Justice Stevens, Religious Enthusiast

ABSTRACT-It is sometimes alleged that Justice John Paul Stevens is hostile to religion. In fact, however, Justice Stevens espouses a position with religious roots and enthusiastically embraces a distinct conception of religion. This casts doubt on the claim, made in different ways by Eduardo Penalver and Christopher Eisgruber, that the fundamental concern of Justice Stevens's religion clause jurisprudence is equality. At least as important to him is protecting religion from corruption by the state. To be consistent, Justice Stevens ought to acknowledge, more forthrightly than he does, that he treats religion as a distinctive human good. Any notion of corruption implies a norm or ideal state from which the corruption is a falling off. An invocation of the corruption rationale presupposes that religion is a good thing deserving of protection. To call this view hostile to religion is confused to the point of perversity. The often-repeated allegation that Justice John Paul Stevens is hostile to religion1 has been authoritatively debunked in a pair of fine essays by Eduardo Penalver and Christopher Eisgruber.2 Here, I supplement their analyses in three ways. First, I will push their claims even further and show that Justice Stevens espouses a position that, in its own way, has religious roots and enthusiastically embraces a distinct conception of religion. Second, I will argue that Stevens's religion-friendliness casts doubt on their conclusion that his fundamental concern is equality. At least as important to him is protecting religion from corruption by the state. Finally, I will argue that to be consistent, Justice Stevens ought to acknowledge, more forthrightly than he does, that he treats religion as a distinctive human good. I. HOSTILITY TO RELIGION? Begin by contrasting Stevens with his colleague, Justice Anthony Kennedy, who worries about the hostility claim and so reveals its assumptions. In his first Establishment Clause opinion, conspicuously parting company with Justice Stevens, Justice Kennedy claimed that strict separation of church and state "would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious."3 If this is right, then neutrality between Protestantism and Catholicism is detrimental to Protestantism, neutrality between Presbyterianism and Episcopalianism is detrimental to Presbyterianism, and so forth. Religion yearns for the state's embrace and suffers detriment if it is denied.4 Justice Kennedy shifted to a less relaxed reading of the Establishment Clause in Lee v. Weisman, but he was still careful to leave unresolved "questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens."5 In a memo to Justice Harry Blackmun explaining his refusal to delete that language from his opinion, Justice Kennedy emphasized the importance of showing that the Court "is not expressing any hostility to religion or religious persons."6 Justice Kennedy couples his vision of the harms of secularity with a deeply individualistic vision of the disestablishment of religion that the First Amendment commands. He thinks that the purpose of the ban on "establishment of religion" is to prevent coercion of individuals- understood broadly, as evinced by his invalidation of a graduation prayer in Lee.7 Hence his recent majority opinion narrowly confining standing to challenge Establishment Clause violations in Arizona Christian School Tuition Organization v. Winn.8 Unless individuals are demonstrably being hurt, Justice Kennedy seems to think that no violation of the Establishment Clause demands a judicial remedy.9 Justice Kennedy's vision of disestablishment is blind to a central purpose of the constitutional provision. That purpose also evades some of Justice Stevens's most sympathetic interpreters. …