg, having replaced Byron White, joining the majority).
The argument against Roberts then boils down to this: if he votes the way he argues, he would vote with Scalia, Rehnquist, and Thomas in support of public acknowledgement of our religious heritage, even in schools. Nothing in the record suggests that he would support teacher-led classroom prayer, which was ruled unconstitutional in Engel v. Vitale. But he would be more deferential to tradition and general public practice, and less deferential to “settled law,” than separationists would like.
Finally, we have here a case where John Roberts represented a Catholic school before the 4th Circuit Court of Appeals. At issue was Montgomery County’s accommodation of religious freedom in the zoning process, which exempted private schools on land owned by religious organizations from a very onerous and intrusive “special exception” process when they renovated old structures or built new ones. The Renzis lived across the street from the school and objected to its plans to update and expand its facilities. They filed suit in federal court to halt construction and to challenge the exemption on First Amendment grounds. By accommodating religion in this way, they argued that the county impermissibly advanced religion, violating the second prong of the Lemon test.
In his brief, Roberts argues very effectively that by relieving a burden on religion, the county does not establish religion, but rather simply “ma[kes] it easier for religious organizations ’to advance religion, which is their very purpose.’” Furthermore, he contends, the exemption has the effect of “’minimiz[ing] governmental interference with the decision-making process in religions.’” Here the government has “simply stepped out of the way of religion.” He relies heavily on the Supreme Court’s unanimous Corporation of the Presiding Bishop v. Amos (1987) decision, which upheld the exemption of religious groups from the religious discrimination provisions of the Civil Rights Act.
Roberts’s citation of Amos, often used by proponents of the co-religionist hiring exemption in President Bush’s faith-based initiative, is the source of the complaint that he would permit the government to fund religious discrimination. Perhaps, though a favorable citation of an authoritative case regarding the accommodation of religion is simply good advocacy in the case at hand, something one would expect of any competent attorney.
It is more important to note that, from Roberts’s point of view here, accommodation of religion falls clearly within the spirit of the First Amendment, maximizing the liberty of religious adherents to follow their faith and minimizing governmental interference with the “free exercise of religion.” That does not mean that he regards this particular (or any other) accommodation as a matter of constitutional right, required of, rather than optional for, governments.
The majority of the Appeals Court accepted Roberts’s arguments on behalf of the school, and the Supreme Court refused to grant certiorari, letting the decision stand. Furthermore, in September of 2000, soon after the Appeals Court issued its decision, Congress overwhelmingly passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires that zoning regulations applied to religious institutions pass the “compelling state interest” test.
Both the Appeals Court and the Congressional committees dealing with this issue took note of the potential for discrimination against religion Roberts points out in his brief:
The special exception process establishes a forum for anti-religion and anti-denomination animus, and even provides an occasion for local decisionmakers to discriminate against religion (or particular sects) in deciding whether to grant or deny an exception. One of the reasons this danger is so great is that the vague and discretionary factors governing special exceptions—such as whether a proposed use would ’”adversely affect the *** morals or general welfare” of a neighborhood…—offer residents and decisonmakers a ready hood to cloak their anti-religion animus in the guise of enforcing “zoning” controls.
By avoiding this opportunity for divisiveness and disguised discrimination, Montgomery County has laudably serves one of the principal purposes of the First Amendment religion clauses. In this case, mere “neutrality” certainly would have fostered “excessive entanglement” and might well have provided both the occasion and the cover for bigotry. In defending the school and the ordinance, Roberts shows himself as a friend to religious liberty and an advocate of politically-conceived accommodations of religion.
A careful review of the publicly available evidence suggests that John Roberts has put his name to positions solidly within the mainstream of judicial interpretation of the First Amendment religion clauses. As seems to be the case in many other areas of law, he would be careful to stay within the proper bounds of judicial competence and be respectful of the role and judgments of the political branches. Above all, he would apparently continue and perhaps extend somewhat the Court’s tendency to look favorably on attempts to accommodate religious expression, not necessarily as a matter of judicially-enforced constitutional right, but rather as a matter of what might be called legislative grace. This deference and “judicial restraint” would require a rethinking of the Court’s Establishment Clause jurisprudence, continuing the move away from a mechanical application of the Lemon test and perhaps an abandonment of Sandra Day O’Connor’s “endorsement” test, in favor of a return to a focus on the traditional elements of establishment (“force and funds”).
This would, of course, mark a change in the Court, just as Ruth Bader Ginsburg’s replacement of Byron White marked a change in the Court. Our first opportunity to see what sort of change will come in the next term, when the Court hears Ashcroft et al. v. O Centro Espirita Beneficiente Uniao do Vegetal, a case addressing a Religious Freedom Restoration Act-based challenge to the Controlled Substances Act. Will Roberts take the opportunity—as Sandra Day O’Connor did in her dissent in City of Boerne v. Flores—to call for a reexamination of the Court’s holding in Employment Division v. Smith, stare decisis to the contrary notwithstanding? Or will he likely follow Antonin Scalia in deferring to the legislative judgment of “compelling state interest” embodied in the Controlled Substances Act itself? We will see soon enough how he balances his apparent clear concern with religious liberty with his deference to the political branches.
Joseph M. Knippenberg is an adjunct fellow of the Ashbrook Center. He is Professor of Politics and Associate Provost for Student Achievement at Oglethorpe University.