Religious Tests, Religious Freedom, and “Animus” and “Bigotry” at the Supreme Court
M. Christian Green
The No Religious Test Clause within Article VI, Clause 3 of the United States Constitution is a special text in the field of law and religion, and especially American constitutional law of religion and state. The No Religious Test Clause comes immediately after the Oath or Affirmation Clause requiring that Members of Congress and the state legislatures, as well as all “executive and judicial Officers” at both the federal and state levels, “shall be bound by Oath or Affirmation to support this Constitution.” Thereafter, the No Religious Test Clause states that “no religious Test shall ever be required as Qualification to any office or public Trust under the United States.” Though there are hints of religion in the clause on oaths and affirmations, given the widespread tradition of swearing oaths in the name of religion and with hands on religious Scripture, the No Religious Test Clause is the only reference to religion in the original Constitution, prior to the addition of the First Amendment Religion Clauses.
The No Religious Test Clause was recently and prominently invoked in the 2017 confirmation hearing of the then University of Notre Dame law professor, Amy Coney Barrett, to a federal judicial appointment to the United States Court of Appeals for the Seventh Circuit. Famously or infamously, depending on one’s perspective, Senator Dianne Feinstein, hearing Barrett’s testimony, proclaimed of Barrett, “The dogma lives loudly in you.” News accounts at the time focused on Barrett’s traditionalist Catholic beliefs and membership in the charismatic Catholic group People of Praise. The implication was that Barrett was not only Catholic, but “ultra-Catholic” and unable to separate the law from her religious beliefs.
Attention swirled in 2017 around the particularity of Barrett’s religious beliefs and the People of Praise group. But in the context of a Senate judicial confirmation hearing, attention turned, as it had in decades past, to what has typically been the most bright-line litmus test in assessing the religiosity of prospective judges: the issue of Roe v. Wade and abortion rights. In the 2017 hearing Barrett largely avoided the question, responding to Senator Feinstein’s “dogma” line of questioning only by observing that as her nomination was only to the appellate court level, she would not be in a position to be the final word on Roe. With her nomination to the Supreme Court, those facts changed.
The No Religious Test Clause has become a stalwart sign of America’s commitment to religious tolerance. It has been perceived as both unconstitutional and possibly reflective of “animus” or “bigotry” in the current legal jargon to ask questions of a judicial nominee’s religion, even as the nation, while still overwhelmingly Christian, has become at least nominally and rhetorically more of a religious melting pot. Today, we more often encounter people of different faiths, both in our own communities and in the vast communicative medium of the internet. We are, at least aspirationally, in America a nation that is both religiously plural and religiously tolerant. In that context and with Justice Amy Coney Barrett’s confirmation to the Supreme Court, the reality of a Court overwhelmingly dominated by a single religious tradition — Roman Catholicism — is especially striking.
With Justice Barrett’s confirmation, we now have a Court on which seven out of nine justices are Catholic. (Justice Gorsuch is Episcopalian and is said to have a “private” faith but was raised Catholic and educated in Catholic schools.) Historically, Episcopalians have dominated the Court, representing 33 of the total 114 judges since its inception, followed by 18 Presbyterians, 9 Unitarians, 5 Methodists, 3 Baptists, and a sprinkling of other Protestant Christians. More recently, there have been 14 Catholics and 8 Jews, which has been described as a triumph over previous eras of discrimination when Catholics and Jews were routinely barred from the legal profession at the most prominent firms, not to mention from judicial positions. The rise of Catholic and Jewish judges has been described as a particular triumph for the legal profession, which, outside the white-shoe firms, embraced religious diversity earlier than other sectors of society, thus generating a long and deep pipeline of Catholic and Jewish lawyers that continues to the present day. By contrast to earlier periods in which the Supreme Court was entirely Protestant, the Court has been entirely without Protestants (except for Gorsuch) since 2010.
Indeed, one of the most interesting things about the religiosity of Supreme Court justices is that we keep such close tabs on the religion of SCOTUS nominees, even with the specter of the No Religious Test Clause looming in the background. Religion is routinely commented upon when nominees are put forth for nomination, and questions are asked — on natural law, abortion, the death penalty, and other issues — that seem clearly designed to smoke out the nominees’ religious views. This kabuki dance around our interest in the nominees’ faith commitments routinely occurs, and yet it prescinds from and obscures a key question that seems central to understanding what is at stake: What role does or should religion play in the deliberations of judges, and should we care? After all, there exists within the field of law and religion academy a considerable literature not only arguing the question of whether religion is a “special” or “distinctive” freedom,1 This is a representative but non-exhaustive list of the “special religion” literature and does not completely include the related strands of writing on the accommodation and exemption of religion. Thomas C. Berg, Secular Purpose, Accommodations, and Why Religion Is Special (Enough): A Response to Micah Schwartzman, What If Religion Is Not Special; 79 U Chi L Rev 1351 (2012), 80 U. CHI. L. REV. DIALOGUE 24 (2013); Steven G. Gey, Why is Religion Special: Reconsidering the Accommodation of Religion u, nder the Religion Clauses of the First Amendment, 52 U. PITT. L. REV. 75 (1990); Abner S. Greene, Is Religion Special – A Rejoinder to Scott Idleman, 1994 U. ILL. L. REV. 535 (1994); Kenneth Einar Himma, An Unjust Dogma: Why a Special Right to Religion Wrongly Discriminates against Non-Religious Worldviews, 54 San DIEGO L. REV. 217 (2017); Andrew Koppelman, Is It Fair to Give Religion Special Treatment, 2006 U. ILL. L. REV. 571 (2006); Andrew Koppelman, Religion’s Specialized Specialness: A Response to Micah Schwartzman, What If Religion Is Not Special; 79 U Chi L Rev 1351 (2012), 79 U. CHI. L. REV. DIALOGUE 71 (2012-2013); David Little, Does the Human Right to Freedom of Conscience, Religion, and Belief Have Special Status, 2001 BYU L. REV. 603 (2001); Christopher C. Lund, Religion Is Special Enough, 103 VA. L. REV. 481 (2017); Ira C. Lupu & Robert Tuttle, The Distinctive Place of Religious Entities in Our Constitutional Order, 47 VILL. L. REV. 37 (2002); Michael W. McConnell, The Problem of Singling out Religion, 50 DEPAUL L. REV. 1 (2000); Micah Schwartzman, What If Religion Is Not Special, 79 U. CHI. L. REV. 1351 (2012); James W. Nickel, Who Needs Freedom of Religion, 76 U. COLO. L. REV. 941 (2005); Mark L. Rienzi, The Case for Religious Exemptions – Whether Religion Is Special or Not, 127 HARV. L. REV. 1.395 (2014) but also on religion and the legal profession and how religious judges and lawyers should balance their faith commitments, oaths of office, and professional responsibilities.2Joseph S. Agnello, Christian Lawyers, What Is Our Real Purpose, 7 Christian LAW. 35 (2011); Robert F. Cochran Jr., Lawyers, Religious Faith, and Virtues: Reflections on Tom and Nancy Shaffer, 10 St. MARY’s J. ON LEGAL MALPRACTICE & Ethics xviii (2019); Diana Ginn & David Blaikie, Judges and Religious-Based Reasoning, 19 Const. F. 53 (2011); Kent Greenawalt, The Use of Religious Convictions by Legislators and Judges, 36 J. CHURCH & St. 541 (1994); Sarah E. Hamill, Judges and Religious-Based Reasoning: A Response to Ginn and Blaikie, 21 Const. F. 15 (2012), William Stringfellow, The Christian Lawyer as a Churchman, 10 VAND. L. REV. 939 (1957); Daniel R. Suhr, The Religious Liberty of Judges, 20 WM. & MARY BILL Rts. J. 179 (2011); Victor I. Vieth, Do Lawyers Need Religion, 53 BENCH & B. MINN. 30 (1996) So, it would appear that religion matters for purposes of law and judging, but how?
There is some debate over whether the religion of Supreme Court justices does or does not correlate with the actual decisions and opinions and their interpretation of the text, history, and application of the Constitution. But some of the court’s recent decisions suggest that religion may factor into a judge’s opinion in significant ways. Take, for example, the Court’s recent decision on religious freedom Espinoza v. Montana Department of Revenue, wherein Justice Alito devoted a significant portion of his concurring opinion detailing a history of religious bigotry against Catholics in America, going back prior to the era of the Blaine Amendments forbidding taxpayer funding of sectarian schools to the earlier establishment of public schools under the initiative of leading educational reformer Horace Mann, an era in which, as Justice Alito notes, Catholic students were subjected in schools to daily readings from the King James Bible.
Distinguishing various versions of the Bible might not have been on the forefront of the mind of a Protestant jurist, but for Catholic jurists aware of the history of their faith in America, it was a salient point and one that clearly still stings of animus and bigotry even for Supreme Court justices, despite the notable progress of Catholics in the American public and judicial sphere. Justice Alito complained even more recently of bigotry toward religion in a notable speech to the Federalist society. Interestingly, in the other summer of 2020 religious freedom decision, Our Lady of Guadalupe School v. Morrisey-Berru, liberal Catholic Justice Sonia Sotomayor, joined by Justice Ginsburg in dissent, turning the tables on the emerging “animus” doctrine, argued that the Court “absolve[d] religious institutions of any animus” and embraced a “ministerial exception [that] even condones animus,” an exception that allowed them to fire their employees for “bigoted” reasons in violation of the spirit of their faith and equally offensive to the letter of the law.
The recent Supreme Court decision in Roman Catholic Diocese of Brooklyn v. Cuomo, lifting an injunction COVID restrictions on religious gathering in New York that seemed to disproportionately impinge on the religious freedom of Jewish and Catholic groups, also addressed accusations of animus and bigotry against religion said to have been manifest in certain pronouncements of New York Governor Andrew Cuomo. Indeed, the per curiam decision of the Court, thought by some to have been authored by Justice Barrett herself, specifically mentions “a variety of remarks made by the Governor,” and the lower court dissent’s mention that “statements made in connection with the challenged rules can be viewed as targeting the ultra-Orthodox [Jewish] community,” before proceeding with the rest of the decision “even if we put those comments aside.”
Are religious justices who are members of faith traditions that have endured bona fide bigotry in the past more likely to sense bigotry and animus toward faith today? It is hard to say. The Court’s Jewish members are, no doubt, highly cognizant of the anti-Semitism that has filtered into societies around the world and by many accounts is rising today. But even if the Constitution forbids religious tests for office, we may want to be attuned to how religious formation and histories or actual experiences of religious bigotry against justices’ faith may shape their opinions. It may be the case that those who have experienced bigotry may be more sensitive to it than those who have not — but even they may perceive through a glass darkly and without the requisite discrimination the injustices affecting others.
In the 2013 case of Shelby County v. Holder, widely seen as gutting key provisions of the Voting Rights Act of 1965, the Catholic Chief Justice John Roberts demonstrated a notable capacity to set aside decades, if not centuries, of racial bigotry and injustice, specifically in the form of voter discrimination. “Nearly 50 years later, things have changed dramatically,” Justice Roberts proclaimed, adding later in the opinion, “The Fifteenth Amendment . . . is not designed to punish for the past; its purpose is to ensure a better future.” Whereas past religious bigotry may live on in the minds of some justices (some have described members of the Court as in the grips of a “grievance conservatism”), past racial bigotry may not have the same salience, even if it continues to be experienced today. As I explored in a past Canopy Forum essay, we are all shaped by our prejudices and in our philosophical perspectives even as we seek to overcome them. But we should also be entitled to ask questions and receive answers about the prejudices, in the philosophical sense, of the politicians and judges who govern us, even where — and, some might say, especially where — those perspectives are informed by religion. ♦
M. Christian Green is a senior editor and senior researcher at the Center for the Study of Law and Religion at Emory University. Her areas of scholarly expertise are law, religion, human rights, and global ethics.
Green, M. Christian. “Religious Tests, Religious Freedom, and ‘Animus’ and ‘Bigotry’ at the Supreme Court.” Canopy Forum, December 23, 2020. https://canopyforum.org/2020/12/23/religious-tests-religious-freedom-and-animus-and-bigotry-at-the-supreme-court/.