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Farewell, Justice Souter, defender of Mr. Jefferson’s wall

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Charles C. Haynes
June 20, 2009

By Charles C. Haynes


If you believe with Thomas Jefferson that the First Amendment builds “a high wall of separation between Church & State,” then you will sorely miss Justice David H. Souter when he retires from the U.S. Supreme Court this month.


Few justices in recent memory have been more vigorous in defending Mr. Jefferson’s wall against increasingly successful efforts by some on the Court to dismantle it brick by brick.


At the heart of Souter’s Jeffersonian argument is the conviction that government entanglement with religion has been a leading source of repression and conflict throughout history. Maintaining government neutrality toward religion, therefore, is not only a limitation on government—it’s also an indispensible condition for full religious liberty.


When the Supreme Court first applied the First Amendment’s establishment clause to the states in 1947 in Everson v. Board of Education, the justices invoked Jefferson to affirm a “high and impregnable” wall ensuring government neutrality that neither promotes nor inhibits religion.


But by the time Justice Souter joined the Court in 1990, Jefferson’s wall was considerably lower and full of holes. Souter tried to slow the erosion, dissenting from decisions allowing certain forms of state aid to religious schools (Agostini v. Felton, 1997; Mitchell v. Helms, 2000) and publicly funded vouchers for religious-school tuition (Zelman v. Simmons-Harris, 2002).


History teaches, Souter wrote in his Agostini dissent, “that religions supported by governments are compromised just as surely as the religious freedom of dissenters is burdened when the government supports religion.”


Despite setbacks for separation, Souter was on the winning side in a number of important decisions upholding government neutrality among religions and between religion and nonreligion. He voted with the majority to strike down school-sponsored prayers in Lee v. Weisman (1992) and Santa Fe Independent School District v. Doe (2000), and he wrote the majority opinion in McCreary County v. ACLU of Kentucky (2005), a case involving courthouse displays of the Ten Commandments.


In ruling against the Ten Commandments displays, Souter focused on the religious purpose behind the government officials’ efforts to display the Decalogue, recalling history to warn against the dangers of state endorsement of religion.


“We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts,” he wrote, “but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual.”


Although advocates of strict separation are often portrayed in the culture wars as being hostile to religion (and sometimes they are), Souter belied that stereotype by endorsing a broad reading of the establishment clause precisely because he supported a high level of protection for the free exercise of religion.


Early in his tenure, Souter joined the majority to strike down a Hialeah, Fla., law that was clearly aimed at hindering the practice of the Santeria religion (Church of Lukumi Babalu Aye v. Hialeah, 1993). But he went further, calling on the Court to reconsider Employment Division v. Smith, a 1990 decision that most legal experts agree seriously weakened protection for religious freedom by making it much more difficult for religious people to get exemptions from generally applicable neutral laws that place a substantial burden on their religious practice.


The free-exercise clause, he argued, does more than protect religious people from laws that target religion (like the one in Hialeah). It also protects people from laws that might unintentionally hinder religious freedom. The First Amendment, Souter wrote, “was originally understood to preserve a right to engage in activities necessary to fulfill one’s duty to one’s God, unless those activities threatened the rights of others or the serious needs of the State.”


Souter’s warnings about the weakening of free-exercise protections—like his warnings about the weakening of Jefferson’s wall—have gone mostly unheeded by the current Court majority. You don’t have to agree with every opinion Justice Souter wrote to worry with him about the future of religious liberty in America.


On June 30, religious freedom loses a voice on the Court at a time when it most needs to be heard.


Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web: firstamendmentcenter.org. E-mail: chaynes@freedomforum.org.

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