The Volokh Conspiracy team was kind enough to let me blog this week about a recent short paper of mine, "Justice Breyer and the Establishment Clause." In this final post, I will discuss what, in my view, is the justice's signature contribution to the law-and-religion conversation, namely, his claims that the Establishment Clause's primary purpose was is the avoidance of "political divisiveness along religious lines" and that church-state disputes should be decided by unelected judges in ways that, they hope will promote this purpose.
Justice Breyer's emphasis on the judicial management of strife, and his view that judges are authorized to invalidate actions of political actors that are predicted to have excessive potential for conflict-creation, animated his final Religion Clauses opinion, a 2022 dissent in Carson v. Makin. This view, though, is mistaken. I should confess, though, that I argued as much 17 years ago in an overlong and excessively annotated article that, it appears, did not convince the justice. "That concerns about 'political division along religious lines' are real and reasonable," I wrote, "does not mean that they can or should supply the enforceable content of the First Amendment's prohibition on establishments of religion":
Those who crafted our Constitution believed that both authentic freedom and effective government could and should be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well.
