President Obama has encouraged a “serious debate about how to reconcile faith with our modern, pluralistic democracy.”(1) He has called for an appreciation of “the critical role that the separation of church and state has played in preserving not only our democracy, but the robustness of our religious practice,” while also saying “a sense of proportion [should] guide those who police the boundaries between church and state.” What kind of Supreme Court nominee will this president choose? We’ll find out soon.
As we await a White House announcement, a consideration of Justice David Souter’s religious liberty legacy is in order. Justice Souter has had a strong voice and an interesting combination of views on these matters. A brief review of some of Souter’s opinions helps to lay a foundation for understanding how President Obama’s pick to replace him might affect the church-state balance at the Court.
Justice Souter has consistently challenged narrow interpretations of both the Free Exercise and Establishment Clauses of the First Amendment. In 1993 he joined his colleagues in striking down a Florida ordinance that was a thinly disguised attempt to stop animal sacrifice by followers of the Santeria faith.(2) This violated even the minimal free exercise protections remaining in the wake of the Court’s 1990 decision, Employment Division v. Smith.(3) The Court was unanimous on this point, but Souter also wrote separately to call for a reexamination of the controversial Smith decision, which was written by Justice Antonin Scalia. Souter noted that the government could seriously burden religious practicies even when it did so inadvertently rather than intentionally. The Smith decision, Souter said, was in considerable tension with longstanding precedent that was much more protective of free exercise. The Court has yet to heed Justice Souter’s call.
On the other side of the constitutional coin, Souter played a significant role in ensuring that the Court maintained its robust interpretation of the Establishment Clause. The Court has long held that the Establishment Clause not only prohibits the government from favoring one faith over another but also from favoring religion over nonreligion. It has barred state sponsorship or endorsement of religious messages, not simply state coercion in religious matters. When some his colleagues attempted to argue that the original understanding of the First Amendment required a less expansive interpretation of the Establishment Clause, Souter countered that history provided no warrant for this departure and much justification for these rules.
An application of these principles led Justice Souter to join Court decisions prohibiting public schools from organizing prayers at graduation ceremonies(4)and football games.(5) He wrote an opinion banning the government from posting the Ten Commandments when it was plain that its predominant purpose was to advance religion.(6) Souter was not only concerned about protecting the consciences of nonbelievers and members of minority faiths; he also believed government support for the favored faith would undermine its integrity.
Souter faced another set of cases involving requests by religious groups to have the same access to state property that other nongovernmental groups enjoyed. He supported this “equal access” right in some situations,(7)but he struggled with it in others. He dissented, for example, when the Court held that a public school must provide equal access to its property for a Bible study group for young children that met soon after school closed for the day.(8)
In cases involving state aid and religious institutions and activities, Justice Souter argued that governmental neutrality toward faith meant much more than merely ensuring that the state is evenhanded when it distributes funds to religious and nonreligious organizations.(9) He often quoted James Madison, who warned that “the same authority which can force a citizen to contribute three pence only of his property for the support of any one [religious] establishment, may force him to conform to any other establishment in all cases whatsoever.” Souter increasingly found himself on the losing side of these debates.
Another significant aspect of Souter’s religious liberty legacy is his concern about the practical result of Court action, or inaction, in this arena. When religious matters are left to the political branches of government, Souter noted, minority faiths often fare poorly.(10) Permitting a city to embrace a Ten Commandments monument and turn away a monument featuring scripture from another religious tradition would raise concerns about a governmental preference for one faith over another, even if the Court could find some doctrinal way to bless the city’s action.(11)
It seems unlikely that the addition of President Obama’s nominee to the Court will change the outcome in church-state cases, even if she or he differs from Justice Souter somewhat. But the views and voice of his nominee will certainly affect the debate at the Court and shape decisions long after Obama leaves the White House. For a president who gives thoughtful attention to the dictates of both religion clauses, Souter’s record provides much to appreciate and consider.