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."

In this same case, three dissenting justices, Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, made it clear that they would not only discard the prohibition on governmental promotion of religion in many cases involving government speech, but that they also would back away from the prohibition on discrimination among faiths, a principle that heretofore has enjoyed wide, deep, and unwavering support from the Court. (Justice Anthony Kennedy also dissented, but he took a less extreme approach in this case.) Justice O'Connor firmly rejected such a major break. In this case, she underscored the need for fealty to the time-honored First Amendment principle that "[the government] may not prefer one religion over another or promote religion over nonbelief."

Justice O'Connor also has blown the whistle on a radical theory advanced by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas in a case involving government funding and religious groups. In the 2000 case of Mitchell v. Helms, she explained that the plurality's interpretation would allow the government to provide "direct money payments to religious organizations (including churches)" and allow "the participating religious organizations (including churches) [to] use that aid to support religious indoctrination." While O'Connor acknowledged that the opinion of these four justices did not expressly approve such practices, she noted that it clearly "foreshadow[ed] the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives."

Again, this should be a matter of concern not only for atheists and those of minority faiths (who are less likely to receive government funds), but also adherents of the faith that would be funded by the government. For what the government funds, it regulates and ultimately controls.

In her concurring opinion in the Kentucky Ten Commandments case, Justice O'Connor said:

"At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. . . .Americans attend their places of worship more often than do citizens of other developed nations and describe religion as playing an especially important role in their lives. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

Only four justices on the current court would renegotiate church-state boundaries, but they could soon become a majority of five. President Bush will continue to be pressured to nominate a justice to the Supreme Court who would bring about deep and broad changes in our constitutional law, including the interpretation of the First Amendment's religion clauses. Some people, including some religious people, believe that America has gotten religious liberty wrong in many respects and needs serious course correction.

I would say, however, that religious liberty is something America has usually gotten remarkably right. While Justice O'Connor's approach is not perfect, it has played a key role in that accomplishment. President Bush should nominate someone to the court who will not force a renegotiation of church-state boundaries, but who will conserve the proud tradition of American religious freedom.
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