We don’t know exactly where the chief justice nominee John Roberts stands on the separation of church and state under the establishment clause of the First Amendment — and his confirmation hearings haven’t shed much light on the question.
But strong hints from past memos and briefs suggest that the nominee’s views on church-state relations are very close to those of the man he is about to replace, the late Chief Justice William Rehnquist. By itself, that won’t change much. But Roberts plus one — the replacement for retiring Justice Sandra Day O’Connor — could add up to a radical redefinition of religious freedom in the United States.
To win at the Supreme Court you must be able to count to five. In key 5-4 church-state rulings by the Court over the past two decades, O’Connor provided that critical swing vote. Although the outcome in some of those cases (notably school vouchers) angered strict separationists, her reasoning in all of them was rooted in a firm commitment to maintaining what Thomas Jefferson famously described as a “wall of separation between Church and State.” O’Connor drew the line at government endorsement of religion. And she consistently warned that any direct funding of religion by government was a serious violation of religious liberty.
Rehnquist had a very different view of the establishment clause. “The ‘wall of separation between Church and State’ is a metaphor based on bad history,” he wrote in 1985, “a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
Until now, the Rehnquist dismissal of Mr. Jefferson’s wall has been a minority view on the Supreme Court. Beginning in the late 1940s, the Court majority has frequently invoked Jefferson (and James Madison) in support of an establishment clause that strongly separates church from state. Sometimes the wall was high and impregnable, as in the decisions striking down state-sponsored religious exercises in public schools. Other times it was low and porous as in the school-voucher ruling. But through it all the wall still stood — upholding the principle that the establishment clause (“Congress shall make no law respecting an establishment of religion”) keeps the government from favoring one religion over another, or religion over non-religion.
By contrast, Rehnquist had a hard time finding “separation of church and state” anywhere in the First Amendment. In his reading of history, the establishment clause was intended only to prevent the establishment of a national church and to stop the federal government from asserting a preference for one religious denomination over others. Among other things, this interpretation would mean that the government could aid religion — as long as it didn’t discriminate among religions. It also would mean that government could promote religion generally — though where Rehnquist would draw the line wasn’t always clear.
Of course, the framers themselves disagreed about what “no establishment” should mean. Jefferson and Madison clearly wanted to prevent government entanglement with religion, while others merely wanted the federal government to keep out of state establishments already in place. The language we have today, therefore, was a compromise that meant different things to different framers.
Does Roberts, who once clerked for Rehnquist, agree with his friend and former boss? More important, will the person President Bush nominates to fill O’Connor’s seat be cut from the same philosophical cloth? Religious conservatives and political leaders who have long attacked the Jeffersonian wall certainly hope the answer to both questions is “yes.” They are anxious to reverse much that the Supreme Court has ruled for close to 60 years. As House Majority Leader Tom Delay put it last April, “the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution.”
Although the evidence is thin, Roberts did write memos as a lawyer in the Reagan White House in support of allowing public schools to post the Ten Commandments and encourage prayer. And some of the briefs he wrote in a few religion cases argue for a view of the First Amendment very close to the Rehnquist interpretation. Whether or not this paper trail accurately reflects what Roberts thinks today about church-state questions remains to be seen.
If a Roberts Court does adopt the Rehnquist view of the establishment clause, what remains of Jefferson’s wall — already battered and full of holes — may crumble entirely. Government funds are likely to flow more freely and directly to religious groups. Current limits on government-sponsored religious expression will probably be weakened or removed.
All of this might sound good to those Americans anxious to enlist the state in support of (their) religion. But people of all faiths and of no faith should think long and hard before abandoning the wall of separation. What metaphor we use is unimportant (and, to be fair, the “wall” has sometimes been invoked to unjustly exclude religion from the public square). But abandoning the principle — the idea that separating church from state is a necessary condition for religious freedom — is dangerous and divisive. As Justice John Paul Stevens wrote not long ago:
“Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.”
Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: firstname.lastname@example.org.