By Charles C. Haynes
Director, Religious Freedom Education Project
Editor’s note: This commentary originally appeared May 11 on The Washington Post‘s Web site. Reprinted by permission.
Q: If Elena Kagan is confirmed to replace retiring Justice John Paul Stevens, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations — the Protestant traditions. If Kagan is confirmed, six of the justices will be Roman Catholic and three will be Jewish. Should the Supreme Court be more representative of America’s religious traditions? Does religion matter in the mix of experience and expertise that a president seeks in a Supreme Court nominee?
The current makeup of the Supreme Court — and the nomination of Elena Kagan to replace Justice Stevens — may well signal that religious affiliation is no longer a consideration in the process of selecting justices for the high court. If that is true, it would be cause for civic celebration. We may finally be living up to what we say we believe as a nation.
After all, Article VI of the U.S. Constitution requires that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." That means it is unconstitutional for the president or Congress to make religious affiliation a factor in either the nomination or confirmation of Supreme Court justices.
But in the real-world history of American politics, religious affiliation has often mattered. It is no accident that 91 of the 112 nominees to the Court have been Protestants. And students of Court history are aware of past behind-the-scenes maneuvers to fill a "Catholic seat" or to keep a "Jewish seat."
The fact that all of the seats on the Supreme Court may soon be filled by Roman Catholics and Jews is a fitting, if somewhat ironic, end to the religious tokenism of the past.
Given the ugly strains of anti-Catholic nativism and anti-Semitism in American history — strains that persist to the present day — it is heartening that the current religious affiliation of justices stirs so little comment and almost no controversy. As far as I can tell, the fact that Kagan is Jewish has been greeted with a collective shrug by most of the public.
Of course, we still have some distance to go. Jews and Catholics may have arrived at the Court, but Muslims, atheists and others are unlikely to be nominated anytime soon. In judicial nominations as in electoral politics, religious tests often still apply.
As for the departure of the last Protestant on the Court, I think it is fair to say that most evangelical Protestants will be happy to see him go just as many liberal Protestants will mourn his loss. What matters in a Supreme Court nominee for many religious people on the Right and Left is not religious affiliation but core principles and judicial philosophy, especially as applied to such issues as abortion, same-sex marriage and the separation of church and state.
Future Supreme Court nominees will no doubt include Protestants as well as some of the many other faith traditions in what is now the most religiously diverse country on earth. But I believe it would be the mark of a mature and healthy democracy if no one really noticed.
Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: [email protected]