Writing on the “On Faith” blog of the Washington Post, Georgetown University professor of government Michael Kessler asserts that the Supreme Court is losing a “big defender of religious freedom” with the impending retirement of David Souter:
Souter may be best known for his razor-sharp majority opinion in the Ten Commandments case McCreary County v. ACLU, 545 U.S. 844 (2005). McCreary County had posted the Ten Commandments, first on its own, then in two subsequent displays with other historical documents, meant to soften the religious intent of the display…. The record was fairly clear that the legislation requiring the displays was originally intended to promote a sectarian endorsement of the Ten Commandments….
Souter’s opinion, besides cutting to the heart of the endorsement problem, argued persuasively on historical grounds that the twin prongs of the First Amendment’s religion clauses — establishment and free exercise — were intended to protect individual religious freedom: “The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate; nothing does a better job of roiling society.”
Against Justice Scalia’s dissenting view that government could… endorse basic tenets of monotheism, Souter argued that the Founders practiced and required neutrality. Without official neutrality on matters of doctrine, the government becomes embroiled in sectarian disputes, choosing some sectarian positions over others: “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual.”
It’s worth reading the whole post. And it’s worth reflecting on how Republicans like Souter who live in New England are very different from the Republican “base” in other parts of the country: good solid fiscal conservatives with a strong libertarian streak when it comes to social issues. If you went into most Unitarian churches in New England even forrty years ago, chances are the great majority of the churchgoers would have been Republicans.