Sunday, February 2, 2014

Breyer on Religious Freedoms

By Patrick Kennedy
Patrick Kennedy, a third year law student at Albany Law School, graduated from the College of Saint Rose in 2011 with a Bachelor's Degree in History and Political Science and a minor in Philosophy. Patrick is interested in New York State politics and government, having interned with the New York State Executive Chamber while in law school. Previously, Patrick interned with the NYS Division of Criminal Justice Services, in the Offices of Assemblyman Phil Boyle and Congressman Paul Tonko, and with the New York City Office of State Legislative Affairs.
This essay on Supreme Court Justice Stephen G. Breyer's treatment of religious liberty was prepared for Prof. Bonventre's Judicial Process seminar, Fall 2013.

Despite the United States’ vast diversity, public opinion of politically, culturally, and socially charged issues divides on fairly consistent fault lines.  Examples in this endless culture war include issues that touch on race, gender, equality, privacy, or the role of the federal government.  These rifts are seen not only in public opinion polls, but also in the politicians we elect, and even in the opinions of the Supreme Court, which we like to fantasize as beyond the realm of politics.

While the passage of time may erode certain outdated points of view on many issues, the split in public opinion regarding religious freedom has seen decades of back-and-forth.  These battles have percolated into the Supreme Court’s decisions, which amount to a microcosm of the culture war represented by a series of holdings and case law nothing short of schizophrenic.

The inconsistencies in the Court’s opinions stem from the fact that, rather than being based on solid, uncontestable legal theories, the articulable rules that guide these cases are the result of flimsy majorities and pluralities made up of widely disparate viewpoints of justices who agree on little aside from the end-result of a given case.  These viewpoints shift as old justices retire and new justices with different political views replace them.

Each justice has his or her own individual viewpoint that helps shape decisions. This paper will focus on selected opinions of pragmatic Justice Stephen Breyer.
To read the paper, open HERE.