Split Decision

Sandra Day O'Connor's appointment in 1981 was greeted with high expectations, not only because she was the first female Supreme Court Justice, but also because it was hoped she would end the High Court's seemingly inexorable drift toward hard-core secularism. Her final record on this score is mixed.

Every encouraging restoration of religious liberty seemed to be countered by a later O'Connor vote going the other way. Justice O'Connor's subjective, fact-specific approach to religion law questions advanced religious liberty on some issues but hindered it in others-with no discernible pattern. Religious liberty under O'Connor was like a box of chocolates: You never knew what you were gonna get. But, in the end, her well-intentioned tenure may be characterized best as a missed opportunity to secure clearly religion's rightful place in American public life.

Justice O'Connor has often been called a centrist on church-state issues, but this is true only in a limited sense of averages. Because she routinely alternated between two mutually exclusive positions on these issues-strict secularism vs. upholding the tradition of religion in public culture-one can say she approached the "center" in a rough metaphysical sense. But of course, the Supreme Court was not created to balance a spreadsheet of cases to hit a hypothetical average of freedom; rather, the Court is bound to resolve the "cases and controversies" before it based on clear legal principles and the Constitution.

In approaching religious liberty questions, however, O'Connor thinks that "[r]eliance on categorical platitudes is unavailing. Resolution instead depends on the hard task of judging--sifting through the details." But her insistence on avoiding categorical platitudes left her opinions without categorical principles, which are the lifeblood of the law. As a result, she was for legislative chaplains, but against a moment of silence; for "under God" in the Pledge of Allegiance, but against displaying the Ten Commandments; for a menorah in a holiday display, but against a nativity scene. And no one but Justice O'Connor could easily reconcile all of these seemingly contradictory decisions. Her approach made everything a matter of her subjective judgment, and that's not why we have a Constitution.

To be fair, Justice O'Connor did at times take a strong stand for the principles undergirding our religious liberty. She repeatedly played a critical role in rolling back precedents that had unfairly excluded private religious viewpoints from the public square. On this front, she was part of a slim majority that ended government discrimination against religious speech and preserved the right of religious groups to equal funding and equal access to government resources, such as university student club funding and after-school elementary school facilities.

Additionally, Justice O'Connor drew an uncharacteristic line in the sand for religious liberty in the landmark case of Employment Division v. Smith (1990). In Smith, the Supreme Court gave government unprecedented license to burden religious expression as long as it used ostensibly "neutral" laws to do so. O'Connor responded that neutral laws can violate the right to religious exercise just as surely and severely as laws that target religious exercise, and that the text, structure, and history of the First Amendment reflected as much. Her opinion in Smith vigorously attacked the majority's watered-down protections as "incompatible with our Nation's fundamental commitment to individual religious liberty."

"...we saw a very different Justice O'Connor..."
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