Treating Religion as Speech: The Religion Clause Jurisprudence of Justice Stevens

Abstract:     
Justice Stevens has sometimes been caricatured as the Supreme Court Justice who hates religion, but an exploration of the cases in which Justice Stevens has voted in favor of religious claimants reveals that, rather than being moved by a reflexive hostility toward religion, Justice Stevens appears to respect religion as a powerful motivator of human action, though one that is largely able to look out for its own interests in the political process. Notwithstanding my rejection of the common view of Justice Stevens as hostile to religion, I argue in this paper that there are substantial problems with his actual approach. First, Justice Stevens has a tendency to treat religion as no more valuable than other valuable categories of expressive activity, a tendency that brings him into agreement with a great deal of recent scholarly commentary on the Religion Clauses. The protection he would afford religious practice is therefore largely coextensive with the protection afforded to expressive conduct more generally under the First Amendment, thereby rendering the Free Exercise Clause superfluous. Second, I argue that Justice Stevens places too much faith in the ability of legislatures to look out for the interests of minority religious groups, ignoring the important role that courts play in highlighting for legislatures the situations in which minority religions appear to be suffering disproportionately under generally applicable regulations. Accordingly, I propose a different approach, one that builds on Justice Stevens's views but that adequately acknowledges the unique value of religion in the lives of believers.

Number of Pages in PDF File: 21

working papers series