A Fixture on a Changing Court: Justice Stevens and the Establishment Clause
Chemerinsky, Erwin, Northwestern University Law Review
ABSTRACT-Throughout his time on the Supreme Court, Justice John Paul Stevens consistently took the "strict separationist" approach to the Establishment Clause. This led him to write and join opinions that stated that the Establishment Clause is violated by religious activity in public schools, by religious symbols on government property, and by government support for parochial schools that could be used for religious education. Justice Stevens adhered to these views throughout his thirty-five years on the Court. Although the strict separationist approach was the dominant view on the Court for several decades, those appointed after Justice Stevens rarely held this view. Some, like Justices Sandra Day O'Connor and Stephen Breyer, believe that the government violates the Establishment Clause only if it symbolically endorses religion or a particular religion. Others, like Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, believe that little violates the Establishment Clause: the government acts unconstitutionally only if it literally establishes a church or coerces religious participation. The result is that, while Justice Stevens remained consistent, the Justices around him became much more conservative on this issue. Justice Stevens's approach to the Establishment Clause has great virtues in protecting freedom of conscience and providing inclusiveness in a religiously pluralistic society.
In March 2005, I argued Van Orden v. Perry1 before the Supreme Court. The case involved the constitutionality of a six-foot high, three-foot wide monument of the Ten Commandments that sits exactly at the corner between the Texas State Capitol and the Texas Supreme Court.2 As I prepared for the oral argument, I knew that Justice John Paul Stevens would likely vote to declare the monument unconstitutional as violating the Establishment Clause. Throughout his time on the Supreme Court, Justice Stevens had been a consistent vote and voice for a wall separating church and state. I also knew that, no matter what, Justice Stevens would treat every advocate with decency and respect. Although he had a laser-like ability to get to the heart of the case and ask the most difficult questions, he always did so without rancor or sarcasm and in the best possible tone of intellectual engagement.
The argument went as I expected, but the ultimate result surprised me. The Court voted 5-4 to uphold the monument, which I certainly regarded as possible, but with Justice Breyer concurring in the judgment and providing the critical fifth vote.3 As I, and everyone, predicted, Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas voted to uphold the monument.
Had the case been argued when Justice Stevens came on the bench in 1975, I have no doubt that it would have come out the other way. At that time, a majority of the Court continued to believe in the strict separation of church and state. It was just four years after the Court decided Lemon v. Kurtzman,4 which has been described as embodying this strict separationist approach to the Establishment Clause.5 On the other hand, if the case were argued today, I think I would have little chance of prevailing. The replacement of Justice O'Connor with Justice Alito means that there now are five justices who are likely to find that little violates the Establishment Clause.6
Justice Stevens came on to the Court as a moderate Republican and was perceived as a moderate justice, but by the time he retired he was perceived as a strong liberal voice.7 Upon his retirement, there was much discussion as to whether Justice Stevens changed over his thirty-five years on the Supreme Court or whether the Court changed around him. Undoubtedly, it was some of both. In some areas, such as affirmative action, Justice Stevens changed over time.8 But in the area of the Establishment Clause, it was not Justice Stevens who changed, but the Justices around him. From the time he came on to the Court, Justice Stevens always voted to enforce a strict separation of church and state. …