Will Roberts Defend Religious Liberty?
Let's pray that a Justice John Roberts will ensure equal, rather than hostile, treatment of religious expression in America.
BY: Nathan Diament
Justice Sandra Day O'Connor was the Supreme Court's swing vote on many issues over the past quarter-century, especially in religious liberty cases. On cases involving prayer in public schools, government aid, and vouchers for parochial schools, legal accommodations and exemptions for religious conscience, and many others the decisions were often decided by O'Connor, and the jurisprudence shaped by her separate concurring opinion.
Enter John Roberts.
While everyone is speculating on abortion and other hot-button social issues, we can be sure his views and votes on religious liberty will change the court.
We won't have to wait long to see how. This term the court will hear
Gonzales v. O Centro Espirita
, a case in which it must evaluate whether the First Amendment's clause guaranteeing the "free exercise of religion" allows the federal government to ban a religious sect from using an otherwise illegal natural herb to make a hallucinogenic drug as part of their religious worship. While it may seem to be an idiosyncratic case unlikely to affect most Americans, it will immediately test Roberts' views on the scope of exemptions or accommodations religious adherents can demand the government make from otherwise generally applicable laws.
What will he do? During his tenure as a federal appellate judge for the past two years, Judge Roberts has not had the opportunity to rule squarely on a religious liberty case. But during a previous post, as Principal Deputy Solicitor General in President George H.W. Bush's administration, Roberts was involved in two significant cases--
Lee v. Weisman
in 1992 and
Mergens v. Westside Community School District
in 1990. In each of these cases, although the federal government was not a litigant in the case, the Department of Justice, through the Solicitor General's office, engaged in the standard practice of filing "friend of the court" briefs in support of one the parties to the case. In Weisman and in Mergens, Roberts was an author of these briefs.
While Roberts wrote the briefs as an attorney representing a client-as opposed to an academic law-review article expounding his own views-the liberal group People for the American Way has called the Weisman brief, and Roberts, "radical." A white paper published on the group's website said Roberts' brief "went far beyond the case at hand" and, had its position been adopted by the court, it would have
"resulted in public school students being subjected to religious coercion."
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