Justice Blackmun’s legacy lives on in church-state, commercial-speech decisions

Friday, March 5, 1999

Justice Harry B...
Justice Harry Blackmun

Justice Harry Blackmun will be remembered most for his majority opinion in
the 1973 case Roe v. Wade, which declared a woman’s right to abortion.
But Blackmun, who died early yesterday morning at the age of 90, also compiled
a formidable record of decision-making on the First Amendment, decisions that
will have impact for decades to come.

His most prominent First Amendment legacy was made in two areas that are
still somewhat unsettled, but where Blackmun’s decisions inform the debate:
commercial speech and the separation of church and state.

Blackmun’s jurisprudence on church-state relations shifted during his 24
years on the bench, but by the time he retired in 1994, Blackmun was viewed as
a justice who had a deep understanding of the importance of religion in
American life — and the importance of drawing a sharp line of separation
between religion and government.

“He was a religiously knowledgeable person, able to quote scripture from
memory,” recalled Rabbi David Saperstein, director of the Religious Action
Center of Reform Judaism. “His strong support for a wall keeping government
from interfering with religion was a reflection of his enormous respect for
religion and his commitment to protecting the religious freedom of all

Saperstein and others point to Blackmun’s dissent in the 1984
case of Lynch v. Donnelly. The court had ruled that adding reindeer, Santa
figures and the like could secularize a government-sponsored display of a
crèche. “Surely this is a misuse of a religious symbol,” Blackmun lamented.

But Blackmun did not think religious symbols could stand alone in government
displays, which he felt implied state endorsement. In Allegheny County v. ACLU
of Greater Pittsburgh
, a 1989 case, Blackmun wrote for the court, “Whether the
key word is ‘endorsement,’ ‘favoritism,’ or ‘promotion,’ the essential
principle remains the same. The Establishment Clause, at the very least,
prohibits government from appearing to take a position on questions of
religious belief or from making adherence to a religion relevant in any way to
a person’s standing in the political community.”

In 1992, Blackmun elaborated on that view in a concurring opinion in Lee v.
, which said public school graduation ceremonies could not including
officially sanctioned prayer. “The mixing of government and religion can be a
threat to free government, even if no one is forced to participate,” Blackmun said.
“When the government puts its imprimatur on a particular religion,
it conveys a message of exclusion to all those who do not adhere to the
favored beliefs. A government cannot be premised on the belief that all
persons are created equal when it asserts that God prefers some.”

Blackmun’s writing in that case and others led Americans United for
Separation of Church and State to give him its Madison-Jefferson Award
after he retired. In accepting the award, Blackmun said, “Over our history
there are always those who want to take this wall of separation and remove a
brick here or there or damage it more than that. I think one has to be
vigilant and constantly on the alert.”

Barry Lynn, executive director of Americans United, yesterday mourned Blackmun’s death. “Justice Blackmun was one of the Supreme Court’s great advocates
of church-state separation,” Lynn said.

Norman Redlich of the American Jewish Congress also said yesterday that “although his association with the decision in Roe is foremost in the public
mind, this was hardly his only contribution to American law. Justice Blackmun
was also a forceful and articulate champion of the separation of church and
state and the free exercise of religion, and of a broad spectrum of civil
rights and liberties.”

One of those civil rights that Blackmun fostered, it might be said, was
the First Amendment right of commercial speech.

“He is the father of the court’s commercial-speech doctrine,” said Jesse Choper, a University
of California-Berkeley law professor.

Two of the court’s earliest cases recognizing that commercial speech,
including advertising, enjoyed First Amendment protection, were authored by Blackmun: Bigelow v. Virginia, a 1975 case, and Virginia State Board
of Pharmacy v. Virginia Citizens Consumer Council,
decided in 1976. Both
cases, which involved Virginia restrictions on advertising, established the
principle that commercial speech, just because it is commercial, does not fall
outside the First Amendment. At the same time, though, Blackmun said a measure
of regulation is permissible.

“Advertising, like all public expression, may be subject to reasonable
regulation that serves a legitimate public interest,” Blackmun wrote in
Bigelow. “Advertising is not thereby stripped of all First Amendment
protection. The relationship of speech to the marketplace of products or of
services does not make it valueless in the marketplace of ideas.”

In Virginia Pharmacy, Blackmun advanced a utilitarian argument for protecting
commercial speech as a valuable part of the free enterprise system. “The free flow of commercial information is indispensable,” Blackmun wrote.
“And if it is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be
regulated or altered. Therefore, even if the First Amendment were thought to
be primarily an instrument to enlighten public decision-making in a democracy,
we could not say that the free flow of information does not serve that goal.”

Blackmun’s commitment continued in the 1977 case on lawyer advertising, Bates
v. Arizona State Bar.
“We rule simply that the flow of such information may
not be restrained.”

On other aspects of the First Amendment, Blackmun was less predictable.
Early in his tenure, Blackmun dissented from the court’s opinion in New York
Times Co. v. United States,
in which the majority said the government could
not prevent publication of the Pentagon Papers. “The First Amendment, after
all, is only one part of an entire Constitution,” wrote Blackmun. He sided
with the government in a number of other early First Amendment cases.

But by the late 1980s, Blackmun’s views had changed. In the two flag-burning
cases in 1989 and 1990, Blackmun joined the majority in declaring that flag-burning, however distasteful, was a protected form of expression. He also
dissented in the 1986 case of Bowers v. Hardwick, in which the majority upheld
a Georgia anti-sodomy law challenged by a homosexual man. Blackmun’s wrote in his dissent, “A necessary corollary of giving individuals freedom to choose how to
conduct their lives is acceptance of the fact that different individuals will
make different choices.”

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.