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A Look at Justice Stevens’ Impact on our First Liberty

October 17, 2017

Justice John Paul Stevens recently announced his retirement from the U.S. Supreme Court after serving on the Court for 34 years. Stevens, who turned 90 in April, is a World War II veteran—the only veteran currently on the Court—and by all accounts is a truly warm and gracious man. Appointed by President Ford in 1975, Justice Stevens is known for his collegial nature and his respectful demeanor from the bench, along with his preference for bow ties (it’s hard to picture him without one) and his love for the game of tennis (even at 90, he still reportedly plays on a routine basis).

But, above all else, he will be remembered as the intellectual leader of the Court’s left wing. And in that role, he was consistently a staunch advocate for erecting a “high and impregnable wall between church and state” and has issued numerous opinions that have diminished our religious freedoms.

He repeatedly voted against any public recognition of religion. He wrote dissenting opinions in Van Orden v. Perry and County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, which upheld the constitutionality of certain religious displays on public property. Van Orden considered a Ten Commandments display, while County of Allegheny considered a display that included a nativity scene and a menorah. In Justice Stevens’ view, the First Amendment creates “a strong presumption against the display of religious symbols on public property.” He also dissented in Marsh v. Chambers, which upheld the 200 year old practice of opening sessions of Congress in prayer.

His views were particularly strong in the area of religion and schools. Justice Stevens was the lone dissenter in Westside Community Schools v. Mergens, which upheld the constitutionality of a federal statute that protected the right of public secondary students to form religious student groups on campus.  He wrote the decision in Santa Fe Independent School District v. Doe, striking down the practice of student-led, student-initiated prayer before football games at a Texas high school. And he wrote the decision in Wallace v. Jaffee, striking down an Alabama law that authorized a daily period of silence in public schools for meditation or voluntary prayer. And in Zelman v. Simmons-Harris, he voted to strike down an Ohio school voucher program that parents could use to send their children to private schools, including religious ones.

Perhaps most significantly, however, was Justice Stevens’ deciding vote in Employment Division v. Smith, which concluded that the Free Exercise Clause does not protect against government regulations that are neutral toward religion and are generally applicable—even if the regulations substantially burden religious exercise. Commentators have described this case as a “constitutional bombshell that blew apart the Free Exercise Clause and gutted it of any meaningful protections.”

The last religious freedom case that Justice Stevens will help decide is Christian Legal Society v. Martinez. In that case, ADF attorneys represent a Christian student group that is challenging a public law school’s refusal to recognize simply because it requires its leaders and voting members to share its Christian beliefs. As I discussed in a previous post, this case could have significant ramifications for Christian student groups and churches around the country.

These cases reveal how crucially important Supreme Court nominees are. Please be praying that President Obama will select a replacement for Justice Stevens who will be a strong advocate for our first liberty—religious freedom.

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