See Part 1
To delve a bit deeper into The Burger Court and the Rise of the Judicial Right, the forthcoming book co-authored by law professor Michael J. Graetz and legal commentator Linda Greenhouse, I’ll offer some observations on their chapter on the Burger Court’s religion decisions (“A Religious People’s Court”):
1. Graetz and Greenhouse posit that the Establishment Clause and the Free Exercise Clause are “in an inherent tension.” Such a claim implicitly rests on some understanding of how to discern constitutional meaning, but Graetz and Greenhouse eschew any constitutional methodology. “Constitutional doctrine alone,” they assert, “provides no hard-and-fast answers” to the supposed tensions between the two clauses. Might that mean that the doctrine they invoke is wrong? Never considering that possibility, they instead say that the “answers” to these constitutional questions somehow “come from society, from a dynamic informed by politics and energized by the claims that highly motivated individuals and groups bring before judges.” The Supreme Court supposedly “has been a follower and not a leader in the ever-changing relationship between church and state in America,” and so was the Burger Court.
2. Graetz and Greenhouse assert that “questions of religious observance in the public schools [were] settled by the Warren Court as a matter of formal doctrine.” But if the Burger Court were really “carr[ying] out its own counterrevolution against the Warren Court,” why would it treat a decade-old ruling as having “settled” anything?
3. Graetz and Greenhouse launch a vehement attack on the Court’s 1972 ruling in Wisconsin v. Yoder. In that case, the Court ruled by a 6-1 vote that the Free Exercise Clause protected Amish believers from being punished for refusing to comply with a state law that required parents to send their children to school until age 16. Graetz and Greenhouse claim that Wisconsin v. Yoder “established the court’s high water mark” for Free Exercise rights, and they call it “one of the strangest and, in its posture of extreme deference toward believers’ claim to favored treatment, one of the most problematic” Free Exercise rulings.
Although they don’t see fit to highlight the fact, the great liberal icons William Brennan and Thurgood Marshall were part of the majority in Wisconsin v. Yoder. Further, far from setting a new “high water mark,” the ruling applies the Free Exercise standard that Brennan set forth nine years earlier in Sherbert v. Verner (1963)—yes, including the “compelling interest” test that Graetz and Greenhouse mislead the reader into thinking that Burger invented.
Graetz and Greenhouse similarly cite the Court’s 8-1 ruling in Thomas v. Review Board (1981) as supposed evidence of religion’s “favored place in the Burger Court.” They again fail to note, for the benefit of the general reader, that those notorious theocrats Brennan and Marshall were among those who joined Burger’s majority opinion.
For those familiar with Greenhouse’s barrage of (misguided) attacks on religious-liberty challenges to the HHS mandate on contraception (both in Hobby Lobby and in the more recent Little Sisters cases), it is difficult to resist the conclusion that her current agenda badly warps this chapter. (The fact that the federal Religious Freedom Restoration Act—the basis for the challenges to the HHS mandate—explicitly states that its purpose is “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder” (citations omitted; italics added) shows the incoherence of her attacks.)