Roberts' testimony 'more encouraging' than his church-state record

By J. Brent Walker
Executive Director
Baptist Joint Committee

September 19, 2005

In analyzing memos, briefs and media reports prior to his confirmation hearings, the Baptist Joint Committee found Judge John G. Roberts' previous church-state record troubling. Since he has been a judge only since 2003, that analysis was based mainly on positions Judge Roberts had taken as a lawyer and presidential advisor. Although during the Senate Judiciary Committee hearings he did not commit to any particular outcome on any church-state issue, his testimony was more encouraging. The following points from the hearings counter some aspects of his writings and public positions.

1. In the lead up to the hearings, some expressed concern that Judge Roberts' religion would dictate his views of church-state separation. However, in his testimony, Judge Roberts agreed with John F. Kennedy's sentiment expressed to the Greater Houston Ministerial Association in the 1960 campaign that "I do not speak for my church on public matters, and the church does not speak for me." Judge Roberts went on to declare that "there's nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court faithfully under principles of stare decisis." Stare decisis generally requires the Court to adhere to previous decisions.

2. While the evidence was not voluminous, Judge Roberts' record suggested that he preferred an Establishment Clause standard that would weaken church-state separation. In his testimony, Judge Roberts did not condemn the Lemon test, which has been traditionally used to decide Establishment Clause cases and requires government neutrality in religion. Although he testified that Lemon has resulted in what he regarded as inconsistent and unclear results, he recognized its advantage (and disadvantage) as being "very sensitive to factual nuances," and acknowledged that the Court has found it difficult to "come up with anything better." On several occasions he conceded that Lemon is a longstanding precedent and, under the principle of stare decisis, cannot lightly be overruled.

3. Although Judge Roberts did not embrace, by name, Justice Sandra Day O'Connor's "endorsement test," one could hear echoes of her views. O'Connor's test generally has operated to limit governmental preferences for one or all religions. She has posited that the First Amendment prohibits government from "making adherence to a religion relevant in any way to a person's standing in the political community." Her view also bans sending "a message to nonadherents that they are outsiders, not full members of the political community. ..." Judge Roberts testified that "I think the animating principle of the Framers, that's reflected in both of the religion clauses, is that no one should be denied the rights of full citizenship because of their religious belief or their lack of religious belief."

4. In response to a question from Senator Richard Durbin, D-Ill., Judge Roberts made a statement that stands in contrast to the basic church-state philosophy of his former boss, Chief Justice William Rehnquist. Roberts said that he agreed with the idea that the religion clauses protect not only religious minorities but also nonbelievers. In that connection, he went on to opine that it was not the Framers' intent "just to have a protection for denominational discrimination. [emphasis added] It was their intent to leave this as an area of privacy apart—a conscience from which the government would not intrude."

Rehnquist consistently expressed the view that the Framers would allow government to aid religion over irreligion as long as it does not discriminate among religions or denominations. Judge Roberts appears to reject this "nonpreferentialism" theory when he says the Framers did not intend only to ban "denominational discrimination," but to keep government out of the private consciences of its citizens and religion generally.

Judge Roberts repeated this point in answer to questions posed by Senator Jeff Sessions, R-Ala., when he said, "I think that both of those [clauses] are animated by the principle that the Framers intended the rights of full citizenship to be available to all citizens, without regard to their religious belief or lack of religious belief. ... [H]opefully the Court's precedents over the years will continue to give life to that ideal."

In sum, one can never be certain about how a nominee would decide cases generally or church-state cases in particular. Judge Roberts' testimony, however, gives those who value religious liberty and church-state separation cause to be more optimistic than before he testified.