The Federal Judiciary is losing two big defenders of religious freedom.
Last week, Justice David Souter surprised few in announcing that he would prefer to not undergo another "intellectual lobotomy" and return next fall to the Supreme Court for another term, preferring instead to retire to his beloved New Hampshire.
Then on Tuesday, Judge Michael McConnell, a 10th Circuit Court of Appeals judge, announced he was stepping down after seven years to return to academic teaching and scholarship at Stanford.
In different ways, both judges left a profound mark on the nature of constitutional law about religious freedom and the intersection of religion and government.
Besides some erudite and vigorous dissents in religion cases, Souter may be best known for his razor-sharp majority opinion in the Ten Commandments case
McCreary County v. ACLU, 545 U.S. 844 (2005). McCreary County had posted the Ten Commandments, first on its own, then in two subsequent displays with other historical documents, meant to soften the religious intent of the display. Souter used established Court precedent, particularly the "secular purpose" inquiry of the Lemon test, to discern whether or not there was a primary secular purpose for the County's action. The record was fairly clear that the legislation requiring the displays was originally intended to promote a sectarian endorsement of the Ten Commandments. Souter found that the subsequent displays--post the Ten Commandments along with other historical documents that were also purportedly part of the foundations of Kentucky and American law--were a mere litigation strategy designed by the appeals lawyers to soften the overt religious purpose of the display. Souter bought none of the whitewash and saw the latter displays as a "sham" that did not diminish the distinctly religious endorsement of the display.
Souter's opinion, besides cutting to the heart of the endorsement problem, argued persuasively on historical grounds that the twin prongs of the First Amendment's religion clauses--establishment and free exercise--were intended to protect individual religious freedom: "The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate; nothing does a better job of roiling society."
Against Justice Scalia's dissenting view that government could--with the blessing of the Founders--endorse basic tenets of monotheism, Souter argued that the Founders practiced and required neutrality. Without official neutrality on matters of doctrine, the government becomes embroiled in sectarian disputes, choosing some sectarian positions over others: "We are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual."
Judge McConnell has written numerous, significant articles on the original meaning of religious freedom, the scope of the establishment clause, and the problems of modern-day 1st Amendment interpretation. In a hotly-contested area of law, he brings a patient and learned voice of reason and historical accuracy to the debate and sets the bar extremely high for other theorists. He has brought the same level of attention to detail to a number of judicial opinions and, prior to his time as a judge, litigation involving matters of religious freedom.
McConnell may be best known for his vigorous critique of the Scalia-authored case
Employment Division 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. 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." McConnell authored many incisive articles critiquing the decision, and has meticulously retraced the fundamental history of the free exercise clause to persuasively argue that the Founders were aware of the need for some measure of religiously-based exemptions from general laws.
For instance, in a 1990 article,
"The Origins and Historical Understanding of the Free Exercise of Religion," McConnell states: "Madison claimed that this duty to the Creator is 'precedent both in order of time and degree of obligation, to the claims of Civil Society,' and 'therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society.'" This leaves the door open for allowing some acts based on religious conscience to be shielded from state intervention. McConnell has applied this principle as a judge, for instance, in a concurring opinion that served as the roadmap for the Supreme Court's holding in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) that the government had no compelling interest in preventing the use of hoasca tea by the offbeat religious group.
Prior to being a judge, and while a professor at the University of Chicago, he was the lead counsel in
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), arguing on behalf of students who were seeking funding for a Christian viewpoint magazine using student activities monies at UVA. McConnell won the case by arguing that the funds were made available by the University to create forums for students to express a wide variety of viewpoints. By endorsing the need for such venues, the University is required to be completely neutral about what viewpoints are expressed, even religious viewpoints. Endorsing all but religious ideas would amount to religious discrimination.
These are challenging issues. Both Justice Souter and Judge McConnell leave the bench with a legacy of attempting to protect religious liberty. The diverse ways to achieve this important goal are exemplified even by these two judges. Justice Souter wrote a strong dissent in the Rosenberger case, arguing that by giving student funds to McConnell's client, the Commonwealth of Virginia was in effect endorsing their religious viewpoint. Yet even while taking different sides, both men exemplified judicial safeguarding of religious freedom.
I look forward to the return of Judge McConnell to the ranks of the legal academy, where he surely will continue to set a high standard for groundbreaking scholarship. I hope too that Justice Souter, during his hikes in the New Hampshire wilderness, writes down and shares with us some of his reflections on his profound respect for the Constitutional protection of one of our basic freedoms.
