Justice John Paul Stevens: Champion of the Church-State Wall

By ROB BOSTON

For HumanistNetworkNews.org
Apr. 14, 2010

With the retirement of Justice John Paul Stevens, the Supreme Court is losing one of its most stalwart defenders of church-state separation and religious liberty.

Stevens, the longest-serving justice currently on the court, was appointed by President Gerald R. Ford in 1975. From the start he was a passionate, articulate defender of church-state separation.

Stevens voted consistently against government aid to religious schools and other institutions. In one of his first church-state cases, he dissented from the majority, which upheld state grants to private religious colleges in Maryland (Roemer v. Board of Public Works, 1976).

The aid, Stevens wrote, presented a threat to the religious schools. He decried the "pernicious tendency of a state subsidy top tempt religious schools to compromise their religious mission without wholly abandoning it."

A year later, in Wolman v. Walter, Stevens dissented from a majority ruling upholding various types of textbook loan, testing and diagnostic services to religious secondary schools. "[A] state subsidy of sectarian schools is invalid regardless of the form it takes," he wrote.

Stevens never wavered on his belief that taxing all Americans to support the religious schools of some was wrong. In 2002, Stevens issued a strong dissent from the high court's ruling upholding voucher subsidies for private schools in Cleveland, noting that most of the public funds went to religious institutions (Zelman v. Simmons-Harris).

"Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundations of our democracy," Stevens wrote.

Stevens was just as strong on the issue of religion in public schools. He authored the 1985 opinion in Wallace v. Jaffree striking down Alabama's bogus "moment of silence" law, noting it was ruse to reintroduce official school prayer.

Stevens' language in Jaffree is especially eloquent and worth quoting at length:

Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.

In 2000, Stevens authored the opinion in Santa Fe Independent School District v. Doe, striking down coercive prayers before public school football games in Texas. He understood the burden such prayers can place on students and wrote:

High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between whether to attend these games or to risk facing a personally offensive religious ritual is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students….

Stevens also opposed government display of religious symbols on public property and voted against tax-funded government chaplains (Marsh v. Chambers, 1983). Of the latter he wrote in dissent, "In a democratically elected legislature, the religious beliefs of the chaplain tend to reflect the faith of the majority of the lawmakers' constituents…."

One of my favorite passages by Stevens is found in his concurring opinion in the 2005 Van Orden v. Perry ruling dealing with Ten Commandments displays by government. Stevens eviscerated the crabbed view of church-state relations held by Justices Antonin Scalia and Clarence Thomas:

[Scalia and Thomas] would replace Jefferson's ‘wall of separation' with a perverse wall of exclusion–Christians inside, non-Christians out. It would permit States to construct walls of their own choosing–Baptists inside, Mormons out; Jewish Orthodox inside, Jewish Reform out. A Clause so understood might be faithful to the expectations of some of our Founders, but it is plainly not worthy of a society whose enviable hallmark over the course of two centuries has been the continuing expansion of religious pluralism and tolerance.

Justice Stevens will be missed at the Supreme Court. Here's hoping he enjoys a long, healthy retirement–and that his replacement shares his views.

Rob Boston is senior policy analyst at Americans United for Separation of Church and State .