JUSTICE STEVENS, RELIGION, AND CIVIL SOCIETY

Gregory P. Magarian, Washington University in St Louis

Abstract

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his 35 years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he flatly opposed exempting religious believers from laws that interfered with their religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with disdain for religion. In this article, Professor Magarian debunks that conventional analysis and offers a new explanation of Justice Stevens’ religion jurisprudence. Professor Magarian shows that Justice Stevens took the same approach to constitutional cases about churches that he took to constitutional cases about other powerful institutions of civil society, including the major political parties and voluntary membership associations. Justice Stevens resisted these varied civil society institutions’ demands for increased constitutional autonomy, based on two persistent concerns. First, Justice Stevens sought to constrain civil society institutions’ coercive power over individuals. Second, he viewed civil society institutions’ tendencies toward factionalism as a threat to national unity. Justice Stevens did not consider religion a special object of constitutional concern, let alone a special object of disdain. Rather, he approached constitutional disputes about religion as one aspect of a broader civil society jurisprudence. That descriptive insight allows Professor Magarian to make a fresh normative assessment of Justice Stevens’ religion jurisprudence. Justice Stevens’ anticoercion principle provided the driving force behind his Establishment Clause opinions. Professor Magarian finds the anticoercion principle normatively compelling in the abstract and well-adapted to Establishment Clause disputes. Accordingly, he endorses Justice Stevens’ separationist approach to the Establishment Clause. In contrast, Justice Stevens’ antifactionalism principle drove his opinions about free exercise accommodations. Professor Magarian finds the antifactionalism principle normatively problematic in general and particularly ill-suited to the problem of free exercise accommodations. He therefore criticizes Justice Stevens’ restrictive Free Exercise Clause jurisprudence.