Memo from 1985 shows Roberts felt barring silent prayer was ‘indefensible’

? Supreme Court nominee John Roberts showed sympathy for the idea of permitting prayer in public schools in 1985, according to a memo released on Monday, writing that a ruling to the contrary “seems indefensible” under the Constitution.

As a young lawyer working in the Reagan administration, Roberts wrote he would have no objection if the Justice Department wanted to express support for a constitutional amendment permitting prayer.

Referring to a Supreme Court ruling issued earlier that year that struck down an Alabama school prayer law, he said, “The conclusion … that the Constitution prohibits such a moment of silent reflection – or even silent ‘prayer’ – seems indefensible.”

The Alabama law, ruled unconstitutional by a divided court, mandated a one-minute period of silence for meditation or prayer.

Roberts’ two-paragraph memo, written to White House counsel Fred Fielding, was among nearly 5,400 pages of records released Monday by the Ronald Reagan Presidential Library. They comprise a portion of the material relating to Roberts’ tenure as a member of the office of White House counsel.

An additional 478 pages that cover the same subject areas remain under seal, according to Allen Weinstein, archivist of the United States. White House spokesman Steve Schmidt said the library had withheld material based on requirements in the Freedom of Information Act to protect privacy and national security.

The White House “did not hold any back” after reviewing those cleared for release by the library, Schmidt said.

The library contains an additional 40,000 pages relating to Roberts, expected to be made public before Senate confirmation hearings convene Sept. 6.

The records released Monday indicate that as a young lawyer, Roberts provided legal analysis on a variety of topics.

Serving in a conservative administration, Roberts strongly opposed a district court ruling that had upheld a claim of “comparable worth.” The suit was filed by women arguing they were victims of discrimination because they were paid less than men working in other jobs that the state had decided were worth the same.

“It is difficult to exaggerate the perniciousness of the ‘comparable worth’ theory,” Roberts wrote. “It mandates nothing less than central planning of the economy by judges.”

Comparable worth has faded as an issue in the intervening two decades, but not so school prayer. It remains a perennial issue in which judges – and justices – are occasionally asked to determine where to draw the line between church and state.

The day the court struck down the Alabama state law that mandated a period of silence for “meditation or voluntary prayer,” Roberts prepared an instant legal analysis.

Despite the ruling, he wrote Fielding, “careful analysis shows at least a majority of the justices would vote to uphold a simple moment of silence statute.”