Americans United for Separation of Church and State President and CEO Rachel Laser issued the following statement in response to the news of the death of former Supreme Court Justice David Souter:
“We at Americans United mourn the loss of Justice David Souter, a champion of our Constitution’s promise of church-state separation. Both during his 19 years on the Supreme Court bench and afterward as a senior judge on the 1st U.S. Circuit Court of Appeals, Souter repeatedly recognized that forcing taxpayers to fund private, religious education and other religious activity violated their religious freedom.
Souter ruled for religious freedom in public schools, LGBTQ+ equality and abortion rights
“Souter fought to protect children from facing religious coercion in public schools. He understood that students and their families, not public schools, should decide if, when and how children engage with religion.
“He upheld the Roe v. Wade decision, affirming a constitutional right to abortion, and several times voted to uphold the rights of LGBTQ+ people – spurning the court’s ultra-conservatives and religious extremists who wanted the court to impose narrow religious beliefs on all Americans.
“Souter was a jurist who was guided by the law, not partisan inclinations. His much maligned judicial independence became a rallying cry for conservatives and Christian Nationalists to capture the court: ‘No more David Souters.’
“Justice David Souter refused to be put in an ideological box and instead ruled as the Constitution required. The bench could use more David Souters today.”
Justice David Souter’s church-state separation legacy
Church-state separation cases Souter ruled on include:
- Lee v. Weisman (1992) – Souter agreed that prayers at public school graduations violated the separation of church and state, and wrote a strong concurrence.
- Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Souter wrote the majority opinion which held that a homogenous religious enclave could not form a special public school district that would effectively be run as a religious public school.
- Rosenberger v. University of Virginia (1995) – The court held that a public university’s refusal to pay for a religious student newspaper out of the student-activities fund amounted to improper discrimination against a religious viewpoint. Souter wrote a dissent which argued that the university’s refusal to support religious activities was compelled by the separation of church and state.
- Agostini v. Felton (1997) – Souter dissented from the majority, arguing that even indirect state aid to religious institutions violated the Establishment Clause.
- Mitchell v. Helms (2000) – Souter dissented when the court held that the Establishment Clause was not violated by a program that provided loans to both secular and religious schools.
- Zelman v. Simmons-Harris (2002) – Souter again led the dissent when the court upheld a private-school-voucher program that resulted in state funds indirectly aiding religious schools. Souter argued that the program was barred by the Establishment Clause.
- McCreary County v. ACLU and Van Orden v. Perry (2005) – The court split on two Ten Commandments cases. In McCreary County v. ACLU of Kentucky, Souter wrote the majority opinion holding that a display of the Ten Commandments in a Kentucky courthouse violated the Establishment Clause. In Van Orden v. Perry, Souter dissented from the controlling plurality opinion that a display of the Ten Commandments on the grounds of the Texas Capitol did not violate the Establishment Clause because it had been there for a long time.
- Hein v. Freedom From Religion Foundation (2007) – The court curtailed taxpayers’ ability to challenge violations of church-state separation. Souter again wrote the dissent, arguing that taxpayers have standing to challenge Establishment Clause violations.
- Carson v. Makin (2020) – After his retirement from the Supreme Court, as a senior judge Souter was part of a 1st U.S. Circuit Court of Appeals panel that ruled religious freedom protections in Maine’s Constitution meant religious private schools could be excluded from a taxpayer-funded private school tuition program. (The U.S. Supreme Court later reversed the 1st Circuit’s opinion.)
