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An Establishment Conservative?

What John Roberts might mean for the Supreme Court's views on religion in the public sphere.

12:00 PM, Aug 16, 2005 • By CHRISTOPHER LEVENICK
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MUCH OF THE SPECULATION surrounding John Roberts concerns the authenticity of his conservative convictions, and much of that uncertainty centers on his views of abortion. His opposition to Roe has so far only been demonstrated by a lonely footnote in a single legal brief--a fact that he moreover insists should be understood as reflecting the views of his client rather than his own. Yet conservatives must bear in mind that even if Roberts were confirmed, it would not be enough to shift the Court's center of gravity on the issue of abortion. He might, however, make a decisive difference on another issue dear to the hearts of many on the right: Establishment Clause jurisprudence.

Questions about the proper relation of church and state have plagued the Court since its decision some six decades ago to make itself a tribunal for all the nation's religious disputes. The result has been much confusion, coupled with a growing sense of alienation among those who resent the effort to banish every vestige of religious expression from American public life.

If confirmed, Roberts would replace a justice who has contributed much to this sorry state of affairs. Sandra Day O'Connor is the author and principal advocate of the so-called "endorsement" test, which holds that the First Amendment forbids government from seeming to approve or disapprove of religion. By introducing the idea of endorsement, O'Connor actually intended to soften the strictures of earlier rulings. She introduced it, in fact, in a case that allowed the town of Pawtucket, Rhode Island, to continue erecting a Christmas display which included a crèche. Because the nativity scene appeared alongside non-religious symbols--including a house for Santa, a cutout elephant, and a talking wishing well--O'Connor decided that it did "not communicate a message that the government intends to endorse the Christian beliefs represented by the crèche."

The endorsement criterion seems reasonable enough at first blush, until one realizes that it is found nowhere in the text of the Constitution, and that it runs contrary to the broad sweep of American political culture, which has long advocated religious belief as generally conducive to (but not necessary for) good citizenship. Relying on the endorsement test, O'Connor has found that the First Amendment forbids brief, non-sectarian prayers not only at public school graduations, but also before high school football games. She likewise determined that displaying the Ten Commandments on government property violates the constitutional proscription against an establishment of religion. Not even an Alabama measure to begin each school day with a moment of silence could withstand her scrutiny.

Yet even O'Connor has come to recognize the grave deficiencies with the endorsement test. In striking the words "under God" from the Pledge, the Ninth Circuit relied heavily on her precedent. Though she herself disliked this outcome, the logic of endorsement clearly called for the excision of religious language from government-sponsored patriotic exercises. Much-lauded pragmatist that she is, O'Connor basically abandoned her own criterion--protesting, a bit too much, that though "the Court's explicit rationales have varied, my own has been consistent." She then instituted a new, four-part sub-test to determine possible exceptions to the endorsement test. (Some endorsements, it seems, are more equal than others.) Politely ignored by the concurring justices, the new sub-test threw Establishment Clause jurisprudence into further disarray.

WOULD ROBERTS RULE DIFFERENTLY? Nobody can know for certain, but there is nevertheless good reason to believe that he would prove more receptive than O'Connor to the presence of religion in the public square. In a detailed examination of cases in which Roberts was involved, Joseph Knippenberg concludes that Roberts's church-state jurisprudence would likely "focus on the traditional elements of establishment ('force and funds')."

Of course while one can't necessarily infer personal views from positions advocated by a lawyer on behalf of his clients, one may reasonably expect that a political appointee to the Office of the Solicitor General would be in basic agreement with the positions taken by the administration. He has thus far consistently sided against strict secularlists, even to the point of recently representing a parochial school--making it "reasonable to wonder if," Knippenberg speculates, "the cause was close to his heart."