There’s something that makes the current Supreme Court different from some of its recent predecessors.
The justices got religion.
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.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. are devout Catholics who faced questions during their confirmation hearings about how their faith would affect their jurisprudence. Justice Clarence Thomas is a former seminarian who says God saved his life.
Justice Antonin Scalia is the most outspoken. He has urged fellow intellectuals to be “fools for Christ” and used an interview last fall to underscore his belief in the existence of the Devil, whose latest maneuver, he said, “is getting people not to believe in him or in God.”
Justice Elena Kagan, not religious like the others, nonetheless has reminded Jewish groups that she undertook years of three-days-a-week religious instruction as a child. She negotiated with her rabbi to be the first girl to have a bat mitzvah at New York City’s Lincoln Square Synagogue. “It was good, not great,” she quipped.
Much attention has been given to the religious makeup of the current edition of the Roberts court. With six Catholics and three Jews, it is the first without a Protestant member.
But in what is likely to be the signature case of the term, the issue is not affiliation but devotion.
The justices on Tuesday will hear two cases in which business owners say they would violate their religious principles if they had to provide female employees with cost-free insurance coverage for all contraceptives.
This requirement under Obamacare is being challenged by David and Barbara Green, the evangelical Christian owners of the giant Hobby Lobby craft store chain, and a small woodworking company in Pennsylvania named Conestoga Wood Specialties, owned by a Mennonite family.
One federal appeals court agreed with Hobby Lobby that the requirement violated the Religious Freedom Restoration Act (RFRA). The 1993 act forbids federal laws that impose a “substantial burden” on the exercise of religion unless there is a “compelling governmental interest” and the measure is the least restrictive means of achieving that goal.
A different appeals court ruled against Conestoga, saying that the RFRA covers individuals, not profit-making companies, and that the religious principles of business owners were not affected by an employee’s decision to use a certain method of birth control.
The cases present a complicated set of issues. These include whether corporations have the same rights as individuals — as the Supreme Court ruled they do in the landmark Citizens United v. FEC case for the purposes of political speech — and equal treatment for female employees. There’s even disagreement about whether the emergency contraception and intrauterine devices the challengers find objectionable induce early abortions or simply prevent pregnancies.
But the cases start with the business owners’ claims that the law’s requirement forces them to choose between violating their religious beliefs and paying millions of dollars in government fines.
And that puts a focus on the court itself. “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.
He is among those who agree that the religious views of those on the current court are far more on display than those of the justices in the early 1980s, when he served as a clerk on the court.
Lawyers who practice before the court take note of it. “Certainly any lawyer would keep that in mind and not do anything that would look anything less than respectful” of the religious perspective, said one lawyer who spoke on condition of anonymity because he participated in a brief supporting the government’s position in the contraceptive cases.
The Obama administration seems to have taken that into account as well. Solicitor General Donald B. Verrilli Jr. goes out of his way — repeatedly — to acknowledge the depth of the religious beliefs on the other side.
“The Greens’ sincerely held religious opposition to certain forms of contraception is not subject to question in these proceedings, and their personal beliefs merit the full protection that the Constitution and laws provide,” Verrilli wrote.
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.”
Mazur noted that President George W. Bush’s first choice for the seat was his White House counsel Harriet Miers — like the president a born-again Protestant — whose nomination was withdrawn. Bush was criticized for bringing Miers’s faith into the equation; in vouching for her conservative credentials, Bush said, “Part of Harriet Miers’s life is her religion.”
Likewise, Senate Democrats were criticized for questioning whether Roberts and Alito would find their legal visions clouded by religious doctrine.
Not all think it is a bad idea to put the issue out there.
“In every Judiciary Committee hearing, the nominees are asked, ‘Can you separate your religious views?’ They all say yes,” said Barry Lynn, executive director of Americans United for Separation of Church and State. “Republicans say it’s offensive, but it’s not. You need to put people on the record.”
Asked about the religious makeup of the court in an appearance two years ago, Thomas said: “We’re all from the Ivy League. That seems to be more relevant than what faith we are.”
Justice Ruth Bader Ginsburg has said that while those of her faith who preceded her and Justice Stephen G. Breyer were known as “Jewish justices,” she and Breyer were justices “who happened to be Jews.”
Ginsburg is not observant but said that being Jewish has taught her lessons about what it means to be a minority.
Breyer is a striking example of the modern world of mixed marriages: He is Jewish but married his British wife in an Anglican ceremony structured to avoid mention of Jesus. Among his three children, one raises her children as Jews, and another is an Episcopal priest.
In her short time on the court, Kagan has made it a point to object when she feels government might be favoring a specific religion. When the court earlier this term heard a case from the city of Greece, N.Y., about its policy of prayer at council meetings, she was the toughest questioner.
What if the court, she asked, opened sessions not with the marshal saying “God save the United States and this honorable court” but with this scenario: a minister asking all in attendance to stand and pray with him about “the saving sacrifice of Jesus Christ on the cross.”
She added: “Part of what we are trying to do here is to maintain a multireligious society in a peaceful and harmonious way. And every time the court gets involved in things like this, it seems to make the problem worse rather than better.”
President Obama’s other nominee, Justice Sonia Sotomayor, is the court’s sixth Catholic. She is not religious, by most accounts. But she has an extensive religious background; like Thomas, she credits the strict parochial schools she attended for her rise from poverty to an elite education.
In recent remarks about ways in which the Supreme Court would benefit from being more diverse, she mentioned that “only two religions” are represented.
In the New York magazine interview last fall with Jennifer Senior, Scalia was the one who brought up belief in the Devil. “That’s standard Catholic doctrine!” he said.
When Senior registered surprise either at Scalia’s belief or that he brought it up, Scalia replied: “Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil!”
Still, Scalia has said that there is “no such thing as a ‘Catholic judge’ ” and that the importance he puts on religion has not influenced his judicial decisions.
He might point to the very law at the heart of the contraception cases — the Religious Freedom Restoration Act.
It was enacted by Congress after a string of Supreme Court decisions narrowing the use of religious exemptions culminated in a ruling about Native Americans who had been fired from their jobs for using peyote, which they said was part of their religious ceremonies.
Scalia wrote the majority opinion and said it would be “courting anarchy” to allow individuals to claim a religious exemption from laws that were neutral and generally applied to the rest of the population.
Alice Crites contributed to this report.