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 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.
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?
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