Complexity of Faith-Related Cases Demands More Religious Diversity on the Supreme Court

Much analysis has been dedicated to the politics surrounding the President’s nomination of a new Supreme Court Justice in light of Justice Scalia’s passing. Prior to Judge Merrick Garland’s nomination, there was speculation about whether President Obama would add another woman to the court, another black justice or maybe the first Asian justice.

The question of diversity on the Supreme Court seemed to take a back seat to the political question of how left-leaning this nominee would be. Because the Supreme Court regularly decides cases rooted in religious controversy (whether argued under the First Amendment or federal statutes), why, or how, has the question of religious diversity not been more robustly discussed? What might be the effect of the appointment of a  justice who is also not Judeao-Christian?

For some, even the contemplation of such an appointment is deeply political in nature. So right now is perhaps the time to ask the following question, even if we do so implicitly, even unintentionally.  Does the fact that the Supreme Court is made up of justices who self-identify as Judeo-Christian to varying degrees make a difference for the cases that are decided concerning religion?

It would seem that it does, but perhaps not in the way that is usually assumed. For example, consider these questions:  Is a cross religious? Is a candle religious? Is a painting depicting the Last Supper religious? Is a buffalo religious (since the animal is sacred to most Native Americans)?  Is the sky religious? (Many, but not all, world religions worship so-called “sky gods”).

If you have your own gut reaction to those questions, why shouldn’t we assume that judges have the same responses? When cases involving religion are heard by justices who believe (on some level) that they have a degree of knowledge or comfort with the religion, religious act, in question, are they really reviewing the case neutrally? My guess is no. Religion is not neatly contained and defined, and yet that is what we ask the law to do to it in order to protect it.

In the United States, Protestant Christianity, for example, is particularly personal and often internalized. There is a large group of people who identify as religious, and do not regularly attend church – yet that identity and act have traditionally been linked. It is not likely realistic to believe we could achieve a panel of perfectly neutral judges.  However,  we could aim to have a panel of judges who are aware of the bias they may bring to the courtroom and begin to acknowledge and deal with it while hearing cases.

In March the Supreme Court declined to hear a case concerning whether the license plate image titled “Sacred Rain Arrow” by Native American artist Allan Houser was a religious symbol. According to a Newsweek article, this image depicts a “young Apache warrior shooting an arrow into the sky as a prayer for rain.” The Plaintiff  – a pastor at a United Methodist Church – stated that the image suggests there are many gods, and the arrow is the intermediary for prayer between people and the god.   I

In other words, the state is forcing him to display a religious belief on his license plate that he does not believe in. I can’t say for certain, but my sense is that if the symbol had been a cross, the court would readily weigh in. Instead, the Tenth Circuit Court of Appeal’s ruling that the image merely represented the way Oklahoma’s history has been shaped by Native Americans now stands.

That is an unfortunate outcome; because, it would have been really valuable to have the Supreme Court speak on this matter.  Is the fact that a Native American image is deemed “historical”, but a cross would likely readily be deemed religious, an example of the implicit religious bias in the court?  In this instance, the actual determination is coming from the Tenth Circuit.

Rather than pass judgment on what is, or is not, a religious symbol, shouldn’t we start by asking how those questions are asked and decided? As with many cases of implicit bias, the discussion is not about a person knowingly and intentionally imposing their beliefs on another.  Rather, it becomes the question of how such bias or inclination is delicately woven into the person’s understanding and perception of the world.

It appears that a more robust discussion of this issue and consideration of implicit bias in matters of religion might be more likely to take place if there was assurance that ,in addition to other kinds of diversity, the roster of Supreme Court justices expresses a certain religious diversity as well.

B. Brittany Scantland-Lall is a local government attorney in North Carolina.   She has taught business law and ethics at the University of Denver Daniels College of Business, and has an MA in religious studies at the university with an emphasis on law and religion.