Stevens on religion and van orden v. perry and religous neutrality and separationist and wall of separation

If there is any Justice whose views on religion represent the approach of what I call the "old separationist ideology," it is John Paul Stevens. Born in 1920, appointed to the Court by President Ford in 1975, and now the second longest-serving Justice on the Court, Stevens has seen before his eyes the "Rehnquist revolution" on the Court no less in the area of religion than in several other areas. The purpose of the next two essays is to describe his "separationist" ideology through consideration of his dissent in the 6/27/05 Van Orden (Ten Commandments in Texas) case.

A Word on Terminology and the Man

I think the great historical tension in Establishment Clause (EC) cases is between the "separationists" (S) and "accommodationists" (A). The former love Thomas Jefferson's image, appearing in a letter he sent to the Danbury (CT) Baptist clergy, of a "wall of separation" between government and religion. Ever since the Establishment Clause was incorporated into the 14th Amendment shortly after WWII, an ardent separationist would be committed to the proposition that the First Amendment requires not only no government preference of religion over religion but also, increasingly controversial, of religion over irreligion. These last three words are really at the heart of the philosophical debate on religion between S and A. The latter say that this phrase, which comes from the 1947 Everson decision and has been frequently reiterated, ignores the signal role that invocation of God has played in American history. A are fond of quoting none other than William O. Douglas, who became an ardent separationst late in his career, when he in 1952 talked about American being a "religious people" whose institutions presuppose a belief in a Supreme Being.

Stevens is perhaps the most eloquent and forceful exponent of separationism on the Court. He will eagerly point out that there is a great deal of difference between a President's proclaiming a day of Thanksgiving to God or the phrase "In God we Trust" on the coins, and a state-sponsored Ten Commandments monolith on the Capitol grounds. He is also the most skilled polemicist of the three or four separationists on the Court today. He constantly and often quite convincingly needles Justice Scalia when the latter gets on his high horse of principle, by showing blatant contradictions in Scalia's so-called principled utterances. He shows Scalia quoting incorrectly in order to make a point. He shows Scalia's ahistorical tendencies, even as Nino claims he is anchoring his insights in history. Thus, the Court has in Stevens a rather feisty, determined, and outspoken separationist who can give as good as he gets and frame the debate in pungent and memorable terms.

Moving to Stevens' Dissent

We see Stevens anchoring himself firmly in the S camp by playing on a theme that was important in the 1970s and 1980s (divisiveness), even as he stresses separation:

"Government's obligation to avoid divisiveness and exclusion in the religious sphere is compelled by the E and FE Clauses, which together erect a wall of separation between church and state."

He then quotes probably the Court's strongest separationist language, from the 1961 Torasco case. A government cannot

"constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."

Thus, Stevens stands squarely in the tradition since 1947, that government can't aid "religions against non-believers." Steven realizes the exposed heel of his own position, and quickly moves to cover it. That "heel" is the question of why government leaders so freely affirmed the assistance of God, gave tax breaks indiscriminately to religion, set up legislative chaplains and did other that seemingly favored institutional religion. I will turn to this in more detail in another essay, but Stevens says here he is aware and the pluraity is correct in noting the role that religion has played in American history and life. Government may acknowledge the role that religion has played in national life. It need not hide works of art or historic memorabilia from public view because they also have religious significance.

But it is precisely at this point that he (and Justice Ginsburg, who joined him in dissent), part with the plurality. The posting of a 10 Commandments monolith on the Texas Capitol grounds in no way seeks to commemorate the importance of religion in our culture. Stevens points to opening words on the monolith:

"I AM the LORD thy God"

How, he wants to know, can these words be anything other than a governmentally-sponsored declaration of belief in the "Judeo-Christian" God? He says:

"The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion, nor can the State's refusal to remove it upon objection be explained as a simple desire to preserve a historic relic."

Rather, what we have is a state's "endorsement" of religion, in Stevens' and Ginsburg's view, that flatly contradicts the Court's precedent and constitutional commitment to religious neutrality.

But, there is more.

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