When President Biden soon chooses a successor to Supreme Court Justice Stephen Breyer, journalists will need to keep in mind highly contentious religious issues, not just on matters like abortion but over how much to limit First Amendment claims of religious freedom, as in same-sex disputes, and where to draw lines on church-state separation.
Liberal, secularist and separationist voices are quick out of the gate with warnings to Biden about the Court's 6-3 conservative majority. Americans United for Separation of Church and State wants a new justice who'll be "a bulwark against the court's ultra-conservative majority, who seem set on redefining religious freedom as a sword to harm others instead of a shield to protect all of us." This lobby asserts that "our democracy depends on it."
A must-read from the cry-of-alarm forces is the analysis of numerous recent Supreme Court religion rulings from Ian Millhiser — Vox.com's specialist covering law and "the decline of liberal democracy." He asserts that a religion "revolution" is the "highest priority" of the Court's six Republican appointees, who are "rapidly changing the rules of the game to benefit" religious interests.
However, Kelsey Dallas at Salt Lake City's Deseret News tabulates that Breyer, in tandem with fellow liberal Justice Elena Kagan, voted with conservative justices in nine out of the 13 Court's decisions from 2006 to 2020 that backed religious-freedom claims.
The most illustrative example of the Jewish justice's thinking came in 2005 with two apparently contradictory rulings about Ten Commandments displays on public property. Beyer formed a 5-4 majority to permit the display on the Texas state Capitol grounds (Van Orden v. Perry) but then switched to create a 5-4 majority that outlawed displays in two Kentucky courtrooms (McCready County v. A.C.L.U.)
How come? Breyer advocated the "fullest possible" religious liberty and tolerance to avoid societal conflict. He concluded the history and context in Kentucky's displays showed an overt religious purpose that violated the Constitution, while the Texas display was included among varied secular symbols and had existed 40 years without complaint.
Dallas concludes that Biden must decide whether his appointee "will follow in Breyer's path and seek compromises, or promote liberal beliefs at any cost."
Biden vows to name a black women to make the Court more representative, and Baylor historian Philip Jenkins plays with the diversity theme. If each justice represents 11% of the population, that rules out any Jews, who are 2% of the population. There should be two Catholics instead of the current six (if we count Justice Neil Gorsuch as an Episcopalian), four Protestants instead of zero or one (ideally two "evangelical" and two "mainline") and -- don't forget -- two justices bereft of religious identity.
Early clues on religious aspects of the supposed front-runners include this from a Latter-day Saint site and the following:
* J. Michelle Childs, a South Carolina federal district judge and pending nominee for the all-important D.C. Circuit Court of Appeals, said in a 2020 interview that "the true measure of success is your ability to balance your work life against the time you devote for your spirituality, family and friends and those moments that provide you inner peace." Traditionalist brows may furrow over her ruling that recognized a same-sex marriage before the Supreme Court's legalization in the Obergefell case.
* Leslie Abrams Gardner, a Georgia federal district judge (and sister of gubernatorial candidate Stacey Abrams), had a devout upbringing by a father and mother who were both United Methodist Church ministers, as reported in a Religion News Service profile.
* Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund (first cousin of the late PBS-TV anchor Gwen Ifill), is the daughter of an African Methodist Episcopal Church pastor. She chairs the U.S. program board of the controversial Open Society Foundations, whose founder George Soros once remarked that George W. Bush's faith may be "appealing" but "the cost is too high." The group's study on religion and education in Europe is worth a look as background.
* Ketanji Brown Jackson, a newly minted D.C. Circuit jurist, served on the advisory board at Maryland's Baptist, now-defunct Montrose Christian School, which strongly opposed same-sex relationships. Nonetheless (along with Ifill) she's on the Supreme Court "shortlist" advocated by the liberal Demand Justice, which insists the current conservative Court is "broken."
* Leondra Kruger, now on the California Supreme Court, was among President Barack Obama's Justice Department officials involved in the Hosanna-Tabor case, arguing to override a Lutheran school's "ministerial exception" right to hire and fire faculty and staff for doctrinal reasons. Even the Supreme Court's liberal justices joined conservatives in unanimously rejecting that argument.
To see what debate on that topic will look like, consider this crucial passage from a new Washington Post story: “Potential Supreme Court nominee faces questions on religious rights case.”
If nominated, the Senate will want to know “whether this was her position, or was she simply arguing a position that the solicitor general or possibly EEOC had given her,” said Michael W. McConnell, director of the Stanford Constitutional Law Center. “Having been in that office, I know from experience it could be either way.”
Donald B. Verrilli Jr., the solicitor general at the time and Kruger’s former boss, said it is the latter.
“Hosanna-Tabor was 100 percent on me,” Verrilli said in an interview. “I arrived as SG that summer, and we had to make a decision, and I tried to balance protections against discrimination against religious liberty, and I didn’t do it.”
He added: “If I had one case to do over as solicitor general, it would be that case.”
But while Verrilli said it “would be terribly unfair for her to be blamed,” Kruger advanced the government’s brief in the case, along with Verrilli and Thomas E. Perez, former assistant attorney general for civil rights. She served in the office as what is called a career lawyer, but she had been part of its leadership after the Supreme Court accepted the case and as the Obama administration started formulating its position.
Sources: For progressives, Americans United (media@au.org and 202-466-3234). For traditionalists, Edward Whelan at the Ethics and Public Policy Center (ewhelan@eppc.org and 202-682-1200). As always, anything from old-school First Amendment liberal Douglas Laycock, a church-state specialist at the University of Virginia Law School, will be interesting (dlaycock@virginia.edu and 434-243-8546).
FIRST IMAGE: Uncredited illustration at the website of the Pacific Legal Foundation.