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O’Connor a maverick on First Amendment cases

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — Supreme Court Justice Sandra Day O’Connor’s last statement about the First Amendment may have been her best: “We do not count heads before enforcing the First Amendment.”

That declaration came June 27 in O’Connor’s concurring opinion in McCreary County v. ACLU of Kentucky. O’Connor was explaining, probably in response to Justice Antonin Scalia, why it did not matter that a very large percentage of Americans believe in the divine provenance of the Ten Commandments, and why it was inappropriate for government to display the Ten Commandments on public property.

The religion clauses of the First Amendment, she continued, “protect adherents of all religions, as well as those who believe in no religion at all.” And that was a good thing, she said, especially “at a time when we see around the world the violent consequences of the assumption of religious authority by government.”

When she offered those comments, no one knew that a few days later she would announce her retirement after 24 years on the Supreme Court — years in which she was an unpredictable yet crucial vote on First Amendment issues, especially on the establishment and free-exercise religion clauses.

Because of her decisive role, Court-watchers are already tallying up the doctrines and decisions in which her absence will be most felt, depending, of course, on who replaces her. Among the issues up for grabs and possible reversal on the First Amendment front are decisions like McConnell v. Federal Election Commission upholding campaign-finance regulations, and those like the McCreary decision disapproving of government accommodations of religion. She was also the swing vote in Zelman v. Simmons-Harris, approving the use of school vouchers for needy children attending parochial schools.

“The resignation of Justice O’Connor creates a pivotal shift on the Supreme Court,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, which argues for religious liberty and freedom of speech for religious adherents. “Justice O’Connor has represented the swing vote in determining the outcome of many of the most important decisions over the past decade.”

O’Connor’s anti-Ten Commandments vote in the McCreary case and in the companion Texas case Van Orden v. Perry seemed to epitomize why religious conservatives have grown frustrated with O’Connor over the years.

“We have a living Constitution, her name is Sandra Day O’Connor and thank God she’s retiring,” said Kevin Hasson, the usually more soft-spoken founder of the Becket Fund for Religious Liberty. “Her approach to religion-law questions made everything a matter of what an imaginary, objective observer would think. But there was no way to know what this imaginary person would think, until Justice O’Connor imagined it.”

Thus, O’Connor ruled in favor of school vouchers (Zelman) and a federal program that provided computers to public and parochial schools alike (Mitchell v. Helms) and she approved distributing public university student fees to fund a religious student newspaper (Rosenberger v. University of Virginia). But O’Connor also voted against prayer at public school graduations (Lee v. Weisman) and at public school football games (Santa Fe Independent School District v. Doe.)

O’Connor tried to advance an “endorsement test” as a way of deciding establishment clause cases that could replace the three-prong “Lemon test” derived from the 1971 case Lemon v. Kurtzman. “Endorsement,” she said in Lynch v. Donnelly in 1984, “sends a message to nonadherents 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.” The test has proved useful in some cases.

On the free-exercise clause, O’Connor agreed with the conclusion of Employment Division v. Smith II, namely that drug laws could be used to prohibit the religious use of peyote. But she said in City of Boerne v. Flores that Smith had been wrongly decided.

O’Connor seemed to know her seeming inconsistencies were frustrating to people seeking clear lines and guidance. “The need for careful judgment and fine distinctions presents itself even in extreme cases,” O’Connor wrote in Rosenberger. “When bedrock principles collide, they test the limits of categorical obstinacy and expose the flaws and dangers of a Grand Unified Theory that may turn out to be neither grand nor unified.”

Barry Lynn, executive director of Americans United for  Separation of Church and State, said after she announced her retirement, “O’Connor was a conservative, but she saw the complexity of church-state issues and tried to choose a course that respected the country’s religious diversity.”

O’Connor did not make as much of a mark on free-press or free-speech issues.

In Reno v. ACLU, which declared the Internet to be a communications medium protected by the First Amendment, O’Connor dissented in part, offering the novel view that Congress could create “adult zones” on the Internet, akin to a zoning district that allows adult-only businesses to exist.

But perhaps the biggest impact on the First Amendment caused by O’Connor’s departure could come in the area of campaign-finance regulation. O’Connor co-authored, along with Justice John Paul Stevens, the key parts of McConnell v. FEC, the 2003 ruling that upheld the Bipartisan Campaign Reform Act.

With O’Connor gone, says Rick Hasen of Loyola Law School in Los Angeles, the Court could continue its drift toward opposing limits on campaign contributions. Justice Clarence Thomas, joined by Justices Antonin Scalia and Anthony Kennedy and, to a lesser extent Chief Justice William Rehnquist, have been heading that way in other decisions. Hasen says that if President Bush replaces O’Connor with someone in the Scalia or Thomas mold, the nation could return to “a campaign finance regime where anyone — person, corporation or union — could give unlimited sums to candidates.” If that occurred, Hasen says, “the only campaign-finance laws that likely would remain constitutional would be disclosure laws.”

Campaign reform is not as likely to come up during confirmation hearings on a successor to O’Connor as are issues relating to the separation of church and state. But O’Connor’s nuanced and difficult-to-predict principles on First Amendment issues showed how important a single justice’s position can be, how it can evolve, and how hard O’Connor worked to reach the right result in each case.

In her 2003 book The Majesty of the Law, O’Connor made it clear that she thought the job of interpreting the Bill of Rights, including the First Amendment, was meant by the framers to be an ever-changing work in progress.

“The Bill of Rights was drafted intentionally in broad, sweeping terms, allowing meaning to be developed in response to changing times and current problems,” O’Connor wrote. “In many ways, the Bill of Rights is like a novel by Faulkner or a painting by Monet: it does not change, but our understanding and perception of it may.”


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