Religion and the Supreme Court

The conservatives have focused instead on whether government is coercing religious practice. Using this reasoning, the posting by the government of the Ten Commandments is fine, government funding for parochial school computers is fine, and vouchers for religious schooling is fine. All of these are a result of the worldview that, if it is not coercive, government support should not be a violation of the Constitution.

The conservatives have moved to this position aggressively and further justify their position by identifying a historically “national religion.” Late in the 19th century, you could hear the Court saying, “This is a Christian country.” And then it moved to saying, “It’s a Judeo-Christian country,” and then that became the status quo. And now you have justices saying, “It’s a monotheistic country.” Monotheism is now the buzzword to justify government’s engaging in the two kinds of support that they’re most interested in: public displays and financial support.

To be honest, one cannot claim that there’s a single religious identity. Because of the increasing diversification of religious beliefs in the United States, characterization of a “national” religion becomes more and more abstract. I have no doubt that within 50 years, they will say, “In this country, many people are religious.”.  [return to top]

Jamie Raskin is a professor of constitutional law at American University and director of its Program on Law and Government and its Marshall-Brennan Constitutional Literacy Project. He also serves as a Democratic state senator in Maryland. Raskin has authored numerous essays and several books, including Overruling Democracy: The Supreme Court vs. the American People and We the Students.

Any nominee to the Supreme Court worth his or her salt will testify before the Senate Judiciary Committee that personal religious belief is completely irrelevant to his or her work as a Supreme Court justice. Logically speaking, one’s private beliefs about theology really have no bearing on one’s interpretive methodology of the Constitution. Everyone agrees to this proposition, but it is a formal one, and it does not deal with the psychological reality of religion as a parallel internal belief system that figures highly in the justice’s overall intellectual and moral makeup.

The real question is whether a justice’s philosophical approach to religion reflects or mirrors his or her philosophical approach to law, which is what we mean by jurisprudence. To a certain extent, it almost inescapably and inevitably does. The justices who have an authoritarian approach to religion and spiritual life tend to read the Constitution and law as rigidly establishing the structures of governmental power over citizens.

Conversely, justices who tend to side privately, as far as I can tell, with more liberal religious currents and to favor tolerance over dogma also try to read the Constitution as a charter of individual rights and to interpret its structural provisions through the lens of freedom and individual dignity.

The interesting thing is that these general trends in intellectual and moral psychology don’t necessarily track specific religious denominations. One of our great constitutional liberal justices was Catholic: William Brennan. He always placed human dignity and social justice first.

On the other hand, Justice Antonin Scalia, who is also Catholic, has made his “strict constructionist” and doctrinaire religious views about God, the status of the Bible, church hierarchy and even creationism quite clear, both in public pronouncements and between the lines of his decisions. These views parallel his constitutional “originalism” and commitment to statutory language to the absolute exclusion of legislative history and debate. For example, he has dissented from decisions striking down organized prayer in high school football games and graduation ceremonies. Conversely, while the liberals are usually sympathetic to the free exercise claims of minority religionists, like Native Americans, Scalia treats their religious claims as a form of whining and special pleading.

As an intellectual proposition, public officials of any government branch should follow the example of John F. Kennedy, who made the great, classic statement about how public officials should conduct themselves with respect to religion. In that powerful 1960 speech, Kennedy said that the content of his private theological beliefs should be of interest to no one but himself, his family and his church. What matters, he said, was his public faith, and that faith included a belief in an absolute separation of church and state where no church official would ever dictate to public official the content of their political beliefs. Former governor Mitt Romney said the opposite in his failed effort to imitate Kennedy’s speech. Romney went out of his way to profess his personal belief in Jesus Christ as the savior of mankind before giving a diluted endorsement of separation of church and state.

There are, however, some interesting cases where justices actually reference their religion. One of the more shameful invocations was by Justice Felix Frankfurter in West Virginia v. Barnette in 1943, when the Supreme Court found that it violated the First Amendment to force Jehovah’s Witnesses’ children to pledge allegiance to the flag. This important decision occurred in the middle of World War II when Jehovah’s Witnesses were facing serious sanctions and harassment.

But Frankfurter dissented. He began: “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution….But as judges we are neither Jew nor Gentile, neither Catholic nor Agnostic….I am not justified in writing my private notions of policy into the Constitution….”

Having made the point that religion is inappropriate, he proceeded to argue that West Virginia under the Constitution could coerce minority religious groups to participate in the majority’s political rituals. Frankfurter advertised his religious status to write a decision enshrining the political majority’s power to push around dissenting minorities.