A Fixture on a Changing Court: Justice Stevens and the Establishment Clause

Chemerinsky, Erwin | March 1, 2012

Throughout his time on the Supreme Court, Justice John Paul Stevens consistently took the “strict separationist” approach to the Establishment Clause. This led him to write and join opinions that stated that the Establishment Clause is violated by religious activity in public schools, by religious symbols on government property, and by government support for parochial schools that could be used for religious education. Justice Stevens adhered to these views throughout his thirty-five years on the Court. Although the strict separationist approach was the dominant view on the Court for several decades, those appointed after Justice Stevens rarely held this view. Some, like Justices Sandra Day O’Connor and Stephen Breyer, believe that the government violates the Establishment Clause only if it symbolically endorses religion or a particular religion. Others, like Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, believe that little violates the Establishment Clause: the government acts unconstitutionally only if it literally establishes a church or coerces religious participation. The result is that, while Justice Stevens remained consistent, the Justices around him became much more conservative on this issue. Justice Stevens’s approach to the Establishment Clause has great virtues in protecting freedom of conscience and providing inclusiveness in a religiously pluralistic society.