On many occasions the Supreme Court has declared that the religion clause of the First Amendment prohibits government from acting with the purpose of disapproving a particular religion or religion in general. For instance, in a colorful case involving a city ordinance restricting the practice of animal sacrifice, the Court severely criticized officials for acting out of animosity towards the Santeria religion, which engages in the ritualistic slaughter of pigeons, goats, and turtles (among other animals) and at least sometimes leaves the carcasses along roadsides and in other public places. A majority of the Justices went so far as to proclaim, The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion . . . all officials must remember their own high duty to the Constitution. This duty demands that officials be resolute . . . [to] ensure that disapproval of religion is never among the reasons for governmental action.
Good words indeed. But one wonders what they might require of the Justices themselves. After all, as the rather grisly specifics of the practice of animal sacrifice suggest, it would require a rather unnatural detachment for the members of the Court not to disapprove of any of the variety of religious beliefs or practices that they encounter in the cases they must decide. Indeed, looking back at the history of the Court, there are indications”both in opinions and from biographical information”that even famous civil libertarians, including Justices William O. Douglas and Hugo Black, strongly disapproved of aspects of certain religions. Writing in 1983, Michael E. Smith noted that Douglas autobiography expressed contempt for conventional religion and that Blacks son acknowledged his fathers dark suspicions about the Catholic Church. Smith carefully analyzed major cases of the day to show that these biases affected the way the two Justices decided cases. We can assume that all the Justices sitting on the Court today, like other humans, have their own preferences and biases about religion, but the judicial opinions of one of them, Justice John Paul Stevens, raise more than a slight suspicion that some of his actions on the bench stem from animosity, if not to animal sacrifice, at least to certain less exotic religious beliefs and practices.
Consider Stevens brief dissenting opinion in the recent landmark case approving Ohios school voucher program. The problem is not that Justice Stevens took the position that educational vouchers paid to parents and available for use in either secular or religious schools amounted to an establishment of religion. Nor is the problem that he went so far as to argue that the Court should ignore both the fact that the voucher program was initiated in response to a severe educational crisis in the Cleveland public schools and the fact that parental decisions about how to spend their vouchers were voluntary. These positions are intellectually stark, but they need not indicate hostility to religious education.
The problem is that in four different places in an opinion barely five paragraphs long, Justice Stevens used the word indoctrination as a synonym for religious education. Stevens asserted that the voucher program was being used to pay for the indoctrination of thousands of grammar school children. He surmised that an educational emergency might provide a motivation for parents to accept religious indoctrination [of their children] that they otherwise would have avoided. He decried the fact that the vast majority of voucher recipients chose to receive religious indoctrination at state expense. And he depicted the voucher program as a governmental choice to pay for religious indoctrination.
As striking as it is, this use of the word indoctrination does not necessarily indicate hostility to religion. Like the words sectarian and fundamentalist, which have appeared with disturbing regularity in Supreme Court opinions, indoctrinate has a literal meaning that is not pejorative. It can, of course, mean simply to instruct or to teach. But, needless to say, like those other words, it has more sinister connotations. Given the common association of the word indoctrinate with totalitarian methods, there might be at least a slight suspicion that Justice Stevens did not use the term in its neutral sense, especially since he nowhere refers to public school indoctrination. In any event, the duty to determine whether Justice Stevens official positions reflect animosity to religion arose well before the voucher case.
It can be traced back as early as 1990, when the religion clause expert Douglas Laycock noted that under Stevens constitutional decisions religion is subject to all the burdens of government, but entitled to few of the benefits. Laycock charged that the apparent explanation for this combination of legal positions was hostility to religion. Laycocks hypothesis ripened into full-blown suspicion by June 2000 when Justice Stevens took the position that the free speech rights of the Boy Scouts were not violated by a state law requiring them to employ an avowed homosexual as an assistant scoutmaster. In the course of his dissent, Stevens offered his opinion about the source of what he termed prejudices against homosexuality. He wrote, Like equally atavistic opinions about certain racial groups, these roots have been nourished by sectarian doctrine. Whatever he might have meant later by using the word indoctrination, there is no question what prejudices and atavistic mean. The passage is, as Michael Stokes Paulsen of the Minnesota Law School put it, a slander, disparaging the good faith . . . of any religious worldview”such as those of [some] Christians, Jews, and Muslims”that adheres to traditional views of sexual morality.
Perhaps the repeated use of a particularly offensive word in one judicial opinion and the appearance of shockingly hostile sentences in another only raise a suspicion of antireligious bigotry. However, the animus that is suggested, if confirmed, would certainly be important in assessing a whole range of positions taken by Justice Stevens. For example, a couple of years ago he wrote an opinion for the Court validating Colorados so-called bubble law, which requires protestors to stay eight feet from any person approaching a health care facility. Among the many remarkable aspects of this opinion was Stevens strong solicitude for the right of unwilling listeners not to be jarred or offended by the protestors messages. This solicitude is remarkable because normal free speech principles emphatically (and somewhat dogmatically) require citizens on public streets to put up with the hurly-burly of untrammeled debate. In his biting dissent Justice Antonin Scalia charged that Justice Stevens unusual approach was a result of judicial bias in favor of abortion. But what is the source of this bias? Might it be that Justice Stevens sees the antiabortion position as rooted in religion”and thus antiabortion teachings as irrational indoctrination and antiabortion convictions as atavistic prejudices?
At almost the same time that he wrote the opinion sustaining the bubble law, Justice Stevens issued another opinion for the Court, this one invalidating a high school policy that permitted student-led prayer before football games. Again Stevens expressed concern about unwilling listeners, at least those who didnt want to hear any religious message. Stevens went so far as to worry that these students would be forced into religious conformity and, indeed, to be outsiders, not full members of the political community. But since a school district is entirely free to authorize students to make secular statements over the public address system, the potential effect of the Courts decision is to turn religious students into unwilling listeners, too. Stevens offered not a word of concern about whether religious students might feel themselves to be less than full members of the political community if, by order of the nations highest court, their messages and only their messages are categorically excluded from the schools public arena.
Even decisions that as a formal matter have little to do with religion take on a different coloration when Stevens apparent scorn for some religions is factored in. On February 26 of this year, for instance, eight members of the Court ruled that the federal racketeering statute (popularly known as RICO) did not apply to the efforts of the Pro-Life Action Network to shut down various abortion clinics. The rather straightforward reasoning was that, unlike the members of organized crime who are typical objects of RICO prosecutions, the antiabortion protestors did not obtain anyone elses property for their own use. Since the crime of extortion requires that the offender obtain someone elses property, the pro-life protests could not be prosecuted under RICO. Even pro-abortion rights advocates like Justice Ruth Bader Ginsburg agreed. Only Justice Stevens dissented. He claimed that even when an extortionist has not taken possession of the property that the victim has relinquished, she has nonetheless obtained that property if she has used violence to force her victim to abandon it. On the basis of this thin reed Stevens was willing to impose on protestors acting out of profound religious convictions the same draconian punishments that are ordinarily imposed on gangsters.
What, then, should Supreme Court Justices do if they are convinced that the decisions of one or more of their colleagues are being influenced by disapproval of religion? The Court was less than clear about the precise contours of the high duty it imposed on other government officials. The duty surely includes an obligation to investigate suspicious proposals and to reject those animated by hostility to religion. Accordingly, at a minimum, all of the Justices should remain vigilant for signs of animosity towards religion in the work of their colleagues and should decline to join any opinions that may be improperly motivated. As for Justice Stevens himself, it is an arresting fact that in the animal sacrifice case he joined the opinion announcing the constitutional requirement that public officials disassociate themselves from antireligious measures. Perhaps he should give some thought to what this duty requires of himself.
Robert F. Nagel is the Ira C. Rothgerber, Jr. Professor of Constitutional Law at the University of Colorado. His most recent book, The Implosion of American Federalism , is now out in paperback.