A new TV ad is out opposing John Roberts, available here. The voiceover makes the basic point:
In 1991, John Roberts argued for public school-sponsored prayer at graduations, claiming that ceremonies shouldn’t be considered mandatory. Do you believe in an America where Christian students in Dearborn could be forced to read from the Koran, Muslim students in Brooklyn could be forced to pray from the Torah, or Jewish students in Utah could be forced to recite Mormon prayers? Tell your Senators to make sure John Roberts’s America doesn’t become our America.
The case at issue is Lee v. Weisman, which involved a nonsectarian prayer at a junior high school graduation. I think it’s a bit of a stretch to say that Roberts “argued” for the prayer. Roberts was one of five lawyers whose name appeared on the government’s amicus brief supporting the constitutionality of the prayer in that case. The case was argued for the U.S. by Ken Starr, not Roberts.
More broadly, if you read the brief it’s pretty clear that it does not endorse forcing students to read from the Koran, pray from the Torah, or recite Mormon prayers. To the contrary, the whole point of the brief was that coerciveness should be the test, and that the government should not be permitted to coerce students but should be permitted to invoke religion in some circumstances in noncoercive environments. The brief argued that permitting a nonsectarian prayer to be read at a ceremony like graduation was usually permissible because there was a basic distinction between coercive environments such as classrooms and noncoercive environments where the invocation of religion was likely to be only ceremonial. In the context of a graduation, the brief argued, the Establishment Clause was more forgiving and “as a general matter” permitted “ceremonial acknowledgments of religion in civic life” so long as they were non-coercive:
The graduation setting at issue here differs markedly from the classroom setting. In the classroom, the school carries out an avowedly instructional mission, and school officials are the sole authority figures. Graduations, in contrast, are ceremonial affairs, and the parents themselves are present to act as a natural bulwark against risk of official coercion. Because graduations are designed not only for students but also for their families and friends, the graduation setting does not warrant an approach different from that applied in other ceremonial settings.
I assume that defenders of the new ad will point out that, read literally, the advertisement does not directly say that Roberts would allow students to be forced to pray from the Torah, etc. My sense is that the ad is designed to leave that impression, though, and to the extent it leaves that impression it seems to me a pretty false one.
Hat tip: Dave Hoffman.
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