Rehnquist’s Legacy: Church-State Rulings

Chief Justice William Rehnquist was often the sole dissenter on the separation of church and state after he joined the United States Supreme Court in the early 1970s, arguing that while religion did not deserve extra protection, it merited federal funding.

But now, after leading the court for 19 years, Rehnquist’s legacy is a court majority — and the law of the land — much closer to his perspective.

“Initially, he was the person crying in the wilderness,” said Steven Green, the former general counsel for the nonpartisan group Americans United for Separation of Church and State. “With time, he was able to get a coalition and move the court in his direction.”

Rehnquist, 80, died Saturday, after a long battle with thyroid cancer. His death creates the second vacancy on the high court; Justice Sandra Day O’Connor, the first woman on the court and its moderate core, announced her resignation on July 1.

Defining the line that separates church and state was one of the hallmarks of the Rehnquist court. The chief justice, joined by two other conservatives and two centrist jurists, consistently allowed government funding of religion, including school vouchers. But the court stopped short of allowing public religious exercises like school prayer, despite Rehnquist’s support for the practice.

At the same time, the Rehnquist court will be remembered for limiting special protections for religion and for undoing protections for religious expression that were sanctioned by previous justices.

And while it was not particularly progressive on civil rights issues, the court will likely be remembered for the times that it bucked the political trend in recent decades away from civil liberties, analysts said, notably decriminalizing sodomy and integrating state military academies.

Bush moved quickly to fill Rehnquist’s seat. On Monday, he nominated Justice John Roberts, whom he had originally named to replace O’Connor, for the post of chief justice.

Rehnquist’s deepest impact may lie in the area of church-state separation. The court set a high bar for proving the government was violating the Constitution by endorsing religion. It ruling in 1989 that a depiction of the Nativity in a county courthouse endorsed religion, for example, but said a menorah and Christmas tree on display outside the court did not.

“As long as it treats all religions equally, he would argue nothing in the establishment clause prevents supporting religion and endorsing religion,” said Rabbi David Saperstein, the director of the Religious Action Center of Reform Judaism, who is also a constitutional law professor at Georgetown University.

Rehnquist’s dissents in school-funding cases, in which he argued for greater government aid to parochial schools and religious institutions, were at first a lone voice. But as the court became more conservative throughout the 1980s, he persuaded fellow justices to back school vouchers.

They were found constitutional in 2002, two years after the court had allowed state educational equipment and computers to go to religious schools.

Rehnquist also backed prayer at football games and graduation ceremonies and the practice of holding a moment of silence in public schools. That’s where he lost the center of the court — Justices O’Connor and Anthony Kennedy — who were concerned about the potential for coercion is such school prayer.

Rehnquist’s opinions made uncomfortable the large majority of the American Jewish community that seeks a strong wall separating church and state. Orthodox groups often took the alternative view, seeking increased governmental support and funding for religion.

Even among the Orthodox, however, Rehnquist had a mixed record. He believed religion should not get any special treatment, either positive or negative. Free exercise protections were limited under Rehnquist, requiring religious liberty advocates to seek congressionally mandated protections for areas like prison accommodations and land use.

“You’ve got this mixed verdict,” said Nathan Lewin, the counsel for the National Jewish Coalition on Law and Public Affairs, an Orthodox group. “Jewish groups have been able to operate better in terms of establishment clause constraints, but the harm that the Rehnquist court has done to the free exercise clause is enormous.”

Rehnquist wrote the 1986 majority opinion that found an Orthodox rabbi in the Air Force could be denied the right to wear a yarmulke.

“I think he had less sensitivity to the religious needs of minorities than other justices,” said Lewin, who argued for the rabbi, Simcha Goldman, in the case.

In 1990, Rehnquist joined Justice Antonin Scalia in a ruling against two Native Americans who sought unemployment compensation after being fired from their jobs for smoking peyote as part of a religious ceremony.

The court found religious beliefs do not excuse people from compliance with a valid law. The majority opinion said allowing exceptions for laws that affect religion would require exemptions for most civic obligations, from compulsory military service to payment of taxes.

“We’ve been in very different territory since,” Saperstein said. “We have a long way to go to get back to where we were.”

The ruling was widely criticized in Washington, and Congress passed the Religious Freedom Restoration Act in 1993, with support from Jewish groups. The law said government could not burden religious exercise without a compelling government interest.

The court found the act unconstitutional in 1997, saying Congress could not enact legislation that infringed on states’ rights. A narrower law, the Religious Land Use and Institutionalized Persons Act, passed Congress in 2000. The Supreme Court upheld one aspect of the new law, which allowed for greater religious accommodations for prisons, earlier this year. The second part, requiring a compelling reason for government to deny religious organizations reasonable land use, may also be challenged in the future.

Rehnquist was first nominated to the Supreme Court in 1971 by President Nixon. He was elevated to chief justice in 1986 by President Reagan. Many expected the Rehnquist court to overturn the legal right to an abortion. That never happened, but Saperstein said Rehnquist “prevailed around the margins” by approving waiting periods and parental notifications for abortion.

The Rehnquist-led court “has done a remarkable amount of what it was expected to do,” Douglas Laycock, a religious-liberty scholar at the University of Texas School of Law, said of the court. That includes restricting habeas corpus review for prisoners, upholding the death penalty and creating obstacles to federal civil rights cases.

But, Laycock said, it will likely be best remembered for rulings that bucked the conservative trend. That includes the 2003 rulings that decriminalized sodomy and legalized the concept of affirmative action. Rehnquist himself took positions against both reforms.

The court will also be remembered for its affirmation in 2000 of Bush’s win in Florida and of the presidency. Rehnquist wrote that much-analyzed opinion, which seemed to contradict his decades of support for states’ rights when it overruled the recount ordered by the Florida Supreme Court. Rehnquist also presided over the Senate impeachment trial of President Clinton, in 1999. Supreme Court scholars said Rehnquist was not openly devout and that he was not driven by a social agenda. Instead, they said, he was motivated by a belief in states’ rights, despite the apparent exception of Bush v. Gore.

“He seemed to be very deferential in religion areas to allowing the government to regulate as it wishes,” said Green, a professor at the Willamette University College of Law in Oregon. “Sometimes that means infringing religious liberty, sometimes that means bringing down the wall.”