Religion and the Supreme Court

George W. Bush’s statements about Supreme Court nominee Harriet Miers’ evangelical beliefs seemed inappropriate because he was treating a potential justice like a political candidate. Obviously what he was trying to do was reassure his conservative base that this nominee whom they didn’t know very well would vote against upholding Roe v. Wade. This was inappropriate on several levels. First, Bush may have been wrong: The fact that she had personal beliefs about abortion shaped by her religion might not have affected her jurisprudence, and it certainly shouldn’t have, since the goal of the judge is to separate one’s personal beliefs from one’s jurisprudential conclusions. On the other hand, our confirmation campaigns have become increasingly politicized, so trying to draw boundaries about what’s appropriate and what isn’t may be doomed.

Can laws be based on morality without favoring one religion over another? This is one of the most contested questions in constitutional law right now, ever since Justice Anthony Kennedy, writing for the Court, struck down sodomy laws in Lawrence v. Texas in 2003, on the grounds that liberty and personal autonomy should be broadly protected. That led Scalia to warn dramatically that this means the end of all morals legislation. He suggested that in light of Kennedy’s opinion, laws based on moral disapproval could no longer be considered consistent with the Constitution. For Scalia this was unthinkable because he believes that laws have always been based on morality—including, in many cases, religious morality. Scalia and other conservatives would reject the ideas that you need non-religious justifications for moral legislation or that there’s anything wrong with moral legislation in the first place. The Supreme Court is very closely divided now between justices who are sympathetic towards moral legislation and those who are suspicious of it—and it’s not quite clear how this battle will be resolved.  [return to top]

Douglas Kmiec holds the Caruso Family Chair in Constitutional Law at Pepperdine Law School. He previously served as dean and professor of law at The Catholic University of America, and was on the law faculty at the University of Notre Dame. Kmiec served as constitutional legal counsel to Presidents Ronald Reagan and George H.W. Bush from 1985 to 1989. He writes a syndicated column for the Catholic News Service, is a frequent contributor to the Los Angeles Times and the Wall Street Journal and is co-author of The American Constitutional Order, Individual Rights and the American Constitution and The History, Structure and Philosophy of the American Constitution.

The Constitution states that there should be no religious test for purposes of public service. However, I think religion matters in the sense that people of faith have often made certain commitments to community and take those commitments seriously: One comes to understand one’s nature through one’s religion, and obligations to others through one’s religion. Believers of a religious tradition tell us something about themselves when that is disclosed as an aspect of their background. But observing the constitutional precept that there should not be any particular religious oath and its historical meaning (which, of course, was taking umbrage at the favoritism for Anglicanism and the like), we shouldn’t give a person of faith any special advantage or disadvantage in the constitutional process.

At the same time, being culturally honest, if I were a member of the Senate and someone told me that he was of a faith tradition, I would view that as a positive in the same way that I would think that a person’s continuous employment before seeking a job on the Supreme Court would be a good thing, too.

I also think that a person should feel comfortable speaking about faith if asked about it. During Chief Justice John Roberts’ confirmation process, Senator Dick Durbin was criticized for asking Roberts about his Catholicism. A senator has every right to ask such questions because the Constitution does not limit the kind of inquiries a senator can make. Such inquiries should be made with civility and respect for the nominee’s religious tradition.

I have one small concern about an instance where a nominee’s religious traditions were not questioned. Justice Hugo Black came to the Court as a former leader of the Ku Klux Klan in Alabama. I think it was regrettable that this extreme association was not known at the time of his confirmation. There are small hints in some of his early opinions that suggest a closed-mindedness toward particular traditions, especially Catholicism, which was often a KKK target.

In the past, whether a nominee was Catholic or Jewish was a factor in the selection of Supreme Court justices, and I don’t think those days are high water marks in our history. But, of course, several religions (for example, Buddhism) have never been represented on the Court. Occasionally, I hear an argument (but I would need much more study to begin to evaluate its merits) that Asian religions lack an understanding of a creator in the sense that the founders, Jefferson in particular, used the term in the Declaration of Independence. So there’s been a long-standing philosophical question—not well answered in my mind—about whether there is an equivalent understanding of rights as being inalienable in the dignity of the human person. The Buddhist tradition has more of a sense of contemplation within the human mind as opposed to obligation to a transcendent being. That’s frankly different than what our religious tradition was at the time of the founding, and I can see someone asking a legitimate question about that.

Although five Catholics are now on the Court and there have been many five-to-four decisions, there is no relationship between those decisions and their common religion. Since the recent additions of Roberts and Justice Samuel Alito, the Court has taken only one religion case and it’s been tangential: Hein v. Freedom From Religion Foundation [June 2007], a tax case. Not an unimportant case, but it was more a procedural matter than a direct inquiry into the substance of the meaning of the religion clause. The Court has taken no free exercise or establishment of religion cases, and those cases are out there.