Justice Ginsburg and Religious Liberty

John D. Inazu

Volume 63, Issue 5, 1213-1242

Justice Ginsburg has left an important mark on many areas of the Supreme Court’s jurisprudence, but she has written relatively little in the area of religion. This relatively small footprint increased significantly in the opinion that she wrote in the Court’s 2010 decision in Christian Legal Society v. Martinez. This Article examines three strands of Justice Ginsburg’s jurisprudence leading up to that opinion: religion, government funding of expression, and equality. It first traces Justice Ginsburg’s religious liberty views through four facets of her legal career: her role as an advocate, her opinions on the D.C. Circuit, her Supreme Court nomination testimony, and her opinions and votes on the Supreme Court. It turns next to her views about government funding of expression. It then examines Justice Ginsburg’s long-standing commitment to principles of equality. Finally, it considers the interplay of these three strands in Martinez and offers three observations. First, because Martinez pitted religious liberty against liberal equality, it forced Justice Ginsburg to make a choice that prioritized one over the other and may have caused her to overlook some of the religious dimensions of the case. Second, Justice Ginsburg’s previous views about government funding of speech should have caused her greater concern over the implications of unconstitutional conditions in this case. Third, Martinez skirted the preceding tensions, relying instead on doctrinal intricacies that detracted from the core issues raised in this case.

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