US Supreme Court Justice John Paul Stevens died on July 16 at age 99. He was buried at Arlington National Cemetery one week later, having served on the Supreme Court from 1975 to 2010.
As a judge, Justice Stevens brought the real world into his deliberations, a quality sadly lacking in the dominant conservative wing of today’s Court. The current approach causes a major breach in the constitutional wall of separation between religion and state. Unlike Europe, or Israel for that matter, in the United States, the Constitution forbids the government from establishing religion. Indeed, the Founding Fathers, Thomas Jefferson and James Madison, considered the Crown’s involvement in the realm of faith as one of the evils sparking the American Revolution.
Unfortunately, today’s Supreme Court indulges in illusions of secularity to justify, or even require, the government’s encroachment into the sphere of religion. For example, Trinity Lutheran Church v. Comer,137 S.Ct 2012 (2017), held unconstitutional a Missouri regulation denying rubber covering for playgrounds in religious schools situated on church property. The Court held that the policy discriminated against believers and impeded their free exercise of religion. Only two justices dissented. The majority succumbed to the fiction that the church sought constitutionally permissible non-sectarian funding for a school that also teaches religion. Seven justices closed their eyes to the fact that they forced the state to use tax money to fund improvements to church grounds, an impermissible establishment of religion.
In contrast, Justice Stevens saw through such smokescreens. He held that entangling the state in religion causes trouble for the former and corrupts the latter. In recent decades, many ecclesiastical organizations have embraced government grants for their institutions. In one early attempt, Maryland gave unrestricted money to Catholic schools, which conducted daily prayers and compulsory religious instruction. The majority viewed the colleges as academic institutions which happened to include the Bible as one of their courses, downplaying the significance of theology. In dissenting from the Court’s 5-4 holding in Roemer v. Board of Public Works, 426 US 736 (1976), Justice Stevens wrote of:
[T]he pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it. The disease of entanglement may infect a law discouraging wholesome religious activity as well as a law encouraging the propagation of a given faith.
Similarly, in Zelman v. Simmons-Harris, 536 US 639 (2002), the Supreme Court, by a vote of 5-4, upheld an Ohio law giving students vouchers to pay for tuition at religious schools. The majority considered the program as a good way to elevate the educational opportunities of poor students attending failing public schools. Justice Stevens saw the program for what it was: “a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar schoolchildren in particular religious faiths” — in short, unconstitutional government support for religion.
Finally, Van Orden v. Perry, 545 U.S. 677 (2005) involved the posting of the Ten Commandments on the State Capitol grounds in Austin, Texas. A companion case dealt with the posting of the Ten Commandments in a courthouse in Kentucky. In a split decision, with the liberal Justice Stephen Breyer voting to allow the Texas display but not the one in Kentucky, the justices called the Austin display one of historical artifacts. Justice Breyer emphasized the fact that the commandments had stood for decades without objection, as if the First Amendment had a statute of limitations.
Justice Stevens exposed the fact that the “historical” display arose from the efforts of the Fraternal Order of the Eagles to saturate the country with monuments to the Ten Commandments as a way to “inspire the youth and curb juvenile delinquency by providing children with a code of conduct.” (footnote and internal quotation marks omitted). The Ten Commandments as a Code of Conduct means religious indoctrination.
Justice Stevens’s views echo what Rabbi Michael Melchior, then Chief Rabbi of Denmark, told me on a visit to Washington, DC in 1985. He said that we American Jews are lucky that we have to work hard to raise money for our synagogues and yeshivot, rather than, as in Denmark, having the government pay for everything (including his salary). Government money came with strings, whether overt or covert, and pressure. Thank G-d, he said, you have true freedom.
Yes, but only if we can keep it. Justice Stevens showed how.