by Martin Marty, guest contributor from Sightings
Those who observe United States Supreme Court decisions on “church and state” are dealing with what many call the most important “religious liberty” case in decades, at least since the 1940s. Like so many cases, this one had a parochial start.
The details are familiar, and we need not rehearse them all. Let it come to focus on the fact that a Lutheran parochial school teacher had been dealt what to her was a manifest injustice. She countered by seeking to pursue her case in court. Doing so, claimed the church, was counter to church teachings, so it fired her.
Had she been a simply secular employee in a simply secular post, the usual standards for administering justice would have applied. But the church named her a “minister,” and argued for a “ministerial exception” to secular standards. The Supreme Court decision left the teacher out in the judicial cold and left many citizen justice-advocates heated up.
So we add a “ministerial exception” to a national vocabulary and code which makes another exception in religious matters, alongside “tax exemption for the churches.” Such a tax exemption practice is so widely appreciated that few think of its rationales and practices. Try getting elected to Congress on a platform which would question and even abolish such tax exemption.
Is exemption just? Clearly, it is privileging religion, and many court decisions recognize and affirm this. Once again: is it just? Is it just to the significant percentage of the population which disfavors religion, ignores or disdains its institutions, yet pays higher taxes than if church properties were taxed. Never mind. Without such an exception, religious institutions would not thrive or always survive. So it is regarded, not always with clear rationales, as a public good.
Does this mean that the church, which is supposed to be prophetic, has to mute critical roles and support religious institutions even when they have, in the eyes of their critics, malign purposes and malignant practices? Yes. Being uncritical is a price religious institutions pay for the goods they derive for their prosperity in a free republic and letting the institutions go free from taxing is the price it pays when it can only wink at religions damaging the public good, as many of them do.
"With liberty and justice for all…" is an ascription in the Pledge of Allegiance to the flag, one that sets up a difficult balancing act. The founders, among them James Madison and others who quoted Montesquieu, were nervous. They quoted him: granting privileges to religion, as America does, has many upsides, but it can also contribute to downsides. If you want to destroy religion, Montesquieu had advised, give it favor. By granting "tax exemption" and now "ministerial exceptions," the citizenry and its courts (unanimously in this case of the Supreme Court) are giving favors unmatched by policies of European nations which have or until recently had "established churches."
These years one hears from some cultural and political factions the gross generalization that religion in general and Christianity in particular are being discriminated against and are suffering from the actions, policies, and expressions of secular society. Cases like the current one counter evidences. There are many assaults on faiths, including Christianity, in the culture at large. But the generally free ride given religious institutions even in a “secular time” should inspire thought: With all its contradictions, the United States remains a wonderful place in which religions can prosper. They do well when they serve the common good freely and openly.
Martin E. Marty is the Fairfax M. Cone Distinguished Service Professor Emeritus at The University of Chicago. He’s authored many books, includingPilgrims in Their Own Land and Modern American Religion.
This essay is reprinted with permission of Sightings from the Martin Marty Center at the University of Chicago Divinity School.Comments
by Michael Sohn, guest contributor
Canada’s Supreme Court Justices pose for a photo at the Supreme Court of Canada in Ottawa on November 14, 2011: (bottom row, l-r) Morris Fish, Louis LeBel, Chief Justice Beverley McLachlin, Marie Deschamps, Rosalie Abella; (top row, l-r) Michael Moldaver, Marshall Rothstein, Thomas Cromwell and Andromache Karakatsanis. (photo: Blair Gable/Reuters)
Last year when Justice John Paul Stevens retired from the Supreme Court and was replaced by Justice Elena Kagan, it provoked some concern over the religious and regional backgrounds of the members who served on the nation’s top bench. With six Catholics and three Jews, it marked the first time in American history when no Protestants held a seat. And no less than four sitting justices hailed from New York City alone (Scalia, Ginsburg, Sotomayor, and Kagan are from Queens, Brooklyn, the Bronx, and Manhattan respectively).
The discussions over the religious and regional background of justices, however, have now largely subsided or been summarily dismissed. The notion of the Protestant seat that could somehow represent the varieties of Protestantism in America was as fanciful as the notion of an essential New Yorker who could not grasp legal issues beyond her city limits.
The politics of religion and regionalism, however, took on new life from a different angle in the Canadian context. When Justices Andromache Karakatsanis and Michael Moldaver were sworn in on November 14, 2011 to the Supreme Court of Canada, it signalled both deep continuity and significant change within its history. By law, at least three members of the Court are required to be from Quebec; by convention, an additional three are from Ontario and three more are from other provinces.
The apportionment of seats along strict regional lines is rooted in the historical origins and conception of the Canadian Confederation and the aspiration to form a federalism that respected and recognized the distinctiveness and particularities of regional identities. Indeed, the fear of alienating regions and provinces was so acute in those early days that it even led some to suggest that the Court travel around the new country to hear proceedings. That both newly appointed justices, then, hailed from Ontario and that they were replacing seats which were vacated by justices from Ontario followed the time-honored traditions and customs of the Court to maintain regional diversity.
One of the consequences of the institutionalization of regional diversity on the Canadian Court was that it engendered both religious diversity and uniformity. On the one hand, as most Quebec justices were Catholic and most justices from the other provinces were Protestant, it created a kind of religious diversity that was unusual for its time. A seat vacated by a Catholic went to a Catholic and similarly a seat vacated by a Protestant went to a Protestant. It was not until 1924 when that custom changed, when Justice Abbott became the first Protestant from Quebec to serve on the Court.
On the other hand, there was maintained a kind of ethnic and religious uniformity. For much of the Court’s history, justices were almost exclusively from a French or British background with at least a formal connection to a Christian religious group. It was not until 1970, when Bora Laskin was appointed, that a non-Christian took a seat on the Court. The appointments of Justice Andromache Karakatsanis, the first Greek Orthodox, and Justice Michael Moldaver, a Jew, attest then to the changing religious diversity of the Court.
The issue of religious and regional representation on the Supreme Court was symbolically important from its inception; at stake was the very issue of federalism that has become further complicated in an increasingly multicultural society within the bilingual constitutional framework of Canada. Perhaps the greatest testimony of this was when Karakatsanis used not only French and English in her swearing-in ceremony, but paid tribute to her cultural heritage in Greek.
Michael Sohn is a Ph.D. candidate in Religious Ethics at the University of Chicago Divinity School and a Martin Marty Junior Fellow for 2011-2012. His dissertation is entitled The Good of Recognition: Phenomenology, Ethics, and Religion in the Thought of Levinas and Ricoeur.
This essay is reprinted with permission of Sightings from the Martin Marty Center at the University of Chicago Divinity School.Comments
Trent Gilliss, senior editor
Nick Anderson’s cartoon in the Houston Chronicle struck a chord with this kid from North Dakota who opted not to head east for college.
When Justice Stevens announced his retirement, we here at SOF read a good many articles about the many factors that play into the choosing of a Supreme Court nominee: religion, gender, ethnicity, race, political leanings, socio-economic upbringing, judicial philosophy, class, etc. And, law school education even came up.
Seeing the composition illustrated in this way is a glaring reminder for me and my responsibilities as a producer on this show — to look outside of the mainstream for surprising perspectives on topics; to think more deeply about the audiences we serve (I know this sounds a tad syrupy but I believe it!); to listen more intently for the little heard, sage voices that choose an alternative path, a different coast, a non-traditional landscape, an unpublished life.
Geographic identity matters. Styles of training count. Choices about where one chooses to raise one’s family and practice one’s vocation are part of the story. These decisions influence who we are and how we approach the complex questions that give meaning to our lives, that shape our humanity.
So, we’ll continue to look in all four directions — and to you for advice. Send them in.
Cartoon courtesy of EditorialCartoonists.com.Comments
Shubha Bala, associate producer
Members of the U.S. Supreme Court pose for a group photograph on September 29, 2009.
Front row (l-r): Anthony M. Kennedy, John Paul Stevens, John G. Roberts, Antonin Scalia, Clarence Thomas. Back row (l-r): Samuel Alito Jr., Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor. (photo: Mark Wilson/Getty Images)
On April 9th, Justice Stevens announced his upcoming retirement from the U.S. Supreme Court. The loss of the lone Protestant on the Court, in a country with 51% Protestants, has sparked a vigorous media discussion. Pundits and journalists are asking how, and if, this will impact future Court discussions, and if religion should even be a consideration when selecting Justice Stevens’ replacement.
There have been plenty of interesting media reports during the past week: Nina Totenberg on NPR, Dahlia Lithwick in Slate, Adam Liptak in The New York Times, which gets called out by Ashby Jones in the Wall Street Journal. However, we were holding out for a thoughtful, well-informed theological voice — specifically looking out for Martin E. Marty, who weighed in Monday with a piece in Sightings:
"… To grant a para-constitutional point, most ‘religious tests’ are ‘cultural tests’ or ‘power tests.’ On the positive side of that case, it is true that people steeped in a religious culture might well hear religious nuances in cases, and can adjudicate them more sensitively than the spiritually tone-deaf might. Others do and will clearly use their ‘nuances’ as weapons of judicial power. Overall, it might be best if the public said, ‘We are reassured you justices are religious; just don’t "use" that religion too much.’"
Later on, Marty references Geoffrey Stone, whose comments on religion in the Supreme Court over the past several years have often been cited. In 2007, the University of Chicago law professor created some controversy when he pointed out that religious belief may have swayed the Court’s ruling in Gonzales v. Carhart and his analysis of Catholic Justices on the Court after Sotomayor was appointed.
However, Stone’s recent statements that religion should not be a focus in the selection process prompts Marty to ask:
"Can the one who makes an appointment satisfy the people called Protestant? Most are, top to bottom, at odds with each other. From a satellite distance, they come in three large tribes: ‘Mainstream’ or ‘mainline,’ ‘Evangelical,’ and ‘African-American.’ Most citizens in any of these three groups will neither say ‘Hurrah for our side!’ nor feel represented by any representative of the other two.
Thus would evangelicals Charles Colson, James Dobson, or Marvin Olasky, who enthused about the ill-fated appointment of ‘evangelical’ Harriet Miers during the Bush administration, have been satisfied with any mainstream sort, and vice versa? Stone has only two criteria, or wishes, for the next appointment: The nominee ‘must have the intellect, temperament and experience necessary to fulfill the responsibilities,’ as many Protestants do and other Protestants don’t; and he or she ‘should have the vision of the law…that is consonant with the president’s own aspirations.’ For Stone, that should be it – but no one expects that will be.”
I had started my research thinking I had a point of view, but sifting through different analyses I find myself more confused than ever with this complex issue. I welcome any sources or ideas that you’ve found that helps illuminate the topic!Comments
Andy Dayton, associate web producer
Here’s a fascinating case of modern law meets 5000-year-old religious tradition. At the end of October, the British Supreme Court decided that — in the case of accepting applicants to a Jewish high school — observance, not ethnicity, should be used in determining admissions. From Sarah Lyall’s New York Times write-up on the ruling:
"In an explosive decision, the court concluded that basing school admissions on a classic test of Judaism — whether one’s mother is Jewish — was by definition discriminatory. Whether the rationale was ‘benign or malignant, theological or supremacist,’ the court wrote, ‘makes it no less and no more unlawful.’"
The article refers to the Jewish principle of matrilineal descent, which we recently heard about on SOF Observed. In the post, we included StoryCorps audio of two friends — Sarah Kelman and Joanna Schochet, who says, “We’re both halfies. By the book I don’t count.”Comments