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Justice John Paul Stevens

Justice John Paul Stevens, who passed away last week at 99, had a celebrated 35-year career on the Supreme Court. All agree that he was a brilliant jurist, an amiable and congenial person, warm to his law clerks, extremely polite towards lawyers appearing before him, and cordial to all.

I appeared in the Supreme Court several times to argue religious liberty cases when Justice Stevens was on the bench. One case involved the right to wear a yarmulke with a military uniform. In another case I (together with then-Attorney General of Connecticut Joseph Lieberman) defended the right of a Presbyterian to be excused from work on Sundays under a Connecticut law that protected anyone “who states that a particular day of the week is observed as his Sabbath.”

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In Stevens’ second year on the Court, I argued on behalf of a TWA employee who sought a religious accommodation under federal law to enable him to observe the Sabbath. Another case I argued tested the constitutionality of a New York law that funded a separate school for handicapped children in the Satmar village of Kiryas Joel.

Stevens voted against accommodation to religious observance on each occasion. In the yarmulke case, his was the deciding fifth vote joining an opinion written by Justice (later to become Chief Justice) William Rehnquist rejecting our constitutional claim that the military had to permit an Air Force psychologist to wear a kippah.

Much as I respected Justice Stevens, I never understood his apparent hostility to government accommodation for religious observance. During his many years on the Court, he hired two shomrei Shabbat law clerks, and no one ever suggested he had a prejudiced bone in his body.

Nonetheless, he wrote brief concurring opinions in some of the religious-liberty cases that came before him that were shocking. For example, rather than respecting Satmar parents for transmitting religious values to their children (the Supreme Court had, years before, protected the rights of parents to send their children to private schools), he authored a separate opinion in the Kiryas Joel case condemning the New York law as unconstitutional because it “affirmatively supports a religious sect’s interest in segregating itself and preventing its children from associating with their neighbors.”

This “isolation,” he said, “unquestionably increased the likelihood that they would remain within the fold, faithful adherents of their parents’ religious faith.” Such “official support to cement the attachment of young adherents to a particular faith” was, in his view, “establishing, rather than merely accommodating, religion.”

Would he, on this same reasoning, have barred any form of government support, no matter how minimal or even-handed, to Jewish day schools because they “cement the attachment of young adherents to a particular faith?”

In a landmark decision rejecting the constitutional claim of Native Americans who were fired from their jobs for ingesting peyote in a religious ceremony (a case in which I was not involved), Stevens was the fifth vote against religious accommodation. After Congress passed the Religious Freedom Restoration Act to blunt the impact of that terrible decision, Justice Stevens was one of six Justices who declared the law unconstitutional.

His separate short opinion was more extreme than Justice Anthony Kennedy’s majority decision. Stevens said that it was an unconstitutional law “respecting an establishment of religion” because it “provided the Church with a legal weapon that no atheist or agnostic can obtain.”

When I argued in 1989 that displaying Chabad’s Pittsburgh menorah in front of city hall was constitutional, Justice Stevens voted, as I expected, against me. He joined the Court’s extreme liberals – Justices Brennan and Marshall – who thought the Pittsburgh display violated the First Amendment’s Establishment Clause.

The following year, Pittsburgh – under a new Jewish mayor affiliated with the American Jewish Congress – tried to prohibit the menorah. The federal court of appeals overruled a District Judge’s decision that Pittsburgh had to display the menorah. The only route by which the menorah display could be preserved was by appealing to the Supreme Court Justice with jurisdiction over Pennsylvania.

The Justice assigned to hear emergency applications coming from Pennsylvania was William J. Brennan, who had said in dissent a year earlier that the menorah violated the First Amendment. Nonetheless, I applied to Justice Brennan on behalf of Chabad, claiming that Chabad’s free speech was being denied.

Justice Brennan issued a last-minute order on a Friday afternoon – just hours before the first Chanukah candle was to be lit – overruling the lower-court decision and allowing the menorah to go up.

Pittsburgh’s mayor tried immediately to have the full Supreme Court overrule Brennan and bar the menorah. Six Justices supported Brennan and permitted the Pittsburgh menorah to remain. Justice Stevens was one of three dissenters who noted they disagreed with Brennan.

That amazing scenario was repeated in Cincinnati in 2002, But this time Justice Stevens was the hero who saved the Chanukah menorah display. The city tried to keep the Chabad menorah out of Fountain Square by passing an ordinance that closed the Square to private displays during the last two weeks of November, all of December, and the first week of January. A federal District Judge held that Cincinnati’s ordinance was an unconstitutional restriction on speech.

The Court of Appeals, however, stayed the District Court order, and I was asked by Chabad, on the eve of Chanukah, to apply to the Supreme Court Justice assigned to Ohio. The Justice who had jurisdiction over Ohio was Stevens. Having been burned by his votes over past years and knowing that he even disagreed with Justice Brennan’s 1989 order, I was not optimistic when I took on the task.

That year, once again, the first Chanukah candle was to be lit on Friday just before Shabbat. On Friday morning, I filed Chabad’s application to overrule the Court of Appeals’ stay with Stevens, and the city responded promptly with an opposition. To my surprise, on the afternoon of Friday, November 29, 2002, Justice Stevens issued a one-paragraph decision vacating the stay. Chabad’s menorah was displayed that year (and ever since) on Chanukah in Fountain Square.

Thanks to Justice John Paul Stevens.

Stevens also demonstrated accommodation to religious observance in 1995. It was the second year the Supreme Court had two Jewish Justices – Ruth Bader Ginsburg and Stephen Breyer. The Court opens its term on the first Monday of October and usually sits to hear arguments in the two weeks following that Monday.

In 1993 and 1994, Yom Kippur was in September and did not conflict with the Court’s schedule. But Wednesday, October 4, 1995, was Yom Kippur, and the Supreme Court’s Clerk initially scheduled oral arguments for that day.

I was a regular at the Supreme Court in those days. I presented two oral arguments in the Court’s March 1994 session, one of which was rescheduled at my request so as not to conflict with Passover. I was told by Supreme Court insiders that Justices Ginsburg and Breyer had asked Chief Justice Rehnquist to postpone the oral arguments scheduled for Yom Kippur out of respect for its two Jewish members.

Rehnquist was not a friend of religious accommodation, as had been demonstrated by his authorship of the opinion rejecting the right to wear a yarmulke in the military. He turned down their request, telling Justices Ginsburg and Breyer that if they were absent on Yom Kippur they could still, under the Court’s precedents, vote on the cases heard that day after listening to the tapes of the oral arguments.

Soon thereafter, however, Rehnquist informed the other Justices that he would not be sitting on Wednesday, October 4, because he had to undergo urgent surgery. According to reports I heard then, Ginsburg and Brennan took their request for postponement of the arguments scheduled for Yom Kippur to the most senior Justice who would be serving as Chief Justice for the day when Rehnquist would be absent. That was Justice John Paul Stevens.

Stevens agreed to call off the arguments scheduled for Wednesday, October 4, 1995. And ever since 1995, the Supreme Court has not sat to hear oral arguments on Yom Kippur. This year, Yom Kippur will be on Wednesday, October 9. With the present complement of three Jewish Justices (now including Justice Elena Kagan), it’s a pretty sure bet that there will be no Supreme Court oral argument on that day.

Thanks to Justice John Paul Stevens.

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Nathan Lewin is a Washington lawyer who specializes in white-collar criminal defense and in Supreme Court litigation.