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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."

While working for the Solicitor General, Roberts helped draft three briefs for church-state cases argued before the Supreme Court. Two of them--Westside v. Mergens (decided 8-1) and Lamb's Chapel v. Center Moriches (9-0)--involved fairly straightforward instances of local government singling out religious groups for special discrimination. Both times, O'Connor was in general agreement with Roberts.

One sees the difference between Roberts and O'Connor more clearly when the two come down on opposite sides, as they did in Lee v. Weisman. The dispute revolved around the graduation exercises of a Rhode Island middle school. For years, the ceremony had opened with a brief, non-denominational invocation and closed with a similar benediction. But in 1989, the father of Deborah Weisman objected to the opening and closing prayers of Rabbi Leslie Gutterman. He sued the school, eventually winning a 5-4 decision before the Supreme Court. O'Connor cast a crucial vote for the majority, which found that some students might feel "subtle and indirect" peer pressure to stand respectfully, a pressure that "can be as real as any overt compulsion."

The solicitor general, with Roberts as a signatory, filed two briefs for the case--one on petition for, and one on, a Writ of Certiorari. For those curious about Roberts's thinking on the Establishment Clause, the latter brief is of particular interest. In it, one finds a model of clear legal writing, wherein historical traditions are respected, and their conceptual logic is explained with admirable skill.

THE BRIEF OBSERVES THAT, as a matter of history, those who interpret the First Amendment as forbidding religious expression at public ceremonies must construe its meaning in a manner unrecognizable to its Framers. After all, during "the early years of the Republic, all three branches of government welcomed devotional exercises to inaugurate their official business." The tradition of invoking God on civic occasions harkens back to the inauguration of George Washington, the opening acts of Congress, and the first sessions of the Supreme Court. "A proper theory of the Establishment Clause," Roberts's brief proposes, must "embrace the validity of this practice and its modern counterparts, rather than treating them as anomalies."

Doing so involves recovering the common sense of the American Founding. Invoking God at a civic ceremony compels nothing: "an individual is not coerced by a civic acknowledgment of religion so long as that person is not required to witness it." (Some members of the community may disagree with the acknowledgment, but such is the nature of democracy, and a democracy that cannot survive the expression of religious sentiment is a democracy in very poor health.) An exercise intended to show a decent respect for the religious heritage of the community obliges nobody to violate the dictates of conscience, and falls entirely within the traditional parameters of religious liberty.

Therein lies the heart of the difference between O'Connor and Roberts. O'Connor's endorsement test ultimately relies on how people perceive themselves, whether they sense themselves as outsiders or full members of the political community. Her overwhelming concern is how people feel, rather than how they are actually treated. Unfortunately, subjective feelings are a notoriously unreliable legal criterion, and one that inevitably leads--as O'Connor herself learned in the Pledge case--to a tyranny of the easily offended. Roberts, in marked contrast, proceeds on the basis of tradition and of common sense, both of which suggest that religious establishments trespass the Constitution only when they preferentially receive public funds, or rely on the force of the state.

Might Roberts lead the way towards recovering some coherence in Establishment Clause jurisprudence? Probably, though one can never be sure. Yet the preponderance of evidence suggests that his confirmation should be welcome news to those Americans who do not care to be told that their faith is merely tolerable, and then only when it is practiced behind securely closed doors.

Christopher Levenick is the W. H. Brady Doctoral Fellow at the American Enterprise Institute.