March 2022 Church & State Magazine

Stepping Down: Justice Stephen G. Breyer Appreciated The Distance Between Religion And Government

  Rob Boston

When President Bill Clinton nominated Stephen G. Breyer to the U.S. Supreme Court in 1994, Americans United started digging.

Breyer had been a judge on the 1st U.S. Circuit Court of Appeals since the early 1980s, but his record on church-state separation was sparse. AU’s research turned up just a handful of cases, mostly dealing with peripheral issues.

In light of that, AU urged the members of the Senate Judiciary Committee to question Breyer closely about his views on the separation of religion and government. During Breyer’s confirmation hearings, several senators did raise the issue – and AU was pleased by what it heard.

Breyer told U.S. Sen. Orrin Hatch (R-Utah) that when he reflected on the issue, “I think of Jefferson, and I think of a wall. And the reason that there was that wall, the reason which has become so much more important perhaps even now than it was then, is that we are a country of so many different people, of so many different religions.”

U.S. Sen. Patrick Leahy (D-Vt.) asked Breyer to state his views on how government and religion should interact. Breyer replied, “You start in this area with the basic idea that the state is neutral. No one wants to see the government favoring a different religion, and as long as you don’t want to see the government favoring a different religion, that means government can’t favor your religion either.” (Breyer went on to win easy confirmation from the Senate on a vote of 87-9.)

While Breyer, who on Jan. 27 formally announced his plan to retire from the high court, didn’t turn out to be a towering champion of church-state separation along the lines of Justice Ruth Bader Ginsburg, he tended to vote for separation of church and state more often than not. Whenever he didn’t, he often worked to craft narrow positions that at least attempted to mitigate damage to the church-state wall.

Known as a thoughtful jurist and pragmatist, Breyer’s position on the court was never especially prominent. Unlike the acerbic and ultraconservative Justice Antonin Scalia, an outspoken opponent of church-state separation whose tone during oral arguments was often aggressive, Breyer tended to ask questions in a polite and relaxed style –  combativeness just wasn’t his thing.

In his legal writings, Breyer often sought a middle way. Consider, for example, his position on religious symbols on public property. He tended to accept symbols that were erected many decades ago, arguing that they had become integrated into communities as quasi-secular landmarks (a view AU does not accept), but he did oppose newly erected religious symbols.

Breyer thus voted with the majority in 2019 to allow a towering cross in Bladensburg, Md., that had been erected in 1925 to remain on public land, but he was careful to add, “Nor do I understand the Court’s opinion today to adopt a ‘history and tradition test’ that would permit any newly constructed religious memorial on public land. The Court appropriately ‘looks to history for guidance,’ but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community. A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”

On questions of taxpayer funding of religion, Breyer again took a centrist course. He voted to require Missouri to include a religious school in a program that funded renovations of school playgrounds, arguing that the program was a safety measure akin to police and fire protection (again, a view not shared by AU). But he opposed more substantial forms of government aid to religious institutions when that aid subsidized religious instruction. In a 2002 case in which the high court upheld private school vouchers, Breyer dissented, warning of the dangers of too much government involvement with religion. As America’s religious diversity expands, he asserted, public aid to religion becomes increasingly problematic.

In a 2014 case brought by Americans United, Breyer opposed the use of mostly Christian prayers to open city council meetings in Greece, N.Y. While Breyer did not write his own dissent, he joined one penned by Justice Elena Kagan that said in part, “I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality – the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”

Breyer opposed any form of school-sponsored religion in public education, and was a strong supporter of LGBTQ rights and reproductive freedom. He was skeptical of the idea that religious freedom grants a broad right for secular businesses to discriminate against certain customers.

In November 2020, he criticized the court majority when it ruled in favor of a New York church that sought to evade state-mandated curbs on large gatherings in light of the COVID-19 pandemic.

“[A]ccording to experts, the risk of transmission is higher when people are in close con­tact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces,” Breyer wrote. “The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has counter­vailing arguments based upon health, safety, and administrative consider­a­tions that must be balanced against the ap­p­licants’ First Amendment chal­lenges.”  (Conservative Chief Justice John Roberts also sided with the minority in that 5-4 decision.)

Breyer’s retirement came about after considerable drama in Washington, D.C., and The Washington Post reported that it might have been the result of a lobbying campaign. Breyer will turn 84 in August, and Dem­ocrats worried that if he didn’t leave the court now, President Joe Biden might be unable to name a replacement.

The Senate is currently evenly divided between Republicans and Dem­ocrats (including two independents almost always, if not always, voting with the Democrats), with Vice President Kamala Harris having the power to break ties, but if the GOP wins control of the chamber after the Nov­ember midterm elections, the Republicans will have more control over the process and could refuse to advance any Biden high court nominees.  (Minority Leader Mitch McConnell (R-Ky.) has at least implied that.)

The Democratic Party’s liberal faction was motivated in part by the experience of Ginsburg, who declined to retire from the court while Barack Obama was president. Ginsburg died in September of 2020, and Republicans, who controlled the Senate from 2015 to 2021, pushed through President Donald Trump’s replacement, ultraconservative Amy Coney Barrett, just a few days before an election on Nov. 3, 2020, that saw Trump’s defeat.

Breyer’s brother, Charles, who is also a federal judge, told The Post, “Of course he was aware of this campaign. I think what impressed him was not the campaign but the logic of the campaign. And he thought he should take into account the fact that this was an opportunity for a Democratic president – and he was appointed by a Democratic president – to fill his position with someone who is like-minded.”

In a statement, Americans United President and CEO Rachel Laser thanked Breyer for his service on the court and urged Biden to choose a replacement who will support church-state separation.

“During his nearly 28 years on the U.S. Supreme Court, Justice Breyer has been an advocate for religious freedom,” Laser said. “He supported religious minorities and challenged his fellow justices to respect America’s flourishing religious diversity. In particular, Justice Breyer has written powerfully in defense of religious minorities compelled to sit through predominantly Christian invocations during government-sponsored meetings, tax- payers forced to fund private religious education and, most recently, government officials trying to protect public health during a deadly pan­demic as some houses of worship demanded the privilege to ignore in-person gathering limits.”

She concluded, “We urge President Biden to nominate a justice who reflects the diversity of our country and understands that separation of church and state is the cornerstone of religious freedom. We need a justice who will be a bulwark against the court’s ultra-conservative majority, who seem set on redefining religious freedom as a sword to harm others instead of a shield to protect all of us. We deserve a justice who will defend our country’s foundational principle of separation of religion and government like our democracy depends on it – because it does.”

Editor’s Note: As this article was going to press, President Biden nominated Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the D.C. Circuit, to fill Breyer’s seat. Look for more information next month.

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