[Oe List ...] 11/17/16, Spong: Does the Religious Faith of a Supreme Court Justice Matter? (Originally posted June 10, 2010)

Thu Nov 17 06:31:19 PST 2016

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Does the Religious Faith of a Supreme Court Justice Matter? (Originally posted June 10, 2010)
In President Obama's recent nomination of Solicitor General Elena Kagan to be the ninth justice on the Supreme Court, a new reality forced its way into our consciousness.

With the resignation of Justices David Souter in 2009 and John Paul Stevens in 2010, the last representatives of Protestant Christianity - by far the largest religious group in the country - departed from that body.  This means that, for the first time in American history, there are no Protestant Christians sitting on our highest court.  Justice Souter was replaced by the first Hispanic justice, Sonia Sotomayor, who is a Roman Catholic.  Justice Stevens is scheduled to be replaced by Elena Kagan who is Jewish.  The new court will thus be made up of six justices who identify themselves as Roman Catholics and three justices who identify themselves as Jewish.  

This shift is in no way a revolution, and, while it has been noted, it has not become a matter of public debate, being regarded rather as simply a sign of America's evolving sensitivities.  I certainly do not intend in this column to suggest that it should be otherwise, but I do believe it gives all of us an opportunity to understand the modern religious consciousness and the rising secular consciousness that are both today significant parts of our nation's makeup.

Throughout our history, various minority or underrepresented groups in our population have lobbied politically to have someone with whom they identified themselves sit on the Supreme Court.  This was particularly important because at the beginning of this nation's history, that court was unanimously white, Anglo-Saxon, Protestant and male.  This fact was, however, hardly noticed by our "founding fathers" since that was the way this nation understood itself.  White, Anglo-Saxon, Protestant males were the power group and the ruling class.  The Supreme Court merely reflected this American reality, which was equally true in all of the branches of our government.  Our presidents, from George Washington to Andrew Jackson, were similarly representative of this ruling class, and their names - Adams, Jefferson, Madison, Monroe and Adams - reflect that.  It was not until 1840 when Martin Van Buren became president that a person of Dutch background broke the Anglo-Saxon power lock on the White House.

The first Chief Justice of the Supreme Court was John Jay of New York and the other members of that original court were named Wilson, Cushing, Rutledge, Iredell and Johnson - all notably Anglo-Saxon names.  The constitution does not fix the number of Supreme Court justices so that detail was left for Congress to decide.  In that first court, which began sitting in 1789, there were thus only six justices.  That number was moved to seven in 1807, to nine in 1837, to ten in 1863 and back to nine in 1869, where it has remained ever since.

The first "minority" to gain access to the court came when Roman Catholic Roger B. Taney was appointed not just to Justice, but to Chief Justice of the Court in 1836 by President Andrew Jackson.  Perhaps it helped Chief Justice Taney in the appointment process that his law partner in Maryland was Francis Scott Key, the author of our national anthem.  Taney went on to have a rather undistinguished career and is remembered now primarily for his racially insensitive ruling in the Dred Scott case, which was later overturned. Taney's appointment, however, broke the exclusive Protestant domination of that body and opened the door for the inclusion of Roman Catholics on the Court.  

There have now been thirteen Roman Catholic justices who have served with varying levels of distinction from that day to this.  When Joseph McKenna was appointed by President William McKinley in 1896, it became a major political concern that one seat on the high court be "reserved" for Catholics.  Cardinal Spellman of New York had actually lobbied President Eisenhower to establish that principle firmly, since it had been semi-violated by Harry Truman's appointment of Sherman Minton to succeed Justice Frank Murphy in 1949 in what had been regarded as the "Catholic seat." Truman had argued that, while Justice Minton was not technically a Catholic, he did attend a Catholic Church with his wife and that qualified him for this seat.  The Catholics were not appeased and President Eisenhower agreed to make that distinction clear and did so with the appointment of Justice William J. Brenner.  Of note is the fact that Justice Minton did actually join the Catholic Church, but only after he had retired from the bench.  

The idea that there needed to be one "Catholic seat" faded in time with the appointments of Justices Scalia, Kennedy, Thomas, Roberts and Alito.  In 2008, with the Alito appointment, Roman Catholics became the majority on the court with five votes.  That majority was increased to six by the nomination of Justice Sotomayor by President Obama.

The Jewish minority in America had its first representative on the high court when President Woodrow Wilson appointed Justice Louis Brandeis in 1916.  In time he became one of the great intellectual giants in Supreme Court history.  He was followed by Justice Benjamin Cardozo, appointed by Herbert Hoover in 1932 and the two overlapped for seven years effectively dispensing with the idea of a "Jewish Seat."  Later justices from a Jewish background included Felix Frankfurter, Arthur Goldberg and Abe Fortas.  Few people even noted that President Clinton's two appointments to the High Court, Ruth Bader Ginsberg and Stephen Breyer, were both Jewish people.  It might be observed in our increasingly eclectic and diverse religious nation that Justice Breyer's daughter Chloe is today an Episcopal priest.

Black people were the next minority to gain access to membership in the Court when the great Civil Rights lawyer, Thurgood Marshall, was appointed by President Johnson in 1967.  His appointment thus effectively established a "Black Seat" and his replacement, Justice Clarence Thomas, appointed by President George H. W. Bush confirmed that tradition.  It appears that African Americans have not yet escaped the idea that one seat on the Court is reserved for people of color.

Women made their first appearance on the Court with the appointment of Sandra Day O'Connor by President Ronald Reagan in 1981.  She was followed by Ruth Bader Ginsburg in 1993 and Sandra Sotomayor in 2009, when she became the first Hispanic Justice.  Now the Kagan appointment appears to indicate that there is no longer a "woman's seat."

So we now have a court of ethnic variety (European, African and Hispanic), religious variety (Christians and Jews) and gender variety (seven men, two women).  In the process, however, the Protestant majority no longer has representation in the Court at all, with Roman Catholics holding six seats and Jews holding three. The question thus arises as to whether or not this is a problem.  I do not think it is, but I do think it could be some day.  Allow me to explain.

The nation was founded in the yearning for religious freedom in Europe after centuries of religious conflicts from the time of the Crusades through to the English Civil War.  That yearning found expression in a clear constitutional provision in America, which separated church and state (a fact that today some Tea Party members like to challenge).  The ability to worship without prejudice in any religious tradition one chooses, or not to worship at all, was guaranteed to every citizen of the land.  

This provision in our Constitution meant that not one's religious practice, but the imperialistic mentality, which so often finds expression inside religious systems, has to be publicly denounced in order for a person to serve this government under the Constitution.  By "imperialistic religious mentality," I mean that religious claim that one particular religious system possesses the sole truth or is the only pathway to God and, as a consequence, appears to judge those who are not part of that faith system to be somehow inadequate or ill informed. The values of no particular religious system, as beautiful as they might themselves be, were to be imposed on the people of this land by law.  

When our first Roman Catholic president, John F. Kennedy, was elected, he asserted in the campaign that he would not allow his faith or the positions of his church to influence his decisions as president.  That seemed to be an acceptable statement in 1960 even to the Catholic hierarchy in America.  When Roman Catholic Geraldine Ferraro was nominated to be vice president on the Walter Mondale ticket in 1984, and when Roman Catholic John Kerry was the presidential nominee in 2004, that separation appeared to be no longer acceptable to America's Roman Catholic Bishops.  Both Ferraro and Kerry were told that the positions they supported politically on abortion, homosexuality and on end-of-life counseling were not acceptable to their Church and therefore they would not be welcomed to receive communion at Catholic altars since they were in effect, publicly out of communion with Catholic teaching.  

Should a justice on the Supreme Court be subjected to that kind of ecclesiastical pressure from his or her church that would indeed constitute a problem for this democracy.  Issues regarding a woman's right to privacy, abortion and the freedom to choose when to die are all issues that could conceivably come before the Court.  Can our Catholic justices separate their constitutional responsibilities from the teachings of their Church?  This does not seem to be a problem for our Jewish Justices. I have never known a Jewish person who wanted to force circumcision, kosher dietary laws or Sabbath day observance on the body politic of this nation.  I have, however, known Roman Catholics who wanted to force their convictions about these matters on the body politic, so I am eager to see how this court will acquit itself on issues where church teaching and interpreting the law in a largely secular country come into conflict. I think that the vast majority of American citizens will be watching with me. In the meantime, I welcome Justice Kagan to the seat to which she surely will be confirmed and I take great joy in seeing our expanding democracy take another step into what I believe will be a glorious future.
~John Shelby Spong
Read the essay online here.

Question & Answer
Janet Schulte, member of the Department of Pathology at Ohio State University, writes:

Question:
I love the column - thank you for the insights.  I am a science nerd - I taught and worked in the field of science all my life.  I am also working on a degree in theology.  I took my first biology classes about 46 years ago.  When I learned about Darwin, I had an ah-ha moment.  If the human species lives according to the model of the survival of the fittest, we will become extinct.  That is part of the model that is often overlooked.  Every organism must successfully fill a niche to survive.  Only those organisms that learn the "law of cooperation" will ultimately win the day. That is what Jesus was trying to teach us.  It is all about relationship - not domination.

Answer: 
Dear Janet,

Your ah-ha moment was indeed a profound insight.  Every living thing, plant and animal is programmed to survive.  What is true of all these living things is also true of human life. The only difference is that we human beings are self-conscious, while plants and animals are not.  If survival is our highest goal, self-centeredness is inevitable and thus this quality becomes a constant part of the human experience.  Traditionally, the church has called this "original sin" and has explained it with the myth of the fall.  That was simply wrong.  Survival is a quality found in life itself.  There was no fall.  Self-centered, survival driven, self-conscious creatures is simply who we are.  There is thus no such thing as "original sin" from which we need to be rescued by a divine invader.  So much of traditional Christianity assumes this false premise.

You are correct, however, in your assessment that survival, as the ultimate goal, will lead finally to extinction.  Our hope does not lie in an external rescue.  It lies in the process of evolution to carry us beyond the limits of humanity into a sense of being one with the universe.  I don't think this happens by denying who we are or even being rescued from it.  It comes from transcending who we are and I see that as the role of Christianity from which the church as an institution and most Christian individuals, have simply turned away.

We need to begin to see God and indeed the Christ life, not as that which rescues us from a fall and a sense of depravity (which basically creates in us guilt and a sense of worthlessness that we constantly transfer to the victims of our prejudice), but to see God and the Christ figure as the love that empowers us to grow into new dimensions of what it means to be human.  It is a shift from guilt to grace; from the need to victimize to the ability to affirm the divine in all things.  Individuality and the process of individuation are both necessary steps in the evolutionary process, but ultimately, as you suggest, they lead to extinction because they are based on competitiveness that leads to one sole remaining dominant survivor.  Being one with nature and transcending self-consciousness in order to move into a universal consciousness is the future hope.

Your insights are, as the English say, "Spot on."

~John Shelby Spong

Read and Share Online Here

Announcements
With all the recent opinions and news about our next Supreme Court Justice appointment, as Bishop Spong continues his recuperation, he thought you would enjoy reading this post from June 10, 2010.

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