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"Justice O'Connor's Final Defense"--A Commentary by Prof. Jack Balkin


(This essay was originally published in the July 8, 2005, edition of the Hartford Courant.)

Justice O'Connor's Final Defense
By Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment

Justice Sandra Day O'Connor's concurrence in the Ten Commandments case is one of her last Supreme Court opinions and her last public statement on the Constitution and religion. It is her farewell address: short, eloquent and with a message of warning for the years ahead. It is a warning well worth heeding as we enter a particularly difficult time for our republic.

The Founders, Justice O'Connor explained, sought to "preserv[e] religious liberty to the fullest extent possible in a pluralistic society." They were familiar with the battles among different Christian sects; they well understood the dangers of growing religious division and intolerance in a society of different peoples. "When we see around the world the violent consequences of the assumption of religious authority by government," Justice O'Connor noted, "Americans may count themselves fortunate."

She noted pointedly: "Those who would renegotiate the boundaries between church and state" should ask themselves this question: "Why would we trade a system that has served us so well for one that has served others so poorly?"

Twenty years earlier, Justice O'Connor had argued that the Establishment Clause helped preserve the equality of all citizens. Government may not "mak[e] adherence to a religion relevant in any way to a person's standing in the political community." Endorsing a religious viewpoint "sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." That is not consistent with a government that respects all its citizens equally.

In her final opinion, Justice O'Connor argued that this principle of non-endorsement was necessary to preserve individual conscience. When government is made a mouthpiece for a particular religious belief, it distorts the natural competition between different religions that James Madison argued would be our country's greatest strength, and "it risks the sort of division that might easily spill over into suppression of rival beliefs."

Justice O'Connor was not worried that we will round up nonbelievers and throw them in jail. Her concern was far more subtle - that we will create a climate in which ambitious people who want to get ahead in public life must cloak their real religious views, or lack thereof, for fear that they will be thought deviant, untrustworthy or immoral. Members of majority faiths will no longer feel that they must accommodate or even understand religious minorities.

Nondenominational expressions of mainstream religious belief neither offend nor marginalize most Americans. But that is because they are mainstream. "We do not count heads before enforcing the First Amendment," Justice O'Connor explained. Majorities can usually take care of themselves; we should be more concerned about what they will do to minorities in the process.

Politicians always feel pressure to speak in ways that please the majority; if they can use government to endorse religion, they will enforce the sort of religion they think the majority of people in their constituency will like. Let politicians use religion to curry favor with voters, and they will wield it to maintain their coalitions and advance their personal ambitions. To gain power, and to keep it, they will divide our citizens and stoke their anger, imposing costs on our democracy that they won't have to pay. As a result, our public discourse will become more bitter and polarized, and political opponents will become more self-righteous and uncompromising, until they damage the foundations of good government and do things that we will all live to regret.

It is far better not to go down that road, Justice O'Connor warned us in her last opinion. Will we heed her words?


Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. His latest book is "What Roe vs. Wade Should Have Said," to be published in August by New York University Press.