A Coup for Business, but What About Religion?

Roberts may be the GOP's dream candidate for the Supreme Court, if they honestly believe judicial activism is a bad thing.

BY: Marci A. Hamilton

 

For those who have been following the public rhetoric since Justice O'Connor's resignation, it must have seemed like there were only two sides in the political fight over her successor on the Supreme Court: the right, which wanted to eliminate both

Roe v. Wade

and the separation of church and state, and the left, which wanted to do the opposite. It looked like a war over morals. Not quite.

As usual, the real power was the power behind the scenes, and in this instance, it was big business. Judge John Roberts, who litigated for large commercial clients as an attorney in private practice at the law firm Hogan & Hartson for a number of years, is a Washington Republican insider par excellence. He was the prime choice of business interests and their advocate, Bush confidante C. Boyden Gray, who heads the conservative Committee for Justice.



On religion issues, it is very hard to tell how Judge Roberts might rule, should he be confirmed to sit on the Supreme Court. He has been a federal judge for a short time, so there is no trail of decisions. Therefore, the only significant record of his work comes from his tenure as special assistant to the U.S. attorney general and associate counsel to the president in the White House Counsel's Office, both during the Reagan administration; his times as deputy solicitor general in the Justice Dept. under the first President Bush; and from his time in private practice.



But it appears that he may well be in the Rehnquist mold: no fan of the separation of church and state, but a believer that there is no First-Amendment defense to illegal conduct in the name of religion.



Roberts was on the brief in

Lee v. Weisman

, when the federal government argued that schools should be permitted to sponsor prayers during graduation ceremonies (an argument the Supreme Court rejected in its ruling on the case). He was counsel to President Reagan when the administration took the position in

Wallace v. Jaffree

that prayer in public schools should be permissible (another loss for the Reagan administration).



In a 2000 religious accommodation case (

Ehlers-Renzi v. Connelly School Of The Holy Child, Incorporated

), Roberts handled while in private practice, he represented a Catholic school against private homeowners. The homeowners challenged the county rule that exempted religious schools from having to obtain a special exemption to make alterations on their buildings. The appellate court held that the exemption was a permissible accommodation of religion, and therefore neighbors' concerns could be ignored when the entity doing the construction was religious.



This is a position that might spark some questioning from Senators enraged at the Supreme Court's recent Kelo decision, which held that local governments may use their eminent domain power to displace private homeowners for commercial projects. To the extent that Kelo ignited interest in the rights of local homeowners against government imposition, this case is another example of how the individual homeowner is under attack in the United States.



It may also open the door for the many neighborhoods that are struggling under the burden of the Religious Land Use and Institutionalized Persons Act, to complain loudly. RLUIPA has given large religious projects the green light to impose their intense uses on residential neighborhoods, regardless of the residential quality of the neighborhood.



On the question of the free exercise of religion, he may well be very close to his former boss, then-Justice Rehnquist, in believing that the rule of law applies equally to religious entities' conduct as it applies to others, which is the rule I defend at some length in my recently published book, "God vs. the Gavel: Religion and the Rule of Law." While Roberts was Rehnquist's clerk, Rehnquist dissented in

Thomas v. Review Bd. of Ind. Employment Sec. Div.

, and reasoned that the court had been interpreting the Free Exercise Clause too broadly. Incidental burdens on religious conduct from neutral,

generally applicable laws were not unconstitutional, in Rehnquist's view.
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_Related Features
  • Clues on Roberts' Church-State Views: His Controversial Briefs
  • The Big Questions Roberts May Face--And Clues on How He'll Handle Them
  • Will Roberts Protect Religious Liberty?
  • Continued on page 2: »

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