Q: If Elena Kagan is confirmed to replace retiring Justice John Paul Stevens, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations — the Protestant traditions. If Kagan is confirmed, six of the justices will be Roman Catholic and three will be Jewish. Should the Supreme Court be more representative of America’s religious traditions? Does religion matter in the mix of experience and expertise that a president seeks in a Supreme Court nominee?
The religious faith of any one member of the Supreme Court cannot be an issue in the nominations process. There cannot be a religious test for office under our Constitution. But the kind of Protestant spirit that drove the “Founding Fathers” to disestablish religion (i.e. make it unconstitutional for states to financially support their favorite Protestant denomination) has a place in the mix, especially these days.
For example, the Court has recently signaled that it is moving away from this traditional Protestant ethos. In April, a 5 to 4 decision by the Supreme Court overturned a federal judge’s objection to a white cross erected more than 75 years ago on a stretch of the Mojave Desert to honor the dead of World War I. Justice Anthony M. Kennedy wrote that “the Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” And so with this decision, and this comment, we tilt a little more toward a public establishment of religion.
On the other hand, any individual Supreme Court member need not, perhaps, be a liberal Protestant to appreciate this. The online Jewish daily Forward indicates that Elena Kagan’s views are consistent with the consensus of the Jewish community “on the strong separation of religion and state.” As I teach in my “Religion in America” course, as various religious groups have immigrated to the U.S., they have often gradually internalized aspects of American Civil Religion, of which respect for separation of church and state is a cornerstone, as much as is freedom of religion.
But there is also the need to address the overall depth and sum of the insight of the whole Supreme Court on matters pertaining to religion. This is an issue that should be pursued in the hearings. Religious issues are becoming more and more contested in the United States, and the basis for more and more litigation. Thus we are likely to see more cases like the Mojave Desert Cross example come before the Supreme Court. Solicitor General Kagan’s views on religion and law are very germane to the hearings.
Muslim Americans may also have questions. Where liberals have been critical of Kagan, it has been for her support of the kind of expansive executive powers first claimed by President George W. Bush, and now by President Barack Obama, powers justified in the name of combating terrorism. Let us imagine a case of specifically religious profiling of a Muslim American coming before this new court–religious issues again need a Protestant ethos in the mix in order to uphold religion as the private business of an American citizen.
Privacy is, of course, also the basis of the constitutionality of women’s access to reproductive services, including abortion. Some would argue, myself included, that making abortion illegal constitutes religious establishment–it establishes the belief of some religious groups that a fetus is a fully ensouled human being. Some may believe this; others do not. It is a matter of private belief and cannot be objectively verified. Hence, access to abortion is a matter of privacy. This is a basis, though not the only basis, on which liberal Protestants have claimed that abortion can be a moral choice for a woman to make in deciding to bear a child.
The Supreme Court decides law within the American context, and religion is part of that context, including the historic context. The liberal Protestant ethos is not a matter of a nose count of who is what religion on the Supreme Court, but of an awareness of the historic religious roots of our commitment to not establishing religion and all that that commitment entails today. The very freedom of religion is at stake when we cross the line to a “public” religion–and freedom of religion is one of our core freedoms as Americans.