Justice Stevens’s Religion Clause Jurisprudence and His Sympathetic Interpreters: A Critique

By Pybas, Kevin | Texas Review of Law & Politics, Spring 2017 | Go to article overview

Justice Stevens’s Religion Clause Jurisprudence and His Sympathetic Interpreters: A Critique


Pybas, Kevin, Texas Review of Law & Politics


INTRODUCTION

Justice John Paul Stevens joined the U.S. Supreme Court in 1975 and retired nearly thirty-five years later as the third-longestserving Justice in the Court's history.1 During his tenure on the Court, he wrote, by my rough estimate, approximately thirty opinions involving free-exercise and establishment issues, most of which were concurring or dissenting opinions.2 Over the course of his time as a Justice, the Court changed its approach to the Free Exercise Clause and to certain Establishment Clause issues, though Stevens's view of both remained constant from the outset. Throughout his tenure on the Court, he consistently sought to minimize religion's presence in the public sphere. He thus opposed, among other things, almost all public aid to religion, regardless of whether it took a direct or indirect route in getting there and no matter what it purchased.3 He opposed state-sanctioned prayers,4 religious displays on public property,5 religious exemptions from neutral laws of general applicability,6 and some but not all statutory grants of heightened protection to religious believers.7 When he joined the Court, he was regularly in the majority interpreting the Establishment Clause to require a "high wall" of separation between church and state.8 But by the time he retired, the Court had abandoned the high-wall view and thus was more accepting of religion in the public sphere, at least with respect to public aid.9 While changes in the composition of the Court eventually led it away from the high-wall approach, those same changes led it to Justice Stevens's understanding of the Free Exercise Clause. That is, in 1990, in Employment Division, Department of Human Resources of Oregon v. Smith,10 the Court recast the requirements of the Free Exercise Clause, holding that it prohibits only laws that intentionally discriminate against religion, and thus does not exempt religiously motivated conduct from the operation of generally applicable laws-a position Justice Stevens had articulated in four concur- ring opinions in the 1980s.11

Justice Stevens's preferred policy of religious liberty-on the one hand requiring a "'high and impregnable wall' between church and state"12 and on the other refusing to lift burdens on religion unless legislators intentionally discriminate against it- does not admit of a straightforward theory of religious freedom. Because Justice Stevens's religion jurisprudence "subject[s] [religion] to all the burdens of government" while permitting it "few of the benefits[,] "13 some commentators argue that he has no basic theory of religious freedom, and that he is simply hostile to religion.14 Gregory P. Magarian asserts, in fact, that it "has become conventional wisdom" that Justice Stevens was biased against religion.15 In recent years Magarian, along with Andrew Koppelman16 and Eduardo Moisés Peñalver,17 sought to refute the charge that Justice Stevens was hostile to religion.18 These scholars are not without criticism of Justice Stevens's religion jurisprudence, as both Peñalver and Magarian are critical of his free-exercise views, and Koppelman argues that he had a high view of religion about which he should have been more candid.19 Nevertheless, all three argue that political principle, not antireligious bias, drove his religion jurisprudence.

This Article examines Justice Stevens's religion jurisprudence and the arguments of Peñalver, Koppelman, and Magarian, his friendly interpreters. To this end, Part I explores Justice Stevens's religion opinions for the purpose of highlighting the justifications he gives for interpreting the Religion Clause the way he does. As is well-known, Justice Stevens argued that the Establishment Clause required a high wall of separation between religion and the state, and he is the principal architect behind the Court's shift to its current position that the Free Exercise Clause prohibits only intentional discrimination against religion. As I show below, he argued variously, depending on the issue, that equal treatment, liberty of conscience, protecting religion from corruption, and protecting society from religiously inspired social conflict all required the high-wall separationism he preferred. …

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