The first clause of the First Amendment says, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." How does today's Supreme Court interpret that and, if he is confirmed to replace Sandra Day O'Connor, what difference might John Roberts make to the court's decisions on issues involving religion?
Robert Tuttle is a professor at the George Washington University Law School in Washington, and Tim O'Brien is a legal affairs correspondent who also teaches law. Tim, welcome. Welcome to you both. Can anyone say now where Judge John Roberts stands on these issues that are of most interest to people in the religious communities?
TIM O'BRIEN (Contributing Correspondent, RELIGION & ETHICS NEWSWEEKLY): No. We do know that he wrote a brief promoting religion in public school commencement ceremonies, but that was on behalf of the Bush administration. You can't associate the views of the client ...
ABERNETHY: The first Bush administration?
Mr. O'BRIEN: The first Bush administration. But that was on behalf of a client. We know he is a devout Catholic. So is Antonin Scalia. So is Justice William Brennan. They always came down on different sides of this church-state question. We do know, however, that given how important Justice O'Connor was, that wherever Justice Roberts stands, should he be confirmed, his vote could be extremely important and often decisive.ABERNETHY: You say we don't know. But at the White House, in this selection process, wouldn't the president or somebody there have sat down with Judge Roberts and looked him in the eye and said, "Where do you stand on abortion?" for instance?
Mr. O'BRIEN: Highly unlikely. It just doesn't happen. For one, were the nominee, were the person not to get the nomination, the word might get out there really was a litmus test at the White House. But it just does not happen. The president, to some extent, is like the rest of us -- guessing, in this case hoping; reading tea leaves.
ABERNETHY: Professor Tuttle, in these cases that involve what the government can do relating to funding, for instance, for various things that have to do with religion, what's the big idea? What's the big conflict?
ROBERT TUTTLE (Professor, George Washington University Law School): Well, it's not so much a big idea. It's two big ideas that almost equally divide the court. On one side, the relatively standard idea of the wall of separation between church and state -- no government aid for religion. On the other side, though, and now with four votes and perhaps a fifth with Justice Roberts, is a view that government must be neutral between religion and nonreligion. That means not preferring one over the other but equally able to support both, whether in the form of public displays or with public money.ABERNETHY: You mean government can encourage religion?
Professor TUTTLE: Sure. I mean, if it means to help people get off of drugs, you can give money to a religious substance-abuse treatment program if that's a good way of helping people get off drugs. The fact that it is a religious means doesn't make it unconstitutional, at least according to these four votes.
Mr. O'BRIEN: And also in the last Ten Commandments decision, the court said so long as the predominant purpose is not religious, if it incidentally benefits religion it will not be unconstitutional.
ABERNETHY: And what about, for instance, religious ministries in state-run prisons?
Prof. TUTTLE: There's a very interesting case going on now in Iowa involving Chuck Colson's Prison Fellowship Ministries and the question, Can the Iowa state government turn over one wing of its prison to Colson's evangelical Protestant ministry? And that ministry, then, runs the daily lives -- helps these prisoners to get off of drugs, to prepare for the reentry into the world. And it is intensely religious. Can the government promote that as a means of getting people to stay out of prisons? And if Justice O'Connor were on the court, I think it would be a pretty clear answer: 5 to 4 no, the government can't use religion as a means to getting these secular ends. But now it's 4 to 4.
Prof. TUTTLE: But, Tim, I think that precedent will matter less in the area of church and state than it will in areas like abortion, because the church and state law has been so fluid and so conflicted; most of the justices on the court have at one time or another signaled some disapproval with that set of rules. And so I could imagine a justice coming on in that context, not feeling as bound by the existing rulings but willing to at least push the law in one direction or the other.
Mr. O'BRIEN: There's a very important case involving abortion and parental consent. All states that have parental consent laws have a judicial bypass. You can go to a judge where it's impractical to go to your parents. In one state that's before the Supreme Court, New Hampshire, there is no exception when the health of the child is at stake. And the Supreme Court will now address whether you really need such an exception and, again, we would assume that Justice O'Connor would say yes. We don't know where Justice Roberts, if he becomes a justice, would be on that.
Mr. O'BRIEN: Well, I'm sure he's going to be asked in the area where I am interested. The president says he wants a judge who will not make law, who will interpret the Constitution as it's written and won't read things into it that aren't there. "Where do you stand on the right to privacy?" Those words do not appear in the Constitution. Any nominee to get confirmed, I think, is going to have to acknowledge, not only acknowledge but embrace a right to privacy. How do you do that if it's not in the Constitution?
