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).

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    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.

    Congress triggered coverage under the Act whenever a school accepting federal financial assistance permits one or more noncurriculum clubs to meet. This standard may, in particular cases, impose nondiscrimination requirements on schools that did not previously have open forums under Widmar. Congress provided a precise definition of "limited open forum" to provide clear guidance to school officials and students. But Widmar's Establishment Clause analysis remains fully applicable. Under this Court's precedents, a limited open forum may be established by policy as well as by practice. The effect of the Act is to establish such a forum by policy at secondary schools where the triggering standard -- one or more noncurriculum clubs -- is met. Given such an open forum policy, Widmar teaches that permitting equal access to religious speech does not violate the Establishment Clause.

    Religious discussion and worship are core forms of speech protected by the First Amendment, and cannot be barred from an open forum on the basis of content

    Congress considered and passed the Equal Access Act against the backdrop of the core constitutional values of free speech and the free exercise of religion. The students in this case sought access to school premises during noninstructional time to form a Bible study club. They regarded this activity as an important part of the practice of their religious beliefs. /11/ The speech that Westside school officials saw fit to exclude was thus doubly protected under the Constitution.

    First, religious speech enjoys the "full measure of protection" afforded by the Free Speech Clause to other types of speech. McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring in the judgment). Religious ideas, "no less than any other, may be the subject of debate which is 'uninhibited, robust, and wide-open . . . .'" Id. at 640 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Cases involving religious speech, in fact, have provided the formative materials out of which this Court has fashioned many of the basic principles of free speech doctrine. /12/

    Second, the Free Exercise Clause requires that government accommodate the "freedom to develop and preach religious ideas and practices." McDaniel, 435 U.S. at 638 (Brennan, J., concurring in the judgment). Like freedom of speech and freedom of the press, freedom of religion occupies a "preferred position" in our constitutional system. Murdock v. Pennsylvania, 319 U.S. 105, 109, 115 (1943). Where the right to the free exercise of religion is infringed by the prohibition of religious activities, the State must demonstrate that the prohibition is necessary to serve state interests "of the highest order." McDaniel, 435 U.S. at 628 (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).

    The fact that Bridget Mergens and her fellow students sought to exercise their First Amendment rights on public school property does not abrogate these basic constitutional protections. /13/ Under this Court's analysis, the amount of protection provided speech on government property depends on the nature of the forum in which the speech occurs. Places which "by long tradition or by government fiat have been devoted to assembly and debate" -- like public parks and streets -- are "public forums." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). A State may exclude speakers from a public forum because of the content of their speech only when the exclusion is necessary to serve a compelling state interest and is narrowly tailored to achieve that end. Ibid. Similarly, a State may decide to open government property to the public or some segment of it for use as a place for expressive activity. Although nothing in the Constitution requires the States to establish such forums or to retain indefinitely their open character, so long as a State does so these limited public or "open forums" are subject to the same restrictions that apply to their traditional counterparts: speakers cannot be excluded absent a compelling state interest. Id. at 46; Widmar v. Vincent, 454 U.S. 263, 269 (1981); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). Finally, a State may restrict access to a nonpublic forum as long as the restrictions are reasonable, and are not intended to suppress a particular point of view. Cornelius, 473 U.S. at 800. /14/

    The "fundamental principle" of the public forum is that state regulation of speech must be content-neutral. Widmar, 454 U.S. at 277. That tenet reflects our Nation's deep-seated conviction that there is an "'equality of status in the field of ideas.'" Police Dep't v. Mosley, 408 U.S. 92, 96 (1972) (citation omitted). Once it has opened a forum to expressive activity, the "government must afford all points of view an equal opportunity to be heard." Ibid. In light of the special care with which the Founders guarded religious speech, it was long assumed that free speech rights of access to an open forum extended a fortiori to religious expression. See, e.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Fowler v. Rhode Island, 345 U.S. 67 (1953); Saia v. New York, 334 U.S. 558 (1948); Murdock, supra.

    This Court confirmed that assumption in Widmar v. Vincent, supra. There, the Court held that a public university's practice of excluding religious speech from its limited open forum violated the First Amendment. The university had contended that its exclusionary policy was justified by the State's compelling interest in complying with the Establishment Clause. This Court held instead that "an 'equal access' policy" affording student religious groups the same rights to meet enjoyed by other student groups would not run afoul of the Establishment Clause, and was indeed mandated by the Free Speech Clause. 454 U.S. at 267-271. /15/

    B. The Equal Access Act ensures that student groups at covered schools will not be denied the same right to meet that the school extends to other student groups solely on the basis of the content of their speech

    1. Against this constitutional background, Congress considered and passed the Equal Access Act, Pub. L. No. 98-377, Tit. VIII, 98 Stat. 1302-1304, 20 U.S.C. 4071-4074. The Act was prompted by widespread reports of discrimination directed against religious speech that persisted in the Nation's schools even in Widmar's wake. /16/ According to extensive findings in the reports on earlier versions of the Act /17/ and as emphasized in the debates, /18/ Congress acted to eliminate official "hostility" towards religious expression in the public schools that had led to the suppression of religious speech. S. Rep. No. 357, 98th Cong., 2d Sess. 11 (1984). Congress found that school officials across the Nation -- driven by rigid readings of this Court's Establishment Clause cases and fears of aggressively separationists litigation -- had singled out religious liberty for discriminatory treatment. Their suppression of free religious speech fueled the "tragic perception that the government is affirmatively hostile to religious expression." S. Rep. No. 357, supra, at 21. Congress therefore sought to clarify and confirm the right of secondary school students to engage in religious speech on the same terms as they could engage in other types of speech.

    Although prompted to action by evidence of discrimination against religious speech, Congress did not grant religious speech any preferred status in the Act. Rather, the legislature's intention was to "make equal the right of freedom of speech to any and all subject fields" rather than to create "special rights." /19/ This is reflected in the language of the final bill. /20/ Its operative section provides:

    It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

    20 U.S.C. 4071(a). The next section defines "limited open forum":

    A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.

    20 U.S.C. 4071(b).

    Reports and debates on earlier versions and the final version of the Act reflect a general intent to extend the principles enunciated by this Court in Widmar to public secondary schools. As Senator Hatfield explained, nothing in the Act requires schools to permit any student activities outside of the formal instructional activities of the school:

    We are not directing the school to set up such a forum. We are merely recognizing that the schools do have them in many instances. * * * For those that do have, what we are saying is that once this school establishes that forum, and borrowing from the Court in the Widmar case * * *, once the school sets up that forum it should not discriminate as to the content of the speech in that forum.

    130 Cong. Rec. 19,222 (1984). As Senator Thurmond put it:

    To deny the * * * utterance of religious speech on school property while allowing other forms of protected speech, is to violate the first amendment * * *. The Supreme Court has already made this principle applicable to publicly supported colleges and universities in the Widmar case. It is now time for Congress to extend this protection to the public school systems of this Nation.

    Id. at 19,245. /21/ Representative Goodling, who along with Representative Perkins ushered the Senate amendment through the House, agreed:

    All we are saying is that since the Supreme Court has not acted at this point, since there is controversy in the lower courts, there should be some guidelines for the school district so they know where they stand.

    Most of them are continuing to operate today just as this legislation says they are allowed to operate. So we are not asking for anything new. We are not asking for anything more.

    Id. at 20,682. /22/

    Faithful to the "equal access" theory underlying Widmar, Congress adopted language in the final bill to clarify that the bill was not giving religious speech a preferred position. While the Act was prompted by evidence of discrimination against religious expression, Congress expressly protected "political, philosophical, or other" speech as well. 20 U.S.C. 4071(a). /23/

    At the same time, however, Congress was troubled about continuing confusion and uncertainty in the state of the law. The legislature's decision to act in the first place was prompted in part by a desire to eliminate such confusion. Congress found that the discriminatory suppression of religious speech by school administrators was occasioned not so much by "malice" as by their "misunderstanding" of existing law. /24/ Expressing confidence in the eventual resolution of the issue by this Court, /25/ Congress nevertheless decided to correct present violations and to forestall further costly and divisive litigation. /26/

    In view of this background, Congress was concerned not to perpetuate uncertainty and confusion through its choice of imprecise statutory language. The legislators thus carefully focused on and refined that language, making it highly specific. The penultimate version of the bill tracked the language of this Court's decision in Widmar, specifying that the Act was triggered whenever a school implemented a "policy or practice which generally permits students or groups of students, or both, to engage in voluntary extracurricular activities" on school premises. /27/ However, this Widmar-inspired language did not survive. Instead, Congress deliberately moved away from this rather general formulation in the perfecting amendment that became law, specifying that a "limited open forum" triggering the nondiscrimination protections of the Act exists at a public secondary school "whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." See 130 Cong. Rec. 19,219 (1984).

    This drafting change, resulting in a low triggering standard (one or more noncurriculum related groups), was by no means inadvertent. Senator Leahy -- a co-sponsor of the amendment -- explained that the new definition was designed to remove "some lingering doubts about the specificity of one or two key concepts. One of those was the concept of the limited open forum -- the very heart of the bill." 130 Cong. Rec. 19,221 (1984). Senator Leahy noted that "the language of the earlier draft might have been interpreted to allow the school's actions to differ from their words." Ibid. A school could, for example, assert that it did not have a limited open forum and was therefore not covered by the Act, and then consider student groups wishing to meet on a case-by-case basis, once again discriminatorily excluding religious groups. Id. at 19,221-19,222. As Senator Leahy concluded, "(t)he point is that a limited open forum should be triggered by what a school does, not by what it says." Id. at 19,222. /28/

    Under the Act as passed, therefore, if what a school does is permit one or more noncurriculum related groups to meet, then it has a limited open forum and the equal access provision of the Act is thereby triggered. The Act thus "sets forth common-sense rules to guide schools in opening their doors to these noncurriculum groups in a manner that stresses fairness and equity * * *." 130 Cong. Rec. 19,221 (1984). /29/

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