Justice John Paul Stevens, Religion clause, Religion jurisprudence, Christopher Eisgruber, Lawrence Sager
Constitutional Law | Judges | Jurisprudence
Justice Stevens has sometimes been caricatured as the U.S. Supreme Court Justice who hates religion. Whether considering questions under the Establishment Clause or the Free Exercise Clause, questions about the funding or regulation of religious groups, or the permissibility of religious speech in public places, in case after case he has voted against religion. Like most caricatures, this view of Justice Stevens is based on a kernel of truth. He does appear to be more likely to vote against religious groups than any other Justice. But an exploration of the cases in which Justice Stevens has voted in favor of religious claimants reveals that, rather than being moved by a reflexive hostility toward religion, he appears to respect religion as a powerful motivator of human action that is largely protected by the political process. Religion's power makes it a singularly divisive category of human activity and makes religious favoritism a uniquely seductive temptation that the conscientious legislator (and judge) must carefully avoid. Although Justice Stevens may take this respectful apprehension of religion too far, his views are a far cry from the sort of blatant hostility of which he is often accused.
In Part I, I lay out the standard case for Justice Stevens's hostility towards religion. I then challenge the soundness of that view in Part II by discussing the various cases in which Justice Stevens has voted in favor of religious claimants. In Part III, I attempt to formulate a principle that ties Justice Stevens's various religion votes together, a principle that I characterize as "respectful apprehension." Notwithstanding my rejection of the common view of Justice Stevens as hostile to religion, I argue in Part IV that there are substantial problems with Justice Stevens's actual approach. First, Justice Stevens has a tendency to treat religion as no more valuable than other valuable categories of expressive activity, a tendency that brings him into agreement with a great deal of recent scholarly commentary on the religion clauses, but which I think is ultimately mistaken. The protection he would afford religious practice is therefore largely coextensive with the protection afforded to expressive conduct more generally under the First Amendment. Second, I argue that Justice Stevens places too much faith in the ability of legislatures to look out for the interests of minority religious groups, ignoring the important role that courts play in signaling to legislatures situations in which minority religions appear to be suffering disproportionately under generally applicable regulations. Accordingly, in Part V, I propose a different approach, one that builds on Justice Stevens's views but that more adequately acknowledges the unique value of religion in the lives of believers.
Peñalver, Eduardo M., "Treating Religion as Speech: Justice Stevens's Religion Clause Jurisprudence" (2006). Cornell Law Faculty Publications. 712.
Published in: Fordham Law Review, vol. 74, no. 4 (March 2006).