JULY 11, 2014
By SAMUEL G. FREEDMAN
During its last term, the Supreme Court narrowly decided two cases bearing extensively on the separation of church and state. Both of them broke along familiar 5-4 lines, and both of them implicitly raised a question hardly anyone has asked about a court that is entirely composed, for the first time in American history, of Roman Catholic and Jewish justices.
In the first of the cases, Greece v. Galloway, the court ruled to allow public prayer at a government meeting. In the other, Burwell v. Hobby Lobby Stores, the court said that a corporation closely held by a religious family should not have to offer several forms of contraception that it opposed to its female employees, as required by the Affordable Care Act.
To the degree that these decisions, especially Hobby Lobby, have been parsed and picked over, the analysis has gone along the lines of politics (conservative majority against liberal minority) or gender (male majority against mostly female minority).
Yet it is at least as compelling to consider the Catholic-Jewish divide. In both cases, five of the court’s six Catholic justices — Samuel A. Alito Jr., Anthony M. Kennedy, John G. Roberts Jr., Antonin Scalia and Clarence Thomas — formed the majority that espoused a larger place for religious practice in public life. All three Jewish justices — Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan — joined by one Catholic, Sonia Sotomayor, dissented on behalf of a wider, firmer separation.
What attention has been paid to the denominational nature of the decisions has too often echoed with America’s sordid history of anti-Catholic bigotry, the presumption that Catholic public servants take their orders from the Vatican. A recent advertisement in The New York Times by the Freedom From Religion Foundation, for instance, linked the court’s Roman Catholic majority to “the growing dangers of theocracy.”
Surely, though, there is a legitimate way to explore the Catholic and Jewish contexts of the court’s votes. The point is not to pretend to climb inside the psyche of each justice but to appreciate that these jurists are simultaneously results and embodiments of historical experience. To put it simply: Did nine individuals just coincidentally disagree based on their legal reasoning, or have American Catholics and American Jews arrived at different communal positions about where to properly draw the line between church and state?
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“Try as they might to claim judicial independence, justices are still the products of where they came from and who they were before going onto the bench,” said Thane Rosenbaum, a law professor at Fordham University and a widely published author on legal ethics. “Why do you want robed robots? Why aren’t we more honest that you are where you come from? The robe doesn’t shield you from that consolidated history.”
The history of Jews and Catholics in America has involved attitudes about church and state. The immigrant waves of both groups, having endured persecution in Europe, saw separation as a guarantee of their own freedom as religious minorities here. Experience had taught Jews to fear the anti-Semitism of Christian rulers, and Catholics were wary of proselytization and cultural domination by a Protestant majority.
For Jews, said the political scientist Kenneth D. Wald of the University of Florida, a secular state became synonymous with their comfort and accomplishment in the United States.
“Defending and extending the secular definition of the American state,” he has written, “became the (often unstated) core political priority of America’s organized Jewish community.” The emergence of the evangelical Christian “religious right” in the 1980s especially reinforced that belief.
The Catholic experience has had its share of nuance. Leslie C. Griffin, a professor of constitutional law at the University of Nevada, Las Vegas, spoke recently of the way earlier generations of Catholics teased apart good and bad types of church-state separation. Good meant denying formal state power to Protestants. Bad meant refusing governmental aid and accommodation to Catholic institutions, especially parochial schools.
And while the Jewish organizational sphere developed largely along secular lines — Hadassah, Anti-Defamation League, American Jewish Committee to cite just a few examples — American Catholics advocated largely through overtly religious bodies such as the United States Conference of Catholic Bishops.
Far from being predictably conservative, the bishops have taken liberal positions on issues such as nuclear arms, welfare overhaul and immigrant rights. Always, though, their positions have been put forth as the product of Catholic doctrine and social teaching, theology deemed a legitimate part of public debate.
“The Catholic Church has wanted separation in the sense we don’t want the king picking the bishops, but we also believed you could have cooperation in civil society,” said Richard W. Garnett, a professor of law at the University of Notre Dame. “Whereas in America, separation became a code for no money for Catholic schools or we don’t want religiously oriented morality shaping public policy.”
The divergent Jewish and Catholic sensibilities are measurable. In a 2007 survey by the Pew Forum on Religion and Public Life, 43 percent of Catholics agreed that “government should do more to protect morality”; just 22 percent of Jews concurred. The survey also found that Catholics were more than three times as likely as Jews (33 percent to 10 percent) to attend a religious service weekly. Catholics are also twice as likely as Jews (55 percent to 27 percent) to rate religion as the most important or a very important factor in their lives, according to a 2012 survey by the Public Religion Research Institute.
All of which helps one make historical sense of the two court decisions. Yes, the conservative bent of the court has as much to do with the number of vacancies that happened to come up during Republican presidencies. Yes, too, Catholic identity does not trump every other personal or legal consideration. Justice Kennedy, usually part of the court’s conservative wing, cast the decisive vote last year to overturn the Defense of Marriage Act, giving a major victory to the movement for same-sex marriage.
Even so, in amicus briefs in the Hobby Lobby case, the preponderance of Jewish groups filed in opposition to the religious exemption from the health care law. The heavyweights among Catholics — led by the bishops’ conference and the Knights of Columbus, as well as 67 theologians — submitted on behalf of Hobby Lobby.
That Hobby Lobby is owned not by Catholics but by evangelical Protestants, their erstwhile antagonists, speaks volumes about the diminution of old animosities and the societal influence of those people who once were the reviled outsiders.
“How could Catholics say they are now opposed, that they’re a minority religion, when they’re a majority on the court?” said Professor Griffin, who is an alumna of Notre Dame and has written for the Jesuit publication America. “And now they’re reducing the barrier between church and state in a way that’s comfortable with their values.”
A version of this article appears in print on July 12, 2014, on page A13 of the New York edition with the headline: Among Justices, Considering a Divide Not of Gender or Politics, but of Beliefs.