Justice Breyer and the Establishment Clause: Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness'

Abstract

Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States for nearly three decades. And yet, during his long career and notwithstanding his wide-ranging interests, he never authored a majority opinion resolving a dispute about the meaning of that Amendment’s Establishment Clause. Nevertheless, Justice Breyer’s writings and record regarding the no-establishment rule are distinctive in at least three ways.

First, there is the fact that he did not vote uniformly with his more secularist colleagues in divided Establishment Clause cases. That is, he often resisted the stricter applications of the no-establishment rule endorsed by some of his colleagues. Next, he regularly rejected the argument that such cases could or should be resolved by applying a particular “test” and was unmoved by the lure of any grand unified theories about the provision. His approach was consciously particularistic and case-by-case; he saw church-state controversies as highly, inevitably fact-bound, solvable only through a judicial-balancing exercise akin to the proportionality review that is practiced in some other jurisdictions. And, more often than any other justice in the Court’s history, he identified the Clause’s primary purpose as the avoidance of “religiously based divisiveness” and insisted that law-and-religion disputes should be decided in the way most likely to promote this purpose.

This emphasis on the judicial management of strife, and his view that judges charged with interpreting and applying the First Amendment are authorized to invalidate those actions of political actors that are determined or predicted to have excessive potential for conflict-creation, are Justice Breyer’s signature Establishment Clause contributions. This view, though, is mistaken and these contributions are regrettable.

Keywords: Stephen Breyer, Justice Breyer, First Amendment, Establishment Clause, Religious Freedom, Law and Religion, Religion, Supreme Court

JEL Classification: K10, K19, K30, K39, K40, K49