Strengthening Constitutional Self-Government

No Left Turns

Religion and the Supremes

Jeffrey Rosen in TNR suggests that Michael McConnell shares a "moderate" approach to the First Amendment religion clauses with Sandra Day O’Connor. If true, it might be enough to shut me up.

Here’s the offending passage:

In the Ten Commandments case, social-conservative organizations are urging the Court to abandon O’Connor’s focus on neutrality and instead ask whether a particular display coerces religious belief. They cite the opinions of Rehnquist, Scalia, and Thomas, who have argued that government should be free to promote religion in general, as long as it doesn’t discriminate among religions. And they agree with those three that a focus on coercion would allow the government to resurrect voluntary school prayer and to post the Ten Commandments in courtrooms or schools.

But Rehnquist, Scalia, and Thomas’s view is historically questionable. It has been explicitly challenged by Judge Michael McConnell of the 10th Circuit Court of Appeals, the leading conservative scholar of religious liberty, whose potential Supreme Court candidacy is being enthusiastically championed by social conservatives. In 1992, McConnell argued that the best historical evidence refuted Rehnquist’s claim that the framers of the Constitution believed that the federal government could aid religion as long as it did so ecumenically. Moreover, it was McConnell who, in 1986, proposed an emphasis on coercion as the touchstone of religious freedom--a proposal that Rehnquist, Scalia, and Thomas later embraced. But, as Douglas Laycock of the University of Texas puts it, "McConnell’s vision of coercion is vastly more nuanced than Rehnquist and Scalia’s." McConnell, for example, disagrees with Rehnquist, Scalia, and Thomas that the First Amendment allows school prayer. "It is vital to understand the concept of coercion broadly and realistically," he wrote in 1992. "I would have thought that gathering a captive audience is a classic example of coercion; participation is hardly voluntary if the cost of avoiding the prayer is to miss one’s graduation." How McConnell would rule on the display of the Ten Commandments by Kentucky and Texas is hard to guess. But McConnell’s willingness to struggle with hard questions involving public acknowledgment of religion shows that his commitment to neutrality is genuine. It’s not a strategic compromise on the path toward a larger goal of an openly religious state.

The moderate position sketched by O’Connor and McConnell [huh?] is especially important in a post-September 11 world.

But even a "nuanced" position on coercion doesn’t amount to O’Connor’s endorsement test. If establishment means coercion, then neither Ten Commandments display amounts to coercion. No one is compelled to look, nor is anyone compelled to try to divine what "the state" has in mind in arranging or permitting the display.

What Rosen succeeds in doing is showing that any effort to follow a line of thinking ascribable to O’Connor will yield any combination of possible results in the two cases before the Court. She has no principle; McConnell does have a principle. They’re not the same, though if liberals like Rosen regard McConnell as a moderate, I suppose that this is good for his confirmation chances.

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