Sandra Day O’Connor’s religious freedom legacy

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The first female justice on the U.S. Supreme Court, Sandra Day O’Connor, will be remembered for her history-making career, her efforts to broker legal compromises and her many memorable religion-related rulings.

OK, I admit the religion rulings are pretty far down the list of what comes to the average American’s mind when you talk about O’Connor. But this newsletter is not for the average American. It’s for people who seek out news on faith and the law.

And so, in this newsletter, it’s only right to talk about how O’Connor shaped the court’s approach to the First Amendment’s religion clauses in both large and small ways.

During her nearly quarter century on the Supreme Court bench, she refined faith-related funding rules, changed how the court assessed religious displays on public property and helped prompt Congress to pass one of the most important religious freedom laws in recent history.

Many of O’Connor’s faith-related achievements stem from the fact that, throughout her Supreme Court career, she was a swing vote. She moved back and forth between the group of conservative justices and the group of liberal ones, trying to find common ground and choosing a side when compromise wasn’t possible.

It’s thanks, in part, to this habit of O’Connor’s that the court came to allow more government funding to flow to faith groups even as it reduced government entanglement with religion in other settings, according to Doug Laycock, a professor of law emeritus at the University of Virginia.

“She and Justice Kennedy held the swing votes for years, and they preserved an important distinction between money and speech. Government could send money to religious institutions to perform secular functions, like providing education or social services. But it could not lead prayers or religious observances. The right wing of the Court wanted both; the left wing wanted neither. Kennedy and O’Connor made a majority for either side,” he told me in an email.

As Laycock noted, O’Connor joined the majority in cases that enabled public money to go to private, religious schools. Those decisions stood out to Richard Garnett, a professor of law and political science at the University of Notre Dame, when I asked him to reflect on O’Connor’s religious freedom legacy in an email.

“She was a consistent vote ... for the principle that the Establishment Clause does not require education-funding programs to discriminate against parents who choose religious schools for their children. She was, in other words, a key player in one of the more significant First Amendment developments of the last 50 years,” he said.

O’Connor, as well as Kennedy, seemed to feel that the government could find a way to give all faith groups equal access to funds and, in that way, avoid unlawful favoritism, Laycock said. But in the context of religious displays or religious expression, it’s much harder for officials to treat all religions equally.

“Government could not pray evenhandedly. It had to pray in some particular form. And whether it went for mushy ecumenism, or an evangelical tone, or prayers straight out of the Catholic missal, or any other choice, it was making choices. It would offer one style of prayer as the model, preferred over all the alternatives,” Laycock said.

In general, O’Connor worked to protect Americans of all faiths and no faith from the negative consequences of excessive government entanglement with religion, said Christine Ryan, associate director for religion and reproductive rights for the Law, Rights and Religion Project at Columbia Law School.

“Justice O’ Connor interpreted the First Amendment in terms of its underlying purpose — protecting citizens from the disabilities or discriminations that arise when the State privileges religion or particular religions. She truly understood that preventing excessive Church-State entanglement was necessary to protect both the equality and religious liberty of persons belonging to all religious sects and none,” Ryan said.

In cases dealing with religious displays on public property (think Ten Commandments monuments or a Nativity scene on a courthouse lawn), O’Connor famously put forward a concept called the “endorsement test,” which was meant to help judges assess whether a religious display was improper.

The test focuses on a “reasonable, informed observer” and asks whether such an observer would conclude after viewing the religious display in question that the government was improperly endorsing religion.

“The test was controversial, because it often seemed to depend on judges’ subjective judgments and impressions,” Garnett said.

I wrote about the endorsement test — and its critics — back in 2019 as I covered the Bladensburg cross case.

O’Connor also played an interesting role in the controversial Employment Division v. Smith ruling that led Congress to pass the Religious Freedom Restoration Act.

In concurring with Justice Antonin Scalia’s majority opinion, which weakened the protections offered by the free exercise clause, she took issue with how the majority came to its decision, not the decision itself.

“She still would have reached the same result,” Laycock said.

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Term of the week: COP28

COP28 is the common name for the United Nation’s 28th annual Conference of the Parties. The parties, in this case, are countries that agreed to be part of the U.N.’s climate agreement back in 1992, according to the BBC.

COP28 kicked off last week in Dubai and will last until Dec. 12. Participants are discussing a range of environmental issues, from greenhouse gas emissions to the gap between climate action in richer countries and in poorer countries.

Pope Francis, who regularly advocates for caring for the environment, as I’ve previously reported, was supposed to travel to the conference and deliver remarks, but he had to cancel his trip due to a lung infection. The Vatican secretary of state read the pope’s prepared remarks in his absence.

“In the remarks read by Cardinal (Pietro) Parolin, Francis emphasized the human causes of global warming, but he added a moral critique of the consumerism, selfishness and capitalist profit motives that he views as the true root of the problem,” The New York Times reported.

What I’m reading ...

Artificial intelligence has the potential to radically reform our lives, including the way we interpret the Bible. But before we invite a computer to our scripture study, we need to think about what’s lost when we do. “We too can ask ChatGPT all the right questions, apply all the right digital tools, and still miss the whole picture of the gospel — a radical and compelling message that has been preserved and handed down through generations of the people of God,” writes scholar Kaitlyn Schiess for Christianity Today.

Former Cherokee Nation chief Wilma Mankiller has been honored with a Barbie doll as part of the brand’s “Inspiring Women” series. But the doll’s design is controversial, according to The Associated Press. While many Cherokee Nation leaders are pleased to see Mattel put a spotlight on Mankiller’s legacy, some are questioning why the tribe didn’t have a chance to ask for changes to inaccurate design elements, like a symbol that’s supposed to represent “Cherokee” but actually translates to “chicken.”

The hymn “Amazing Grace” turns 250 this year. Back in October, Religion News Service interviewed James Walvin, author of a book on the song, about what he learned from listening to thousands of performances of it.

Odds and ends

Yale Divinity School announced last week that it will cover tuition costs for all students with demonstrated need. But a social media post about the good news made it seem like the school would actually be covering tuition costs for demons.

Ever wonder how the kids who compete in the Scripps National Spelling Bee learn all those words? Dev Shah, this year’s winner, wrote about his approach to studying for The Washington Post.

Correction: The original version of this article said that Justice Sandra Day O’Connor filed a dissenting opinion in the Employment Division v. Smith case. She filed a concurring opinion, in which she laid out a different way to reach the same decision.