Continuing the Constitutional Dialogue: A Discussion of Justice Stevens's Establishment Clause and Free Exercise Jurisprudence

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ABSTRACT-This article examines Justice John Paul Stevens's religion clause jurisprudence from the perspective of a continuing dialogue about the meaning of the Free Exercise Clause and the Establishment Clause. The term continuing dialogue suggests that even for as formidable and long-tenured a jurist as Justice Stevens, important questions remain open and unresolved. In discussing these unanswered questions, the article explores potential dissonance between Justice Stevens's contrasting interpretations of the Free Exercise Clause and the Establishment Clause. For example, Justice Stevens's concern for the status and sensibilities of religious minorities, expressed repeatedly in his Establishment Clause opinions reviewing state-sponsored religious displays, plays a far less obvious and focused role in his free exercise jurisprudence. Yet surely minority faiths may suffer a similar sense of alienation when government denies them exemptions from general laws that burden their religious practices, but not those of the majority. Similarly, the opinions Justice Stevens joined limiting free exercise claims reject a federal judicial role that requires subjective, value-based balancing. Justice Stevens's view that the Establishment Clause requires the evaluation of legislative accommodations to determine whether they unfairly favor certain faiths or extend too far and impose unacceptable burdens on third parties or the public, however, would seem to involve judges in a comparably subjective and value-laden inquiry.

INTRODUCTION

Constitutional law over time is neither fixed by precedent nor controlled by history. It is the product of a continuing constitutional dialogue within the judiciary, and, more importantly, between the courts, the political branches of government, and the American people. There is no doubt that during his thirty-five-year tenure as a Justice on the United States Supreme Court, Justice Stevens has played a significant and valued role in that ongoing dialogue in many seriously contested areas of constitutional law. Few disputed areas, however, have involved the intensity of controversy or the fluidity of doctrine as the interpretation of the Free Exercise and Establishment Clauses of the First Amendment.

Analyzing Justice Stevens's religion clause jurisprudence is a difficult undertaking not only because of the heated and enduring debate about the meaning of these constitutional provisions, but also because the complexity of church-state issues and the numerous values subsumed by them makes it hard to develop coherent and effective doctrine to resolve these disputes. Moreover, the opinions of any Supreme Court Justice, even one who has been on the Court as long as Justice Stevens, provide only an incomplete picture of the Justice's perspective on multifaceted constitutional questions. Supreme Court opinions focus on specific cases and provide only limited opportunities for direct exchanges between Justices or follow-up inquiries. The give and take of protracted argument is precluded by the form and function of the proceedings. There can be only so many "but what about this argument" inquiries directed back and forth among the written opinions of the majority, concurring, and dissenting Justices.

The goal of this Article is to attempt to continue the dialogue beyond the scope of Justice Stevens's opinions and to extend our understanding of his religion clause jurisprudence. This Article begins by identifying the principles and values underlying Justice Stevens's perspective that we can ascertain with some degree of confidence. That foundation will be followed by critical inquiries challenging the connection between these values and principles and various holdings and doctrine Justice Stevens supported in his opinions.

So far the analysis is on fairly solid ground. At this point, however, the discussion will become unavoidably tentative and speculative, at least to some extent. …