Alan Brownstein (UC Davis Law) has posted a very thoughtful piece, Continuing the Constitutional Dialogue: A Discussion of Justice Stevens’ Establishment Clause and Free Exercise Jurisprudence (forthcoming Northwestern L. Rev.).  I generally tend to see things in this pocket of constitutional law a little differently than did Justice Stevens, and this piece by Alan is a very good intellectual reconstruction suggesting also some unresolved areas about Justice Stevens’s approach that merit further discussion.  Well worth reading.  The abstract follows.  — MOD

This article examines Justice John Paul Stevens’ religion clause jurisprudence from the perspective of a continuing dialogue about the meaning of the Free Exercise Clause and the Establishment Clause. The term continuing dialogue suggests that even for as formidable and long-tenured a jurist as Justice Stevens, important questions remain open and unresolved. The article identifies the values and concerns reflected in the many opinions Justice Stevens authored or joined. Then it moves beyond those writings to discuss unanswered questions about Justice Stevens’ understanding of the two religion clauses. In particular, the article explores potential dissonance between Justice Stevens’ contrasting interpretation of the Establishment Clause and Free Exercise Clause.With regard to Establishment Clause challenges to religious displays, for example, Justice Stevens expressed substantial concern for the status and sensibilities of religious minorities confronted with state sponsored symbols reflecting majoritarian religious beliefs. These messages had the tendency to divide communities along religious lines by affirming the beliefs of larger faiths while disfavoring religious minorities and nonbelievers. Religious sensibilities, however, may be just as offended by regulations interfering with religious as they are by preferential displays. Minority faiths may suffer a similar sense of alienation and unequal treatment when government adopts general laws that avoid burdening the religious practices of majority faiths while denying exemptions to minority religions whose practices are burdened by comparable legislation. Yet these status and sensibility concerns are seldom discussed by Justice Stevens in free exercise cases.

Also, Justice Stevens joined the majority opinion in Employment Division v. Smith, a decision that sharply restricted free exercise rights and assigned the problem of providing religious accommodations to the political branches of government. One key argument supporting the holding in Smith was the Court’s concern that judicial protection of free exercise rights would require federal judges to engage in subjective, value-based, ad hoc balancing of free exercise rights and competing state interests, a task that exceeded their competence and judicial role. Justice Stevens also believed, however, that the Court must exercise vigilant oversight over discretionary religious accommodations. To satisfy Establishment Clause requirements, the Court must determine that accommodations do not unfairly favor certain faiths over others, and do not extend so far that they impose an unacceptable burden on others. The open question here is whether this Establishment Clause task can be accomplished by federal courts without undertaking the same kind of subjective, value-based, ad hoc analysis the Court rejected in free exercise cases.