Topic: Separation of Church & State, Establishment Clause & The Lemon
Standard ]
Senator: Durbin
Date: SEPTEMBER 13, 2005
Contents
DURBIN: Earlier, Senator Feinstein asked you about the separation of church and state, and I would like to follow up on this if I could.
She asked whether you believe the separation of church and state was absolute. And I have your answer here, relative to the two recent cases on the Ten Commandments. It appears now that there is a debate within the court as to whether or not they will stand behind the Lemon v. Kurtzman standards under the establishment clause, the three-part test, which I won't go through in detail.
As deputy solicitor general of the Bush administration, you co- authored two legal briefs in which you urged the Supreme Court to overrule the Lemon standard -- Board of Education v. Mergens and Lee v. Weisman. You argued, instead, for what has been characterized in shorthand as the legal coercion test.
So I'd like to ask you at this point in time, what is your view on the establishment clause and the Lemon standard?
ROBERTS: Well, the Lemon test is a survivor, there's no other way to put it.
When we wrote the brief in Lee v. Weisman, we had a long footnote explaining that I think it was six different members of the current court had expressed their criticisms of the Lemon test. They never got together at the same time. And the test has endured.
The approach that we were advocating in Lee v. Weisman did focus on the question of coercion and argued that in certain circumstances, recognition of ceremonial religious practices, an invocation at a graduation was the one at issue there, were permissible. And again, that, I think, lost 5:4.
And the Lemon test, to this day, is the test that the court applies. I think one of the justices recently explained, you know, it's not so much how good the Lemon test is, it's that nobody can agree on an alternative to take its place. And there may be something to that.
There are cases where the court doesn't apply the Lemon test, it seems to follow a different approach.
The great benefit of the Lemon test, the three-part test that everybody's familiar with, of course, is that it's very sensitive to factual nuances.
The disadvantage of the Lemon test, I think, is that it's very sensitive to factual nuances. And you get a situation like with the Ten Commandments case -- and again, I'm not commenting on the correctness or not -- but those are two decisions, and there's exactly one justice that thinks they're both right.
Nobody would suggest that this is an area of the law where the court's precedents are crystal clear. And I think there may be some inevitability to that.
There is a tension of sorts between the establishment clause on the one hand and the free exercise clause on the other, and the court's cases in recent years have tried to consider: When is an accommodation for religious belief -- when does that go too far and become an establishment of religion?
The court has a case on its docket coming up.
I think the animating principle of the framers, that's reflected in both of the religion clauses, is that no one should be denied the rights of full citizenship because of their religious belief or their lack of religious belief.
That is the underlying principle. That is, I think, what the framers were trying to accomplish.
The jurisprudence -- again, it's an area where the court has adhered through thick and thin to the Lemon test, probably because they can't come up with anything better. But the results sometimes, I think, are a little difficult to comprehend.
DURBIN: Now, of course Justice Rehnquist had a different point of view -- or at least he alluded to one when he appeared before this committee in 1986.
Senator Simon asked him a question. He replied as follows: "I have, in my opinions, read the establishment clause more narrowly than some of my colleagues, but I also think, Senator Simon, these are almost questions of degree and that there is not a tremendous amount of difference there as to the broad principles the establishment clause are uncontroverted. And those kinds of cases do not get up to us because they're pretty well settled. It is these kinds of frontier-type cases that come and reflect divisions among us. I certainly have read the establishment clause more narrowly than some of my colleagues."
Do you feel that you are reading the establishment clause from a narrow point of view, or from the traditional Lemon point of view?
ROBERTS: Well, I don't think I've had an establishment clause case.
The cases where I have argued obviously was representing the position of the administration, which was that the Lemon test was regarded by the administration as too manipulable, not determinative, and in some senses, inconsistent with the understanding of the framers.
So that was the position that we were advocating there.
I haven't expressed my personal views on the establishment clause in any context.
DURBIN: Well, let me read what you wrote in a memo on June 4, 1985, to Fred Fielding, again, this period of time when you were serving as a staff attorney related to Wallace v. Jaffrey. And here's what you wrote in reference to establishment clause and the Lemon test.
"Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize establishment clause jurisprudence and end 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."
I know you've said over and over again that you were just doing what you were paid to do, to tell the administration what they wanted to hear. Is that what happened here?
ROBERTS: I don't think I said that.
DURBIN: Well, that's correct. Strike that from the record.
Let me just say you were a staff attorney reflecting the views the administration you worked for. Is that a correct characterization?
ROBERTS: It's a correct view.
The views of the administration were quite clear with respect to the moment of silence, which was the issue in Wallace against Jaffrey. It was the president's view that it was constitutional -- through the attorney general, that it was constitutional to observe a moment of silence.
Now, what the court held in Wallace, of course, was that you couldn't look at just the moment of silence.
There was a history there about school-led prayer and to substitute it and suddenly say, well, now it's a moment of silence -- they didn't look at it in those terms, but looked at it in the long history.
And the issue of whether a real moment of silence, without that kind of background and history, whether that would prevail or not, was one that the court didn't address in Wallace.
DURBIN: Let me just wrap this up by asking -- I think you've alluded to this -- is it your belief that what we are trying to establish in the constitutional protection on the exercise of religion is not only to protect minorities, religious minorities, but also nonbelievers?
ROBERTS: Yes.
The court's decisions in that area are quite clear.
And I think the framers' intent was as well; that it was not their intent just to have a protection for denominational discrimination. It was their intent to leave this as an area of privacy apart -- a conscience from which the government would not intrude.
DURBIN: Thank you.
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