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Roberts backed efforts to allow silent prayer in schools
Memos from 1980s released
Tuesday, August 16, 2005

WASHINGTON -- As an associate White House counsel in 1985, John G. Roberts Jr. reacted positively to a proposed constitutional amendment to allow silent prayer in public schools, saying a Supreme Court decision striking down an Alabama moment-of-silence law struck him as "indefensible."

That comment came in a Nov. 21, 1985, memo to Counsel to the President Fred F. Fielding that was among more than 5,000 pages of documents from Roberts' four years in the White House counsel's office that were released on a computer disc yesterday by the National Archives. The originals of the rdocuments are in the Ronald W. Reagan Presidential Library and Museum in Simi Valley, Calif.

The records made public yesterday, which cover most of Roberts' 1982-86 tenure in the counsel's office, sounded several of the same themes found in previously released files from Roberts' service in 1981 and '82 as a special assistant to Attorney General William French Smith.

Still, their release is likely to confirm Senate Democrats in their view that the administration should disclose internal records from the next phase of Roberts' public career -- his service from 1989 to '93 as deputy solicitor general in the George H.W. Bush administration. The current Bush administration has resisted releasing those documents, citing confidentiality concerns.

In particular, the documents released yesterday dealing with religion and the schools will whet the appetite of some senators for papers from the solicitor general's office dealing with a 1992 Rhode Island school-prayer decision. In that case, the first Bush administration, in a brief signed by Roberts, had urged the Supreme Court to uphold the constitutionality of a prayer offered by a rabbi at a public-school graduation. The court rejected that position by a 5-4 majority that included Justice Sandra Day O'Connor, the retiree whom Roberts would replace.

Previously released papers indicated that Roberts thought that it would be constitutional for Congress to deprive the Supreme Court of the power to hear cases involving school prayer, although Roberts thought such "court-stripping" was bad policy. In a May 6, 1985, memo to Fielding released yesterday, Roberts said, "I think I would recommend that we adhere to the old misguided view."

Roberts was more sympathetic to the idea of a constitutional amendment allowing for a period of silent prayer or meditation. In the Nov. 21, 1985 memo, Roberts said he would have "no objection" to a statement from the Justice Department supporting such an amendment.

Roberts noted that the department had sided with "the losing side" in Wallace v. Jaffree, a case in which the court ruled 6-3 that Alabama had violated the First Amendment by providing for a period of silence "for meditation or voluntary prayer."

He added: "Many who do not support prayer in school support a 'moment of silence' ... and the conclusion in Jaffree v. Wallace that the Constitution prohibits such a moment of silent reflection -- or even silent 'prayer'-- seems indefensible."

Five months earlier, however, in a memo to Fielding summarizing the decision in the Alabama case, Roberts wrote that "careful analysis shows at least a majority of the justices would vote to uphold a simple moment-of-silence statute," as opposed to the Alabama law whose sponsors "stated clearly in the legislative history that their purpose was to return voluntary prayer to schools."

Along with documents about church-state issues, yesterday's release contains several files dealing with abortion -- but no "smoking gun" for abortion-rights supporters, who worry that Roberts might vote to overturn the Roe v. Wade decision, a Texas case that legalized the procedure.

In a June 7, 1985, memo, Roberts told Fielding that he has "no objections" to a draft of "talking points" prepared for Reagan's telephone call to an anti-abortion rally, but the context seemed to be whether any of Reagan's proposed remarks posed a legal problem.

"The remarks call for reversing 'the tragedy of Roe v. Wade and Doe v. Bolton,' " Roberts noted, "but the president has done that often in the past."

Doe v. Bolton was a case the high court decided the same day as Roe that invalidated Georgia abortion restrictions. The two rulings effectively affirmed the constitutional right to abortion across the nation.

Roberts did find fault with another abortion-related message from Reagan, a proposed telegram to anti-abortion activists in which the president said Roe v. Wade had "made void all our laws protecting the lives of infants developing in their mothers' wombs." In an Oct. 4, 1985, memo to Fielding, Roberts noted: "This is legally inaccurate, since Roe v. Wade permitted some regulation of abortion -- even a ban on abortion -- depending on the stage of the pregnancy."

First published on August 16, 2005 at 12:00 am
Michael McGough can be reached at 202-662-7025 or mmcgough@nationalpress.com.
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