By David Waters
Previously in Under God, we asked what seemed like a logical question: With the only Protestant on the Supreme Court (John Paul Stevens) retiring this summer, should the president appoint another Protestant to replace him?
But a California blogger is asking what seems to be an equally logical question: Should the president appoint an atheist — or at least a nontheist — to the Supreme Court? “We don’t need another Protestant on the Court. Or a Catholic, Buddhist, Hindu or follower of any of the hundreds of religions that exist on this planet,” wrote Tommi Avicolli-Mecca wrote for BeyondChron. “What the court really needs is an atheist.”
The nine-member Supreme Court will never be a perfect demographic reflection of the United States. And of all the demographic factors involved in selecting a Supreme Court justice, religious affiliation is one that should never be considered. But what about lack of religious affiliation?
Those who think Obama should nominate a Protestant to replace the court’s only Protestant note that 51 percent of the U.S. population identifies with one of the Protestant denominations. Should half the country be unrepresented on the court?
But what about the 16 percent of the population that claims no particular religion? That’s roughly the same percentage of folks who claim an affiliation with a mainline Protestant denomination. Four percent identify as atheists or agnostics — much higher than the 1.7 percent who identify as Jewish or the .6 percent who identify as Muslim.
Some obvious caveats:
The Constitution says there should be no religious test for public office.
The 7th U.S. Circuit Court of Appeals has declared atheism a religion: “Atheism is [the inmate’s] religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being,” the court ruled in 2005.
There have been no declared atheists or nontheists on the U.S. Supreme Court, and only one — Justice David Davis III, who served from 1862-1877 — claimed to be non-denominational.
Some historians do make a case for Oliver Wendell Holmes, Jr., one of 10 Unitarians who have served on the bench. A review by Thomas Grey of Holmes’ 1881 book The Common Law says in part, “His project was to to replace the prevailing theologically tinged or formalistic legal theories with a modern jurisprudence approach that draws its inspiration from Darwin.”
“I doubt that today’s Senate would confirm Holmes,” said Herb Silverman, president of the Secular Coalition for America.
Would today’s Senate confirm an avowed nontheist? Would Obama or any president dare to nominate one? Should someone who doesn’t believe in a Supreme Being be on the Supreme Court?