Religion & Law

In this NYT piece, Linda Greenhouse observes, with evident concern, that:

[A] familiar Ten Commandments case is now heading back to the Supreme Court. The court has spent years making a nearly complete hash out of the public display of religious symbols, and the prospect of watching lawyers and justices engage in still more contorted efforts to attach supposedly secular meaning to obviously sectarian objects and texts is not a pleasant one. But the case could provide a window on how committed the Roberts court is to the project that some justices have clearly embraced, that of carving out more space for religion in the public square.

That's an interesting way to describe the "project" -- "carving out more space", as if "religion" is not naturally (and inescapably) part of the "public square".  One might just as well comment (with concern) about other courts' project of excluding religion from the public square.

Later in the piece, she suggests that the departure of Justice Stevens makes change in the Court's Establishment Clause doctrine likely:

Cases that concern the separation of church and state are among those on which the retirement of Justice John Paul Stevens is likely to have the greatest impact. For years, Justice Stevens was the Supreme Court?s strictest separationist. For example, in the abortion context, he was the only justice willing to articulate the position that laws incorporating the view that life begins at conception are theological exercises that should be invalidated on Establishment Clause grounds. (The fact that we may soon have to endure another debate over embryonic stem cell research makes me miss Justice Stevens and his wisdom all the more.) Justice Stevens lost most of his battles in the religion cases, but even in defeat he set a marker and made a record. For example, he wrote a powerful dissent this spring from a splintered and nearly incoherent decision that let Congress get away with swapping public land for private under the foot of a five-foot-tall cross on a hilltop in the Mojave National Preserve. In his opinion in that case, Salazar v. Buono, Justice Stevens said the cross sent a ?starkly? and ?inescapably sectarian message? that couldn?t be evaded by deeming the cross a memorial to the fallen soldiers of World War I.

Justice Stevens was, indeed, the only recent Justice who really thought (or, in any event, who said out loud) that regulations of abortion -- or even just declarations that life begins at conception -- run afoul of Establishment Clause grounds.  It's not clear, though, why the departure of the one justice who held this outlier, and unsound, view (a view that, apparently, Greenhouse agrees with regarding stem-cell research) should be expected to change Establishment Clause doctrine.  As she says, Justice Stevens "lost most of his battles" in this area.  Which is (in this area) a good thing.