On Hobby Lobby, how does the Supreme Court measure up?

On Hobby Lobby, how does the Supreme Court measure up? March 25, 2014

Aaaaiiieeeee! More “devout Catholics!”

No, wait. The Washington Post seems here to be using the term more responsibly, examining the relationship between beliefs and verdicts. And it doesn’t even use the term as a launchpad for a liberal screed.

The article tied to the Hobby Lobby case is not flawless, but it does try to advance knowledge for people who aren’t court watchers. How well, though, is a good question.

After a painful cliché — “The justices got religion” — the article calms down:

Or at least they seem more open about their faith, appearing before devout audiences and talking more about how religion shaped their lives or guides them now.

As the court this week weighs religious conviction vs. legal obligation in the latest challenge to the Affordable Care Act, those who study the court say the change is hard to quantify but easy to notice.

The Post notes that this is the first-ever U.S. Supreme Court without a Protestant member, instead sitting six Catholics and three Jews. It says the mix may affect the outcome of two cases this week in which two companies — the evangelical-linked Hobby Lobby chain and the Mennonite-owned Conestoga Wood Supplies — must comply with Obamacare’s requirement to supply employees with all kinds of contraceptives.

The “devout Catholics” are justices Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. — although, as in many media, the Post doesn’t say how they’re devout. Nor does it include fellow Catholic Justice Anthony Kennedy among the titled devout. More on that later.

“In what is likely to be the signature case of the term, the issue is not affiliation but devotion,” the Post says. But how to spot or measure devotion is left unclear. Clarence Thomas is a “former seminarian who says God saved his life,” but doesn’t offer details. Antonin Scalia has used the phrase “fool for Christ” and has stated his belief in the devil.

But how often do the justices attend worship? How often do they observe Holy Communion or light Shabbat candles? How many of the basic doctrines of their faiths do they hold? How much do their beliefs affect their everyday lives?

For a couple of them, the answer would be “not much.” Sonia Sotomayor, nominated by President Obama, is not religious, but was raised in parochial schools, like Thomas. Also nonreligious is Elena Kagan, who “nonetheless has reminded Jewish groups that she undertook years of three-days-a-week religious instruction as a child.”

The other drawback to the Post article? It’s vague on how the beliefs of the justices influence their actions, especially while at the bench. In fact, some of the story indicates otherwise:

“It is literally impossible to answer” whether a justice’s religious views affect his or her decision-making, said Richard H. Fallon, a Harvard law professor who is a scholar of the court …

The rise of religious conservatives on the court corresponds with the rise of the religious right in Republican politics. Seven of the 11 justices who joined the court since 1980 were nominated by Republican presidents, including the five Catholic men who are the current court’s most consistent conservatives.

But they were not chosen for their religious affiliations, experts agree. “It didn’t matter that Alito was Catholic,” said Eric Mazur, a professor of religious studies at Virginia Wesleyan College. “What mattered was his ideology.”

The story also cites Ruth Bader Ginsburg saying that she and Stephen G. Breyer were justices “who happened to be Jews.”

The Post reports also that in the so-called Peyote Case — which helped to spark passage of the Religious Freedom Restoration Act — Scalia stated that it would be “courting anarchy” to allow religious exemptions to civil laws.

What’s more, Justice Anthony Kennedy is Roman Catholic and honorary member of the John Carroll Society, an association of Catholic lawyers. This is puzzling because, according to a historical study of Supreme Court justices, Kennedy cast the swing vote in most 5-4 decisions.

Then again, Kennedy also puzzled William Blake, who did the study. Blake accepts the assessment of political scientist Frank Colucci that Catholic beliefs on human dignity colored Kennedy’s votes in favor of gay rights cases; yet traditional beliefs on mother-child relationships moved him to rule conservatively on abortion cases. So maybe it’s not surprising that the Washington Post was confused as well.

Maybe it’s reassuring that the newspaper and its sources couldn’t find a direct cause-effect relationship between faith and civil law. The Supreme Court justices clearly understand that, while their spirituality is part of their makeup, they are making decisions for people of other spiritualities as well. The Post article should have noted that, rather than merely petering off at the end.

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6 responses to “On Hobby Lobby, how does the Supreme Court measure up?”

  1. What got me about this article was that it assumed that all of the justices prior to, say, the Warren Court, were secular folks like they assume justices since that time have been. How accurate is that assumption? I personally have no idea, but I would venture the guess that over the last 230 or so years of SCOTUS, there have been other justices who have been as devout in observing their faith as these guys are. The big difference is that Scalia, Roberts, et al are devout Roman Catholics, something to which our country is not accustomed in a setting like SCOTUS.

  2. Once the prejudice in the US against Catholics and Jews calmed down, it’s not surprising there are so many Jews and Catholics on the court.
    I got my JD at U of IL where we noticed that lots and lots of our colleagues were Catholic and Jews. The explanation seemed to be the tradition in both faiths of studying and applying prior authoritative texts and glosses – which process develops over time. Neither faith is tied to literalism. Anyway, the folks in the law school smoking room (otherwise used as the moot court jury deliberation room) which included all levels of students and even top professors came up with this explanation while killing time between classes.
    My experience since that time leads me to believe the observation was rather astute. Interesting that Scalia and Ginsberg are supposedly great friends. And my Jewish sister-in-law says that if she wasn’t Jewish she would be Catholic.
    We had Protestant and no-religion classmates, but Catholics and Jews really predominated. Another interesting tidbit: of the female students, a surprisingly large amount went to either girls’ high schools or undergraduate college.

    • Another dimension to what you say is that in the Catholic and Jewish approach, not only are authoritative texts, etc., applied, but there is a search also for general principles that can be applied in other cases. In other words, “do not kill” is part of a more general principle of (for instance) solidarity, which compels not only avoidance of killing but also helping those in need. The one “law” has deeper meanings. Feeding the hungry is a way “do not kill” is fulfilled. Yet, we cannot say that “feeding the hungry” compels taxes and redistribution programs – there is prudential judgment as to the means and the obligation of individuals.

      • Sorry – this is going to run a bit long – no way to shorten it.
        The one corrolary that struck me most was this: on the first day of Criminal Law class the professor said – 90% of the clients “did it”. The question to be answered is: what was it they did? – “depraved heart murder”, an accident, manslaughter, 2nd degree murder, justifiable homicide, or total lack of “mens rea” due to a mental defect, etc. ?
        The priest in the confessional dealing with a penitent who has confessed to a grave (mortal) sin immediately came to mind. This is what Francis means by the term “merciful.” Example – an abortion. How old was the penitent, what did she understand about reproductive biology, was a boyfriend or parents pushing her to do it, was it the result of a rape, was it an older man/trusted friend of the family who was threatening her or was she a 30 yr old professional who couldn’t be bothered with a child? Jews and Catholics are used to going beyond the “Black Letter Law”. It’s already a familiar concept to extrapolate and parse individual situations to assess culpability.
        To brief a legal issue, you first look to the legal principle involved (usually black letter law) and then find individual case law that is as close as possible to your case that also helps your client. If you can’t find any favorable cases, propose a different legal principle or posit new extrapolations in your client’s favor because of extenuating circumstances. This is what is sometimes sneeringly described as Jesuit “casuistry.” LOL Francis’ emphasis on mercy is a perfect example.

  3. While the media often ponder how a civil servant’s religion affects their views on issues and policy, they seldom ponder the effect of the lack of religion. If one starts with “God exists, and because of that, we humans have a duty to Him and to each other,” one ends up with one set of laws and principles of moral/ethical behavior. If one starts with “God does not exist – we have nothing higher than human laws and those laws can say whatever those in power want them to say,” you end up with a completely different set of laws and principles of moral/ethical behavior. The rights enunciated by the Constitution would not reflect and articlute those “unalienable rights” that are “endowed by their Creator” – but would be conferred by the Constitution and can be taken away by the Constitution, depending on what it says or how it’s interpreted. There seems to be a presumption in the media that lack of religion is somehow more objective or more neutral or more universal, and the presence of religion mucks up the waters, and so they investigate it. But who investigates the contrary?

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