All of which raises a question: Are the days of caring about religious diversity on the high court behind us? Or is it merely that the days of talking about it openly are behind us?
- Dahlia Lithwick
We should talk about religion in this context but make sure we do so carefully.* Prof. Sandy Levinson, referenced in the article, wrote a book about the importance of diversity in education and other contexts. A review of the book (Wrestling with Diversity) over at Amazon notes:
In the book's most compelling chapter, "Identifying the Jewish Lawyer," the author discusses how identity is constructed by both culture and religion, and vice versa. Levinson's quiet insistence on bringing religion into our definition of diversity is a critical gesture that is particularly welcome coming from a legal scholar.
Prof. Levinson promotes diversity, but not in the single minded fashion of some (race, gender) but in a truly diverse way, including religion, region, or profession (Thurgood Marshall's jurisprudence was greatly affected by him being a defense attorney / advocate, not merely by his race and racial experience) and so forth. If we honor diversity and/or reject that justices are purely fungible parts who will just "follow the law" like "umpires," their backgrounds will clearly in some fashion affect their judgment. This matches experience as well as human reality.
Religious belief and practice is one aspect, which is why for some time there was a "Jewish seat," even though one Jew on the Court has a daughter, who is an Episcopal priest. Pat Buchanan argued in this light that evangelical Christians are not represented. Not true -- see, Justice Thomas. Also, "Catholic" is really a catchall, given the different positions of Kennedy and Scalia on many issues ... lest we forget, Justice Brennan also was Roman Catholic as was Ted Kennedy.
It was not "five Catholics" on the Court that gave us Gonzalez v. Carhart, but as Catholics For Choice might tell you (reflecting a chunk of its membership in the U.S.), conservative leaning (on certain issues at least) Catholics. This is why we cannot simply look a labels here, even when realizing that religion does matter. Brennan v. Scalia underlines that only some Catholics are originalists ("originalists"), Judaism and Islam also underlining the different shades of a religion, the position of the latter on let's say the legitimacy of interest running the gambit. Evangelicals are more comfortable with Scalia (and Catholics can be evangelical in various ways) than Souter.
When promoting diversity, it is important to keep in mind that people can bring things to the table in many ways. Given Justice Sotomayor is divorced and one assumes might not stay loyal to traditional doctrine as to premarital relationships, is she a "Catholic" or does she bring one aspect of a diverse Catholicism that to some raised in the faith almost appears to be Protestant? Should we rather desire a Protestant white man or woman with a less notable background was chosen? I am more concerned that there are five conservative former appellate judges with certain judicial views than that they are all Catholic.
Religion surely matters, including if you are a judge. Clearly, and this is why there is no religious test barring individual religions from public office, it is a complicated matter all the same. Just ask the author and main dissent in Lawrence v. Texas.
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* This came to mind today while listening to part of President Obama's Nobel Prize acceptance speech as well:
For if you truly believe that you are carrying out divine will, then there is no need for restraint -- no need to spare the pregnant mother, or the medic, or the Red Cross worker, or even a person of one's own faith. Such a warped view of religion is not just incompatible with the concept of peace, but I believe it's incompatible with the very purpose of faith -- for the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.
This might be the "very purpose of [his] faith," and he does say "I," but it need not be the definition of all faith -- the Golden Rule can be determined to not apply. The desire to blend religions together at times leads to troublesome mixtures of church and state (or other institutions), the sectarian favoritism arising from assumptions. Ditto the belief that certain things like "marriage" obviously cannot be religiously recognized when a same sex couple is involved, even though some religious faiths do so recognize.