Former Supreme Court Justice John Paul Stevens died last night at age 99. Today we pause to honor his service to the nation and his legacy, which is considerable.
Stevens, who left the court in 2010, was a stalwart defender of separation of church and state, a position he staked out right away. He was appointed to the high court in 1975 by President Gerald R. Ford, and at the time, the issue of taxpayer aid to religious schools was highly contentious; several cases reached the court.
Stevens took the position that no American should be forced to pay taxes to support the religion of another. He also understood why government attempts to “help” religion end up weakening faith groups. In a 1976 case, Roemer v. Board of Public Works, he dissented from a ruling upholding a Maryland law that gave state grants to religious colleges.
“I would add emphasis to the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it,” he wrote. “The disease of entanglement may infect a law discouraging wholesome religious activity as well as a law encouraging the propagation of a given faith.”
Four years later, Stevens warned against all forms of taxpayer aid to religious schools in his dissent in the case Committee for Public Education v. Regan.
“[T[he entire enterprise of trying to justify various types of subsidies to nonpublic schools should be abandoned…. I would resurrect the ‘high and impregnable’ wall between church and state constructed by the Framers of the First Amendment,” Stevens wrote.
In 2002, the Supreme Court upheld a school voucher plan in Ohio in Zelman v. Simmons-Harris. Stevens' dissent blasted the majority for drifting from the nation’s founding ideals – and he warned of the consequences.
“Whenever we remove a brick from the wall that was designed to separate religion and government,” Stevens wrote, “we increase the risk of religious strife and weaken the foundations of our democracy.”
Stevens was also no fan of state-sponsored religion in public schools. He authored the 1985 opinion in Wallace v. Jaffree striking down an Alabama law, crouched as a “moment of silence,” that was clearly designed to reintroduce official prayer in schools.
“[T]he individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority,” Stevens observed. “At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.”
Fifteen years later, Stevens was just as powerful when he penned the majority opinion in Santa Fe Independent School District v. Doe, a decision striking down coercive prayer at public school events like football games.
“School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community,’” he wrote.
Throughout this career, Stevens was aware that church-state separation protects the rights of religious minorities. In Van Orden v. Perry, a 2005 case dealing with the display of the Ten Commandments by government, he criticized the view of church-state relations held by Justices Antonin Scalia and Clarence Thomas, asserting that the two “would replace Jefferson’s ‘wall of separation’ with a perverse wall of exclusion – Christians inside, non-Christians out.”
Stevens also understood that when laws have a theological underpinning, they are suspect. In 1989, he agreed with Americans United in Webster v. Reproductive Health Services that an anti-abortion law in Missouri that had a preamble declaring that life begins at conception violated church-state separation. The statement, he said, is theological in nature, not scientific or legal.
Stevens was an advocate of the strict separation of church and state envisioned by our founders. Unfortunately, far-right justices have caused our nation to drift far from his position, much to our detriment. We can best honor the legacy of this great man by working even harder to protect the separation of religion and government – which, as Stevens powerfully explained time and again over 35 years, is the only policy that can ensure true religious freedom for all of us.
(Photo: Screenshot from CBS)