Rebuttal of Report by Americans United for Separation of Church and State Opposing John Robertss Confirmation
On August 29, 2005, Americans United for Separation of Church and State (AU) published a Report opposing confirmation of John Roberts to the Supreme Court of the
Contrary to AUs assertions, confirming John Roberts would not pose any threat to the religious liberty of minorities. What is really at stake for AU is the supposed right of religious minorities to make a federal case out of a personal offense: AU argues that government cannot acknowledge the Nations religious heritage because some Americans might be offended. AU believes, for example, that the Establishment Clause requires the words under God to be purged from the Pledge of Allegiance. AU wants more than religious liberty for all faiths; it wants a relentless extirpation of all contact between government and religion. The Founding Fathers never intended the Establishment Clause to require such hostility to governmental accommodation of religion.
AUs Claim: Roberts will be insensitive to the rights of religious minorities because in 1985, he expressed agreement with a statement in a speech given by William J. Bennett that
THE TRUTH: If such a statement indicates insensitivity to minority religious rights, AUs quarrel is not only with William Bennett and John Roberts but with the Supreme Court and the Nations Founding Fathers.
This Nations Founders based a national philosophy on a belief in God. The Declaration of Independence and the Bill of Rights locate inalienable rights in a Creator rather than in government, precisely so that such rights cannot be stripped away by government. In 1782, Thomas Jefferson wrote, Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath?
The Father of the Country, George Washington, acknowledged on many occasions the role of Divine Providence in the Nations affairs. His first inaugural address contains many references to God, including thanksgivings and supplications.
The Supreme Court has also discussed the historical role of religion in our society and concluded that [t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.
AUs Claim: Robertss criticisms of the Supreme Courts Lemon test prove that he will be insensitive to minority religious rights.
THE TRUTH: The aptly named Lemon test has long fallen into disrepute among six Justices of the current Supreme Court, as well as throughout legal academia. Just this past term, a seventh Justice, Justice Breyer, refused to apply Lemon in the Courts recent decision upholding a Ten Commandments display.
There have been many Establishment Clause cases in which the Court has not used the Lemon test; and in several others, the Court has given lip service to Lemon, but has avoided the strict application of the test that AU thinks warranted. Justice OConnor, whom Roberts was nominated to replace, has advocated replacing the Lemon test. Thus, AU deludes itself and readers of its Report by suggesting that the vitality of the Lemon test, which has been on life support for years, hinges upon John Robertss confirmation.
AUs Claim: Roberts would permit Public School Classrooms to be Hijacked by a Sectarian agenda.
THE TRUTH: Twenty years ago, Roberts criticized the Supreme Courts decision holding that a moment of silence at the beginning of the school day constitutes an establishment of religion, and supported a constitutional amendment allowing voluntary prayer in schools.
AUs Claim: Roberts favors proposals to strip the federal courts of jurisdiction.
THE TRUTH: As a young attorney, Roberts wrote a memorandum at the request of his superiors in the Reagan Administration discussing the constitutionality of a law narrowing the Supreme Courts authority. Robertss conclusions were based on explicit language in the Constitution, and he opined that the law at issue was bad policy.
AUs Report reflects its frustrated desire that