Balkinization: Pop Quiz on Justice O'Connor and the Religion Clauses

Pop Quiz on Justice O'Connor and the Religion Clauses

Marty Lederman

QUESTION ONE

Those of you who have previously glanced over at Howard Friedman's blog will already know the answer to this first question and thus are disqualified from answering it. If you haven't looked over there yet, don't peek.

It certainly is fair to say -- as many of us have, in fact, repeatedly said -- that Justice O'Connor has written the Law of the Religion Clauses over the past generation, and that as her retirement approaches, the governing law in the area consists predominantly of the collected writings of SOC. Believe it or not, however, in her 24 Terms on the Court Justice O'Connor has written only one majority opinion of the Court dealing with the Religion Clauses. [UPDATE: My bad: There is actually a second SOC majority opinion. A silly, if not inexcusable, mistake on my part -- but the general point still holds: Justice O'Connor's profound influence on Religion Clause doctrine has been effected almost entirely by opinions that are not those of the Court.] (Note: Justice O'Connor also was assigned to write in one other case, but wrote for a majority of the Court in that case only on a statutory question; her constitutional opinion in that case weas only for a plurality.)

Name Justice O'Connor's single [uh, that is to say: her only two] majority Religion Clause opinion[s]. (How long did it take you to figure out the answer?)

QUESTION TWO

According to the Washington Post, the Becket Fund for Religious Liberty yesterday issued a statement in which it said "thank God she's retiring." Presumably this sentiment is a function of the view that Justice O'Connor's jurisprudence has harmed religious liberty. (I welcome any corrections or qualifications from the Becket Fund -- I haven't been able to find its full statement online.) [UPDATE: The Post's quotation is not taken out of context. The Becket statement includes the following: "When it came to religious liberty, every case was in doubt until the moment Justice O’Connor voted because even her own precedents could not predict the outcome of new cases. That’s amazingly counterproductive for a nation that believes in the rule of law. Her approach to religion law questions made everything turn on what an imaginary “objective observer” would think. But there was no way to know what this imaginary person would think until Justice O’Connor imagined it. . . . Her approach made everything a matter of her subjective judgment and that’s not why we have a Constitution. Although she was well-intentioned, she was slowly but surely reinventing monarchy."]

Rick Garnett, on the other hand, writes on the Mirror of Justice blog that "In my view, [Justice O'Connor] was -- among other things -- a consistent and important defender of religious freedom, and of the constitutional principle that our First Amendment does not require discrimination against religious believers or the exclusion of religion from the public square."

Who's right? How does the answer to Question One affect your answer to Question Two?

Posted 10:52 AM by Marty Lederman [link]

Comments:

I disagree with the Becket folks, but I'm sure they're sincere.

O'Connor's imaginary observer is not totally useless. Lawyers reference the PHOSITA, the person-having-ordinary-skill-in-the [Relevant]-art, to gauge novelty.

Why not use the imagined objective subjective standard to judge endorsement? It makes sense to me. Seeing the Reindeer-type displays means something's not really religious; seeing Judge Moore's godawful Rock gives an impression of unalloyed sectarianism.

Can't we just codify what the observer would be thinking about (O'Connor tried, with her laundry list: the context, including publicly known history, the surroundings, the statements of public officials, the news coverage, the impact on the hypothetical viewer)?

I haven't had a chance to closely review the last two religion cases to come down, but Lyng's fairly clear ("subjective point of view," quoting Bowen v Roy) even though I suspect it's not good law now on some points; I'd have to review it more carefully.

The 'play in the joints' has made it into majority language; the permissibility of Government to actively elevating religion above non-religion has been shown (Cutter).

I'm bothered, as I always was, by O'Connor's facile distinction between the "practice" and "belief" of religion. Building the road would destroy the holy ground; if the religion depends utterly on the holy ground, a point not I thought in dispute, then building the (totally unnecessary, gratuitous road) destroys the religion. She didn't even give the explanation a heightened scrutiny. Some religions will inevitably lose the object of their worship, particularly when they depend for their faith on something temporary or at odds with the needs of society.

The problem with Lyng is that society didn't need that road, and belief was inextricably intertwined with the practice at issue. So it was a lousy decision, benefiting monotheistic and invisible-God worshippers at the expense of others. What else is new?

# posted by

Joe G : 11:38 AM