O'Connor Got it Right on Religion

As most everyone knows by now, when Christians face a challenging spiritual or moral issue, we often ask ourselves, WWJD?--"What would Jesus do?" Playing on this theme, the joke among lawyers, especially among church-state lawyers, when we try to guess the outcome of a particular case or issue at the United States Supreme Court, has been to say, "WWSOCD?-What would Sandra Day O'Connor do?"

What Justice O'Connor has done today is announce her retirement from the nation's highest bench. As the joke indicates, it is difficult to overstate her critical role in the determination of issues pertaining to the relationship between religion and government. Quite simply, her vote has often been the one that tipped the judicial balance toward ensuring that the government was restrained from promoting religion.

At the same time, Justice O'Connor's jurisprudence has supported a vital role for religion in public life and strong protection for the exercise of religion. Thus, O'Connor's voice has reflected a sensibly centrist position on church-state issues--firm restrictions on government's role in the religious realm and strong support for the right of religious individuals and religious groups to express and otherwise practice their faith in public and private places.

On issues of religious expression, for example, Justice O'Connor has articulated an important line: "[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Thus, she has upheld a law that allows students at secondary public schools to organize chess clubs and Bible clubs that meet during non-instructional time. On the other side of the coin, she joined a ruling majority that struck down a public school's practice of organizing votes that allowed students to use the school microphone to offer prayers before high school football games. The court held that the policy "establishe[d] an improper majoritarian election on religion, and unquestionably ha[d] the purpose and create[d] the perception of encouraging the delivery of prayer at a series of important school events."

Justice O'Connor understood that religion has a key role to play in public life, but that it is religious individuals and groups that must control religious expression, not the government. Importantly, she recognized that allowing the government to promote religion not only violates the rights of conscience of those who don't claim a faith, but also poses grave dangers for the faith that is favored. In McCreary County v. American Civil Liberties Union of Kentucky, the Kentucky Ten Commandments decision handed down this week, Justice O'Connor wrote in a concurring opinion: "Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices. When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship."

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