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High Court Nomination Shines Spotlight on School Prayer Debate

August 18, 2005 By:
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John G. Roberts Jr.
For years, Christian conservatives have pushed for the resumption of school prayer, once a figure of public education in America but banned in the 1960s by the Supreme Court as unconstitutional. At the same time, Jewish organizations, concerned over proselytizing on school grounds, have been just as vehement in their demands that religion stay far away from the schoolhouse.

Now, with weeks until Senate confirmation hearings on the nomination of Republican Judge John G. Roberts Jr. to the nation's highest court, the release of 20-year-old documents penned by the nominee on the subject have left many with the question: What would Roberts do?

As a young attorney in President Ronald Reagan's administration, Roberts - the first-ever Supreme Court nominee of President George W. Bush - argued in memorandums to White House counsel Fred Fielding that so-called "moments of silence" would survive constitutional challenges. He also advocated amending the Constitution to legalize school prayer.

The analyses, written during the summer of 1985, are part of nearly 5,400 pages of records released on Monday by the Ronald Reagan Presidential Library and now available online. Members of the Senate Judiciary Committee, chaired by Sen. Arlen Specter (R-Pa.), had requested the documents in preparation for next month's confirmation hearings.

While the revelations offer only a glimpse into the thought process of 27-year-old attorney working for a socially conservative White House, some Jewish activists see the correspondence as portending a re-examination of constitutional battles fought decades ago.

The fact that the documents were made public one day after Christian conservatives held a nationally televised church service chastising the Supreme Court for upholding abortion and striking down public religious displays put the Roberts issue into sharper focus.

"Roberts' stated position on prayer, including silent prayer, in public schools should set off alarm bells for all of us who believe that separation of religion and state is absolutely critical to preserving religious freedom," said Eleanor Levie, Pennsylvania public affairs chair for the National Council of Jewish Women.

The documents in question concern congressional attempts at the beginning of Reagan's second term to limit federal courts' jurisdictions on school-prayer cases and to pass a school-prayer constitutional amendment. Roberts supported both attempts on legal grounds, but advised against limiting school-prayer jurisdiction "as a matter of policy."

In an examination of a Supreme Court ruling earlier that year, which struck down an Alabama law mandating a one-minute moment of silence "for meditation or voluntary prayer" in the state's public schools, Roberts concluded that all had not been lost in the quest to introduce designated prayer times in the school system. He advised the administration to continue its push.

Alabama legislators had an explicitly religious intent in crafting the law. "The statute was thus struck down because of the peculiarities of the particular legislative history," wrote Roberts in the June 4, 1985 memo, "not because of any inherent constitutional flaw in moment-of-silence statutes."

Such a position, argued Levie, is anathema to First Amendment thinking.

But while Levie's organization is actively campaigning against the Roberts nomination - Bush named the federal district judge to replace retiring Justice Sandra Day O'Connor - Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, urged restraint and a thorough Senate investigation into his views.

"His decision, that the state organizing moments of silence as a way to bring about school prayer might be constitutional, is of great concern to those who believe in the separation of church and state," said Saperstein. "But it's one piece. I don't think it's a determinative piece, but it's one piece for people anxious to know about where he stands on civil rights."

But Marc Stern, director of the American Jewish Congress' Commission on Law and Social Action, said that he probably would have arrived at Roberts' conclusion: that moments of silence, narrowly tailored, do not violate the Constitution.

"It's unclear how you would protect kids who don't want to pray, [but] the memo quite reasonably says the court would uphold a moment of silence," said Stern. "More troublesome is Roberts' contention that courts could be deprived of jurisdiction in a number of cases."

Stern saw such views as potentially dangerous, but wondered whether Roberts continues to view, 20 years later, jurisdictional lines as so easily malleable. Like Saperstein, he said he looked forward to the Senate hearings.

At the National Council of Jewish Women, Levie questioned how school prayer would ever work in a country that holds freedom so highly.

"Religious fervor that falls somewhat short of 'coercive' is still unfair to impose on Americans, particularly impressionable minors," she said. "What does a prayer mandated in public school mean for the one Jewish kid? Or for the one Muslim kid or Buddhist kid? For the one atheist kid?"

"It's not fair," she answered, "and it's not right."

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