This Article examines Justice John Paul Stevens’s religion clause jurisprudence from the perspective of a continuing dialogue about the meaning of the Free Exercise Clause and the Establishment Clause. The term continuing dialogue suggests that even for as formidable and longtenured a jurist as Justice Stevens, important questions remain open and unresolved. In discussing these unanswered questions, the article explores potential dissonance between Justice Stevens’s contrasting interpretations of the Free Exercise Clause and the Establishment Clause. For example, Justice Stevens’s concern for the status and sensibilities of religious minorities, expressed repeatedly in his Establishment Clause opinions reviewing state-sponsored religious displays, plays a far less obvious and focused role in his free exercise jurisprudence. Yet surely minority faiths may suffer a similar sense of alienation when government denies them exemptions from general laws that burden their religious practices, but not those of the majority. Similarly, the opinions Justice Stevens joined limiting free exercise claims reject a federal judicial role that requires subjective, value-based balancing. Justice Stevens’s view that the Establishment Clause requires the evaluation of legislative accommodations to determine whether
they unfairly favor certain faiths or extend too far and impose unacceptable burdens on third parties or the public, however, would seem to involve judges in a comparably subjective and value-laden inquiry.
