Wednesday, November 9, 2011

Magarian on Justice Stevens

Justice Stevens, Religion, and Civil Society, by Gregory P. Magarian, 2011 Wis. L. Rev. 733

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion?


During his thirty-five 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 opposed exempting religious believers from laws that interfered with 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 hostility toward religion. In this Article, Professor Magarian debunks that conventional analysis and offers a new explanation of Justice Stevens‘s 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. This descriptive insight allows Professor Magarian to make a fresh normative assessment of Justice Stevens‘s religion jurisprudence. Justice Stevens‘s anti-coercion principle provided the driving force behind his Establishment Clause opinions. Professor Magarian finds the anti-coercion principle normatively compelling in the abstract and well adapted to Establishment Clause disputes. In contrast, Justice Stevens‘s anti-factionalism principle drove his opinions about free exercise accommodations. Professor Magarian finds the anti-factionalism principle normatively problematic in general and particularly ill-suited to the problem of free exercise accommodations.