Strengthening Constitutional Self-Government

No Left Turns

Roberts on church and state

For those of you interested in these matters, Beliefnet has provided excerpts of and links to two briefs on First Amendment cases John Roberts co-authored while he was Deputy S.G. The cases are Westside v. Mergens and Lee v. Weisman.

Of course, the qualification regarding ascribing to the attorney the opinions of his client apply. Roberts is listed third on both briefs, after Ken Starr and the Assistant A.G.

Update: Beliefnet missed a brief, providing a link only to the amicus brief on the petition for the writ of certiorari in Lee v. Weisman. Here’s the amicus brief on the case itself.

Update #2: Beliefnet does have a package of columns speculating about Roberts’ religion clause views. Nathan Diament thinks that Roberts will favor the "equal treatment" position that has gained favor against the "wall of separation" argument. Samuel Estreicher argues that "a Justice Roberts is likely to look more favorably on permitting limited references to religion in the public square, as consistent with the nation’s history and values." Marci Hamilton thinks that on free exercise cases there will prove to be a big difference between Roberts and Michael McConnell, with the former arguing that accommodating free exercise is the job of legislatures and the latter that accommodations are constitutionally mandated.

The big religion case coming up in the next term is Gonzales v. O Centro Espirita Etc., a case concerning the protections extended by the Religious Freedom Restoration Act to the religious use of controlled substances. Here’s the Appeals Court decision, and here’s the result of the en banc rehearing by the entire 10th Circuit, in which Michael McConnell authored a significant concurrence, which is not surprising, given his criticism of the Court’s decision in Employment Division v. Smith and his very public support for the Religious Freedom Restoration Act (in two articles in First Things, unfortunately not archived on the website). I guess we’ll likely know soon enough (confirmation optimist that I am) how different Roberts and McConnell are.

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