Religion and the Supreme Court

There’s no reason that one’s religion and the Constitution ever have to conflict, certainly not hypothetically. Justice Antonin Scalia has discussed a potential conflict between the Court and the church. If his church categorically directed that the death sentence was inappropriate as a matter of faith and morals, he has said, he could not then participate on the Court, because he would put faith first. I think that’s probably the right outcome given his premises, but I wrestle a bit with those premises. I think that he’s mistaken in the way he interprets the Eighth Amendment [which protects defendants from cruel and unusual punishment] and, therefore, he creates a conflict where one doesn’t necessarily need to exist.

On the other hand, I think even the venerable Justice Scalia has worked out the issue of abortion and the church in his ethical framework, which is that the justices are not responsible for the laws they are asked to interpret. The allowance of the democratic process does not demand justices’ agreement; it’s merely a matter of performing judicial duties. I don’t see the abortion issue as presenting—and neither has Scalia—a kind of ultimate conflict. His problem with the death penalty is that he would have to sign the death warrant and he views that as involving him directly as the final decisionmaker in the imposition of a capital sentence.

There’s no distinction between religion and morality. The distinction is between who is responsible for an act with moral implications and religion. The way in which moral actions would be judged in the framework of Scalia’s faith and my own would be to ask questions about the nature of the act, the nature of the intent of the actor and the surrounding circumstances. Whereas with regard to abortion, first, the majority of the people have made a decision about the law. Second, there’s another moral actor, namely the woman, who has been authorized to make the decision; and the justice is not becoming morally complicit in the same way.  [return to top]

Abner Joseph Mikva was an Illinois Democratic member of the House of Representatives from 1969 to 1973 and again from 1975 to 1979. From 1979 to 1994, he was a judge on the United States Court of Appeals for the District of Columbia Circuit, becoming chief judge from 1991 to 1994. The following year, he served as counsel to President William J. Clinton. During his career, he clerked for Supreme Court Justice Sherman Minton, served as a member of the Illinois state legislature and was a professor at Northwestern University School of Law and the University of Chicago.

I have never thought that religion per se makes the difference, because we’ve had some very progressive Catholic justices, like Justices William Brennan and Frank Murphy. Similarly, the Jews on the Court have tended to be progressive, but that’s because they come from the more progressive parts of Judaism. If you appointed a rigid Orthodox Jew, you probably wouldn’t have gotten the same result, but people like Louis Brandeis or Benjamin Cardozo—almost backsliders, religiously—really brought in progressive views. Religion was a part of their views, but their views transcended religion.

For Justice Ruth Ginsburg, her religion was a part of her growing up, but I don’t think it is an important piece of what dictates her views, and Justice Stephen Breyer probably had less yiddishkeit in his growing up. But then they come out the same in most of their jurisprudence, not because they’re Jewish, but they both happen to be Jewish.

The religious-political conservatives are very doctrinaire about their religion. Justice Antonin Scalia is a believer in conservative theology, and Justice Clarence Thomas has moved there. They see things through a very narrow prism. They are resistant to change. The whole field of choice is affected by their religiosity. And, probably to a lesser degree, by Justice Samuel Alito’s and Justice John Roberts’.

To the extent that there are liberal and conservative Catholics, I would say they are conservative. Religion played a part in getting them to their conservative politics.

The thing about Catholicism over the years is that, more than the other religions, it has resisted change. Yes, it has had to change, but the change has been slower and more painful.  [return to top]

Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law. She has written Justice Denied: What America Must Do to Protect its Children and God vs the Gavel: Religion and the Rule of Law, is a bi-monthly columnist on constitutional issues for writ.news.findlaw.com and is a contributor to the Huffington Post. Hamilton clerked for Supreme Court Justice Sandra Day O’Connor.

I think the faith of the justice is far less important than the justice’s attitude toward religion in society. Do the justices see the union of church and state as a danger or a value? That’s true not only on the current Court, but in the history of the Court. Today, more liberal justices view a union of church and state as a danger, while more conservative justices treat it as either benign or valuable. The latter have moved the Court away from the concept of the separation of church and state.

It’s not because there are five Catholics on the Court that you get this most recent trend; it’s because there are five conservatives, who are part of a conservative era, favoring religion accompanied by less concern about the separation of church and state, if not outright hostility to it.