Clues on Roberts' Church-State Views

Excerpts from amicus briefs in church-state cases filed while Roberts was Deputy Solicitor General.

When Judge John G. Roberts was Deputy Solicitor General under President George H.W. Bush, he co-authored amicus briefs stating the government position in two major Supreme Court cases dealing with freedom of religion. While these briefs don't necessarily reveal Roberts' personal positions on church-state separation, his reasoning in them may offer clues to how he would rule in church-state cases as a Supreme Court justice. In the Lee v. Weisman brief, the government argued that public high schools should be allowed to hold religious ceremonies as part of graduation ceremonies. The Supreme Court rejected this position. In the Mergens v. Westside Community School District brief, the government argued that public schools could not bar religious groups from meeting on school grounds because this would violate the Equal Access Act. The Supreme Court sided with the government's position.

Read excerpts from the briefs here.

  • Lee v. Weisman
  • Mergens v. Westside Community School District

    Excerpt: Brief in Lee v. Weisman, 505 U.S. 577 (1992)
    We believe that evidence, including that adduced in Marsh and Lynch, shows that the Framers fully assented to the appearance of non-coercive religious practices in civic life. To focus, as the lower courts have done, on the fact that the specific type of ceremony at issue did not exist when the Constitution was adopted is to blind oneself to the broader truth on which Marsh was founded: that public ceremonial acknowledgments of religion were welcomed by the Framers and are deeply rooted in the Nation's heritage. /17/ Indeed, history suggests that listening to a religious invocation at a civic ceremony was seen not as an establishment of religion by the government but, on the contrary, as an expression of civic tolerance and accommodation to all citizens. /18/

    Moreover, acceptance of religious references at civic ceremonies reflects only part of the substantial historical evidence that religious coercion was the essence of what the Establishment Clause was designed to prevent. See County of Allegheny v. American Civil Liberties Union, 109 S. Ct. at 3135-3138 (Kennedy, J., concurring in the judgment in part and dissenting in part); American Jewish Congress v. City of Chicago, 827 F.2d 120, 135-137 (7th Cir. 1987) (Easterbrook, J., dissenting); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933 (1986). Historical materials suggest that the presence of religion in public life was not generally considered offensive at the time of the Framing and indeed was often welcomed so long as that presence was not coercive and not part of an estblishment of an official church. /19/

    We recognize that opinions constituting a majority of the Court in the County of Allegheny indicated that proof of the coercive nature of a challenged activity was not necessary to demonstrate an Establishment Clause violation. 109 S. Ct. at 3119. (O'Connor, J., concurring). However, as noted above, Allegheny was itself an application of the test that we believe should be reconsidered in this area. /20/

    Moreover, we agree that Establishment Clause concerns are triggered not only by coercion in the form of direct, legal compulsion, but also in the form of more indirect social coercion. For instance, we recognize that the special character of the public school setting has heightened this Court's sensitivity to subtle forms of coercion. See, e.g., Engel v. Vitale, 370 U.S. 421, 430-431 (1962). We do not believe, however, that graduation ceremonies pose a risk of coercion. Such ceremonies typically occur but once a year. They are addressed not to children alone but to families as a whole which are, as the Stein court noted, a natural bulwark against any coercion. Indeed, children in the family setting may hear similar invocations and benedictions at inaugurals and other public ceremonies. In short, whatever special concerns about subtle coercion may be present in the classroom setting -- where inculcation is the name of the game -- they do not carry over into the commencement setting, which is more properly understood as a civic ceremony than part of the educational mission.

    We also recognize that modern government, for better or worse, has a far more substantial presence in the daily lives of its citizens than did the government of 1789, and thus may be capable of creating a pervasive atmosphere of conformity without resort to direct legal compulsion. Accordingly, Establishment Clause jurisprudence must remain sensitive to the manner in which new forms of governmental power could lead to indirect coercion.

    Viewed in the framework we wuld urge this Court to adopt, the practice at issue here clearly does not violate the Establishment Clause, because it does not coerce religious exercise or bring to bear other forms of compulsion to conform. Indeed, Rabbi Gutterman's invocation and benediction, with their reference to God, do not directly or indirectly compel nonadherents to change their beliefs, but merely respect the religious heritage of the community.

    We do not mean to suggest that the foregoing approach to Establishment Clause cases will necessarily make the requisite inquiry less difficult; what we do believe is that it will better ensure that the "complicated process of constitutional adjudication" is not reduced to "a deceptive formula." Kovacs v. Cooper, 336 U.S. 77, 96 (1949) (Frankfurter, J., concurring).

  • Read the complete amicus brief
  • Read the Supreme Court decision

    Excerpt: Brief in Mergens v. Westside Community School District
    The judgment of the court of appeals should be affirmed. Westside High School's decision to permit voluntary, noncurriculum student clubs to meet after hours on school premises brought it within the scope of the Equal Access Act, and the school's decision to exclude respondents' Bible study club violated the nondiscrimination mandate of the Act. The Act is fully consistent with the Establishment Clause. It does not establish religion but simply affords equal access to an open forum without regard to the "religious, political, philosophical, or other content" of student speech. 20 U.S.C. 4071(a). The Establishment Clause itself was envisioned by the Framers as promoting the same values of equal access, by ensuring that no official orthodoxy would operate to block access by any religion to the open forum of American society.

    Congress passed the Equal Access Act by overwhelming bipartisan majorities in response to widespread reports that public secondary schools were actively discriminating against religious speech. Congress learned that schools often permitted students to form clubs to meet after hours on school premises to pursue whatever interested them -- so long as it was not religion. In the Equal Access Act, Congress sought to promote student free speech by specifying that any school that accepted federal financial assistance and had a "limited open forum" could not deny "equal access" to that forum on the basis of the content of the student speech. To provide clear guidance, to eliminate confusion in the law, and to forestall costly and divisive litigation, Congress further specified that a school had such a "limited open forum" whenever it permitted "one or more noncurriculum related student groups to meet on school premises during noninstructional time." 20 U.S.C. 4071(b).

    Westside has a limited open forum under the Act. Some 30 student clubs meet at Westside during noninstructional time. Petitioners contend that every one of these clubs is related to the school's educational mission, and therefore that none is "noncurriculum related." Congress did not intend the Act to be such an empty response to the real problem it perceived. The language of the statute and its history indicate that a club is noncurriculum related not only when a school says so, but when it is not "directly related" (20 U.S.C. 4072(3)) to the courses the school offers -- its curriculum. The noncurriculum related clubs at Westside include the chess club and several community service clubs -- Peer Advocates, Interact (connected with Rotary International), and Zonta. If the Act is to have any meaning, these clubs cannot reasonably be viewed as "directly related" to the curriculum at Westside.

    Permitting equal access to all speech without regard to content does not establish religion. In Widmar v. Vincent, 454 U.S. 263 (1981), this Court held that permitting equal access for religious speech to a university's open forum did not contravene the Establishment Clause. In passing the Equal Access Act, Congress made specific findings that secondary school students -- no less than university students -- were able to comprehend the basic principle that free speech in an open forum is not state-sponsored speech, and the district court made similar findings in this case. The Act protects an open forum for individuals and groups to speak as they choose, and such individual choices do not constitute state establishment of religion.

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