Strengthening Constitutional Self-Government

No Left Turns

Roberts on school prayer

Here are the most revealing Roberts church/state memos readily available on the web. On p. 10 of the pdf, he offers a very subtle analysis of the conflicting opinions in Wallace v. Jaffree, a 1985 school prayer/moment of silence case. Roberts speculates that Rehnquist’s long (and, I think, quite compelling) dissent--aimed pretty squarely at the much-controverted Lemon test--was drafted as a majority opinion, but failed to persuade Sandra Day O’Connor and Lewis Powell. According to Roberts:

Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority. Which is not to say the effort was misguided. In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied.

Roberts’s implicit criticism of the Lemon test is quite consistent with the lines of argument I (and others) have found in our examination of the briefs he authored or co-authored. The contrast between Roberts’s doctrinally driven approval of Rehnquist’s efforts and O’Connor’s disapproval could not be clearer and could not, to my mind, redound more in Roberts’s favor.

If you feel like reading more about these matters, see this WaPo article, which reports on memos not yet available on-line, and this overview, written by the Kansas City Star’s well-regarded religion writer.

Discussions - 3 Comments

Thanks for posting this link. I found this material quite interesting as an illustration of how Roberts understands the process of Supreme Court adjudication.

One aspect of his analysis perplexes me, though. On the one hand, Roberts seems to accept that the evidence was overwhelming that the impugned law had a religious purpose and could not have passed the first prong of the Lemon test. On the other hand, he suggests that had Rehnquist not tried to move away from the Lemon test, there might have been a majority decision upholding the law as a "moment of silence."

Perhaps you can explain what Roberts might have seen as the ratio of the majority that Rehnquist lost; in the meantime I’m going to try and solve the puzzle myself by reading the case more carefully.

By the way, I also found curious Roberts’ summary of the amicus brief filed by the Administration, suggesting the law be upheld as an "accomodation" of religious belief. I think that’s clever because in fact one can imagine "accomodation" as a truly secular motive for providing an opportunity for prayer in schools: it can make religious minorities feel less alien and more like full members of the community to be able to express their beliefs in the public space of a school, and it can make religious parents more open to sending their children to public, non-sectarian schools thus serving the goal of educating children in a non-sectarian public culture. The trouble is that this particular law as Roberts says was not aimed at the goal of "accomodation" but rather the insertion of religion into the schools, this was the clear legislative intent.

I’m less convinced that returning voluntary prayer to schools is a constitutionally infirm purpose; that strikes me as a classic "accommodation" of religion. At the same time, I’m still less convinced that inquiries into legislative purpose are at all helpful. What would have been the fate of the law, for example, if the sponsor had kept his mouth shut or if the first (not the third) version of the legislation had mentioned voluntary prayer? Would the law’s effect have been any different if the moment of silence legislation did or did not mention "voluntary prayer"?

Of course, I would have loved for Roberts to spell out his analysis at greater length, but it still strikes me that the big take-away from this memo is that he would have voted to toss the Lemon test, perhaps for the some of the reasons that I suggested.

I’m REALLY a non-expert in this area of law, but I guess there is a difference between the state favoring voluntary prayer in order to further religious accomodation and tolerance and the state favoring voluntary prayer because the state wants to ENCOURAGE prayer, i.e. religious observance (even if it won’t go so far as to coerce it.

More generally, your point about the difficulty in ascertaining legislative purposes is a good one.

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