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Michael Kessler Michael Kessler is managing director of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, a visiting assistant professor of Government, and an adjunct professor of...

Ethical values, based on religion and reason, shape the kinds of law and policy citizens desire to govern their community. At the same time, the law shapes how we become moral persons and the kinds of communities we hope to build. Law, morality, and religion are intertwined. Yet ideologically-charged policy debates, the grittiness of political compromise, and the impersonal rule of law often don't correlate with--and can even damage--our deepest religious and moral commitments. We talk about law achieving a just order, but we too often struggle to develop notions of justice that rise beyond "efficiency" measured by markets and the "balancing" of preferences. Just Law and Religion rejects the cynic's reduction of law and politics to an amoral arena of clashing interests. It recognizes the crucial role of law and policy in achieving social stability, but focuses on how fundamental rights and moral values both shape and are shaped by contemporary legal and political institutions. Just Law and Religion will take the "moral temperature" of current events and issues across a vast array of political institutions, law, and culture in order to comprehend the ethical stakes, and the promise and perils, of our common life. Just Law and Religion asserts that law and politics can only be âœjust❠when they concede there is more to human value and meaning than legal and political institutions can achieve.

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The religious neutrality of Justice John Paul Stevens

April 9, 2010

Justice John Paul Stevens has announced his intention to retire this summer, ending the teasing speculation of the past few weeks. Lapsed-Republican traitor to some (he was appointed by President Ford in 1975) and unflappable liberal lion to others, the jurisprudence of Justice Stevens has always been hard to predict or categorize. More consistent is his record on religious freedom issues, characterized by a deep concern for government neutrality so that the religious lives of citizens can flourish without governmental intrusion.

Some will inevitably paint Justice Stevens as a secular judge hostile to the expression of religion in the public square. He has been a staunch advocate of limiting the power of government to endorse religious viewpoints or to align itself too closely with religious practice. He notably dissented in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), a case about school voucher programs. He characterized the question facing the Court in a way that described religious practice as "indoctrination," a term that offended some: "Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths a law respecting an establishment of religion within the meaning of the First Amendment?" Yes, he would have ruled, and thus the First Amendment would prohibit Ohio's payment of tuition at private religious elementary and middle schools under a scheme that inevitably provided tax money to support the schools' religious missions.

Likewise, he vigorously dissented in Van Orden v. Perry, 545 U.S. 677 (2005). At issue was a Ten Commandments monument, on the Texas State Capitol grounds, set among dozens of other monuments. As Justice Scalia pointed out (concurring), the Court held that the Texas "monument conveyed a permissible secular message, as evidenced by its location in a park that contained multiple monuments and historical markers" and, in the particular context of the Capitol grounds, was a "passive" and "historic" acknowledgment "of the role played by the Ten Commandments in our Nation's heritage."

Justice Stevens asserted the plain effect of the monument was endorsement of its particular religious viewpoint by Texas:

Viewed on its face, Texas' display has no purported connection to God's role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with any basis to guess that it was erected to honor any individual or organization. The message transmitted by Texas' chosen display is quite plain: This State endorses the divine code of the "Judeo-Christian" God.

The danger Justice Stevens foretells is disenfranchisement of those who do not subscribe in whole, or in part, to the majority's preferred religious view: "The adornment of our public spaces with displays of religious symbols and messages undoubtedly provides comfort, even inspiration, to many individuals who subscribe to particular faiths. Unfortunately, the practice also runs the risk of offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful." The Establishment clause stands as a bulwark against such preferring of religious views: "The first and most fundamental of these principles...is that the Establishment Clause demands religious neutrality--government may not exercise a preference for one religious faith over another."

Others may remain baffled why he signed on to the majority opinion in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which held that there was no basis for religious exemptions to laws restricting behavior so long as the legislation was neutral and unbiased to particular religions and generally-applicable and binding on to all citizens. Justice Scalia argued that the Court has "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Thus religious freedom is not a trump card for people to engage in whatever behavior they deem required by their religion. The opinion, in the minds of many on both the left and the right (and Congress who passed the Religious Freedom Restoration Act in response), left a wide swath of religiously-based practices--including longstanding uses of ceremonial practices like certain substances or ritual slaughter--vulnerable to majoritarian control and therefore was a strike against religious freedom.

Perhaps no case more typifies Justice Stevens's view than the majority opinion he authored in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). The Court ruled that Texas public schools could not constitutionally commence football games with organized prayers, even when the prayer leader was chosen by the students. Stevens wrote that the prayers were not merely voluntary religious expression by the students with no government involvement or endorsement. "Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student's message." The school had not merely created a limited public forum to discuss a "broad range of topics," but used a process to ensure that:

only those messages deemed 'appropriate' under the District's policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents 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.

Justice Stevens's concern throughout his writings on religion displays a deep suspicion of government action that interferes with religion in any way--whether to support or inhibit it. Some will disagree strenuously with this aspect of his jurisprudence when it involves the bases of laws regulating abortion. For instance, he seemed to increasingly hold that the Establishment Clause must limit any view the government takes about identifying an official "beginning of life":

I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble [of the law at issue in this case] invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, or on the fact that the legislators who voted to enact it may have been motivated by religious considerations. Rather, it rests on the fact that the preamble [is] an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths, [and therefore] serves no identifiable secular purpose. Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).

Stevens ended his short dissent in Zelman with what has become a famous phrase: "Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy." Stevens is obviously echoing Thomas Jefferson's famous (or infamous, depending on your view) dictum that the First Amendment's Establishment Clause is intended to protect religious liberty by excluding governmental control over religion. Jefferson thought the First Amendment assembled these bricks, not to exclude religion from public life, but to ensure that public expressions of religion were free expressions of citizens, not forced, either through direct coercion or through indirect preferences, at the hands of government programs. Jefferson's prefatory comments to his wall metaphor makes this intent clear:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church and State.

Far from hostility to religion, Stevens's jurisprudence reflects this deep Jeffersonian conviction that religious freedom will suffer when a majority uses the rule of law to enforce its religious preferences. Where some see secular indifference--even blatant enmity--a careful observer will see someone who respects the power and necessity of religion as a social force so much that only citizens themselves are entrusted with its care and preservation.