Is Roberts a Lemon?

By Ami Eden

Published September 02, 2005, issue of September 02, 2005.
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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?

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