Is Roberts a Lemon?

By Ami Eden

Published September 02, 2005, issue of September 02, 2005.
  • Print
  • Share Share

The battle over Supreme Court nominee John Roberts is coming to a head, and though the deck is stacked against them, his liberal critics seem ready for a nasty fight to the finish. As Ori Nir reports on Page 1, one liberal advocacy group, Americans United for Separation of Church and State, issued a 19-page report Monday warning that the nominee’s record “shows a life-long crusade against church-state separation.”

This confrontational approach has failed to win over Jewish organizations — even liberal ones — and even drew criticism from some communal leaders, who argue that the memos and briefs being decried by some liberal groups represent Roberts’s work as a government lawyer and do not necessarily represent his own views. The fair thing to do, many Jewish organizations have said, is to withhold judgment until Roberts has had an opportunity to appear before the Senate Judiciary Committee.

The case for waiting to hear what Roberts actually has to say on a range of controversial issues is a good one. Less solid is the claim this week from the right-leaning Orthodox Union that Roberts has displayed “a clear sensitivity and appreciation for the diversity of religious faith in America” and that he falls within the mainstream of American jurisprudence.

That last point is probably true, given what passes for mainstream these days. At least two Supreme Court justices — President Bush’s favorite ones — have argued from the bench that only Congress, not the states, is bound by the constitutional prohibition against passing a law “respecting an establishment of religion.” The idea was floated by Justice Antonin Scalia in a dissent from the Supreme Court’s 1992 decision to disallow prayers by religious figures at public school graduations. In a sign of changing times, what Scalia slipped in as a parenthetical statement, Justice Clarence Thomas expounded at great length in his concurrence to the 2004 decision allowing the recitation of the Pledge of Allegiance in public schools. In his concurring opinion, Thomas argued that the Establishment Clause does not apply to state governments, and said he “would welcome the opportunity to consider [the issue] more fully” — a clear invitation for religious conservatives across the country to push the church-state envelope.

Even at the national level, Scalia and Thomas are bent on radically lowering the church-state wall. How low? In his concurrence last year, Thomas conceded that Congress was “probably” prohibited from establishing a national religion. (Yes, only probably.) This year, the conservative duo was joined by Chief Justice William Rehnquist in a dissenting opinion written by Scalia that rejected the standing doctrine that government must not favor religion over nonreligion. The trio also suggested that the government in some instances is free to favor monotheistic faiths over other religions.

For now, in the nine-seat arithmetic of the Supreme Court, the most immediate and sweeping church-state question is whether the so-called Lemon Test would survive a Roberts confirmation. The test — which requires government officials to refrain from implementing a religious agenda, taking actions that endorse a particular religion or endorsing religion in general — has guided the court for more than three decades, though less so in recent years. But liberal groups predict that Roberts would serve as a fifth vote to scrap it for good.

And what would replace it? Scalia and Thomas in their legal writings have sounded at times as it they would lower the bar to allow for almost any breach of the church-state wall, short of collecting a religion tax or placing atheists in prison. Liberal groups alarmingly note that Roberts, as a deputy solicitor general in 1990, only would go so far as to say that the government should not “coerce nonadherents to practice in any religious exercise against their will.”

What would a post-Lemon America look like? For a glimpse, check out recent developments in Texas, where last year the state Republican Party declared America a Christian nation and decried the “myth” of church-sate separation. Not surprisingly, in June, Governor Rick Perry saw fit to sign anti-abortion and anti-gay bills at a rally packed with invited “pro-family Christian friends,” held at an evangelical school. Just to be sure that no one would think that the event was exclusionary, organizers invited a rabbi to speak — but he turned out to be the leader of a messianic Jewish congregation.

Perry’s people probably meant no ill will when they invited a rabbi who embraces Jesus to represent the Jewish community — the governor has apologized — but the flap serves as an all-too-clear reminder that American Jews and other religious minorities are the ones who suffer when the height of the church-state wall is cut down according to the whims of state and federal officials.

So, when senators get their chance to grill Roberts next week, at least two questions should be at the top of their list: Does the Establishment Clause apply to the states? And, if Lemon is a lemon, what should replace it?






Find us on Facebook!
  • Undeterred by the conflict, 24 Jews participated in the first ever Jewish National Fund— JDate singles trip to Israel. Translation: Jews age 30 to 45 travelled to Israel to get it on in the sun, with a side of hummus.
  • "It pains and shocks me to say this, but here goes: My father was right all along. He always told me, as I spouted liberal talking points at the Shabbos table and challenged his hawkish views on Israel and the Palestinians to his unending chagrin, that I would one day change my tune." Have you had a similar experience?
  • "'What’s this, mommy?' she asked, while pulling at the purple sleeve to unwrap this mysterious little gift mom keeps hidden in the inside pocket of her bag. Oh boy, how do I answer?"
  • "I fear that we are witnessing the end of politics in the Israeli-Palestinian conflict. I see no possibility for resolution right now. I look into the future and see only a void." What do you think?
  • Not a gazillionaire? Take the "poor door."
  • "We will do what we must to protect our people. We have that right. We are not less deserving of life and quiet than anyone else. No more apologies."
  • "Woody Allen should have quit while he was ahead." Ezra Glinter's review of "Magic in the Moonlight": http://jd.fo/f4Q1Q
  • Jon Stewart responds to his critics: “Look, obviously there are many strong opinions on this. But just merely mentioning Israel or questioning in any way the effectiveness or humanity of Israel’s policies is not the same thing as being pro-Hamas.”
  • "My bat mitzvah party took place in our living room. There were only a few Jewish kids there, and only one from my Sunday school class. She sat in the corner, wearing the right clothes, asking her mom when they could go." The latest in our Promised Lands series — what state should we visit next?
  • Former Israeli National Security Advisor Yaakov Amidror: “A cease-fire will mean that anytime Hamas wants to fight it can. Occupation of Gaza will bring longer-term quiet, but the price will be very high.” What do you think?
  • Should couples sign a pre-pregnancy contract, outlining how caring for the infant will be equally divided between the two parties involved? Just think of it as a ketubah for expectant parents:
  • Many #Israelis can't make it to bomb shelters in time. One of them is Amos Oz.
  • According to Israeli professor Mordechai Kedar, “the only thing that can deter terrorists, like those who kidnapped the children and killed them, is the knowledge that their sister or their mother will be raped."
  • Why does ultra-Orthodox group Agudath Israel of America receive its largest donation from the majority owners of Walmart? Find out here: http://jd.fo/q4XfI
  • Woody Allen on the situation in #Gaza: It's “a terrible, tragic thing. Innocent lives are lost left and right, and it’s a horrible situation that eventually has to right itself.”
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.