Part 1. The Missing Protestant Perspective
This Supreme Court Term’s two religion cases were decided by 5-4 votes, with the three Jewish Justices (Ginsburg, Breyer, Kagan) in dissent in both cases, and five male Catholic Justices (Roberts, Scalia, Kennedy, Thomas, Alito) in the majority. Justice Sotomayor, a Catholic woman, joined the dissenters. In Town of Greece v. Galloway, the Court upheld the overwhelmingly Christian prayer practice of the Town Board of Greece, New York, against an Establishment Clause challenge. Applying the Religious Freedom Restoration Act (RFRA) in Burwell v. Hobby Lobby, the Court exempted Christian business owners from the contraceptive mandate of the Affordable Care Act (ACA).
Religion Makes a Difference
It does. Not because the Justices intentionally and consciously apply their faiths to the problems before them. But the opinions suggest the Justices are influenced by their religious worldviews in interpreting religion and the Constitution.
We can understand this influence by considering the legacy of the last two Protestant Justices to serve on the Court, Justices Stevens and Souter. It is remarkable that no Protestant Christians (who, although no longer a majority, are still 48% of the U.S. population) currently serve on the Court. Protestant Justice John Paul Stevens retired from the Court in 2010 and was replaced by Justice Kagan. Episcopalian Justice David Souter retired from the Court in 2009 and was replaced by Justice Sotomayor.
Protestant Americans traditionally backed the separation of church and state. With the two Protestant Justices’ departure, the Court lacks any voice for a strong Establishment Clause and strict separation of church and state.
The last two Protestant Justices consistently argued that under the Establishment Clause the state may not prefer one religion to another, or religion to irreligion. That commitment leads to results that no Justice in Hobby Lobby or Town of Greece advocated.
Hobby Lobby and RFRA
In the Supreme Court’s first case interpreting RFRA, City of Boerne v. Flores, Professor Hamilton persuaded the Court that RFRA was unconstitutional as applied to the states. Only Justice Stevens understood another aspect of RFRA’s infirmity that Hamilton had identified. He concluded that RFRA violated the Establishment Clause in preferring religion to irreligion by “provid[ing] the Church with a legal weapon that no atheist or agnostic can obtain.”
From an establishment perspective, the facts of Hobby Lobby are even worse than Boerne because the Court preferred the employers’ religious freedom to that of the employees, thereby allowing one group to impose its religion on another through force of law. Indeed, the companies’ religious beliefs were imposed on women even though scientific evidence contradicted their religious belief that the contraceptives at issue were abortifacient.
Nonetheless, all nine Justices virtually ignored the Establishment Clause in Hobby Lobby. Moreover, as H-G has repeatedly explained, Justice Kagan was an advocate for RFRA in the Clinton White House and (with Justice Breyer) split from Justice Ginsburg’s dissent in Hobby Lobby to write separately “We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993.”
That was unnecessary. Kagan and Breyer should have shut the door on corporate religious freedom. Justice Stevens’ perspective on RFRA and separation is sorely missing from the Court.
Town of Greece and Prayer
In the 1992 high school graduation prayer case, Lee v. Weisman, where Justice Kennedy wrote the opinion of the Court concluding that the prayers violated the Establishment Clause, Justice Souter wrote a separate concurrence to emphasize that in the government-sponsored prayer context, it does not “solve the problem to say that the State should promote a ‘diversity’ of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each.”
Yet this was precisely Justice Kagan’s proposal in dissent in Town of Greece; instead of agreeing with Justice Souter that constitutional public prayer is not possible, she went out of her way to reject a “bright separationist line” and a “religion-free zone” in favor of a prayer forum of pluralism and inclusion, where everyone would equally get a chance to pray.
Justice Souter had the better side of this argument; there is simply no way for everyone to get a chance to pray equally in a prayer forum if you count the 260 million people of the United States who subscribe to 350,000 religious congregations and the 50 million who affiliate with no religion at all and try to include them all.
Where are the Separationists?
There is no reason that a Catholic or a Jewish Justice can’t be a strict separationist. But there aren’t any on the Court right now. I wonder how long it will be before another one is appointed.