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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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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.