Dasher of conservative hopes

Justice David Souter, who served on the Supreme Court of the United States for almost 20 years, passed away at age 85 at his New Hampshire home last week. Justice Souter is most known for his opinion—co-written with fellow-Republican appointed Justices Anthony Kennedy and Sandra Day O’Connor—upholding Roe v. Wade and a constitutional right to abortion. A reliable vote in favor of liberal causes like non-traditional marriage, affirmative action, and abortion, Justice Souter also had a lot to say about religion in public life.

Justice Souter was appointed by President George H.W. Bush in 1990 to replace Justice William Brennan. He was quickly and uncontroversially confirmed by a 90-9 vote in the Senate. Republicans viewed Justice Souter’s appointment as a chance to move the Supreme Court in a more conservative direction. Despite over ten years as a state and federal judge, Justice Souter’s written record on controversial constitutional issues was slim.

Justice Souter quickly dashed Republican hopes, siding most of the time with a view of the Constitution that failed to adhere to its original meaning. He is most known for co-authoring a plurality opinion in Planned Parenthood of Pennsylvania v. Casey, which held that a woman has a constitutional right to abortion up until the viability of her child. And Justice Souter retired at the relatively young age of 69 under President Barack Obama, allowing President Obama to appoint Justice Sonya Sotomayor to fill his seat.

One area of the law on which Justice Souter had appreciable influence was the Establishment Clause. That Clause provides that Congress shall not “establish a religion.” Originally viewed as forbidding Congress from setting up a national church, Justice Souter believed that the Establishment Clause was meant to forbid much more and to establish a high bar between church and state.

Justice Souter believed that religious symbols in public life were often unconstitutional because they manifested the government’s endorsement of religion. In his first Establishment Clause case, for instance, Justice Souter joined an opinion holding that prayer at a public high school graduation ceremony was unconstitutional. And Justice Souter wrote the Court’s opinion holding that a display of the Ten Commandments in two Kentucky courthouses violated the Establishment Clause.

In a position now seen as radical, Justice Souter thought that any public support for religion violates the Establishment Clause. He dissented in the Supreme Court’s landmark decision in Zelman v. Simmons-Harris, which upheld a school voucher program for Ohio families in failing public schools. Even though parents freely chose where to send their children to school, Justice Souter believed the program violated the Establishment Clause because parents could choose a religious education. And in a case challenging President George W. Bush’s faith-based initiative—which allowed such organizations to participate in public programs on equal terms with secular organizations—Justice Souter authored an individual opinion arguing that the spending of any public money in aid of religion violates freedom of conscience. Taken to its logical end, this would mean that churches could not be served by public roads or police stations.

Worse, Justice Souter’s view of the Establishment Clause would have resulted in the exclusion of religious people and organizations from public life. In Rosenberger v. Rector and Visitors of the University of Virginia, Justice Souter would have held that a student-run Christian magazine at the University of Virginia could be denied funding available to other student-run publications simply because of its faith. In Rosenberger, the Supreme Court majority refused to sanction such discrimination against religion. And the Supreme Court has since clarified that the Constitution does not allow the exclusion of religious people simply because of their faith.

On the other hand, Justice Souter did suggest that the Supreme Court’s decision in Employment Division v. Smith was wrong. In that case, the Supreme Court held that a neutral law that applies to everyone, including religious observants, does not violate the Free Exercise Clause. This reading largely nullifies the First Amendment’s command that Congress shall make no law “prohibiting the free exercise” of religion. Say Congress reenacted prohibition. Under the Supreme Court’s decision in Smith, Congress could prohibit wine for communion purposes, too. The Supreme Court has since lessened the impact of Smith, finding that most laws have some sort of exception and thus do not generally apply to everyone. But the Supreme Court has yet to take Justice Souter’s suggestion (echoed by many other justices and commentators) and reconsider that decision.

Justice Souter never really took to life in Washington D.C. He once told a friend that he had the world’s best job in the world’s worst city. A voracious reader, Justice Souter devoured history books and attributed his love for reading in part to “a desire for escapism, as I look out at the nation and world with little optimism.” This rather depressing viewpoint seems reflected in Justice Souter’s most famous (or infamous, depending on your point of view) case upholding a constitutional right to abortion. That opinion painted a bleak picture of motherhood. It pitted women against their unborn children, positing that women’s social and economic equality depended on their ability to obtain an abortion. To be sure, that represents a worldview with little optimism. And yet as Christians we know that however difficult the circumstances there is always a reason for hope in Jesus Christ, the one who gave dignity, hope, and worth to all.