Symposium editor: Rachel E. Gross
Interviews by Sarah Breger, Marilyn Cooper, Rachel E. Gross, Amy E. Schwartz
A Moment Symposium with
Robert Barnes / Lyle Denniston / Tony Mauro / Sarah Posner / Leslie C. Griffin
Stephen Wermiel / Marshall Breger / Emily Bazelon / Dahlia Lithwick
When it comes to religion, the Supreme Court of the United States has undergone a dramatic transformation. For centuries, the justices were largely Protestants. Now, for the first time in its history, the bench is composed of three Jews and six Catholics, including several devout Catholics.
As the Court’s makeup has changed, so have attitudes toward religion. Just a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system. That thinking has begun to change, particularly in light of recent cases in which religion has played a prominent role, such as Town of Greece v. Galloway (the Court ruled that public prayer was appropriate before town hall meetings) and Burwell v. Hobby Lobby (the Court ruled that small-business owners didn’t have to provide contraception coverage to employees if doing so would conflict with their religious beliefs).
In late 2014, Moment partnered with the Religious Freedom Center of the Newseum Institute in Washington, DC, to hold a live symposium on this important topic. For this print symposium, Moment editors interview an expanded group of legal thinkers. View the original conversation here on C-SPAN.
The justices’ beliefs affect how others approach them
Recently, I was talking to a prominent law professor who was once a Supreme Court clerk. He told me that when he was clerking in the 1980s, if anyone had asked him if any of the justices were religious, he would have said no. None of them talked about it, and he saw no real evidence of them being religious. But he said he thought that this Court was very different.
The current justices talk about their faith much more. Certainly Justice Antonin Scalia is the most outspoken about it. He has said that intellectuals have to be what he called “fools for Christ” and to be able to say that some things aren’t about intellect, they’re about faith. And when you think about the justices, they all have an interesting connection to religion. Justices Sotomayor and Thomas talk about how parochial schools lifted them out of poverty in neighborhoods in which education was not terribly valued. Justice Kagan, who probably would say she is not that religious, nonetheless says she had religious instruction three times a week. She was the first girl to be a bat mitzvah at her synagogue. (Being Justice Kagan, she said the experience was good, not great.)
I don’t know whether any of us could say whether this new outspokenness about religion affects the way justices decide cases. I think that the difference has come in the way that people—advocates, lawyers—approach issues when they come to the Court and in some of the cases that the Court decides to takes on. For instance, in the Hobby Lobby case, the question was whether private business owners had a right to say that their religious objections exempt them from offering certain kinds of contraception. All the briefs were extremely respectful of the idea that these folks had deeply held religious beliefs. There was little challenge to whether or not they actually held those beliefs, or whether those beliefs were a pretext for not wanting to provide these services. I think that’s partly because they knew it wouldn’t go over terribly well with the justices to do that.
Barnes covers the Supreme Court for The Washington Post.
The justices’ values are influenced by religion
In the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters. But more and more often, this is no longer the case. I’m not suggesting that this is inappropriate, but there used to be a studied effort to avoid bringing one’s own religious values into Court discussions. Personal religious identities now have a growing impact on Supreme Court decisions.
This is part of our generally more open culture in which private values tend to play a greater role in public policy decisions than they did in the past. We are now a society that is less concerned about privacy. We have largely given up the enormous value we used to place on it; We expose ourselves much more often. Whether or not they will admit it, the Justices are a product of their time.
This dynamic plays out differently with Jewish and Roman Catholic justices. The Roman Catholic polity has never been reluctant to try to influence the government to act in ways that benefit their faith. The most obvious examples are the attempts to persuade lawmakers and judges to adapt public policy to reflect the Church’s religious views on regulation of abortion and government subsidies for parochial education.
The abortion question is now driven in a considerable part by the Roman Catholic Church’s perspective on that issue. In his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith. While much of his jurisprudence is driven by liberty interests, when it comes to women’s liberty interests, he is tone deaf. Conversely, when ruling on gay marriage, he does not seem to be motivated by his Catholic values system.
Although it’s not uniformly what happens, Roman Catholic justices are more inclined to let personal religious values affect discourses and outcomes than the Jews on the court. Jewish justices are more likely to be separationists in terms of church and state. There is a strong Jewish tradition for this. While Jewish justices seem comfortable with religious dogma playing a role in Israel, they would not want that imported into the American legal system.
Personal values, however, also influence the Jewish justices. Justice Breyer was affected by his Jewish belief in social justice when writing in favor of women having access to birth control. From his own public statements, he has made it clear that the notion of tzedakah (charity) has informed his legal views, and that was clearly reflected in the position he took in the Hobby Lobby decision.
For all the claims that have been made that this is a Christian state founded on Christian values, this is not true. The Puritans fled to the Plymouth Plantation to escape religious doctrine in England. The separation of church and state was a central principle for Thomas Jefferson and James Madison when founding the United States. Separation of church and state is a core American value.
Denniston is an American legal journalist and SCOTUSblog reporter.
The Catholic Church has an outsized influence
The justices today are more outspoken about their religious faith in general. Part of the reason may be that Protestants speak less about their faith outwardly than some Catholics and some Jews. But it’s also that whenever they say anything, people are watching much more than they used to. Twenty years ago, it would not have been uncommon for justices to talk about their faith, but people just weren’t listening. In this digital age, the public has greater interest in the personalities as well as the opinions.
An extraordinary phenomenon that demonstrates the changing place of religion in the public sphere is the Red Mass, which is put on by the Catholic Archdiocese of Washington and occurs on the Sunday before the first Monday in October when the Supreme Court term begins. It has become such a regularized ritual that it’s like the celebratory kickoff of the Supreme Court term. Looking at it cynically, this is an opportunity for the Roman Catholic Church to have a captive audience—that includes six of the nine justices—for sermonizing about issues that concern it. I can’t think of any other institution that has that kind of access to the Court.
For 25 years, I’ve been covering the Red Mass as a news event. Back in the 1980s, the sermons were very politicized. They would rail against abortion as a form of murder and that any law that advances abortion is immoral. But that kind of rubbed certain justices the wrong way. In fact Justice Ginsburg was so annoyed and upset with one of the sermons that was against abortion that she vowed that she would never go again. And she said that even the Scalias, whom she is close friends with, were embarrassed at the stridency of the sermon. Since then it’s gotten much more toned down, although there still is quite a bit of talk in the sermons about the separation of church and state, and how it is appropriate for people of faith to bring their faith to work with them.
Mauro is the Supreme Court correspondent at The National Law Journal.
Politics outweighs religion on the Court
Their political ideology affects their decisions much more than their religion does. Sometimes what you think they would do based on their religion is the opposite of what they actually do. In Zirotofsky vs. Kerry, or the Jerusalem Passport case, for example, you would think that perhaps a Jewish justice would be on the side of the plaintiff. (In the case, still before the court, the justices are reviewing whether Congress can order the State Department to record an American child’s place of birth as Israel rather than Jerusalem if the child was born in that city.) But it was Justice Kagan who was really questioning the claim of the plaintiff, asking if it would have any real-world consequences, and it was Justice Kagan who described Jerusalem as a tinderbox. The thing about the Jewish justices is that none of them is outspokenly Orthodox or observant.
The other big decision this year was the Hobby Lobby case, where the split was more of an ideological split than a religious split. Justice Sotomayor is Catholic but her gender played more of a role, and for the conservatives it had more to do with political ideology. Scalia retains a lot of that very Catholic natural law point of view. But I do think it’s an oversimplification to say religion is an overriding factor, since Justice Sotomayor is also Catholic.
We have a very religiously undiverse Supreme Court right now, in that we have the first Supreme Court in history with Catholics and Jews but no Protestants. It is very unrepresentative of the American public, and there is a lot of focus on that, questioning if the Supreme Court should reflect the gender and ethnic diversity of the United States. Should presidents also be considering religion when nominating someone?
In my lifetime I would be shocked if we had an avowed atheist on the Court. I think that would even be a harder sell than a Muslim Supreme Court justice. We may have had an atheist justice but we don’t know. I think polling data shows that a lot of the American public thinks someone who believes in God to be more morally guided—it’s a misconception, but many Americans believe that misconception.
Posner is senior editor for Religion Dispatches and the author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters.
Leslie C. Griffin
The Court’s new makeup has impacted recent cases
People aren’t completely predictive on where they are in religion, so they don’t always neatly fall into place. American Catholics are known as being “cafeteria Catholics”—they pick and choose. Justice Kennedy, for example, has supported abortion rights in the past and was the most reluctant voter in Hobby Lobby. Justice Breyer, who voted to uphold some of the ruling to display the Ten Commandments on government grounds (Van Orden v. Perry, 2005), will frequently split away from Justice Ginsburg and Justice Kagan. This shows several things. Unsurprisingly, if we are honest, people are affected by their religious upbringings. But there’s diversity even among people who go through the same religious training.
The blockbuster case last year was Hobby Lobby, where the three Jewish justices were also in dissent. I think the perspective there is that Catholics are taught that morality is universal, so the Catholic Church thinks contraception is wrong for everybody, abortion is wrong for everybody. In the majority opinion, Justice Alito cited Catholic theologians. Basically what Justice Alito said was that all the families in Hobby Lobby had to believe IUD caused abortion even if that’s scientifically inaccurate. The Court here was willing to just accept the religious beliefs and say that the state had to defer to them. I think that the male Catholic justices start out very sympathetic to the world view that opposes contraception and abortion, whereas Judaism is much more mixed and traditionally more supportive of women’s rights.
One of the strangest things about this Court is that, without a Protestant, no justice on the Court in the prayer case had a strict separationist perspective. For good and for ill, there are now no strict separationists. In that sense, it’s very significant that we have six Catholics and three Jewish justices. That shows where our politics has gone. We have a lot of religion in politics now, and so the Court, in a way, is reflecting the country. And yet, the biggest-growing religious group in the United States right now is people who are not affiliated with any religion. It’s interesting to contemplate what the Court will look like when it shifts to reflect the current American landscape—and when that will be.
Griffin is the William S. Boyd Professor of Law at the University of Nevada.
The separationist view has all but disappeared
Justice William J. Brennan, who was on the Court from 1956 to 1990, was the most ardent separationist in the modern history of the Court. I think it was precisely because he was Catholic; That’s where his Catholicism took him. He believed deeply in religion, but he believed that it was private and personal and that having religion in the public square and in public life was divisive. He participated in the decisions prohibiting school prayer and was vilified by the Catholic Church for doing so. He felt strongly enough about his views in those cases to write a separate 50-page concurring opinion in the second school prayer decision in 1963, a case called Abington School District vs. Schempp.
In his 1963 opinion, Justice Brennan talks about how the establishment clause embodied the framers’ conclusion that government and religion have discrete interests that are mutually best served when each avoids too close a proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrine and controversies into the civil polity, but to a high degree it is the devout believer who fears the secularization of a creed that becomes too deeply involved with and dependent upon the government. That was the essence of his separationist view—that having government involved in your religion demeans your religious beliefs. As a serious Catholic, he believed that he needed to bend over backwards to make sure he was separating his religious views from anything he did as a justice.
That view is gone. I’m not sure there’s anybody on the Court who would share that view to that degree. It’s not that the Catholics or Jews on the Court want to proselytize the American people: it’s that they are much more willing to be a product of their religion when they approach cases. For instance, I don’t think that Justice Scalia’s approach to abortion is dictated by the Catholic Church. But I think Justice Scalia believes himself to be a religious person who is willing to share the values of the Catholic Church that have helped shape him when he makes decisions.
The most stark example is the Court’s recent decision in the Town of Greece case. Because the justices in the majority are themselves to some degree religious people, they seem to be somewhat insensitive to what the impact of prayer at the start of a town council meeting might be on people who are less religious or who are not religious or who have a different religion. The Court seemed to take a “no harm, no foul” approach. They think: Why does this offend anybody or bother anybody to have a small prayer at the start of a meeting? And I think that’s who they are. That’s part of their background and part of their traditions. Prayer is and ought to be a part of public life and it’s not offensive to them. So, today’s justices don’t feel the need to go so far out of their way to avoid favoring the presence of religion in public life.
Wermiel is a professor of law at American University Washington College of Law and the author of Justice Brennan: Liberal Champion.
Religion is only one element of a justice’s background
What you bring to the Court—your experiences, your background—says something about how you’re going to approach cases. But we shouldn’t over-determine the effect of religion. I don’t think that someone being a Catholic, a Jew or even a Protestant tells you much about how they’re going to make decisions. That’s partly because there are so many ways of being a Catholic, so many ways of being a Jew and so many ways of being a Protestant.
I think what we see in Justices Kagan and Ginsburg is the ethnic Jewish narrative of New York liberalism, which became a part of their understanding of cultural Jewishness, and that affect their views on law and life—which is exactly what you would expect. When Justice Sotomayor spoke about being a “wise Latina,” there was some sense to that. Similarly, there’s no doubt that as a black man, Thurgood Marshall also brought a certain sensitivity and perspective to the Court.
Having said that, the topic is also very interesting because it no doubt has to do with the process of selecting justices. There’s a sensitivity that has to do with the notion of representation—that important social sectors should have a “representative” on the Court. For instance, when Sandra Day O’Connor was appointed the first woman on the Court, it was very important to the increasingly vocal women’s rights community. The nomination of Louis Brandeis, while bitterly fought by some, was seen as a breakthrough for the Jewish community. Eisenhower said, “Find me a qualified Catholic.” One of the things in Antonin Scalia’s favor, aside from his awesome intellect, was that he would be the first Italian on the Court.
Jerome Frank, a judge and law professor, said in an opinion for the U.S. Court of Appeals for the Second Circuit (1943): “Much harm is done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human, strips himself of all predilections and becomes a passionless thinking machine.” I agree with that. You don’t have to give up all your humanity. At the same time, a judge is in a different position than if you’re an advocate or you’re a social worker. If you have a prisoner in front of you to sentence, you’re supposed to look at what the law says. In some cases you cannot look at the whole human person, you have to look at the person in relation to that person’s violation of the rule. You have to look at it as a judge.
Breger is professor of law at Columbus School of Law of The Catholic University of America.
Religion plays a role in hot-button cases
The official line is that the religious views of the justices do not matter, in the sense that their beliefs don’t dictate the kind of decisions they make. At the same time, religious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.
It’s worth looking at the decision the Court made about legislative prayer in the case Town of Greece v. Galloway last term. It was 5 to 4, and the joke was that it was the Catholics v. the Jews (plus Justice Sotomayor, who is also Catholic). Justice Anthony Kennedy wrote in the majority opinion that religion was a unifying force for the community—the people at the town legislative session listening to the prayer, which was almost always led by a Christian member of the clergy. That depends on seeing religion as neither threatening nor divisive. People from minority religions may come to this question from a different perspective. That was clear in Justice Elena Kagan’s dissent. There was something poignant about the difference in these two portrayals of how people feel about public expression of a particular, sectarian religious belief. Justice Kennedy is saying it’s good to have prayers before legislative sessions, because people are going to feel like they are part of a community, and Justice Kagan is saying, “Wait, will they? What about people who are not Christian?”
It doesn’t concern me that some of the justices could be coming to cases like this in part out of their own religious experience. What I don’t like is when people pretend their experience and values have no effect whatsoever. I don’t think the Court is purely driven by the justices’ personal values or politics, but I also think those factors do come into play when the Court decides really hard cases, involving hot-button social issues, in which there is no obvious right legal answer.
Bazelon is a staff writer at The New York Times Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School.
Catholic justices are influenced by being part of a Christian majority
Any Supreme Court reporter would tell you that any time we write about this, the backlash is ferocious on all sides. You can talk about gender, race, even the justices’ sex lives, but when they get to religion it’s just absolutely taboo. Why is it so impermissible? Why is it so fraught?
For me, the really interesting thing that came out of the Town of Greece case was the discussion of politeness and civic religion. When you read Justice Kennedy or Alito on this, you get the impression that they see religion as fundamentally civilizing, something that enriches all of us and brings us together. That’s a very American view, and very informed by certain Christian experiences. The understanding in the interstices of some of the majority opinions [Town of Greece] seemed almost to be saying, “What’s wrong with someone who can’t listen to a sectarian prayer? Religion lifts us all up.” There’s almost a sort of clubby, homogenizing view that religion is just a civic good, and if we would all stop stomping around and protesting, we’d realize it makes us all better people, and what kind of big crybaby isn’t enriched by that?
When Justice Kagan then dissents by saying, we should not be asked to get up and leave during a prayer for a different religion, it’s something more profound than Christians vs. Jews. She’s trying to say, unless you’ve experienced being a religious minority, you can’t really talk about how religion elevates us all. And Justices Alito’s and Kennedy’s Catholicism in this regard is not the Catholicism of a religious minority group, the Catholicism of John F. Kennedy’s time—it’s of a Catholic church that is quite powerful and yet still feeling under siege.
You have to be of a certain background and privilege to believe that religion is fundamentally universal and uplifting. Religion can be messy and horrible and isolating, and Jews and religious minorities know that. Justice Kagan’s dissent speaks to that—it could only have been written by someone who’s been part of a religious minority for her whole life.
The new civil rights battleground in this country is clearly religion. We’ve moved into an era where the framing mechanisms we’ve had around race and gender are being pressed to serve for religious freedom. Whether Hobby Lobby or the people who refuse to frost wedding cakes for gay couples, this is the new civil rights—Christian groups using the full force of civil rights legislation to press on the wall between church and state. And I think this Court is very receptive to that. The single most important shift at the Court was when Justice O’Connor left and Justice Alito came in. She was the crucial fifth vote in church-state cases. When she left, that era was over. Justice Alito has a very strong doctrinal and personal history of having great solicitude for religion.
Lithwick is a senior editor and legal correspondent for Slate, where she writes the column “Supreme Court Dispatches.”