Today’s Washington Post has an interesting story about how the personal religious beliefs of members of the Supreme Court might affect their decisions.
The question is especially relevant now with the high court poised to hear oral arguments tomorrow in a pair of cases that could have far-reaching consequences for what religious freedom means.
The cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, deal with the contraceptive mandate of the Affordable Care Act. The mandate requires that most secular businesses provide their employees with a health-care plan that includes no-cost contraceptives. Some businesses owners, citing their personal religious beliefs, don’t want to comply.
If the court rules in favor of Hobby Lobby and Conestoga Wood, it would open the door for more demands that for-profit corporations be excused from secular laws that everyone else has to follow just because the owner has certain religious beliefs.
Many legal analysts believe, for example, that a broad ruling could make it easier for states to pass laws such as the one recently considered in Arizona that would allow businesses to refuse to serve LGBT clients.
The religious make-up of the Supreme Court in no way reflects the theological and philosophical diversity of the country. Six justices are Roman Catholic and three are Jews. Some justices, such as Antonin Scalia, aren’t shy in discussing their faith.
Does this matter? Will it make a difference when the cases are decided?
It shouldn’t. Supreme Court justices, like all government officials, must acknowledge that they serve a diverse population. They are required to put their religious beliefs aside when rendering judgments.
Historically, most have been capable of doing so. Former justice William Brennan was a strong supporter of civil liberties, the separation of church and state and the rights of women and minorities. Brennan was also a devout Catholic who attended services every week and received the sacraments.
The problem, then, isn’t so much religion as it is political ideology. Like Brennan, Scalia is a devout Catholic. Scalia doesn’t rule like Brennan because his ideology is far to the right and he views the Constitution as a document that was set in cement more than 200 years ago and thus can’t change. Brennan looked at that same document and saw a “living Constitution” that contains broad principles that are to be interpreted to address modern issues that the Founding Fathers could never have contemplated.
The Senate is expected to “advise and consent” on judicial nominees. As AU Executive Director Barry W. Lynn noted in the Post article, questions about nominees’ personal religious views often come up. It’s OK to ask them, but a more fruitful avenue is to grill these candidates on their judicial philosophy and to look at the rulings they have handed down (assuming they’ve spent time on a lower court).
In most cases, examining how a Supreme Court candidate views our foundational governing document will tell us more than looking at where he or she worships on Saturday or Sunday.