More on Roberts and Religion Clauses

Nathan Diamant wrote a column for Beliefnet yesterday, giving his fairly upbeat interpretation of the scant evidence we have about Supreme Court nominee John G. Roberts' views on First Amendment religion issues. (See earlier related posting.) Commenting on the brief that Roberts wrote as Deputy Solicitor General in Lee v. Weisman, Diamant said: "the brief made a mainstream legal argument in support of the non-denominational prayer at issue in the case, which was offered at a junior high school graduation by a rabbi. The argument, essentially, was that such a prayer was in the tradition of many non-denominational invocations which take place at public ceremonies. This tradition, the brief argued, coupled with the fact that students were not required to attend the graduation ceremony, meant that the prayer did not constitute an 'establishment of religion' as barred by the First Amendment. Four of the nine justices agreed with this view, and its underlying arguments have been incorporated into the jurisprudence in subsequent cases--hardly a radical position."