Selected quotes from Rehnquist’s opinions

Wednesday, September 7, 2005

After battling thyroid cancer for nearly a year, Chief Justice William
Rehnquist died on Sept. 3, marking the end of a judicial era. In his 33-year
career — 19 as chief justice — Rehnquist heard a number of First
Amendment-related cases, ranging from the meaning of “under God” to flag-burning
as protected speech. Below is a select compilation of Rehnquist’s opinions in
cases involving the First Amendment.

  • From Zelman
    vs. Simmons-Harris
    in 2002, which found that religiously affiliated
    schools may participate in taxpayer-funded tuition-voucher programs:

    “The state of Ohio has established a pilot program designed to
    provide educational choices to families with children who reside in the
    Cleveland City School District. The question presented is whether this program
    offends the Establishment Clause. …The Establishment Clause … prevents a
    State from enacting laws that have the 'purpose' or 'effect' of advancing or
    inhibiting religion. …(T)he Ohio program is entirely neutral with respect to
    religion. It provides benefits directly to a wide spectrum of individuals,
    defined only by financial need and residence in a particular school district. It
    permits such individuals to exercise genuine choice among options public and
    private, secular and religious. The program is therefore a program of true
    private choice.”

  • From Rehnquist's 1989 dissent in Texas
    v. Johnson,
    which struck down laws barring flag-burning:

    “In holding this Texas statute unconstitutional, the Court ignores
    Justice Holmes' familiar aphorism that 'a page of history is worth a volume of
    logic.' For more than 200 years, the American flag has occupied a unique
    position as the symbol of our Nation, a uniqueness that justifies a governmental
    prohibition against flag burning in the way respondent Johnson did here. …

    “The flag is not simply another 'idea' or 'point of view' competing for
    recognition in the marketplace of ideas. Millions and millions of Americans
    regard it with an almost mystical reverence regardless of what sort of social,
    political, or philosophical beliefs they may have. I cannot agree that the First
    Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States,
    which make criminal the public burning of the flag.”

  • From an opinion concurring in part and dissenting in part in the 2004 case
    Grove Unified School District vs. Newdow,
    involving the Pledge of

    “The court today erects a novel prudential standing principle in
    order to avoid reaching the merits of the constitutional claim. I dissent from
    that ruling.

    “On the merits, I conclude that the Elk Grove Unified School District policy
    that requires teachers to lead willing students in reciting the Pledge of
    Allegiance, which includes the words 'under God,' does not violate the
    Establishment Clause of the First Amendment … The phrase 'under God' in the
    pledge seems, as a historical matter, to sum up the attitude of the nation's
    leaders, and to manifest itself in many of our public observances. Examples of
    patriotic invocations of God and official acknowledgments of religion's role in
    our nation's history abound.”

  • From his plurality opinion in the 2005 case Van
    Orden v. Perry,
    which upheld a 6-foot Ten Commandments monument on the
    grounds of the Texas State Capitol:

    “Our opinions, like our building, have recognized the role the
    Decalogue plays in America's heritage. The Executive and Legislative Branches
    have also acknowledged the historical role of the Ten Commandments. These
    displays and recognitions of the Ten Commandments bespeak the rich American
    tradition of religious acknowledgments.

    “Of course, the Ten Commandments are religious — they were so viewed at their
    inception and so remain. The monument, therefore, has religious significance.
    … Simply having religious content or promoting a message consistent with a
    religious doctrine does not run afoul of the Establishment

  • In the 1979 decision, Givhan v. Western Line Consolidated School District, which sent an public-employee speech case back to a federal trial judge, Rehnquist wrote for a unanimous Court:
    “We are unable to agree that private expression of one’s views is beyond constitutional protection, and therefore reverse the Court of Appeals’ judgment and remand the case so that it may consider the contentions of the parties freed from this erroneous view of the First Amendment.”

    Rehnquist said that the Court’s public employee free-speech cases “do not support the conclusion that a public employee forfeits his protection against governmental abridgement of freedom of speech if he decides to express his views privately rather than publicly.”

    “Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public. We decline to adopt such a view of the First Amendment.”