KANSAS CITY, Mo. – President Bush’s nomination of Judge John G. Roberts Jr. to the Supreme Court is running up against several divisive religious issues.

They range from how Roberts, as a public servant, views his Catholic faith to the way he thinks about cases involving religion, especially those tied to the First Amendment.

Scholars say it is not yet clear how faith-related issues will affect Roberts’ nomination, but they say determining Roberts’ views has been hard because he has been a U.S. Court of Appeals judge only two years and “the record is awfully thin,” said Ted G. Jelen, political science professor at the University of Nevada-Las Vegas and author of “Religion and Politics in Comparative Perspective.”

But answers are vital because “religion and morality are definitely more salient in today’s political discourse than they were 50 years ago or so,” said Laura Olson, a Clemson University professor and author of Religion and Politics in America. “This has created a political cleavage in the U.S. that has far-reaching significance.”

One Judiciary Committee member, Sen. Charles Schumer, a New York Democrat, already handed Roberts a list of questions he intends to ask at the confirmation hearings, which are scheduled to start Sept. 6, and they included several about religion. One was: ” … What, if any, is the appropriate role of religion in government?” Schumer’s list also had questions about school prayer cases and funding faith-based organizations.

Beyond that, committee members Sen. Patrick Leahy, a Vermont Democrat, and Sen. Orrin Hatch, a Utah Republican, have sparred over proper religious questions in confirmation hearings for other recent judicial nominees, and observers say similar disagreements may happen in the Roberts hearings.

“Inevitably religion will be brought into the hearings themselves,” said a Judiciary Committee source who asked not to be identified. “As to what extent they make religion an issue is still to be determined.”

Some observers suggest Bush’s own emphasis on religion helps explain why this Catholic nominee will be asked about religion, even though religious questions were never much of a confirmation issue for three other Catholics on the court – Anthony Kennedy, Antonin Scalia and Clarence Thomas.

Scholars say senators will be trying to find answers to these questions:

Will Roberts’ devout Catholic faith conflict with his duty to uphold the Constitution and apply the rule of law when the law may conflict with church teaching?

How does he view the “establishment” and “free exercise” religious clauses of the First Amendment – which are likely to play pivotal roles in upcoming cases?

If Roberts is confirmed, how will his view of stare decisis (the principle that the courts should follow precedent decisions) affect his rulings in controversial cases he wishes had been decided differently, perhaps including Roe v. Wade?

If Roberts feels he must refrain from voting in certain cases because of his religious views – as he has been quoted as saying he might – will it leave the court evenly split on such contentious matters as abortion or the death penalty?

Catholicism

After his nomination, Roberts’ Catholicism was not an issue until the Los Angeles Times published an essay suggesting his approach to his faith might create problems as a justice. Jonathan Turley, a George Washington University law professor, wrote about a meeting in which Sen. Richard Durbin, an Illinois Democrat and a Catholic, asked Roberts what he would do if he had to issue a ruling that went against church teaching.

“Roberts … answered after a long pause that he would probably have to recuse himself,” Turley reported. As a result of his answer, Turley wrote, “Roberts could now face difficult questions of fitness.”

The New York Times later reported that people involved in the Roberts-Durbin exchange “said Turley’s account of a recusal statement was inaccurate.” Nonetheless, experts think senators will want to hear Roberts’ version of the episode.

If Roberts were to recuse himself, he would be in tension with Scalia, who in a 2002 speech, said this about Catholic judges who are reluctant to impose the death penalty, which their church opposes: “The choice for a judge who believes the death penalty to be immoral is resignation,” not recusal.

First Amendment

What is Roberts’ view of the “Lemon Test,” established in a 1971 case? That test says that for a law to avoid violating the First Amendment’s establishment of religion clause, it must have a secular purpose, it must not advance or inhibit religion and it must not “excessively entangle” church and state.

Retiring Justice Sandra Day O’Connor tried to keep the court from wandering too far from the Lemon Test. With O’Connor as a swing vote, the court in recent decades has allowed some government funding of religious activities (such as vouchers for parochial schools) but has been increasingly restrictive about such public displays of religion as the Ten Commandments in courthouses.

To understand how Roberts might keep or change that direction, said Olson, “I think the Senate should concentrate on asking Judge Roberts about how he would interpret specific clauses of the Constitution. The major church-state issues that the court will be facing in the next few years will all revolve around their general interpretation of the two religion clauses of the First Amendment.”

Abortion, precedent

Roberts and his wife, Jane, are members of the Church of the Little Flower in Bethesda, Md. Jane Sullivan Roberts’ legal work on behalf of the anti-abortion group Feminists for Life has raised questions about whether Roberts shares his wife’s fervent opposition to abortion and, thus, might vote to repeal or severely restrict Roe v. Wade, the 1973 case that legalized abortion.

But senators on both side of the political aisle now say they think Jane Roberts’ beliefs and activities should be off-limits in confirmation hearings.

Since Roberts was nominated, senators and other observers have focused on previously decided cases and his view of them, especially Roe v. Wade, which a significant minority of Americans wants to change. The broad question, said Jelen, “is where he stands on the doctrine of stare decisis. I’ve read that Roberts does have a good deal of respect for precedent. If that’s true, then the cases that have been settled by 5-4 are probably reasonably safe.”

(Among 5-4 decisions was one that ruled it was unconstitutional for public school officials to sponsor prayer at graduation and one striking down broadly written prohibitions of “partial-birth abortion” procedures that kept doctors from protecting the health of a pregnant woman. Roe v. Wade was decided 7-2, and most observers think there still are six justices who would not vote to overturn it.)

But the Roberts record can be confusing to read. In a recently released Senate Judiciary Committee questionnaire, he affirmed the importance of precedent, though as deputy solicitor general under President George H.W. Bush, Roberts signed a legal brief that said, “We continue to believe that Roe was wrongly decided and should be overruled.”

By contrast, in his 2003 confirmation hearings for the federal appeals court, Roberts called Roe “the settled law of the land. … It’s a little more than settled. It was reaffirmed in the face of a challenge. There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

When senators try to understand the tension between those two statements, Olson said, they will want to focus on his views of privacy.

“In terms of abortion and gay rights,” she said, “the key will be asking Judge Roberts whether he believes that the Constitution implies a right to privacy,” which she calls “the foundation of Roe v. Wade and also a crucial underpinning of Lawrence v. Texas, the 2003 case that overturned anti-sodomy laws.” (The vote in the Texas case also was 5-4.)


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