With the retirement of Justice John Paul Stevens there will be no Protestant left sitting on a Supreme Court composed of six Roman Catholics and two Jews.
Spokespeople for a variety of ethnic and religious groups have already spoken up giving reasons why one of their own should be named to the court. To date we've heard arguments why the next appointee should be black, Hispanic, evangelical, gay or even an atheist. More constituencies are sure to be heard from in the coming months.
Speaking as a member of one of the almost disenfranchised communities of Reformation denominations that make up about 51 percent of the U. S. population, let me take this opportunity to say I don't give a damn what the next justice's official religious affiliation will be.
My view reflects that of the U. S. Constitution, Article VI of which reads in part that "...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
What part of no religious test shall ever be required don't some of our citizens understand?
Remember that this article, as well as the First Amendment to the Constitution prohibiting an established religion and allowing free exercise, was based on the experiences of the founders as they gathered in Philadelphia, the most religiously pluralistic of the original thirteen colonies. The toleration existing in Penn's "holy experiment" -- as opposed to the rivalries found in the Calvinist North and the Anglican South -- led the framers to see a way of avoiding future clashes between Round Heads and Cavaliers.
For well over a century. seats on the high court were almost the sole domain of the three most established Protestant groups. A majority of the justices were Episcopalians, a smaller number were Presbyterian, and a few were Congregationalists. The first Catholic, Roger B. Taney, was not appointed until 1836 and no Jew served until Louis D. Brandeis was selected in 1916.
It may be difficult to understand today, but there was no official photograph of the justices from 1924. The court had to cancel its portrait that year because Justice James C. McReynolds, an anti-Semite and a racist, refused to sit next to Justice Brandeis.
Changes came slowly and only in the twentieth century was there talk of Catholic, Jewish and, later, African American and women's seats.
To some extent, intensified liberal versus conservative partisanship has taken the place of earlier religious, geographic and ethnic conflicts. Today religious affiliation seems primarily important since it serves as an indirect indication of the political orientations of nominees.
Thus, it's been argued that recent Republican presidents have favored naming Catholic justices, viewing them as reliably conservative votes on economic and social issues, particularly opposition to reproductive choice and pro-family issues.
Justice Sotomayor, although a Catholic, was named by a relatively liberal administration partly because she had successfully avoided past rulings on hot-button issues like abortion, and is viewed as more of a traditionally cultural than an ideologically conservative Catholic. In addition, she skillfully limited her testimony during Senate confirmation hearings, making it difficult for even some conservative senators to alienate a growing Hispanic constituency by voting against her confirmation.
So what does this minority group Protestant look for in President Obama's next nominee to the Supreme Court? Basically this: strict adherence to the Constitution's ban on religious establishment and the requirement for free exercise of religion. The only litmus test is whether the candidate endorses Constitutional values of liberty, toleration and equality under the law.
We need a new justice who does not espouse extremist religious or political views. We don't need another Justice McReynolds. Appellate judges are not umpires calling balls and strikes, having more decision-making latitude in changing the rules of the game, or even changing the game itself. But their values and biases must be within the pale.
We don't need justices with extreme views, either on Constitutional interpretation or the superiority of one set of religious values over others. As I've noted in the past, it's logically impossible to be a strict constructionist.
Any authoritative document -- be it the Constitution, the Bible or al-Qur'an -- requires an implicit theory to explore its meaning. Any interpretation cannot be confined to the enacted text. Even if an interpretive rule is itself part of a text, the problem remains: we still need to know how to interpret the interpretive rule.
The need for continuing interpretation is what legal scholars call an evolving or living constitution, able to apply basic concepts to changing situations. Theologians call this critical thinking or hermeneutics. Any interpreter of a document like our Constitution needs to decide not only what the original writers intended, but also to infer what values they intended to enshrine.
Based on their experience in religiously diverse Pennsylvania, the founders clearly intended to hand down to the future a tolerant country, one that would not recreate the sectarian religious wars of Europe many colonists sought to escape.
Today we are looking for a new associate justice, regardless of religious label, committed to this legal creed. President Obama, himself a constitutional law scholar and teacher, understands this. As he described his own aim for himself as an African American leader, "I don't want to be a black politican, but a politician who happens to be black."
Extremists of all ideological persuasions are the enemies of a pluralistic society. The Constitution does not call for a Catholic, evangelical, black, Protestant, Jewish or Muslim nominee, but one who happens to belong -- as we all must -- to some demographic segment.
Decisions on church-state relations are complex. A balance needs to be struck between the establishment clause and the free exercise clause.
Although we are not and shouldn't attempt to be a "Christian" nation, many of our legal, political and personal values derive from religious teachings. As Ronald Thiemann noted, "...it is proper for government to encourage the flourishing of religion as long as the government does not coerce anyone to exercise religion or provide direct benefits to religious institutions."
Differences exist among jurists as to whether the First Amendment requires a secular purpose to be achieved by any law affecting religion, strict separation of religion and state, or symbolic accomodation.
Since America is not a secular nation, my own inclination leans toward symbolic accomodation, encouraging all forms of religious display and persuasion in the public square. But in every case the values of tolerance in a pluralistic society, individual liberty and equality are sacrosanct.
And that, as Stephen Colbert might say, is the word from Philadelphia, where this tenet of religious liberty was first practiced.
For more info: See Ronald F. Thiemann, Religion in public life: a dilemma for democracy (1996).
See Adam Liptak, Stevens, the one and only...The New York Times, April 11, 2010, p. WK1, 4 Also, see Geoffrey R. Stone, Our fill-in-the-blank Constitution, The New York Times, April 14, 2010, p. A23. He challenges the assertion that only progressives are judicial activists.
It is with some hesitation that I refer you to my own postings last year during the Sotomayor confirmation process. See "Is there a Protestant seat on the Supreme Court?" http://www.examiner.com/x-7183-Philadelphia-Protestant-Examiner~y2009m7d16-Is-ther... and "Al Franken, the Senate's constitutional exegete" http://www.examiner.com/x-7183-Philadelphia-Protestant-Examiner~y2009m7d17-Al-Fran. I've tried to sum up why literal interpretation of any text is not possible, relying on Lawrence H. Tribe's The invisible Constitution (2008).
The most insightful book I've read yet about the career and thought of the current president is David Remnick, The bridge: the life and rise of Barack Obama (2010). The chapters on his legal influences and training are particularly valuable in learning how he evaluates judicial nominees.
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