With Miers, Dormant Issue of Religion on High Court Blooms

When the Supreme Court began its new term this month, the arrival of Chief Justice John G. Roberts Jr. marked a first in the court’s history that went almost entirely unnoted.

For the first time, there are fewer Protestants on the court than Catholics. Roberts brought the number of Catholics to four. Three of the justices are Protestant, two are Jewish.

It was scarcely noticed at the time because the religious makeup of the high court is rarely discussed, partly because of the constitutional separation of church and state.

Judges, among other officials, “shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States,” the authors of the Constitution said in 1787.

But last week, religion suddenly loomed large in the debate over President Bush’s latest Supreme Court nominee, Harriet E. Miers, after the White House cited her faith and her membership in an evangelical Christian church as reasons for conservatives to support her.

The left and right quickly found something they could agree on: Both sides said religion should not be the basis for being a justice.

“We are the last people on Earth to object to the news that she is a committed Christian,” said Family Research Council President Tony Perkins, whose conservative advocacy group says it “promotes the Judeo-Christian worldview.” But “this fact is not grounds for certifying her to us or to the public,” Perkins said. “Inferences drawn from an individual’s religious affiliation have no place in decisions to nominate or confirm a judicial appointee.”

Sounding the same note, the executive director of the nonsectarian Americans United for Separation of Church and State advocacy group, Barry W. Lynn, said it was “appalling and hypocritical” for the White House to promote Miers because of her church membership.

“We were told we weren’t even allowed to bring up the topic of religion when John G. Roberts was nominated for the Supreme Court. Anyone who did was quickly labeled a bigot,” Lynn said. “Now Bush and [his deputy chief of staff Karl] Rove are touting where Miers goes to church and using that as a selling point.”

Most legal scholars reject a focus on a judge’s religion because of what they see as the basic difference between law and politics: Politicians may highlight their faith when they run for office, and voters may elect them because of their religion; but judges are supposed to base decisions on the law, not on personal views or religious convictions.

“The issue is [that] law has its own autonomy. A conclusion of law is not the same as a conclusion based on religious faith,” said Seton Hall University law professor Edward A. Hartnett. “It is quite possible to believe, for example, that capital punishment should not be permitted based upon a religious belief, but to uphold it as a judge on the grounds that it is constitutional.”

If judges cannot put aside their personal convictions on a legal issue, they should withdraw from the case, he said.

There is plenty of evidence they can put such beliefs aside. Indeed, religious faith has not been a particularly good predictor of a justice’s legal views.

President Reagan in his second term appointed two Catholics to the high court. Both Antonin Scalia and Anthony M. Kennedy said they believed abortion was immoral, and both won unanimous confirmation from the Senate.

Yet the two were split when the court in 1992 debated whether to overturn Roe vs. Wade, the decision that legalized abortion.

Scalia said the Roe decision was wrong and should be reversed because the Constitution did not create a right to abortion. Kennedy cast a decisive fifth vote to uphold the right, saying the Constitution’s protection for individual liberty gave women a right to choose abortion.

The two also took contrasting stands on gay rights.

Two years ago, Kennedy wrote the court’s opinion that struck down a Texas law that made sex between gays a crime. The Constitution does not allow the government to invade the private lives of adult gay couples, Kennedy wrote.

Scalia dissented: Many Americans, he wrote, believe the homosexual “lifestyle to be immoral and destructive,” and they should be permitted to condemn it by law.

Sometimes, both could be said to ignore the teachings of their church. The pope and bishops of the Catholic Church have opposed capital punishment, but Scalia and Kennedy have voted regularly to uphold the death penalty and to carry out executions.

Scalia and Justice Clarence Thomas, another Catholic, are the most conservative members of the current court. But when Scalia first joined the court, he clashed regularly with its most liberal justice -- also Catholic -- William J. Brennan.

That, legal experts say, is the way it is supposed to be.

But others question whether religion should be ignored, at least in the debate over Miers.

“Normally I would say it [religion] is out of bounds, but this may be the special case,” said University of Texas law professor Douglas Laycock, a scholar of religious liberty. “It is better to look at her constitutional views than her religious beliefs; the problem with Miers is we don’t know her views on the Constitution. She probably doesn’t have any, and if she does, she won’t tell us what they are. There is a total void.”

Laycock continued: “Usually religion is put off to the side as irrelevant. But in this instance, people are going to use it, right or wrong. The president is saying: ‘Trust me on this. She is a conservative evangelical.’ That faith commitment is correlated with hot-button legal and social issues” such as abortion and gay rights. “It would be remarkable if her opponents didn’t respond in the same way and say her faith is relevant.”

Some observers say her faith is a positive factor, as the high court has not had an evangelical conservative.

“A theologically conservative Protestant” on the court “may provide some diversity, a capacity to understand the concerns of a group of people and to listen with sensitivity to their arguments,” said law professor Mark S. Scarberry of Pepperdine University in Malibu.

Scarberry said millions of evangelical conservatives had been troubled by what they saw as elite judges seeking to change public policy on long-established matters of morality.

An evangelical Christian judge would listen to arguments from that perspective, he said, citing abortion as an example. “If you are part of a faith community that says an unborn child has great value, you will at least listen to the argument that society has an interest in protecting that child,” he said.

Still, most legal experts and Senate aides predict that Miers’ religious views will not be deeply probed during upcoming confirmation hearings. Most nominees can quickly dismiss such questions -- as did John Roberts -- by saying their personal or religious views do not determine their views as judge.

“This is a minefield for the senators. They can’t ask about her religion without it sounding like the Inquisition,” Laycock said. “It’s easy for the president to use her religion as a plus. It’s hard for her opponents to use it against her. It sounds like ‘No Evangelicals Need Apply,’ and we have a strict rule against religious discrimination.”