an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Justice O'Connor and the Equal Citizenship Principle
The Constitution, Justice Oliver Wendell Holmes, Jr. once said, was "made for people of fundamentally differing views." He was thinking about economics. Today, we live in a country with fundamentally different views about religion. In the past thirty years, the most important social movement in America has been led by conservative Christians who seek to bring public policy in line with their values. At the same time the country itself has become increasingly diverse, with new immigrants from all over the world bringing a multitude of different religious beliefs and experiences.
The problem for a democracy like ours is accommodating these clashing views about morals, religion and politics, when they are made so fervently by people of such different prespectives. Some believe the country is falling into moral decay and can only be redeemed by their values; while others think government should impose their beliefs instead.
In Justice Sandra Day O'Connor's view, the key question was not whose values were right. It was how to preserve a deeper value in our constitutional tradition: equal citizenship. In a democracy, people may fight in the public square about the values government should uphold. But government must always treat its citizens as equal participants; it cannot favor one set over another because of their religious beliefs.
The principle of equal citizenship is often confused with separation of church and state, but the two are distinct. To secure equal citizenship, government need not cut itself off from religion or banish religious expression from the public square; what it must do is treat both the religious and the non-religious with an even hand.
The principle of equal citizenship led Justice O'Connor in directions that liberals and conservatives sometimes applauded and sometimes abhorred. On the one hand, she rejected the simplistic shibboleth of no aid to religion. The government, she contended, could support religious organizations in general programs that included the religious and secular alike, respected private choice, and did not foster religious indoctrination. Moreover, she emphasized that government could actively accommodate religion when general laws unfairly burdened the practices of particular religious groups. These decisions endeared her to religious conservatives.
On the other hand, she insisted that government may not endorse one religion over another, or religion in general over nonbelief. The Constitution, she argued "prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." Endorsing a religious viewpoint "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." This principle led her to conclude that many state mandated religious displays and most state mandated prayers were unconstitutional, much to the delight of liberals.
Many people viewed Justice O'Connor as a fact- sensitive compromiser who lacked deep convictions. Her views on religion belie this reputation. She operated from a deep, powerful, and consistent principle: the principle of equal citizenship. It was simply a principle that others did not fully recognize or honor.
President Bush will soon nominate a new Justice to replace Justice O'Connor. The President is likely to choose someone who will please his political base of religious conservatives. But he would do the country a far greater service if he chose someone who respected Justice O' Connor's deepest insight: because we are a country of fundamentally differing views, the government's first obligation is not to save the country by instilling particular religious values. It is to treat all of its citizens, religious and secular, with equal respect.
Also in the absence of trackback, please allow me to note my article on the Ten Commandments cases entitled "Moses v. Jesus: Why do Conservative Christians Prefer Moses' Commandments to Jesus' Beatitudes?" The article can be found at: