Justice Stevens: Strict Separationist

Retiring Member Of The High Court Fought To Add Bricks To The Church-State Wall

Supreme Court Justice John Paul Stevens announced his retirement April 9, bringing to an end a career marked by stalwart defense of church-state separation.

Appointed by President Gerald R. Ford in 1975, Stevens, now 90, is the longest-serving justice on the current court. Over the years, he has issued numerous majority opinions, concurrences and dissents supporting church-state separation on issues such as government aid to religious schools, religion in public schools and government endorsement of religion.

One year after he joined the court, a case reached the justices from Maryland challenging a law giving state grants to religious colleges.

The majority upheld the aid in Roemer v. Board of Public Works, but Stevens dissented.

“I would add emphasis to the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it,” he wrote. “The disease of entanglement may infect a law discouraging wholesome religious activity as well as a law encouraging the propagation of a given faith.” 

In 1980, Stevens issued a strong statement against all forms of government aid to religious schools.

Dissenting in PEARL v. Regan, he wrote, “[T[he entire enterprise of trying to justify various types of subsidies to nonpublic schools should be abandoned…. I would resurrect the ‘high and impregnable’ wall between church and state constructed by the Framers of the First Amendment.”

Stevens never wavered in his belief that taxing Americans to support religious schools is wrong.

In 2002, he isued a strong dissent from a ruling upholding voucher subsidies for private schools in Cleveland, noting that most of the public funds went to religious institutions.

“Whenever we remove a brick from the wall that was designed to separate religion and government,” Stevens wrote, “we increase the risk of religious strife and weaken the foundations of our democracy.” (Zelman v. Simmons-Harris)

Stevens was just as eloquent 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 that it was a ruse to reintroduce official school prayer.

“[T]he individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority,” Stevens observed. “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.”

Stevens wrote the majority opinion in Santa Fe Independent School District v. Doe, a 2000 decision striking down coercive prayer at public school events like football games. In other religion-in-school cases, he joined pro-separation opinions by other justices.

Throughout his career, Stevens showed concern for the rights of religious minorities. In a 2005 case dealing with the display of the Ten Commandments by government, he blasted the view of church-state relations held by Justices Antonin Scalia and Clarence Thomas.

According to Stevens, the Scalia-Thomas view “would replace Jefferson’s ‘wall of separation’ with a perverse wall of exclusion – Christians inside, non-Christians out.” (Van Orden v. Perry)

Barry W. Lynn, executive director of Americans United, wished Stevens well in retirement and urged President Barack Obama to honor his legacy by appointing a replacement who holds similar views on religion and government.

“It is vitally important that President Obama choose a high court nominee who understands that government may not meddle in matters of religion,” Lynn said.