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High Court: Does religion still matter?
Breyer was raised in a Jewish household in San Francisco, but he was married in an Anglican ceremony and has a daughter who is an Episcopal priest.
Such diversity makse religious labels at best incomplete. "Just because there is a disproportionate number of Catholics on the court doesn't mean that you will know how the decisions will come down," said Marci A. Hamilton, a law professor at the Cardozo Law School in New York, who has written extensively about religion and the court.
Other scholars agree that even on questions of the separation of church and state, a justice's generally liberal or conservative philosophy is a far better indicator than religion. Sotomayor, for instance, seems likely to side more with colleagues appointed by Democratic presidents than with the court's conservative Catholics, appointed by Republicans.
But perceptions matter, too. Religion becomes a diversity consideration just like ethnicity and gender, especially with 51 percent of Americans identifying with one of the Protestant religions.
Clearly, Obama did not consider Sotomayor's Catholic upbringing to be disqualifying, despite the court's majority. "And the president has every right to ask [a potential nominee], 'What is your position on how you would separate your faith from the rule of law?' " Hamilton said.
Perceptions also matter, she said. As religions become more politically active, it is natural for the public to wonder about the influence on the court.
Former Justice Sandra Day O'Connor surprised some last fall at a conference when asked about the need for geographic diversity on the court. "I don't think they should all be of one faith, and I don't think they should all be from one state," she said.