Justice Souter and the Supreme Court’s Church-State Balance

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President Obama has encouraged a “serious debate about how to reconcile faith with our modern, pluralistic democracy.”(1) He has called for an appreciation of “the critical role that the separation of church and state has played in preserving not only our democracy, but the robustness of our religious practice,” while also saying “a sense of proportion guide those who police the boundaries between church and state.” What kind of Supreme Court nominee will this president choose? We’ll find out soon.

As we await a White House announcement, a consideration of Justice David Souter’s religious liberty legacy is in order. Justice Souter has had a strong voice and an interesting combination of views on these matters. A brief review of some of Souter’s opinions helps to lay a foundation for understanding how President Obama’s pick to replace him might affect the church-state balance at the Court.

Justice Souter has consistently challenged narrow interpretations of both the Free Exercise and Establishment Clauses of the First Amendment. In 1993 he joined his colleagues in striking down a Florida ordinance that was a thinly disguised attempt to stop animal sacrifice by followers of the Santeria faith.(2) This violated even the minimal free exercise protections remaining in the wake of the Court’s 1990 decision, Employment Division v. Smith.(3) The Court was unanimous on this point, but Souter also wrote separately to call for a reexamination of the controversial Smith decision, which was written by Justice Antonin Scalia. Souter noted that the government could seriously burden religious practicies even when it did so inadvertently rather than intentionally. The Smith decision, Souter said, was in considerable tension with longstanding precedent that was much more protective of free exercise. The Court has yet to heed Justice Souter’s call.

On the other side of the constitutional coin, Souter played a significant role in ensuring that the Court maintained its robust interpretation of the Establishment Clause. The Court has long held that the Establishment Clause not only prohibits the government from favoring one faith over another but also from favoring religion over nonreligion. It has barred state sponsorship or endorsement of religious messages, not simply state coercion in religious matters. When some his colleagues attempted to argue that the original understanding of the First Amendment required a less expansive interpretation of the Establishment Clause, Souter countered that history provided no warrant for this departure and much justification for these rules.

http://www.brookings.edu/opinions/2009/0519_court_balance_rogers.aspx