Religion and the Supreme Court

There are people who blame the moral downfall of America on the Supreme Court’s decision in 1962 in Engel v. Vitale that “banned prayer in public schools.” But I always point out that as long as there are pop math quizzes there will be prayer in public schools. What was banned is official prayer led by principals and teachers as part of the public school curriculum. And the Supreme Court in 1980 [Stone v. Graham] said that the Ten Commandments could be taught in school as part of comparative religion classes or in literature classes or even in classes on law, because they have had some influence in the development of law. But they certainly cannot be hung in the classroom to silently promote religions that identify with the Ten Commandments.

In the legislative arena, I once said, “People place their hand on the Bible and swear to uphold the Constitution; they don’t put their hand on the Constitution and swear to uphold the Bible.” I think having a conscious distinction between your public ethos and your private ethos is especially important for justices because they have to uphold, when all else fails, the separation of church and state.

As a state senator I see a lot of confusion in politics about whether we are public actors promoting the common good or public actors promoting the common good and advancing religious belief and worship.

You know, the last refuge of scoundrels isn’t patriotism but religious pandering.

In the judicial field, there can be no confusion about these boundaries. We depend on judges to zealously defend every part of the Constitution, including the separation of church and state, which marked a radical and historic break from centuries of fusion of religious and secular power. We need justices who understand these things.  [return to top]

Wendy Webster Williams, a professor of law at Georgetown University, is working on a biography of Justice Ruth Bader Ginsburg. Williams helped draft the 1978 Pregnancy Discrimination Act and the 1993 Family and Medical Leave Act and was a law clerk for Justice Raymond Peters of the California Supreme Court.

I became a young lawyer when Ruth Ginsburg was just getting heavily involved in the litigation of women’s rights cases in the 1970s, and I can’t tell you how impressive she was, not only because she was brilliant, but also a married woman, a mother, and somebody who had experienced considerable discrimination.

She had this balanced outlook that she has carried forward onto the Court. Just to pick one example: The Jewish holidays weren’t observed at the Court when she arrived; she and Justice Stephen Breyer were initially rebuffed when they requested that this change be made. The Court is now closed for major Jewish holidays.

Ginsburg is fully aware that she is a model of how one can be a Jewish justice and a female justice and blaze a trail for others. WASP that I am, I see how she uses her unique bundle of life experiences to inform her understanding of issues involving people with other religions and cultures. This enriches the Court.

I know, for example, that she’s proud that Jews were among the founders of the NAACP. For her, that shows that Jews can identify with discrimination and oppression. It’s not surprising to see that she brings great clarity and sensitivity to cases involving racial inequality and in general, to the interpretation of our Constitution.

In her chambers hangs a Hebrew sign that expresses her Jewish heritage and professional commitment: “Justice, Justice, Shalt Thou Pursue.”

I don’t mean to say that all justices of a particular race, sex, cultural background, or religion will have the same style of judging or reach the same outcomes. For example, today we have five conservative justices who are Catholics, but the late Justice William Brennan, also a Catholic, was one of the great liberal justices on the Supreme Court.

It’s very important that people who are responsible for selecting judges for all our courts pay attention to race, gender, ethnicity, and religion. They should be careful not to fall into a pattern that reflects their beliefs and preferences.

And it should go without saying in this country that no judicial nominee should be excluded from a judgeship because of his or her religion. But at the same time, since the Supreme Court is the court of last resort, a healthy mix of experience, belief and background among the nine justices is most likely over time to ensure fair and just results for our people.  [return to top