נתן לואין: אקאנער געשטיצט ק"י דיסטריקט

Justice-To-Be-Roberts: As Good For Jews As Justice O'Connor?
Posted 8/3/2005
By Nathan Lewin
When Sandra Day O'Connor announced her retirement from the Supreme Court of the United States, observant American Jews lost their best friend on the nation's highest court. The view of Justice O'Connor on the two parts of the "Religion Clause" of the First Amendment was better for the interests of religious Jews than the position of any of the Court's other eight members. Will Justice O'Connor's likely successor — Circuit Judge John Roberts, Jr., whom President Bush has nominated for this vacancy — follow the same course?

The first 16 words of the Bill of Rights say: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Constitutional lawyers speak of an "Establishment Clause" that bars any government agency from adopting an official state religion or — to an extent that is constantly argued in constitutional litigation — providing state support for religion. The last six words are called the "Free Exercise Clause" and that clause prevents government — to a greater or lesser degree also disputed in cases that reach the Supreme Court — from restricting religious observance.

Leading American Jewish secular organizations such as the American Jewish Congress, the American Jewish Committee, and the Anti-Defamation League have consistently favored a hard line on the Establishment Clause. There should, in their view, be no financial assistance of any kind to religiously-affiliated institutions, including private religious schools, even if the funding goes exclusively to secular education. Ever since the late 1960's, however, Orthodox Jewish institutions in the United States have maintained that the Establishment Clause is not violated by state aid to the secular programs of religious schools, including, of course, Jewish day schools as well as Catholic parochial schools.

In 1971, I authored a friend-of-the-court brief in the Supreme Court on behalf of a coalition of all major national American Orthodox Jewish organizations in the landmark case (Lemon v. Kurtzman) that decided whether states could pay the salaries of teachers of secular subjects in religious schools. We argued that this was constitutional; all the major non-Orthodox American Jewish organizations were opposed. They won, and in succeeding years the Supreme Court expanded the reach of the Establishment Clause to prohibit many other forms of publicly-financed assistance to religious institutions.

But the Rehnquist Supreme Court, after the appointment of Justices Scalia, O'Connor, Kennedy, and Thomas, reversed that trend. Several of the most extreme cases prohibiting aid to religious schools were explicitly overruled, and Justice O'Connor authored Court opinions declaring that the earlier decisions were mistaken. A majority of the current Court has even approved the use of vouchers that would permit parents to assign designated funds to tuition for religiously affiliated schools.

Justice O'Connor also gave birth to the "endorsement" test under which governmental demonstrations or displays would not be prohibited under the Establishment Clause unless objective observers would believe them to be state "endorsement" of the particular religion. I argued in 1989 that a Chabad menorah displayed by the City of Pittsburgh in front of City Hall as part of a "holiday display" that included a Christmas tree was constitutionally permissible, and Justices O'Connor and Blackmun agreed that the menorah was not a violation of the Establishment Clause while a solitary display of a nativity scene in a courthouse was constitutionally barred. This meant that the menorah won in the Supreme Court by 6-to-3 while the nativity scene lost by 5-to-4.

Other justices such as Rehnquist, Scalia, and Thomas believe as strongly as Justice O'Connor in a flexible Establishment Clause that permits certain forms of state aid to religion. The observant Jewish community in the United States can consider them friends in this respect. But these three justices are not as committed to the defense of minority religious observance from state interference as was Justice O'Connor. In 1990, Justice Scalia — who is a devout Catholic personally respectful of Jewish religious observance — wrote a disastrous opinion for a 5-member majority of the Supreme Court in which he effectively disemboweled the Free Exercise Clause. And when Congress sought to overrule that decision and continue to protect religious observance with the virtually unanimous enactment of the "Religious Freedom Restoration Act," the Supreme Court declared that law unconstitutional.

Justice O'Connor expressed her strong disagreement in 1990 with Scalia's novel constitutional approach to the Free Exercise Clause, and she stood by that position and called for the 1990 decision to be overruled when the Court invalidated the Religious Freedom Restoration Act years later. Although she voted in another case I presented to the Court to prohibit public funding for the special school for the handicapped created by the Satmar community of Kiryas Joel because she believed that the New York legislature had shown unique favoritism to Kiryas Joel, she took the unusual step years later of noting her view that the Court should consider a New York decision that invalidated a subsequent legislative amendment that corrected this particular flaw.

Does Justice-to-be Roberts share the view that the Establishment Clause should be applied flexibly and the Free Exercise Clause vigorously? He served as the principal deputy to Solicitor General Kenneth Starr in the Reagan Justice Department, and now-Professor Starr has this opinion. As a circuit judge, Starr wrote a stirring dissenting opinion applying the Free Exercise Clause to permit an Orthodox psychologist in the Air Force to wear his yarmulke in the military hospital.

As Starr's deputy, Judge Roberts participated in two important Supreme Court cases in which parties claimed that the Establishment Clause prohibited acknowledgment of religion and availability of public facilities to religious groups. In both cases, Roberts's name is on briefs that support the religious expression, although a majority of the Court agreed with him in only one case.

There seems little doubt that a Justice Roberts will follow the more flexible Establishment Clause approach taken by Justices Rehnquist, O'Connor, Scalia, and Thomas. Will he, however, be as staunch a friend of the free exercise of religion as Justice O'Connor was? That may be tested in a case the Supreme Court will probably hear this October or November. It concerns the use of hoasca — a derivative of plants grown in Brazil that has hallucinogenic effects — by adherents of a religious group. Does the free exercise of religion protected by federal statutory law (even if not, since 1990, by the Constitution) entitle the group to import the plant from Brazil and use hoasca in religious ceremonies? This will be an early test of the new justice's attitude toward freedom to observe religious commands.