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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  • In fact, the brief made a mainstream legal argument in support of the non-denominational prayer at issue in the case, which was offered at a junior high school graduation by a rabbi. The argument, essentially, was that such a prayer was in the tradition of many non-denominational invocations which take place at public ceremonies. This tradition, the brief argued, coupled with the fact that students were not required to attend the graduation ceremony, meant that the prayer did not constitute an "establishment of religion" as barred by the First Amendment. Four of the nine justices agreed with this view, and its underlying arguments have been incorporated into the jurisprudence in subsequent cases-hardly a radical position.

    Interestingly, the People for the American Way materials on Roberts neglect to make any mention of his involvement in the brief for the Mergens case. There, the court ruled for the side supported by the brief co-authored by Roberts, with Justice O'Connor writing the majority opinion--the same Justice O'Connor who liberal senators and advocates have said is the paradigm to be followed by a Bush nominee.

    At issue in the Mergens case was the principle of equal treatment. The case was a challenge to the Equal Access Act-a bipartisan measure to ensure that if a public school district allows private groups to use its classrooms for after-school programs, it may not exclude religious after-school groups. Liberal groups challenged the Equal Access Act as an unconstitutional establishment of religion, because it allowed government facilities to be used by religious groups. The court rejected that reading of the First Amendment, stating that the Equal Access Act's "message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion."

    What, if anything, might be gleaned from John Roberts' involvement in these cases for the future of religious liberty in America? The core debate over the relationship of religion and state today is over which paradigm governs. One camp continues to advocate for a "wall of separation," with the government banned not only from promoting religion but engaging in any activity which, even unintentionally, benefits religion. The other camp advocates for "equal treatment" for religion, its adherents, and institutions, insofar as government programs and activities (such as use of facilities, grants etc.) are concerned.

    The "wall of separation" view has lost much of its sway-in large part thanks to Justice O'Connor-over the past couple of decades, as the "equal treatment" paradigm has supplanted it. It is fair to say that Roberts' advocacy for the graduation prayer in Weisman was, like the position in Mergens, a plea for equal-not hostile-treatment of religion.

    The prayer at issue in Weisman was nonsectarian, and speakers who might advocate for controversial secular views might be allowed to speak at such a ceremony, so why ban only those who speak from a religious perspective? The Mergens argument, adopted by the court, explicitly embraces the equal treatment principle; this has led to the subsequent court approval for school vouchers and many other government programs which include and benefit religious entities on the basis of religion-neutral principles.

    Of course, the First Amendment contains two clauses regarding religious liberty-not only against Establishment, which Weisman and Mergens address, but also for Free Exercise. And Free Exercise demands not equal treatment, but special deference by the government toward the religious conscience and practices of Americans of all faiths. It is this latter freedom, so fundamental to millions of Americans, which a Justice Roberts will first face should he be on the court next term in the herbal ritual case.

    One can only hope-and pray-that the sensitivity he seems to have displayed in his previous advocacy efforts in the religious liberty arena will be engaged here and in many cases to come as well.
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