Liberal Groups Split With Allies Over Roberts

Leaders Defend Decision To Hold Fire

By Ori Nir

Published September 02, 2005, issue of September 02, 2005.
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WASHINGTON — As church-state activists launched their harshest assault yet on Supreme Court nominee John Roberts, they criticized Jewish organizations that have refused to join the fight.

In one of the strongest attacks on Roberts, the Washington-based interest group Americans United for Separation of Church and State issued a report stating that the nominee’s record “shows a life-long crusade against church-state separation.” The report, headlined “Religious Minorities at Risk,” strongly condemns Roberts’s alleged views on the constitutional clause forbidding Congress from passing any law “respecting an establishment of religion.”

Officials at several Jewish organizations that hold liberal positions on church-state issues, including the Anti-Defamation League, the American Jewish Congress and the Religious Action Center of Reform Judaism, criticized the extreme characterization. The Orthodox Union, which leans right on church-state issues, also defended Roberts, citing a previously undisclosed 1984 memo he wrote in which he counseled President Reagan to use nonsectarian terms in a speech at a prayer breakfast.

In recent days, liberal groups have expressed frustration that only one Jewish organization — the National Council of Jewish Women — opted to sign on to a campaign against the Roberts nomination. This week, officials at Americans United appeared to be offering a similar complaint.

In a statement, the organization’s executive director, the Rev. Barry Lynn, said, referring to two leading Christian conservatives, “I understand why Jerry Falwell and Pat Robertson support Roberts’s confirmation. I don’t understand why anyone else would.” The organization’s spokesman, Joe Conn, told the Forward, “It is very shortsighted for religious minorities to support Roberts when his record so clearly shows a callous disregard for separation of church and state.”

With the exception of the United Synagogue of Conservative Judaism — which endorsed Roberts as “qualified” last week — no other nonpartisan Jewish organizations are believed to have come out in support of President Bush’s pick to replace retiring Justice Sandra Day O’Connor.

Officials at several Jewish groups, including the ones that defended Roberts, said that they have not weighed in on the nomination because his paper trail on church-state issues is scant. In its recent 19-page report, Americans United raises several previously undisclosed opinions and briefs to show otherwise.

Several officials with liberal Jewish groups, speaking on condition of anonymity, said that they did find the report’s account of Roberts’s writings on the Establishment Clause troubling. The report revealed for the first time that Roberts, when working for the Reagan administration in 1985, approved a speech that then secretary of education William Bennett gave in which he asserted that the Unites States was founded on Judeo-Christian values that should be “wedded together” with “our values, our principles, the animating spirit of our institutions.”

In a memorandum in advance of the speech, Roberts, then associate counsel to Reagan, said that “I have no quarrel.” Americans United, in its report, condemned Bennett’s comments as a “clear repudiation” of the separation of church and state.

The report details several examples of Roberts taking issue with the Lemon Test, which for more than 30 years has been the Supreme Court’s yardstick for interpreting the Establishment Clause. The test requires government officials to refrain from acting with a religious agenda, taking actions that endorse a particular religion or endorsing religion in general. Roberts, according to the report, advocated in a 1990 amicus brief on behalf of the White House, setting the bar lower by offering a “coercion” test, which says that government should not “coerce nonadherents to practice in any religious exercise against their will.”

Following the release of the report, one source intimately familiar with the liberal groups’ campaign to oppose Roberts told the Forward that members of the coalition opposing him were frustrated with the continuing refusal of Jewish organizations to speak out. “They can no longer say that church-state is not an issue,” the source said. “They can still take a stand before the Senate vote.”

The general counsel of the AJCongress, Marc Stern, turned the tables on such criticism, saying, “The notion that an informed judgment is a disappointment is itself a disappointment.” He added that a “serious” approach to the nomination required waiting for Roberts to appear before the Judiciary Committee. (Please see related opinion article on Page 9.)

Officials at other Jewish organizations also said that the findings in the report from Americans United were not enough to coax Jewish organizations into weighing in against Roberts’s nomination. They said the report failed to answer the question of whether Roberts was voicing his own views or simply doing a good job of representing his client — the White House.

“While I have great respect for Americans United, I don’t think they make the case, which the headline proclaims, that his record ‘shows a life-long crusade against church-state separation,’” said Abraham Foxman, national director of the Anti-Defamation League, generally an ally of Americans United.

Mark Pelavin, associate director of the Religious Action Center, the Reform movement’s Washington office, offered a similar take. “There is clearly no ‘smoking gun’ [in the report] or smoking bricks hurled at the church-state wall,” Pelavin said.

Still, the Reform official added, “On the other hand, every single piece of evidence, no mater how small it is, paints a picture of someone who doesn’t share our view of a strict separation of church and state.”

According to Pelavin, his organization would not take a stand until the board of trustees of the Union for Reform Judaism meets September 12. The confirmation hearings are expected to be over by then.

The AJCongress’s Stern also acknowledged some concern over Roberts’s memos, in particular the brief in which he suggested replacing the Lemon Test with a “coercion” test.

“If this is really his view, that in fact would be very unhappy news,” Stern said. “Would it be unhappy enough to oppose him? I am not sure.”

The Orthodox Union was the most outspoken among Jewish organizations in its defense of Roberts. In a letter to members of the Judiciary Committee, O.U. leaders argued that the American United report contained “misleading distortions of [Roberts’s] record to date.” The O.U.’s letter, sent Monday — the same day that Americans United issued its report — also cited a memo that Roberts wrote while working under White House Counsel Fred Fielding during the Reagan administration in 1984.

In the memo to Fielding, which the O.U. publicized for the first time, Roberts commented on a speech that Reagan was scheduled to give three days later at a prayer breakfast in Dallas. Roberts noted that Reagan’s remarks “repeatedly refer to the role of ‘the church,’” saying such references were problematic “since many of our citizens do not worship in churches but in temples or mosques.” Roberts added, “I recommend suggesting that references to ‘the Church’ or ‘churches’ be changed to references to religion or religions.” A transcript of Reagan’s speech shows that Roberts’s recommendation was only partially accepted.

The O.U. letter to Judiciary Committee members — signed by the union’s chairman of public policy, Mark Bane, and its Washington representative, Nathan Diament — stated that Roberts’s 1984 memo “indicates a clear sensitivity and appreciation for the diversity of religious faith in America.”

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