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Tipping The Balance

Tipping The BalanceOne Tufts political science professor believes that outgoing Supreme Court Justice Sandra Day O’Connor leaves behind a hostile judicial legacy toward religion.

Medford/Somerville, Mass. [07.15.05] The retirement of Supreme Court Justice Sandra Day O’Connor will without a doubt cause a significant reshaping of the Court’s judicial philosophy. According to Tufts political science professor Philip Muņoz, her departure will sway the court more positively toward the endorsement of religion by the government.

“O’Connor’s attentiveness to the emotional well-being of all citizens may be well intentioned, but her approach to church-state disputes has lent itself to decisions that are hostile to religion,” he wrote in The National Review.

Muņoz, who recently came to Tufts from North Carolina State University, has written widely about issues of religious liberty, including testimony before the Senate Judiciary Committee on the topic of “Religion in the Public Square.” He is currently working on a book about religious freedom and the nation’s founders.

In his op-ed column, Muņoz cited two recent Supreme Court decisions concerning displays of the Ten Commandments at courthouses, which O’Connor voted as being unconstitutional both times.

This voting behavior, contends Muņoz, “is consistent with her position that the government may not ‘endorse’ religion in ways that make non-believers or adherents of minority faiths feel like ‘outsiders’ in the political community.”

Though O’Connor is just one of nine justices, and both of those cases were decided by 5-4 votes, Muņoz says that the retiring justice’s influence was key.

“Despite its lack of textual support (the First Amendment prohibits laws ‘respecting an establishment’ of religion; it says nothing about ‘endorsement’ or the feelings of certain citizens), O’Connor’s endorsement test has effectively become the law of the land because she frequently holds the Court’s tie-breaking vote in Establishment Clause cases,” he wrote.

He also argues that lower court cases and other civic entities – including a 9th Circuit Court case ruling the words “under God” in the Pledge of Allegiance unconstitutional and city halls determining guidelines for Christmas and Hanukkah public displays – rely on O’Connor’s judgment for guidance.

“Most problematic, the endorsement test lacks the consistency and predictability necessary for the rule of law. What constitutes an ‘endorsement’ of religion is inherently indeterminate. The approach necessarily elevates judicial will over rule-based judgment,” said Muņoz.

He also believes that rulings such as these can buoy special-interest groups such as the ACLU, who lobby for the enforced separation of church and state.

“Several high-school principals, for example, have found it easier to capitulate to demands that student graduation speakers not mention religion than be sued and drawn into expensive and protracted litigation,” wrote Muņoz. “Armed with the ambiguity of the endorsement test, anti-religious activists are emboldened in their battle to purge every remnant of religion from the public square.”

According to Muņoz, with O’Connor’s departure, “the Court now has only four members, at most, who think that the Constitution prohibits government endorsement of religion.” As President Bush considers her replacement, Muņoz says that the nominee’s attitude toward religion should be a litmus test.

“Those in the White House and Senate who lament the judiciary’s hostility toward religion ought to ask every nominee to explain his opinion of O’Connor’s religion jurisprudence,” he wrote. “If the nominee indicates support for O’Connor’s endorsement test, the nominee should not be endorsed.”

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