'Unfettered' Prayer and the Roberts Court

UNITED STATES - JANUARY 21: Supreme Court Justices (L-R) Clarence Thomas;Antonin Scalia; Sonia Sotomayor; Anthony Kennedy; an
UNITED STATES - JANUARY 21: Supreme Court Justices (L-R) Clarence Thomas;Antonin Scalia; Sonia Sotomayor; Anthony Kennedy; and John Roberts arrive at the inauguration for U.S. President Barack Obama's second term of office. More than 600,000 people attended the event. (Photo By Chris Maddaloni/CQ Roll Call)

Don't say I didn't warn you what a Supreme Court led by a Chief Justice John Roberts would be like on separation of church and state.

In 2005, I was invited to be an expert witness in the Judiciary Committee's confirmation hearings on John Roberts appointment to be Chief Justice.

I argued before the Judiciary Committee that I saw very disturbing trends, even in the limited amount of his papers released by John Roberts. In my oral testimony I said, "there is evidence -- and I have cited detail in my written testimony -- that his [Roberts] judicial posture is more toward permissiveness in religious establishment and is less than vigorous in the defense of religious minorities and their freedoms. He refers to the so-called right to privacy, has objected to affirmation action, but has favored expanding both the authority of law enforcement and Presidential authority."

Readers should recall that in these hearings, on the contrary, John Roberts had promised to bring "no agenda" and to take a minimalist approach to Constitutional interpretation. He compared his way of interpreting the law to that of an "umpire calling balls and strikes."

Well, the "Establishment Clause" of the First Amendment just struck out in my view.

Chief Justice John Roberts and the four other conservatives on the U.S. Supreme Court have now ruled that legislative bodies such as city councils can begin their meetings with prayer, even if it plainly favors a specific religion. Justice Anthony M. Kennedy, writing for the majority, said those given the opportunity to pray before legislative meetings should be "unfettered" by what government officials find appropriate.

By contrast, consider the opinion of Sandra Day O'Connor in the 1984 Lynch v Donnelly case. O'Connor's fundamental concern was whether, in regard to the "Establishment Clause" a particular government action conveys "a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

When prayer is "unfettered," how many times do non-Christian members of a particular community need to hear prayers to "Jesus Christ," for example, before they feel it is the Christians who are the "favored members of the political community"?

In 2005, it became clear to me, as I read the material released by John Roberts to the committee for examination during these hearings, that this would be a direction of a Supreme Court led by John Roberts. Despite the limited number of documents Roberts deigned to release, his judicial activism and its conservative bias was there for all to see, that is, for all to see who cared to really look.

Now more and more Americans can see that Chief Justice John Roberts is presiding over what may prove, under his leadership, to be one of the most divisive, activist Supreme Courts in American history. Famously, the Roberts court has struck down several longstanding prohibitions on corporate political contributions, in the process overturning established precedent.

To me, Roberts's predilection for conservative judicial activism was obvious from the time of the hearings on his appointment. It should have been obvious to anybody, especially the senators on the Judiciary committee, who were also supposed to look at Robert's record prior to confirming him.

In addition to my concerns about "permissiveness" by Roberts regarding religious establishment, and his narrow view on affirmative action, I also raised concerns regarding torture and international law. I quoted from the Roberts papers and commented: "The Geneva Convention is unenforceable in U.S. courts, and in any case, does not apply to detainees labeled 'enemy combatants.' I submit to you that the threat to the moral health of the Nation of this view is extremely grave."

Yes, John Roberts is one of those lawyers who concurred in the Bush administration's mistaken belief that torture is just fine from a legal point of view.

In my testimony, I contrasted John Roberts's view of the Constitution with that of Dr. Martin Luther King, Jr. I testified, "Few Americans have understood the promise inherent in the Constitution better than Dr. Martin Luther King, Jr. Dr. King, in his 'I have a Dream' speech was able, as few before or since, to reach into our constitutional past and proclaim the deep sense of the words that the Constitution was a promissory note to which every American was to fall heir. King argued that so far this promissory note to African-Americans had been returned: insufficient funds. The promise for King was a dream, but not a fantasy."

What King understood about the Constitution, and in my view Chief Justice Roberts and the conservative majority he leads on the Supreme Court, do not, is that the Constitution is broad and inclusive, a living document that reaches beyond our current divisions to bring about one "United" States of America that is fair and inclusive.

This Supreme Court, under the leadership of John Roberts, is going the other way, leading us toward ever greater political, racial and now religious division.

Freedom for religious minorities in the new United States is one of our core, founding principles; in the era of a Roberts Court, on the contrary we are moving toward a practice of religious establishment in a Christian majority nation.

I was right in 2005 about what the Supreme Court would be like under the leadership of John Roberts, and I've been proven right, over and over. For all the good that does us.