To help the reader understand the background of the following commentaries, we asked Robert P. George of Princeton University for a brief summary of the 1996-97 cases related to questions of morality and religion. Herewith his pulling together of the pertinent facts. His own commentary appears later in the symposium.
—The Editors


The first key decision of the Supreme Court’s most recent term was Agostini v. Felton, handed down June 23, 1997, concerning the proper interpretation and application of the First Amendment’s prohibition of laws “respecting an establishment of religion.” Since 1947, the Court has held that this “establishment clause” forbids government aid to religion. And so with Aguilar v. Felton in 1985, the Court halted a New York City program that sent public school teachers into religiously sponsored private schools to provide congressionally mandated remedial education to disadvantaged children. The effect was to force schools across the nation to locate, at great expense, remedial programs at public schools or in vans parked outside religious schools.

Aguilar became an emblem of the Court’s “strict separationist” interpretation of the First Amendment. By 1994, however, a majority of Justices had indicated their willingness to reconsider the ruling, and with Agostini, New York revived the case—winning, in a 5-to-4 decision, a reversal of Aguilar. The Agostini majority did not question the general ban of aid to religion, but they argued, in an opinion by Sandra Day O’Connor, that providing remedial education for parochial students in purely secular subjects does not constitute such aid. O’Connor repudiated Aguilar‘s presumption that the presence of public employees at parochial schools “inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” O’Connor further rejected the idea, central to Aguilar, that an excessive entanglement of church and state arises either from the need to “monitor” public school teachers to ensure that they do not inculcate religion or from the “administrative cooperation” necessary when public school teachers work in a parochial school setting. The four dissenting Justices (David Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer) insisted that Aguilar had been rightly decided and that nothing in law or fact had changed to authorize a reconsideration of the case. Though Agostini does not decide the further question of the constitutionality of publicly funded vouchers to enable students to attend religiously affiliated schools, it seems to strengthen the case in favor of such programs.

In the second and third key decisions, Washington v. Glucksberg and Vacco v. Quill, handed down June 26, 1997, the Justices unanimously rejected claims that state laws forbidding assisted suicide violate the Fourteenth Amendment’s guarantees of “due process” and “equal protection.” Chief Justice William H. Rehnquist, delivering the opinion for the Court in both cases, denied that the Constitution contains a “right to die.” Antonin Scalia, Clarence Thomas, and Anthony Kennedy joined the Chief Justice’s opinions. O’Connor joined these opinions as well, but filed an additional concurring opinion in each case that Ginsburg and Breyer joined in part. Breyer also filed separate concurring opinions, as did Souter and Stevens.

In Glucksberg, the Ninth Circuit Court of Appeals invalidated a Washington State prohibition of assisted suicide. Invoking the “mystery passage” from the 1992 abortion case of Planned Parenthood v. Casey—“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—Judge Stephen Reinhardt reasoned that constitutional liberty includes the right of terminally ill persons to have a physician’s assistance in ending their lives. Rejecting this view, however, Rehnquist argued that the language from Casey had not declared an all-purpose right to do as one pleases but merely described “those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.” A study of history and tradition, Rehnquist suggested, reveals that suicide, and certainly assisting in suicide, have always been considered legitimate objects of state prohibition. Moreover, the interests asserted in prohibiting assisted suicide—preserving life; maintaining the integrity of the medical profession; protecting the poor, elderly, disabled, and other potential victims of prejudice and abuse; and avoiding the slippery slope to euthanasia—easily meet the basic due process requirement that laws have a “rational basis.”

In Quill, the Second Circuit Court of Appeals—though explicitly rejecting the “due process” claims on which the Ninth Circuit relied in Glucksberg—held that a New York law against assisted suicide violated the Fourteenth Amendment’s “equal protection” clause. The Second Circuit claimed that New York lacked a rational basis for, on the one hand, permitting terminally ill patients to demand the removal of life support systems, while, on the other hand, forbidding terminally ill patients to obtain a physician’s prescription for lethal drugs. In reversing the Second Circuit, Rehnquist argued that the distinction between committing suicide and removing life support or administering painkilling drugs with the side effect of shortening life is perfectly rational—the latter consistent with the physician’s ethical mandate never to kill, while (quoting medical ethicist Leon Kass) a doctor who assists a suicide “must, necessarily and indubitably, intend primarily that the patient be made dead.”

Concurring in the result in Glucksberg and Quill, Justice Stevens stated that the Court’s denial of a categorical right to commit suicide does not imply that all state statutes forbidding assisted suicide are constitutional. Noting that Washington’s death penalty means that the state’s commitment to the sanctity of life “does not require that it always be preserved,” Stevens asserted that the state “must acknowledge that there are situations in which an interest in hastening death is legitimate.” “Indeed,” he added, “not only is that interest sometimes legitimate, I am also convinced that there are times when it is entitled to constitutional protection.”

Also concurring in the result, Justice Souter defended “substantive due process,” a doctrine that the Supreme Court has invoked in some of its most controversial cases: Dred Scott v. Sandford (1857), denying the power of Congress to restrict slavery in federal territories; Lochner v. New York (1905), invalidating state limitations on the number of hours industrial laborers could be required or permitted by their employers to work; and Roe v. Wade (1973), nullifying the abortion laws of fifty states. Though substantive due process has been severely criticized as a pretext for the judicial usurpation of legislative authority, Souter argued for a “non-absolutist” doctrine that calls for courts to “stay their hands” in circumstances in which legislatures demonstrate the “institutional competence” to handle an “emerging issue” such as assisted suicide. But he held out the possibility of the Court later finding a right to assisted suicide: “While I do not decide for all time that respondents’ claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time.”

The fourth key decision, City of Boerne v. Flores, reached June 25, 1997 by a vote of 6-to-3, invalidated the Religious Freedom Restoration Act (RFRA), passed by overwhelming majorities in both houses of Congress in 1993. Certain constitutional standards—standards that governments were required to meet in cases where laws, though religiously neutral and general in their applicability, impinged upon the religious freedom of citizens—had been removed by the Supreme Court in the 1990 Smith decision. In response to Smith, a broad coalition lobbied the Congress to protect the free exercise of religion, and the result was RFRA’s restoration of the requirements that laws adversely affecting religious practice be (1) supported by a “compelling state interest” and (2) employ the “least restrictive means” of achieving that interest.

The Boerne case arose when St. Peter’s Catholic Church in Boerne, Texas, was denied a construction permit on the grounds that the church is subject to the City’s Historic Landmark Commission. In response to the church’s lawsuit under RFRA, the city asserted that RFRA was an unconstitutional imposition upon legitimate state and local authority.

Invoking its power under Section 5 of the Fourteenth Amendment “to enforce, by appropriate legislation” that Amendment’s substantive guarantees of due process, Congress sought with RFRA to restore the broader protections for religious freedom that the Court had abandoned in Smith. Writing for the majority in Boerne, Justice Kennedy argued that Section 5 enforcement power is merely “remedial”—Congress not being given the power to decide what substantive rights people have under the Fourteenth Amendment or what actual restrictions that Amendment places on the states. Its authority limited to enacting laws to remedy constitutional violations where the courts have determined they exist, Congress may not, under its own understanding of free exercise, require the states to meet a compelling interest standard before passing laws of general applicability that may burden religious practice.

In a concurring opinion, Justice Scalia, the author of Smith, defended his claim that the framers and ratifiers of the First Amendment did not intend to create “conduct exemptions” for religious believers. Justice Stevens, who joined Scalia’s concurrence, also filed a separate concurring opinion (in which no other Justice joined) making the claim that RFRA was unconstitutional as a violation of the First Amendment’s prohibition of laws respecting an “establishment of religion.”

Justice O’Connor, the Court’s leading critic of the Smith case, dissented in Boerne on the ground that the majority’s use of Smith “as a yardstick for measuring the constitutionality of RFRA” was misguided, since Smith itself should be reconsidered. On the central question at issue in Boerne, however, she expressed agreement with the majority’s claim that Congress’ enforcement authority is remedial rather than substantive. “If I agreed with the Court’s standard in Smith,” she wrote, “I would join the opinion.” This left only Justices Breyer and Souter open to the possibility that congressional power under Section 5 is more than merely remedial. And neither actually asserted substantive congressional power or made an effort to rebut Kennedy’s argument against such power. They argued merely that Smith should have been reconsidered and the question of Congress’ power under Section 5 put off to another day.

Hadley Arkes

In Henry James’ novel The Bostonians, a formidable woman and physician named Dr. Prance pokes her head through a door to take in a meeting of feminists. And a moment later, having gauged the depth of what she was likely to learn, she decorously takes her leave. As the narrator remarks, she evidently had “as many rights as she had time for.” Justice Sandra Day O’Connor seemed to display a comparable sense of detachment during oral argument over the “right to die.” And when the Court finally came to a judgment, Justice O’Connor apparently decided that she and her colleagues had as many rights as they had time to articulate, refine, and protect.

Even judges who began with a certain openness to a right to die soon discovered the range of pitfalls that would attend any right defined in such an abstract and sweeping way. In one of his episodic moments of lucidity, Justice John Paul Stevens recognized that the liberty protected in due process “does not include a categorical ‘right to commit suicide which itself includes a right to assistance in doing so.’“ After all, if there is a right to have the assistance of others in suicide, the moral logic would entail the further right to compel the assistance of others, even when they are unwilling. And once it is established that it would indeed be justified to hasten the death of certain patients, why should other patients (say, those in a coma) be deprived of this good because they are too impaired to make their preferences known? This logic plausibly accounts for the fact that in the Netherlands a policy of “voluntary euthanasia” managed to produce, in 1990, about a thousand cases of doctors hastening the death of patients even without an explicit request.

That deeply interesting fact seemed to leave a lasting impression on the minds of the judges. And so too did the concern that the right to die would pose special dangers to the vulnerable: the poor, who might be taking up resources beyond those covered by insurance, private or public; or the elderly, who might be subtly pressured to curtail the burdens they create for their families. Putting all these considerations together, the judges seemed more aware than before of the hazards of a judgment far too sweeping. At the same time, they were also aware that none of the litigants seeking a right to die had been deprived of death: As the case had wound its way through the courts, all of the litigants near death had now died. Nor did it appear that the patients had been compelled to die in pain, or that they had been deprived of their freedom to reject any treatment they found repellent. If there was any right, then, left to be declared, it would have to depend on circumstances so rare that they had not shown up yet in any case. And in the absence of that case, the judges were reluctant to pronounce new, sweeping rights. As Justice O’Connor observed, there is “a need to strike the proper balance between the interests of the terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure.” She apparently recognized, with Justice Souter, that legislatures are in a position to strike that balance far more flexibly than courts.

And yet, when judges in the past recognized that they had no principles to pronounce, they usually recognized as well that the case before them belonged in the hands of legislators rather than judges. A unanimous Court in this case decided to leave undisturbed the laws of a state that barred the assisting of suicide. But behind the facade of that unanimous result, Justices O’Connor, Stevens, Souter, and Breyer showed anything but a willingness to let this matter pass from their hands. They clung to the possibility that somewhere, sometime, someone in the United States would find himself prevented by law from exiting life without pain or with the dignity he deserved. And at that moment, they would run to the rescue. Their willingness to strike this posture virtually invited other cases to be brought, and it may also signal their readiness to uphold any law that facilitates a right to die.

And so, while the Court unanimously rejected a “right to assisted suicide,” the opinions reveal a judgment far more unstable than appears on the surface. Indeed, they reveal a restless willingness to move instantly in the other direction. The rhetorical play, the inventiveness, the casting about for the right metaphor, were all on the side of the judges who were trying to render more plausible or attractive the reasons for hastening death. To the grand fatuity of the famous “mystery passage” in Casey Justice Stevens has added what might be called the “Thanks for the Memory” passage: The freedom to reject medical treatment also encompasses, wrote Stevens, the right of a patient to determine “the character of the memories that will survive long after her death.”

On the other side, there was no comparable inventiveness or energy devoted to the problem of “unalienable” rights: to the things we could not rightly “alienate” or waive, even in the name of our freedom. As Chief Justice Rehnquist framed the question before the Court, he began where he always begins, “by examining our nation’s history, legal traditions, and practices” that give concreteness to our sense of rights and the way in which those rights have been understood. Surely, it makes a difference that laws forbidding suicide and assistance in suicide are no innovation. The ban on suicide runs back to the common law, and in almost every state, as Rehnquist remarked, the ban on suicide had expressed “the states’ commitment to the protection and preservation of all human life.” To this ground of the law, he then annexed all those considerations that argue powerfully against any attempt to create subtle exceptions. A right to assisted suicide would be hard to confine. It could not be clearly restricted to the terminally ill, since doctors are often widely mistaken in estimating how many months their patients have left. And besides, why should any right to hasten death be confined to the terminally ill? Why should it not be accorded to any patient with a strong desire to have it? In the face of these possibilities, Rehnquist and his colleagues recognized as well the interest of the State in protecting the integrity of the medical profession—in assuring that doctors will not be converted into killers.

All of these arguments could have built with a powerful, cumulative force, but that force was suddenly dissipated in a stroke when the Chief Justice simply stopped compiling the list and remarked that “we need not weigh exactingly the relative strength of these various interests.” And there was the heart of the matter. These were not principles that commanded our judgment, nor were they even compelling interests. They were plausible interests that may be invoked by a state—and then again, may not be. A state might be quite as free to disregard any of these concerns or interests. A state might decide, with a comparable legitimacy, to recede from “the protection and preservation of all human life” and to ease the path of doctors in aiding the suicide of their patients.

Nearly two hundred years ago, James Wilson, a member of the first Supreme Court, explained that the common law protects human life “not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.” It was open to the Court in our own time to explain in the same way why the Constitution offers the most emphatic bias in favor of protecting human life, or why it may cast up inhibitions for a state that sought to lower the protections of life. But that is not how the plurality of conservative judges sought to frame their opinion in this case. They appealed instead to historicism and to the habits of our tribe: There is in the Constitution no right of assisted suicide, because no right of that kind has ever been recognized in the laws or conventions of our people, in any epoch of our experience together as a nation.

In other words, the plurality of justices produced the usual finesse of conservativism: Instead of explaining the principle that commands our respect and entails our judgment, the judges simply pointed out that no such “value judgment” has yet been recognized. But why should it not be recognized now? After all, the same kind of argument was made even more forcefully about abortion. Up to Roe in 1973, the tradition of our laws had been directed even more uniformly and unequivocally to the protection of unborn children. And yet, those commitments simply dissolved when confronted with the question of how a Court could deny, right now, the claim of people to the control of their own bodies. When that question is pressed again on the right to die, the conservatives will be compelled to come forth with something more substantive to explain the rightness, and necessity, of protecting human life.

But the current opinions in Glucksberg and Quill reveal quite dramatically the unwillingness of the conservative judges to offer that kind of argument. Good people, with good reflexes, managed to produce a welcome result. And yet, they revealed at the same time the moral diffidence of what passes these days as “conservative jurisprudence.” The Court protected human life without being able to offer a moral account of why that was justified and necessary. And without such an account, these decisions on the right to die may merely mark off, for their adversaries, the path of attack on these judgments, and the ground of their own undoing.



Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College.

William Bentley Ball

The religious school decision in Agostini, as I see it, comes to this: Government may aid individuals at religious institutions where the individual and not the institution is the primary beneficiary. The aid must provide benefits to a broad class of citizens and be religiously “neutral”—i.e., not be primarily religious in character, create no greater or broader benefits to the recipients at religious institutions, and not limit the benefits to persons choosing such institutions. Within these bounds, the states and the Congress should now be free to create—without fear of judicial voidance on Establishment Clause grounds—programs in education (and, by implication, health and welfare) to support their citizens’ choice of religious institutions.

Agostini‘s second great benefit is a purifying of Establishment Clause jurisprudence. We have suffered, since the Lemon decision of 1970, judgments of the High Court that were little but figments of imagining minds and inspired by either paranoid fears or calculating bigotry. If a government program supported the teaching of math in religious schools, the Court, without a scrap of evidence to go on, presumed that teachers could not be trusted to steer clear of “establishing” religion by sticking to math and keeping out religion. To protect against their fanaticism, lawlessness, or sheer dumbness, a “comprehensive, discriminating, and continuing surveillance” would be needed. But that, it said, would constitute “excessive entanglement” of church and state—also offending the Establishment Clause. In Meek v. Pittenger in 1975, an extensive trial record involving the sworn testimony of nine state employees supplying auxiliary services in Catholic schools flatly contradicted the Court’s presumption. The Court paid this evidence no attention. It went on in 1985, in Grand Rapids School District v. Ball, to dream up another piece of constitutional nonsense: that kids in religious schools would perceive a violation of the Establishment Clause through the presence of public teachers on their school premises (a “symbolic link” between government and religion).

One especially bad effect of this preference for fantasy over facts has been its downward spread into the lower state and federal courts, to administrative agencies, municipal bodies, and school boards. The ACLU and similar organizations have been able to exploit the fictitious dangers by threats of costly lawsuits, thus causing paralysis of constructive social action. The Court, through Justice O’Connor’s incisive opinion, at last dispatches this regime of presumption. It points out that earlier the Court had “disregarded the lack of evidence of any specific incidents of religious indoctrination” in Lemon, Meek, and Ball. In Agostini the Court is also at pains to expose the kookie “symbolic link” idea as an invention “neither sensible nor sound.” Agostini thus brings us to a welcome new day in church-state relations, providing in place of the old dishonest fictions a rational test to protect both the public interest and religious liberty.

But there can be little rejoicing in the Court’s decision voiding the Religious Freedom Restoration Act. It is true that “rights talk,” with its emphasis on the Bill of Rights and the Equal Protection Clause of the Fourteenth Amendment, has too often obscured other sources of protection for our freedoms. Among these is the principle of separation of powers—reflecting Montesquieu’s view that power is best restrained by counterbalancing power. In Boerne, the Court might have invoked the separation principle by simply ruling that, since 1816, it has been generally accepted that the Supreme Court, not the Congress, is the ultimate interpreter of the Constitution—and thus Congress was without power to override the 1990 Smith decision of the Court. The Court, in Boerne, indeed does say that Congress has not been given “the power to determine what constitutes a constitutional violation.” And it properly adds that, while Congress has power to legislate against unconstitutional actions of government, it may exercise that power only where there is a factual record of actions gravely threatening protected rights nationwide. But the Court goes on to argue that “RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.” This is not only a misreading of RFRA’s legislative record, it also ignores laws whose potential effect provably chills religious liberty.

Treating religious liberty with virtual diffidence in contrast to its protection of freedom of speech (for instance, its Internet censorship decision June 26), the Court, in Boerne, suggests that a claim of religious liberty should be considered of constitutional significance only if it involves “persecution” due to proven “animus or hostility” to religion. Burdens on religious liberty, however substantial, must be dismissed as “incidental” in all situations in which secular interests are simultaneously burdened. But to say that religious freedom must depend upon proof of “persecution” or of bigoted motivation is obviously to place that freedom on a very shaky basis. Indeed, it is usually the unintended or well-intended consequences of the exercise of the power of the modern regulatory state, through laws silent as to religion and applicable across the board, that most often pose material threats to religious liberty. The most notable feature of our national existence is the eddying of the governmental tide into every aspect of our lives, including education, taxation, health, employment, and, supremely, the moral order—all areas that intersect with religion.

Many conservatives have built careers exposing the evils of that tide, which makes all the more puzzling the penurious view of religious liberty that four conservatives on the Court express in Boerne and that some other conservatives widely express. We see a barely restrained annoyance especially over assertions of religious freedom by minority religious groups—and in this appears a unity of mind with secularist liberals.

What is to be done to protect religious freedom in the wake of Boerne? Religious resisters to government actions must employ what ingenuity they can to fit their cases within the confining prescriptions of the Smith decision. Further attention will need be given to enacting statutes specifically protective of religious interests: e.g., Pennsylvania’s 1988 law, successfully lobbied by evangelicals and Catholics, establishing independence of religious schools in curriculum and the selection of teachers; or state and federal statutes protecting pro-life hospitals and health care personnel respecting performance of abortions. Resort may also be made to state constitutions—as when the Amish, following an adverse Supreme Court ruling under Smith, had their 1995 slow-moving vehicle case upheld by the Minnesota Supreme Court under the “conscience” provision of the Minnesota Constitution, or when fundamentalist schools in Kentucky were saved from extinction by a similar state constitutional provision in 1979. Constitutional amendment will be called for, but amending the Constitution offers as little immediate hope as amending the Court. Most of all, future free exercise advocates will need to move the Court to modify Smith.

The major decisions of the Court holding that there is no constitutional right to assisted suicide come as good news. Almost as important as protection of human life is the significance of the Court’s shying away from the implications of Roe v. Wade and Casey. The Ninth Circuit’s Judge Stephen Reinhardt, in one of the two assisted suicide cases, had shown with perfect logic that the principles of the abortion decisions demanded recognizing a right to assisted suicide. The Supreme Court, in a dramatic change of course, has now refused to follow such logic that would have it continue, in imperial guise, as lawmaker for the nation. Its decisions in these cases show respect, instead, for the powers, in the words of the Tenth Amendment, “reserved to the states, respectively, or to the people.” The Court recognizes that peace on the assisted suicide issue is not assured. The last paragraph of the Court’s trenchant opinion in Glucksberg encourages debate over the “legality” of physician-assisted suicide. This was a needless dictum and has already been seized upon by Justice Stevens to drive home a call for exceptions to state laws that bar assisted suicide. We can have high hope, however, that if questions such as this are left to the democratic processes, the good will prevail.



William Bentley Ball of the Harrisburg, Pa., law firm of Ball, Skelly, Murren & Connell has argued numerous religious liberty cases before the U.S. Supreme Court.

Robert H. Bork

For orthodox constitutionalists, this past term of the Supreme Court was a vast improvement over a year ago. It is still too early for a general celebration, however; some of the Court’s best results were reached by narrow margins and such major cultural issues as all-male military colleges and special rights for homosexuals did not come before the Court.

In Agostini, the Court overruled a prior decision and allowed public school personnel to go into religious schools to offer remedial courses—though in a well-ordered constitutional world, the prior decision would never have been made. Agostini shows the Justices wading through the molasses of the Establishment Clause (which is what the people who have made the molasses deserve) in order, most tortuously, to reach the right result.

The First Amendment forbids the “establishment of religion,” which might seem a simple prohibition of favoring one religion over another. But the Court has progressively reworked that clause into a requirement of the “separation of church and state,” a phrase that appears nowhere in the Constitution. Banning Christmas displays on public property, forbidding schools from displaying the Ten Commandments, eliminating school prayer, and doing much else that neither the language nor the history of the Constitution commands, the Court for decades has displayed what it would not be too severe to call a hostility to religion, and particularly to the Roman Catholic religion.

The immediate problem, however, was Lemon, in which the Court laid down a three-part test nearly impossible for any government relation with religion to pass. The third prong of the test, involved in Agostini, was that a “statute must not foster an excessive government entanglement with religion.” The severity of that injunction had been shown in Aguilar, where it was held an “excessive entanglement” for New York City to send public school teachers into sectarian schools to provide remedial courses for students who needed them. No religious symbols were allowed in the remedial classrooms, the teaching materials were entirely secular, and the teachers involved were not of the same religious persuasion as the school—and that turned out to be the problem. It was the very care that New York City took to prevent the mixing of instruction and religion that the Court held to be the forbidden entanglement.

With Agostini the city sought a modification of Aguilar‘s injunction (on the ground that it was inconsistent with rulings in the interim), and the Supreme Court agreed in an opinion written by Justice Sandra Day O’Connor for five members of the Court. In a short space, it is impossible to give an adequate summary of the complexity of the argument the majority required to reach its sensible conclusion. It is unfortunate that the Court has got itself into a muddle that prevents it from saying simply that aid to education, given equally to public and private schools, and where the aid is not used for religious indoctrination, does not violate the Establishment Clause. Because the decision is so bound to the facts of New York City’s program, however, it would be overly optimistic to predict any general reworking of the law in this area. The good news is, therefore, quite limited.

The bad news is that four members of the Court dissented. Justice Souter’s dissenting opinion displayed all of the hostility to religion that has been so marked on the Court for years, holding that New York City’s program had the impermissible effect of promoting religion in three ways: by state-paid teachers “inadvertently (or intentionally)” manifesting “sympathy with the [school’s] sectarian aims,” by producing “a symbolic union of church and state,” and by subsidizing “the religious functions of the religious schools by assuming responsibility for teaching secular subjects the schools would otherwise be required to provide.”

Justice Souter went on to say that the program not only produced an excessive entanglement between state and religion, but involved the state in the forbidden subsidizing of religion and acting in a way that could reasonably be viewed as religious endorsement. It is not necessary here to track every one of Justice Souter’s fears. Suffice it to say that in a number of ways—the hiring of chaplains for each House of Congress, congressional calls upon the president for Thanksgiving Day proclamations in the name of God, etc.—the early practice under the First Amendment shows that today’s rigid separation between church and state has no support in the history of the Establishment Clause.

The complementary clause guaranteeing the free exercise of religion was involved in the Boerne decision, which struck down the Religious Freedom Restoration Act. Conservatives tend to view this as judicial usurpation, but the decision is nonetheless mildly heartwarming. Though it follows from an earlier decision (itself probably wrong), it properly rejects Congress’ effort to correct that decision by statute.

In Smith (the peyote case), the Court confronted a free exercise challenge to a state law of general applicability that made criminal the use of peyote. The state had denied unemployment benefits to Indians, who having lost their jobs for using drugs, claimed that taking peyote was part of their religious ceremony. A majority of the Court responded that the law would be unconstitutional if aimed at religion, but it passed free exercise muster as a law of general application. In reaching this result, the Court jettisoned the old rule that a law could deny free exercise if, though one of general application, it placed an undue burden on religion. Smith seems to me a highly dubious constitutional ruling, but while it stands it is the law of the Constitution.

Religious people responded with alarm and anger. The decision seemed to say, for example, that a law against underage drinking could make criminal a sixteen-year-old’s sip of communion wine. Visions of the youth and the priest being hauled off to jail were freely entertained. Congress responded by enacting RFRA, which prohibits government from “substantially” burdening the exercise of religion (even if the burden is imposed by a law of general applicability) unless the burden furthers a compelling government interest and is the least restrictive means of furthering that interest.

When the Catholic Archbishop of San Antonio was denied a building permit to enlarge a church, he appealed under RFRA, and the Supreme Court held that the power to “enforce” the guarantees of the Fourteenth Amendment was the power to provide remedies for violations defined by the courts, not the power to define the constitutional guarantees themselves. This seems correct. The word “enforce” means to provide civil and criminal penalties or to issue injunctions. It is a singularly ill-chosen word for a power to rewrite this aspect of the Constitution.

While orthodox constitutionalists may disagree with the Smith case itself, they should agree, and be thankful for, the ruling that the Fourteenth Amendment’s Section 5 is not a power lodged in Congress to change the Constitution as interpreted by the Court. The rule that the Constitution may not be altered by statute remains intact. There may be a case for such a power, but it should be accomplished by constitutional amendment rather than by a misreading of the existing Constitution.

All in all, the religion clauses came out not too badly in this term of the Court, though it is far too soon to announce a reformation of the deformed jurisprudence of those clauses. Ironically, the important ruling had little to do with religion and concerned mainly the scope of the Fourteenth Amendment.



Robert H. Bork is the John M. Olin Scholar in Legal Studies at the American Enterprise Institute and author, most recently, of Slouching Towards Gomorrah: Modern Liberalism and American Decline.

Jean Bethke Elshtain

When the Agostini decision was announced, the Washington Post led off with the provocative headline, “Church-State Divide Narrowed.” We were told that “a narrowly divided Court” was “keeping with its recent trend,” the conservative majority “lowering the wall” between church and state. There were enthusiastic pronouncements from those favoring vouchers and dark forebodings voiced by “strict separationists.” This was on a Tuesday. Came Thursday and the whole world changed. Many of the same folks ecstatic two days earlier about the Court’s change of direction now expressed dark fears about a potential nightmare of repression given the 6-3 decision to strike down the 1993 Religious Freedom Restoration Act.

More high drama came when the Court unanimously upheld state laws prohibiting assisted suicide. This is a matter of dire import for all who hold that licensing physicians to kill is not among the chief lines of defense of our commitment to human dignity. The New York Times offered as its bold sub-head line: “No Help for the Dying,” and, to judge from the press, we raced through the collapse of church-state separation, disastrous loss of religious freedom, and heartless anti-choice disregard for the suffering of the dying—all in a matter of days. My hunch is that none of these perfervid interpretations is warranted. Congress is free to recast the Religious Freedom Restoration Act, perhaps finding ways to limit the abuse of the thousands of nuisance suits RFRA has inspired (particularly among prisoners seeking free exercise of, among other faiths, Satanism and Nazism). The Agostini case is a victory for the common sense that had been abandoned with Aguilar. And the assisted suicide decisions dodged a bullet, though the Court did leave the door open to revisiting the matter.

I don’t know how this would shape up on a score card. But I am struck by just how extraordinary the power of the Supreme Court really is and how far its reach extends. Some of the decisions leading up to Agostini quite literally boggle the mind, in part because they came before the Court in the first place. What on earth is going on here? Bear in mind that not all the strange stuff emanates from the highest Court. State courts have waded into some pretty strange waters. The 1986 Witters v. Washington case found the Court unanimously rejecting an argument by Washington State that simply allowing a ministerial student to receive aid under a program assisting the handicapped violated church-state separation. The Court felt compelled to step in again, in Zobrest v. Catalina Foothills School District, ruling that government could provide a sign-language interpreter for a deaf parochial school student without egregious church-state comingling. Who brings such preposterous cases? Why do they get so far?

In criticizing what the Court is up to, it is important not to cast a halo around popular sovereignty, not to claim that the “voice of the people is the voice of God.” I agree with those who argue that the Court has taken on board too many questions (Roe v. Wade being the most stunning and disturbing case in point) that it is ill-equipped to handle well and that should be left to our messy democratic processes. But in offering such criticism one does well to remember that “the people” are quite as capable of folly as any court and that we need the checks and balance afforded by the Supreme Court. So it is a pity—terrible for our democracy—when the Court in its hubris falls into discredit. The Supreme Court at present, it seems clear, is trying to step back from its Olympian self-regard and we should all be grateful: at least one hand should be clapping.

This latest round of cases and the fact that the media could discuss them only in terms of church versus state is a sign of the impoverishment of our political discourse. As Cardinal Bernardin reminded us in his last major address before his death, the church-state relationship is “narrow, juridical, and institutional in character” and it doesn’t even come close to covering the vast world of connections between religion and politics. It was a terrible mistake to carry the logic of church-state separation over into civil society, for, in Bernardin’s words, “to endorse a properly secular state, which has no established ties to any religious institution, does not imply or mean that we should support a secularized society, one in which religion is reduced to a purely private role.” Religion and politics cannot be convincingly separated, and were such separation to be effected, “we would be a poorer culture and society.”

The force of decisions in the Court’s recent past—those leading up to the flurry of cases handed down in June—was precisely to push for a church-society separation under a radically expanded and constitutionally unwarranted church-state doctrine. Non-establishment grew; free exercise shrank. Despite its ruling against the Religious Freedom Restoration Act, the Court seems prepared to work toward a more balanced relationship between nonestablishment and free exercise.



Jean Bethke Elshtain is the Laura Spelman Rockefeller Professor in the Divinity School at the University of Chicago.

Robert P. George

By votes of 9-0 in Glucksberg and Quill the Supreme Court rejected claims to a constitutional right to assisted suicide. Commenting on these decisions in the New York Times, Jeffrey Rosen, legal affairs editor of The New Republic and one of our nation’s most astute commentators on judicial politics, argued that the conservative assault on liberal judicial activism has finally won the day. Legislators, not judges, should decide controversial questions of social policy. The judges have thrown in the towel. The era of judicial tyranny, like that of “big government,” is over. So it’s time for opponents of the judicial usurpation of politics to break out the champagne, right?

Wrong.

The devil, as usual, is hiding in the details. True, Chief Justice Rehnquist, in opinions joined by Justices Scalia, Kennedy, Thomas, and (somewhat unsteadily) O’Connor, did a fine job of identifying the “state interests” justifying laws prohibiting assisting in suicide. Moreover, Rehnquist’s opinion in the Quill case elegantly demolished attempts by proponents of assisted suicide and euthanasia—including a group of notable academic philosophers who offered the Justices guidance in a highly publicized amicus curiae brief—to equate suicide or assisting in suicide with the refusal or removal of life-support systems.

Even the Rehnquist opinions, however, contained disappointing features. Chief among these was the failure to repudiate the infamous “mystery passage” from the 1992 decision in Casey, which established “lifestyle liberalism” as a sort of state religion to be enforced by federal judges. The Justices’ failure in the assisted suicide cases to expel the mystery passage from our constitutional law leaves the Court’s ruling in the Glucksberg case intellectually insecure. Judge Reinhardt, in his opinion for the Ninth Circuit, invoked the passage (and, more generally, the Casey analysis of “abortion rights” of which it was the linchpin) in striking down Washington’s prohibition of assisting in suicide. Although Reinhardt’s opinion had many flaws, his claim that the logic of Casey was “highly instructive,” and, indeed, “almost prescriptive” for identifying a powerful “liberty interest” in the “choice to commit suicide,” was far from implausible. That claim is not refuted, in fact it is scarcely engaged, by Rehnquist’s explanation of the mystery passage as a mere “description” of the Court’s previous discoveries of personal autonomy rights in the Fourteenth Amendment. After all, the mystery passage was offered in Casey itself not as a description of anything, but as a justification for the Court’s invention of a constitutional right to abortion in Roe v. Wade.

By treating the language from Casey as a (more or less adequate) description of previous rulings, rather than as a (truly lousy) justification for those rulings, Rehnquist leaves the mystery passage in the condition of a vampire in its coffin—inactive in the light of day yet capable of rising in the night to do untold mischief. If, in a few years, a Court filled with liberal appointees revisits the question of assisted suicide (or embarks on some new constitutional adventure, such as striking down laws forbidding the cloning of human beings), you can bet that the Justices will base their newly discovered rights on the discovery in Casey—by Reagan appointees O’Connor and Kennedy and Bush appointee Souter—of the constitutional right of autonomous individuals to manufacture their own moral universe.

No doubt Rehnquist is aware of all this and would gladly have driven a stake through the heart of the mystery passage had the matter simply been up to him. The difficulty he faced, one suspects, is that he did not wish to alienate O’Connor and Kennedy, whose votes were required to form a majority for his opinion. So the Chief Justice did the best he could to get them on record in an opinion which interpreted that passage as narrowly as possible. Still, the failure of the Court (and, indeed, any of the individual Justices) to repudiate the mystery passage constitutes something worse than a missed opportunity.

Now for the really bad news. The unanimous votes in Glucksberg and Quill mask a division of opinion among the Justices that could easily result in the overruling of these cases within a few years. Four of the most liberal Justices—Stevens, Souter, Ginsburg, and Breyer—declined to join Rehnquist’s opinions for the Court. It is hardly a stretch to suppose that some, if not all, of these Justices declined to manufacture a constitutional “right to die” not out of conviction that it would be an abuse of judicial authority for them to invent such a right, but merely because they perceived that the prevailing circumstances are not propitious for a bold new act of judicial imperialism.

Indeed, a careful reading of the concurring opinions reveals that at least two, and possibly all four, of the liberal Justices joined the decision on merely prudential grounds. This means that the replacement of a single conservative or moderate Justice by a liberal appointee could result in a 5-4 decision reversing Glucksberg and Quill and creating a right to assisted suicide.

Ruth Bader Ginsburg joined in the judgments with the single sentence: “I concur in the Court’s judgments in these cases substantially for the reasons stated by Justice O’Connor in her concurring opinion.” But O’Connor’s reasons are themselves less than clear. She explains that she joined the Chief Justice’s opinion for the Court because she agrees that there is no “generalized” right to commit suicide. Might she be willing to find more limited constitutional rights to suicide and assistance in suicide for specific persons or classes of persons in particular circumstances? The parties challenging the state prohibitions of assisting in suicide thought that they were placing before the Court precisely the question whether “mentally competent individuals who were terminally ill and suffering great physical and/or emotional pain” had a right to “control the circumstances of their deaths.” Remarkably, however, O’Connor saw “no need to reach that question.” The best explanation for this, I think, is that O’Connor, while providing the crucial fifth vote for the Rehnquist opinion, employed the time-tested device of a concurring opinion to give herself and members of a future Court wriggle room to invent a “right to die” at some later date. And Justice Ginsburg seems to find that little arrangement perfectly congenial.

Justice Ginsburg’s fellow Clinton appointee, Stephen Breyer, also announced his substantial agreement with O’Connor. His own opinion opens by declaring that O’Connor’s opinion has “greater legal significance than the Court’s opinion suggests.” Disagreeing with Rehnquist’s characterization of the right being claimed as “a right to commit suicide with another’s assistance,” Breyer would consider “a different formulation, for which our legal tradition may provide greater support”—one that would “use words roughly like a ‘right to die with dignity.’“ “I do not believe,” he adds, “that this Court need or now should decide whether or not such a right is ‘fundamental.’“ More wriggle room.

John Paul Stevens went still further, writing an opinion concurring in the judgment that was, for all intents and purposes, a dissent. Indeed, he expressed the conviction that there are times when the “interest in hastening death” is not only “legitimate,” but “entitled to constitutional protection.” It is hard to read Stevens’ opinion as anything other than a promise to vote for a right to die should the issue come before the Court again.

The same is true, I think, in the case of David Souter. On its face, Souter’s opinion seems chiefly concerned to protect the doctrine of “substantive due process” from erosion, arguing that the Justices’ decision not to create a right to assisted suicide should not be construed as a waiver of their authority to create lifestyle or “autonomy” rights—including a right to assisted suicide—in the future. As to why the Court shouldn’t do it now, Souter notes that scholars disagree as to whether, for example, the regime of assisted suicide in the Netherlands has degenerated into the nightmare of “non-voluntary” euthanasia. (The truth, of course, is that honest and informed scholars agree that it has degenerated into precisely that nightmare. But never mind.) Given the complicated and uncertain practical and sociological questions, Souter reasons that states should be left free for now to “experiment” with prohibitions of assisted suicide (as in New York, Washington, and most other states) or its permission (as in Oregon). After a proper period of democratic experimentation, Souter suggests, the Court can decide whether it is satisfied with the way state legislators have handled the question, and, if not, revisit the question of a constitutional right to assisted suicide.

One might innocently suppose that the Constitution either contains a right to (or against) assisted suicide, in which case the Justices should announce the discovery of such a right, or it does not, in which case they should simply leave the matter to the political process. But in the mind of liberal judicial activists, things are never quite that simple. For now, according to Justice Souter, legislatures are institutionally more competent than courts to decide whether to install a regime of assisted suicide. “The Court should, accordingly, stay its hand to allow reasonable legislative consideration.” Still, he pointedly reserves the right of the judiciary to step in at some point in the future if legislatures fail to do (or do quickly enough) what the Justices consider to be the right thing: “I do not decide for all time that respondent’s claim [to a right of assisted suicide] should not be recognized.”

Defenders of self-government—not to mention the sanctity of human life—should certainly cheer the results in Glucksberg and Quill. For now, the people retain their power to protect human life. The vampire is in its coffin. We should not, however, join Jeffrey Rosen and others in proclaiming the demise of liberal judicial imperialism. The judges have not “gotten the message.” The battle against the judicial usurpation of democratic political authority is far from over. Indeed, it has barely begun.

Our “robed masters” will not reliably restrain themselves until they meet firm resistance from the people and their elected representatives and executive officers. For now, the Court’s liberals will bide their time, satisfying themselves with the project of shoring up their many past victories. In this cause, they will sometimes have O’Connor, sometimes Kennedy, and sometimes both, to assist them. If one of these Justices, or one of the conservatives, dies or retires, and is replaced by a liberal, well, keep your doors and windows locked, and a cross close at hand.



Robert P. George teaches legal and political philosophy at Princeton University and is author of Making Men Moral: Civil Liberties and Public Morality.

Mary Ann Glendon

In this term’s pair of decisions involving religion, we see the Justices slogging once again through the interpretive morass created fifty years ago when mischievous litigation found a receptive audience among a Court majority that was at best indifferent to the deepest concerns of religious Americans. Given the tangled state of religion jurisprudence, and the divisions among the current Justices, the Court made impressive strides toward common sense in Agostini. Even Boerne, as one of a group of recent cases limiting federal power, may conceivably improve the chances for religious Americans to have an effective say in setting the conditions under which they live, work, and raise their children.

In the background of both these cases were lawsuits that reflect poorly on the state of our civil society. The litigation in both Aguilar (1985) and Smith (1990) was driven by an attitude that is wreaking havoc with the American democratic experiment—the insistence that one’s favorite parts of the Bill of Rights, in their broadest possible interpretations, should trump all competing rights and constitutional values such as federalism and the separation of powers.

The hue and cry raised by militant separationists over Agostini is a good example of the slash-and-burn attitude that makes ideologically driven litigation so destructive. In the years following Aguilar, New York City spent $100 million on classes in vans—money that should have been applied directly to remedial services for impoverished, special-needs children. Justice O’Connor’s cautious overruling of Aguilar tells us little more than that the prior decision went too far when it extended the establishment ban to a situation involving so little connection between religion and public authority. But in the view of groups like Americans United for Separation of Church and State, no children’s plight is severe enough, no public expenditure too wasteful, to justify the slightest chink in the wall they worship with all the fervor of a cargo cult.

The decision in Boerne was felt as a harsh blow by many supporters of religious free exercise who resent, with good reason, the low priority the Supreme Court has accorded their preferred right since it decided in the 1940s to make the First Amendment’s religion language binding on the states. The series of events that led up to Boerne, however, involved another regrettable instance of legal overreaching. Like the suit by six “taxpayers” attacking New York’s services to special-needs children in Aguilar, the so-called “peyote” case that gave rise to the Smith decision was an example of rights litigation run wild. The allegedly religious exercise in the case was the use of peyote by two drug counsellors as guests at a Native American ceremony. Both men, having agreed not to use drugs as a condition of their employment, were sacked for violating work rules, and denied unemployment compensation—just like any other employees who lose their jobs because of misconduct. It would have been as wacky for the Court to require compensation on free exercise grounds in Smith as it was to stretch establishment language to the breaking point in Aguilar.

What prompted Congress to respond to Smith by enacting RFRA, of course, was not the sensible narrow holding in the peyote case, but the majority’s abandonment of the “compelling interest” test for determining whether governmental action unduly burdens religious exercise. But the real problem with the jurisprudence involving the free exercise of religion is that the Court—even back when it was still paying lip service to the compelling interest test—rarely saw a governmental interest it didn’t find compelling when religious freedom was on the other side. The Court’s relative indifference to religious freedom has long grieved religious Americans, and Smith seemed to add insult to injury. That problem will not be solved until the Court recognizes, as the Founders did, that religion is a positive good, protected as such by the Constitution. What the American people, through their elected representatives, were trying to tell the Court in RFRA, however inartfully, was: Stop giving short shrift to religious freedom.

Though RFRA was struck down, that message may have gotten through. RFRA was, after all, an enormously popular piece of legislation with strong bipartisan support and presidential backing. It is not at all clear that Boerne simply brings us back to where we seemed to be right after Smith. A Court majority may well, in time-honored fashion, decline to extend that case beyond its narrowest holding. And lawyers for churches like St. Peter’s in Boerne may still be able to turn the much criticized Smith decision to advantage. This type of case, after all, involves not only First Amendment religious freedom, but Fifth Amendment property rights. A little-noticed, but promising, idea in Smith is Justice Scalia’s observation that a heightened degree of constitutional protection is appropriate in “hybrid” situations where the activity in question is protected by two or more provisions of the Constitution. That sounds a good deal like a compelling-interest test for such cases.

Boerne itself may have a silver lining. It is one of a group of recent cases, including the assisted suicide and gun control decisions, in which the Court has reaffirmed our nation’s constitutional commitment to decentralized democracy. This apparent judicial reawakening to the fact that our Constitution is not only a charter of rights but a design for government should be good news for friends of religious freedom-provided we are willing to engage in the active citizenship that the Founders invited and expected. Many Americans gave up on ordinary politics when decision-making power became concentrated in courts and the administrative agencies of the central government. But if the Court really means to respect the powers reserved to the states and the people, a springtime for grassroots political activity may be at hand. And if a majority of the Justices are willing to recognize that the Constitution limits not only Congress’ power, but their own, we could be on the verge of a major transition in constitutional law—away from the judicially sanctioned oligarchical tendencies of the past thirty years toward a revitalization of the democratic elements in our republican form of government.

The nine men and women on today’s Court are wandering in a museum of error created in the 1940s when their predecessors, in a series of shoddy opinions, made the establishment ban binding upon the states. Justices Hugo Black and Felix Frankfurter led a majority of their colleagues in setting the establishment and free exercise “clauses” in opposition to one another by interpreting the establishment ban broadly and free exercise narrowly—in a sort of pincer attack on what the Founders considered the first of freedoms. Several opinions from this era, such as Everson and McCollum, rank among the Supreme Court’s worst—with their skimpy reasoning, ill-disguised hostility to religion (especially to religious organizations), and their contempt for political solutions reached through interfaith cooperation. The underlying thrust of those decisions was to privatize religion and to eradicate it from public life.

In that connection, it should be noted that a great defect of RFRA was its explicit acceptance of the artificial split between establishment and free exercise. Did RFRA’s proponents think that decisions such as Everson were any less outrageous than Smith? Is the religious freedom of Americans any less in danger when their churches are attacked than when their individual practices are discouraged? The enemies of religion don’t think so. That’s why many of their advocacy groups got behind the peyote users while implacably opposing aid to students and parents who wish to escape the proselytizing secularism of the government schools. Weren’t RFRA supporters suspicious when so many groups traditionally hostile to what they call “organized” religion jumped on the RFRA bandwagon?

The exit from the maze fashioned by Justices Black and Frankfurter, with later assistance from Justices William O. Douglas and William J. Brennan, will not be found until the Court takes a fresh look at the constitutional text. Father Richard John Neuhaus has given lawyers a push in the right direction by pointing out that the First Amendment speaks of religion in what grammarians call a simple sentence—one with no “clauses” at all. Abundant scholarship makes it clear that the nonestablishment and free exercise provisions were meant to work together in support of a single value: religious freedom. The framers considered religion to be a great public good, to be protected in its associational and institutional, as well as individual, dimensions. The great majority of the American people today believe the same. It is that understanding that was routed earlier this century by the U.S. Supreme Court. It is that understanding that can resolve the interpretive chaos that has characterized the Court’s religion decisions for half a century.



Mary Ann Glendon is the Learned Hand Professor of Law at Harvard University.

Russell Hittinger

This year’s Court term would seem to contrast markedly with the previous term. Last year, federal courts scolded the states for being homophobic (Romer), or sexist (VMI), or racist (Proposition 209); this year the states not only are credited with reasonable judgment (Glucksberg and Quill), but are deemed to have powers that must be protected against Congress (Printz and Boerne).

Yet while the results this term might seem encouraging, it is far from clear that the majority of the Court is committed to correcting long-standing abuses of judicial power. Indeed, the central and most chronic problem is unaffected, and perhaps augmented, by these decisions: When it comes to fundamental rights, the Court still claims for itself a plenary authority and tolerates no other voice in this constitutional conversation.

Before pointing out the darker sides of these decisions, let us give credit where it is due in the most publicized cases, Glucksberg and Quill.

It is one thing to get the right result and quite another thing to get good reasoning supporting that result, but in the suicide cases Chief Justice Rehnquist delivers both. His majority opinions present the relevant philosophical and moral distinctions with unusual accuracy, while he gives a splendid account of the distinction between withdrawing treatment and intending the death of a patient—a distinction often bungled or misrepresented in previous decisions both by the Supreme Court and the lower courts. When this issue is litigated in future cases, lawyers will have Rehnquist to thank for putting the right distinction into the record.

He also makes an honest, though not entirely convincing, effort to contain the mother of all rights—the prodigious Casey right “to define one’s own concept of existence, of meaning, of the universe.” Judge Stephen Reinhardt had reasoned that the right to define one’s own concept of existence must be broad enough to include a right to die if it includes a right to kill. Rehnquist, however, insists that the Casey right ought to be read as a descriptive summary of liberties protected in previous decisions, and not construed as a new normative prescription.

Unfortunately, Rehnquist’s effort to contain Casey is not followed in the five concurring opinions. O’Connor and Breyer both admit that they would reach a different result if a new case brought different facts about the suffering of patients. Stevens defends the autonomy right, and Souter takes pains to defend the jurisprudence of substantive due process undergirding cases from Griswold to Casey. Indeed, both Stevens and Souter adopt one of the main arguments of Judge Reinhardt in the Ninth Circuit: The Casey abortion right is a species of a more generic right to self-definition, dignity, and autonomy; so, by analogy, suffering patients and their physicians are merely claiming a liberty to control the personal and holistic meanings of dying. Despite Rehnquist’s valiant effort to mitigate the noxious effects of Casey, we are perhaps one case away from the Court discovering a right “not to suffer.”

Read only on its surface, the Boerne holding would seem to protect the police powers of state governments against congressional meddling. That, however, would be a short-sighted estimation. Let us recall that it was the Supreme Court, not Congress, that “incorporated” the religion clauses against the states. For fifty years, the Court has asserted complete authority over the meaning and scope of that “incorporation.” Here, it is hardly necessary to enumerate the bad consequences of that jurisprudence. At the same time, however, the Court took an expansive view of free exercise, which helped to mitigate its expansive reading of nonestablishment.

Proponents of federalism may want to believe that we now get more federalism in exchange for less Court-ordered free exercise. But Boerne in fact gives us the worst of two worlds. On the one hand, the Court has relinquished nothing in its jurisprudence holding states to neutrality on religious matters (states have no more authority in this matter than they did before). And on the other hand, the Court constricts its solicitude for free exercise. The result is a phony federalism, for the states are still denied responsibility and authority to promote religion, and yet they are permitted to dig their policy elbows deep into the side of religious institutions—so long as they are not obviously hostile. In effect, the Court tells the states that they have no positive authority or responsibility to protect and promote the good of religion, but that they do enjoy a bubble of liberty to enact laws and make policies that damage religious institutions. Is this authentic federalism?

The key issue in Boerne is the separation of powers with regard to the Fourteenth Amendment. The three Civil War Amendments contain a clause giving Congress authority to make laws enforcing the terms of the amendments. It is at least ironic that these amendments are interpreted as a plenary grant of authority to the Court itself when the enforcement powers were put there in the first place to prevent the Court from hijacking the amendments. Shortly after the Civil War, Congress lost interest in enforcing the Fourteenth Amendment, but it suddenly changed course in 1993 and enacted RFRA. At least implicitly, Congress used its enforcement clause power to restore to a higher level of protection a right incorporated via the Fourteenth Amendment. Given that it was the Court that incorporated this right against the states, by no stretch of the imagination can it be said that Congress used its enforcement clause power to invent a new, substantive right. Why then does the Court in Boerne accuse Congress of usurping authority? The answer is not that Congress invented a new right, but that it sought to remedy what it deemed to be a bad decision by the Supreme Court. In response, the Court says to Congress, keep your hands off the Fourteenth Amendment—until we tell you otherwise.

By so doing, the Court has swatted down perhaps the only remaining power capable of checking abuses of judicial power. State governments have to be satisfied with what scraps of authority fall from the Court’s plate. Of course, there are other constitutional means for Congress to check the Court. But the enforcement clause is internal to the Fourteenth Amendment, and once it is interpreted into oblivion, any remaining congressional check will have to be initiated on other terms—indeed, on terms that make it look like Congress is attacking the Fourteenth Amendment, and thus attacking individual rights. The Boerne holding allows the Court to act unilaterally and to render important clauses of the Constitution immune from the conversation of other branches and departments of government. By a kind of intellectual jujitsu, Justice Kennedy makes it look as though Congress is defining its own powers when it tries to hold the Court to the Court’s own standard in previous cases. The upshot is that while the Court is free to change its case law at will, and thus to make the Constitution a by-product of its shifting opinions, Congress has no power to counteract the arbitrary and sometimes contradictory judicial uses of the Fourteenth Amendment.

Let us not forget that only one year ago, Justice Kennedy asserted in Romer, without any appeal to facts, that the citizens of Colorado were guilty of “animus.” Now, in Boerne, Kennedy scolds the Catholic Church for supplying no factual evidence of religious bigotry. What should we conclude? When it comes to sexual preferences, which are not protected as federal rights, the Court can veto the democratic act of a state without any finding of fact supporting the accusation of prejudice. When it comes to religious liberty, the first right protected by the Bill of Rights, religionists bear the burden of proving that impairment of their religious practice is “motivated by religious bigotry.”

The most that can be claimed in favor of the Court’s decisions this term is that the polity has a bit of breathing room on the issue of assisted suicide. Rehnquist has provided a few patches of solid ground for the next stage of this argument. But the Boerne decision is not good, either with regard to religious liberty or to the Court’s chronic tendency to reduce the Constitution to its own voice. Some “conservatives” cheer the idea of Congress being cut down to size. But why should we cheer when the Court permits no other authority to talk back? Glucksberg contains the seeds of the next round of judicial activism. Boerne removes an important congressional power to moderate that activism.



Russell Hittinger is the Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa.

Michael W. McConnell

It has never been clear that Supreme Court “enforcement” of the Religion Clauses has helped religious freedom more than it has hurt. After this term, it appears that the Court will do less harm. But even less good.

Even before the Court’s virtual abandonment (with Smith in 1990) of constitutional protection from nondiscriminatory laws burdening the exercise of religion, the Court rarely decided in favor of religious claimants. It allowed the government to forbid Jewish military officers from wearing yarmulkes, prevent Jehovah’s Witness children from distributing religious literature (a form of child labor, the Court said), outlaw the central religious ritual of the Native American Church, revoke tax-exempt status for fundamentalist schools that forbid interracial dating, and force church workers who had taken the equivalent of a vow of poverty to accept the minimum wage—just to mention a few egregious examples. In only a tiny handful of cases did the Court intervene to protect religious freedom from the heavy hand of government.

But that is not the worst of it. In other instances, the Court itself created the problem. After World War II, when many states began to overcome their anti-Catholicism and to provide support for nonpublic education, the Supreme Court stepped in to put an end to this outbreak of openmindedness. In a remarkable inversion of constitutional values, the Court held that the First Amendment compels the states to penalize families for the exercise of their right to send children to religiously affiliated schools by denying most forms of educational aid. In the most extreme example, the Court in the 1985 Aguilar decision held that it is unconstitutional for public school remedial education specialists to assist educationally and economically disadvantaged schoolchildren on the premises of their religious schools.

In other cases, the Court often held that it was unconstitutional for legislatures to enact laws to accommodate the needs of religious minorities. One state was forbidden to require employers to respect the sabbath needs of their employees, another state was slapped down for providing a moment of silence in which interested schoolchildren could pray, and a third was prevented from subdividing a school district in order to protect a small Jewish sect from the hostility of its neighbors. As often as not, the Establishment Clause of the First Amendment has been used as an excuse to censor or discriminate against religious expression, rather than to protect the right of all Americans, religious as well as nonreligious, to express their convictions. It is as though the courts have seen the First Amendment as protecting society from religion, rather than as protecting religious freedom from the power of the state.

Ironically, the political branches have been far more tolerant and accommodating of minority religious needs than the courts. Political theory may say that legislatures are majoritarian while courts are open to minority rights, but the opposite has been true when the exercise of religion is at stake. When the Court held that Jewish military officers have no right to wear a yarmulke, Congress responded with legislation granting that right. While the Court held that members of the Native American Church have no right to the sacramental use of peyote, Congress and almost half the states have passed laws exempting them from legal proscriptions. When the Court approved construction of logging roads through the holy places of several small California tribes, Congress cut off funds for the roads. And when the Court cut off protection for generally applicable laws, Congress passed the Religious Freedom Restoration Act, which required the courts to enforce free exercise rights under a rigorous “compelling interest” standard.

This is not to say that all Supreme Court decisions involving religion have been wrong. But a person committed to religious freedom might well ask whether, on balance, court intervention has improved upon legislative action.

In June, the Supreme Court delivered some good news and some bad news. The good news is that the Court will stop making things worse. In Agostini, the Court reversed the 1985 decision denying remedial assistance to impoverished youngsters attending religious schools, and strongly implied that neutral forms of assistance to all forms of education will be approved in the future. Taken in conjunction with the Court’s previous word on the subject (in the University of Virginia case holding that it is unconstitutional for a public university to deny funding to an otherwise eligible student publication solely because of its religious message), the Court seems to be saying that it will no longer require, and in some circumstances will forbid, discrimination against religion in the public sphere. This goes a long way toward reversing the damage that the Court has inflicted by its historically erroneous “strict separationism.”

This is especially good news for children of the inner city, whose only hope for serious improvement in educational opportunity lies in breaking the government school monopoly over public funding—a monopoly sustained by Establishment Clause precedents that now seem to be a thing of the past.

The bad news is that the Court has invalidated RFRA’s application to state and local government. (RFRA probably still applies to federal action, though the Court did not explicitly say so.) The Court’s opinion in Boerne was based on the laudable purpose of restoring a proper balance between federal and state power (a balance that should help to preserve freedom, including religious freedom, in the long run), but it disregarded the command of the First Amendment that government action may not “prohibit the exercise of religion.” In effect, the Court has held that religious exercise can be given no constitutional protection from state interference unless that interference was deliberate or discriminatory.

The practical effect will be felt immediately, by people of all faiths. It is not unusual for ostensibly neutral laws and regulations to infringe upon religious practice, and not unusual for zealots and bureaucrats to refuse to budge even when an accommodation would be relatively easy or even cost-free. Illinois athletic officials were prepared to ban Orthodox Jewish boys from playing basketball rather than create an exception to a no-hats policy; Washington, D.C., officials tried to shut down a successful breakfast program for the homeless in a church basement not zoned for that purpose; Wisconsin prison officials refused to allow a prison inmate to wear a crucifix; and Michigan public education officials tried to prevent homeschooling. The genius of RFRA was not so much its rigorous legal standard in court, but the fact that it enabled churches and individuals to get a hearing from someone other than the bureaucrat in charge. In the vast majority of cases, a sensible accommodation could then be reached without need for further legal action. Without RFRA, low-level officials have no need to listen to arguments for modification of their rules and regulations.

Fortunately, the RFRA decision is not the end of the road. Congress may pass similar legislation under other sources of authority, state legislatures and state courts are likely to provide protection as a matter of state statutory or constitutional law, and it is not impossible that, in an appropriate case, the Supreme Court may reconsider some of the harsher aspects of its interpretation of the Free Exercise Clause—a course not precluded by the RFRA decision.

But for the most part, without RFRA, religious freedom can expect no help from the courts. The combined message of Agostini and Boerne is, “You’re on your own.” When Congress or state and local governments act in a way that respects religious freedom and diversity, the Court is less likely to strike it down under the Establishment Clause. But if they fail to do so, at least at the state and local level, the courts will provide no relief.



Michael W. McConnell is Presidential Professor in the College of Law at the University of Utah.

Marc D. Stern

That the Boerne decision is a disaster for religious liberty is not much in doubt. Opinion is predictably more divided about Agostini, not so much because of its narrow holding permitting public school teachers to offer remedial services on parochial school premises (no religious group opposed that), but because a turgid opinion appears to open the door for partnerships between church and state not seen for a century.

At first glance, these developments are unrelated, one being labeled in the popular press a victory for religion (even though many religious groups are dismayed by increased government subsidies for religion), and the other a defeat. In fact, the decisions have much in common.

The most successful attack on the “wall separating church and state” derives not from any attempt to favor religion over nonreligion but from the Court’s effort to equalize the treatment of religion with nonreligion. Beginning with Widmar v. Vincent in 1981, the Court has insisted that government treat private religious speech as it treats private secular speech. Agostini rests on a parallel idea in the context of government aid. Justice O’Connor could not see an advancement of religion in allowing parochial school students to obtain in-school remedial services on the same basis as public school students receive them.

For people who thought the Court was becoming more sympathetic to religion—and Agostini began the last week of the Court’s term on that note—the decision later in the week in Boerne was difficult to understand. If the Court was moving toward a greater appreciation of the role of religion in American life, why should it twice in a decade refuse to give religion its due by exempting it from burdensome regulations that interfere with its ability to exist in the first place?

One popularly trumpeted answer is that federalism—ending federal judicial oversight of state and local authorities—is an overwhelming theme of the Court’s work this term in areas as diverse as habeas corpus, official immunity, the Eleventh Amendment, and more. The decision to invalidate RFRA is perfectly consistent with much else the Court has done recently. A refusal to have federal courts second-guess decisions of the state and local government could also explain Agostini, where New York City complained that a rule imposed by the federal judiciary interfered with local decisions made in furtherance of the practical needs of governance.

But while a concern with federalism could explain both Boerne and Agostini, I think that federalism—like the question of whether religion is winning or losing—obscures a close logical connection between the two decisions. Taken together, the decisions evidence the Court’s stripping religion of its special constitutional status. In the Establishment Clause arena, the effect of this change is to permit government to come into closer contact with religion, so long as secular counterparts are treated equally. In the free exercise context, the result is a loss of special protection for religious practice.

There is a price to pay for equality in Establishment Clause cases. That equality has bite, and not always in ways that those who advocate equal treatment for religion can predict, is demonstrated by the hullabaloo created when a school district closed down all student extracurricular clubs functioning under the Equal Access Act, including religious ones, to avoid being forced to recognize a gay students’ club. Religious groups that had fought for recognition of equal treatment of religious speech found themselves in the uncomfortable position of criticizing a school board for denying equal access to a gay students’ club.

Similarly, the part of Agostini that suggests states might take over the entire operation of secular studies in parochial schools also rests on notions of equality. If the government can provide a secular education for public school students, it should be able to provide identical education in parochial schools. The more intensely religious a school is, of course, the less willing it should be to take advantage of this equality-based possibility, since precisely such schools are the least likely to accept a curriculum identical to public schools on abortion, evolution, sex education, and the like.

On the free exercise front, concern with equal treatment necessarily means less protection for religion. If equality is the constitutional touchstone of the Establishment Clause, it is hard to see why it should not also be so for the Free Exercise Clause, which forms a single grammatical unit with the Establishment Clause. The 1990 Smith decision, which denied that religious practices burdened by neutral laws are entitled to special justification, is perfectly consistent with this explanation. And so is this term’s Boerne decision—most evidently in Justice Stevens’ concurrence calling any special treatment of religion an unconstitutional preference for religion. Although no other Justice joined this opinion, it would be a mistake to dismiss his concerns as idiosyncratic, for they are reflected (albeit without reference to the Establishment Clause) in some of the majority’s rhetoric.

The idea that a naked preference for religion, even in the form of an accommodation, can be unconstitutional finds further support in an earlier decision invalidating a sales tax exemption for religious publications, and in yet an earlier decision striking a Connecticut statute mandating that businesses open on Sunday excuse workers with religious objections to Sunday work. The concern with equality of religious and nonreligious citizens also explains the hostile judicial treatment of the religious accommodation provisions of employment discrimination laws: Judges are reluctant to depart from the mechanically equal treatment of all workers without regard for their religious beliefs.

Egalitarianism has become a predominant force in American life since World War II, and it now affects religion as well. The grossest forms of anti-Jewish, anti-Catholic, anti-Mormon, and anti-Muslim biases are largely just memories. But as the debate over affirmative action shows, egalitarianism is difficult to square with claims for special treatment. Claims for equal treatment in housing for cohabitating couples typically trump landlord claims for recognition of a religious right not to facilitate out-of-wedlock sex. Courts so holding do not bother to determine (as they should) whether the practices of a few landlords will have any real impact on the availability of housing for cohabitating couples. The unstated premise is that equal treatment trumps special treatment for religion. Equality, not religious liberty, is now the bedrock principle of American society.

The rise of special treatment for religious free exercise arose in tandem with the growth of special (albeit restrictive) treatment of religion for Establishment Clause purposes. In 1963, the Court first applied the compelling-interest test to a free exercise claim. That same year, it banned officially sponsored school prayer and Bible reading.

The Lemon test—applied to ban a state from equalizing its expenditures for secular instruction of public and parochial school students—was created in 1971, only months before the Court’s decision in Wisconsin v. Yoder, allowing Amish children to avoid mandatory high school attendance. In 1983, the Court adopted for the first time the equal subsidy principle in an Establishment Clause case to uphold a tax deduction for parochial school parents—just about the time it began to reject almost every free exercise claim to come before it. During this same period, equality for religious speech emerged as a central theme of the Court’s work, a trend that intensified after Smith in 1990 imposed a regime of equal treatment of free exercise claims.

It is for me beyond question that the developments in free exercise are inextricably linked to developments in separation of church and state. The common ground is a commitment to equal treatment of religion with secular causes. Those who welcome that development in Establishment Clause cases—while it is not yet complete—ought to be prepared to accept it for Free Exercise Clause ones as well. At the least, they should have foreseen that a linkage between the two was inevitable.

There would be more, not less, religious liberty had the Court continued to treat religion specially, both by restricting government funding of religious enterprises and requiring accommodation of religious practice. People of faith will come to rue the day that those chafing at the restrictions imposed by the Establishment Clause pushed equality front and center in the ongoing debate over the meaning of the Clause.

It is probably wrong to blame lawyers for these developments. The egalitarian turn of church-state law was inevitable both because the impulse is so strong everywhere else in the culture and because, despite some triumphalist claims to the contrary, the hold of religion on Americans is no longer sufficiently strong to sustain preferential treatment for religion. The shift to an egalitarian mode of analysis in religion clause cases is thus cause for far greater concern than whether particular Supreme Court decisions are good or bad for religion.



Marc D. Stern is Co-Director of the Commission on Law and Social Action for the American Jewish Congress.

Michael M. Uhlmann

Although this term’s right-to-die and religious liberty cases involved distinct questions of constitutional rights and interpretation, all four cases are marked by a common theme only tangentially related to their subject matter. That theme, evidenced in other cases this term, arises from the effort to protect the states against overbearing federal legislative or judicial power. To be sure, the Justices did not always agree on why this should be so, but a workable if somewhat unstable majority seems to think that the states should have greater discretion in setting their own policy agendas even when substantial federal questions may be implicated.

In the assisted suicide cases, for example, deference to the states seems to be the only common note in the Court’s ostensibly unanimous verdict to uphold the New York and Washington State bans. Rehnquist, Scalia, Kennedy, and Thomas would apparently leave the states forever free to affirm or deny a right to die under their own laws. Stevens, O’Connor, Souter, Ginsburg, and Breyer concurred for the time-being only and reserved the right—for varying reasons and with varying degrees of enthusiasm—to declare a federal constitutional right to assisted suicide at some point in the future.

In his plurality opinions, the Chief Justice held that the Fourteenth Amendment afforded no basis to challenge the statutory prohibitions in question, either on due process or equal protection grounds. In reaching this conclusion, he warned that the Due Process Clause is not an invitation for judges to create new constitutional rights from “abstract concepts of personal autonomy.” The argument is impeccable as legal history and wise as judicial philosophy. Other than his argument from tradition, however, he gave no reason why “abstract rights of personal autonomy” should not be constitutionally cognizable. The argument from tradition did not deter six of his colleagues from embracing autonomy as the jurisprudential ground for abortion rights in Casey, and is unlikely to deter at least five of them from extending Casey‘s rationale to assisted suicide in some future case. Nor did anything the Chief had to say discourage states from establishing a new legal tradition. The states are free, in his view, to recognize a right to assisted suicide under reconstituted laws—laws that will emanate precisely from “abstract concepts of personal autonomy.”

In short, Rehnquist’s opinion was as notable for what it did not say as for what it did. What he did not say, but should have, is that the states may be under a constitutional obligation not to permit assisted suicide. By removing criminal sanctions against assisted suicide, government may endanger the lives of many citizens, especially those who are medically compromised or otherwise socially vulnerable. Here is where Rehnquist’s positivism—and that, alas, of Scalia—may undermine the traditional constitutional order they wish to preserve. In their understandable desire to halt judicial extremism, they yield more than they should to the discretion of legislative bodies.

This last point was the centerpiece of Justice Souter’s concurring opinion, which might just as well have been a dissent. Its principal purpose was to tee-up the next case for the proponents of assisted suicide, and what his opinion lacked will no doubt be supplemented by the law reviews in the months ahead. His was a lengthy lecture on the history of substantive due process, in which he cited the abortion cases, and particularly Casey, to justify a constitutional right of bodily integrity. That same right, he pointed out, was logically implied in common law and statutory recognition of the right to refuse treatment. And if, as Rehnquist himself conceded, refusing treatment was a cognizable liberty interest under the Due Process Clause, then it is a question of degree, rather than of principle, whether the courts may extend a right of bodily integrity to certain cases where assistance in dying is requested. Unless the Constitution is to be understood as enshrining legislative supremacy, he added, the courts must necessarily involve themselves in determining whether certain rights are implicit in due process, even if they had not been previously recognized as a formal matter in law.

An argument from tradition isn’t much of a reply to this contention, for Souter is arguing that the very tradition invoked by Rehnquist, if properly understood, can be used to justify assistance in dying. Nor will it do much good should state courts and legislatures, in the name of compassion for or the autonomy of dying patients, use the same theory to legitimate the private use of lethal force for those who request such “help.” When and if that occurs, the constricted view of due process and judicial power held by Rehnquist and Scalia may come back to haunt them. It will certainly hamper their ability to protect the lives of certain patients against the legally sanctioned lethal compassion of their doctors and relatives.

There is no more mangled body of jurisprudence than the assembled asseverations of the Supreme Court on the relation of religion and politics under the First Amendment. Ever since Everson, the Justices have tortured the intent of the Framers, misinterpreted American history, run the nonestablishment and free exercise provisions head-on into one another, and treated religion as a wholly private matter or even some sort of toxic substance. But this judicially constructed secularist constitutional mythology inevitably warred against the customary disposition of the American people to mix religion and politics in ways that are far more complicated than strict separationist theory could ever acknowledge. The Court therefore found it necessary to reformulate its Everson rationale more than once, even as it carved out exceptions that threatened to swallow the rule.

This resulting confusion has not escaped the Court’s own attention. Prompted by the urgings of Rehnquist, Scalia, and O’Connor, a somewhat hesitant and shaky majority began about ten years ago to separate Everson from what might be called its High Church secularism. The latest and most promising consequence of this new approach will be found in O’Connor’s Agostini decision, which suggested that the states may make room for religious institutions in the public square after all. It remains to be determined how far they will be permitted to go, but there is no question that the Supreme Court is going to permit policies that only a short time ago would have been unthinkable. In her artful glossing of recent cases, O’Connor indicates the direction that future precedent might take and all but issues a formal invitation to bring on cases involving educational vouchers. There is no question but that Agostini is a large step forward.

The Boerne decision must be understood as driven in part by federalism concerns. On the merits of RFRA itself, its proponents would do well to rethink their position. Scalia’s opinion in Smith, to which the Act responded, no doubt lends itself to mischievous application. In this hyper-regulatory era, all sorts of ostensibly neutral laws of general applicability can have a corrosive effect on free exercise rights. But RFRA relied on an expansive reading of congressional power precisely at the moment when the Court had begun to move against unbounded congressional supremacy under the Commerce Clause. Smith‘s defects aside, RFRA may have been aimed at the wrong target. As long as Congress felt free under Section 5 of the Fourteenth Amendment to revise a faulty judicial interpretation of the First Amendment, why did it limit itself to free exercise? The reason, of course, is that any broader proposal would never have seen the light of day. But in terms of judicially created constitutional mischief, Everson and its progeny have done far more damage to a proper understanding of religion than Smith is ever likely to do, and until the Everson doctrine is substantially modified, trying to write a rule of decision for free exercise cases may prove to be a risky game.



Michael M. Uhlmann, a lawyer and political scientist, is a Senior Fellow at the Ethichs and Public Policy Center and Professor of Government in the Washington program of Claremont McKenna College. His critical anthology on assisted suicide and euthanasia, Last Rights?, will appear in November.