The Roberts Court’s cultural amnesia is shocking in Greece v. Galloway, especially considering the religious discrimination the justices’ own forefathers confronted.
So far, liberal analysis of the decision in Greece v. Galloway was best summarized by Andy Borowitz’s satirical headline: “In Landmark Decision, Supreme Court Strikes Down Reason Country Was Started.”
How did we get to a point where five members of the court would believe that opening a public town board meeting in the community of Greece, New York, with an explicitly Christian prayer about Easter is no big deal? That was the gist of Justice Anthony Kennedy’s majority opinion and the (mostly) concurring opinions by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
Beyond the constitutional ramifications, I’m curious about how the backgrounds and life experiences of the justices affected their legal opinions and their moral imagination. This is treacherous terrain. Jurists like to claim they are only interested in applying the law; recall how during her confirmation hearings in 2009, Justice Sonia Sotomayor had to back away from her earlier comment that the perspective of a “wise Latina” would be useful on the court. But every justice is shaped by his or her heritage, especially when the case involves religion. The refusal of most court observers to even mention the religious affiliation of the justices has hampered our understanding of this important case.
While Greece was decided 5-4, the religious split on the court is 6-3—six Catholics and three Jews. Sotomayor, a liberal Catholic, voted with Justices Elena Kagan, Stephen Breyer, and Ruth Bader Ginsburg. In a country founded by Protestants who still make up 48 percent of the U.S. population (22 percent of Americans are Catholic and 2.2 percent are Jewish), the absence of a Protestant from the court is extraordinary. It wasn’t until 1836 that the first Catholic (Roger Taney) was appointed and until 1916 that the first Jew (Louis Brandeis) made it to the high court. Now Catholics and Jews dominate, an only-in-America phenomenon. The flip-side of our unusual national talent for inclusion is the cultural amnesia displayed in this case by the court’s majority.
The Founders—so backward in their attitudes on race—launched the republic on the basis of religious tolerance. Benjamin Franklin believed in prayer but stressed the importance of ecumenical “public religion.” Thomas Jefferson did not include his service as president of the United States on his tombstone but requested that his authorship of the Virginia Act for Establishing Religious Freedom be included. James Madison believed that “religion & Govt will both exist in greater purity, the less they are mixed together.” With God unmentioned in the Constitution, the Founders set a course that allowed, over Madison’s objections, for chaplains offering prayers at public meetings. But the tradition has favored deistic references (“God,” “the Almighty,” “the Supreme Being”) over sectarian specifics. “The Founders wanted to keep it general because theological disputes led to political upheaval,” says Jon Meacham, author of American Gospel.