Does Roberts support religious liberty?
By Rev. BARRY LYNN
WASHINGTON -- It doesn't matter where John G. Roberts goes to church. It doesn't matter if he's Catholic or Congregationalist, a Buddhist or a Baptist. What does matter is whether he supports America's tradition of religious liberty undergirded by the separation of church and state.
The Senate Judiciary Committee, when questioning Roberts, should restrict itself to an appropriate line of inquiry: Questions about Roberts' personal religious beliefs are not relevant because the Constitution forbids any religious test for public office.
But committee members are free to probe whether Roberts will make decisions based on the Constitution, not his personal religion. More important, committee members should delve carefully into his legal philosophy.
We have reason for grave concern about the nominee's stance on religion and government. When Roberts served as principal deputy solicitor general in the first Bush administration, his work was clearly hostile to church-state separation. He co-authored a friend-of-the-court brief for the Supreme Court arguing that it's permissible for public schools to sponsor prayer at graduation ceremonies. As long as people aren't legally compelled to pray, Roberts contended, it's constitutional for schools to make worship a part of school events.
But that interpretation of the Constitution is much too narrow. That means school officials could select clergy to lead prayers at school functions that leave out many children and their families. Students from minority faiths -- or those who adhere to no religious tradition at all -- would be effectively excluded from many of their school's activities.
Children should not be made to feel like second-class citizens at their own graduations. Even more troubling, the brief Roberts co-authored also called for scrapping time-tested judicial safeguards the high court has used for three decades to protect religious minorities and ensure religious liberty for all of us.
Fortunately, the Supreme Court rebuffed the approach urged by Roberts. In a 5-4 opinion written by Justice Anthony Kennedy (a Ronald Reagan appointee), the court rejected any attempt by schools to impose religion on students. Justice Kennedy noted that the position put forth by Roberts and his colleagues turns conventional First Amendment analysis on its head.
Roberts has also suggested that it is constitutional for Congress to deny the federal courts the authority to rule on school prayer, reproductive rights and other critically important constitutional concerns. This is a radical concept that flies in the face of the settled understanding of the Supreme Court's role in our society.
The genius of the American system is that it establishes neutral principles of law designed to apply to everyone equally, regardless of what each individual believes about God. These principles are enshrined in our Constitution, a secular document that shows favoritism toward no particular religion.
When handing down their decisions, judges must stick to these neutral principles, not search for religious rationales to buttress their rulings. In our multi-faith democracy, it is the job of religious leaders, not judges, to promote sectarian points of view.
At the end of the day, most Americans aren't interested in where John Roberts worships, but they are interested in what type of Supreme Court justice he will be.
The Senate Judiciary Committee has an obligation to get an answer to that question. And it can do so in a way that respects Roberts' religious liberty and the freedom guaranteed by our Constitution.
In 1960, John F. Kennedy made it clear that separation of church and state is a bedrock principle of American life. "I believe," he said, "in an America where the separation of church and state is absolute!" We must make sure it stays that way.
X The Rev. Barry W. Lynn is executive director of Americans United for Separation of Church and State (http://www.-au.org). He is an ordained minister in the United Church of Christ and a longtime civil liberties attorney. Distributed by Knight Ridder/Tribune Information Services.