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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