Justice Stevens and the Religious Makeup of the Supreme Court

On April 9th, Supreme Court Justice John Paul Stevens announced that he will be retiring from the Court at the close of the current term, assuming that President Obama has found a fitting replacement for him. This announcement has been met with a great deal of buzz in the political world, and the question as to the religion of the new Justice has come into play. In this article from the Associated Baptist Press, many of the issues related to religion and the Supreme Court are discussed.

As it stands, Justice Stevens is the only Protestant Justice still sitting on the High Court. The remainder of the Court is comprised of six Catholic members and two Jews, which is highly uncharacteristic of a Court that has historically been dominated by Protestants. While the arguments about numbers and ratios of the religious faiths represented hold a great deal of water in this situation, it is interesting to look back on Justice Stevens’ personal record as related to cases dealing with the Religion Clauses.

While Stevens is generally considered the most liberal member of the Court and his jurisprudence has only drifted further left, the Court itself has seen an overall shift toward the right in membership. Stevens has consistently opposed government entities that have promoted or endorsed religion, most notably seen in Wallace v. Jaffree (1985) and Santa Fe Independent School District v. Doe (2000). Not surprisingly, Stevens has often been criticized for his firm stance on Establishment. Writing the Minority Opinion in Santa Fe, Chief Justice Rehnquist said that Justice Stevens’ Majority Opinion “bristles with hostility to all things religious in public life.”

Interestingly, though, Justice Stevens has been somewhat inconsistent in decisions dealing with Free Exercise claims. In the 1990 Employment Division v. Smith, Stevens joined the majority in striking down the use of Peyote by Native Americans as part of their religious practices. This was one of the most controversial cases dealing with religious liberties that the Court has handed down in recent history. Speaking of this decision, Brent Walker of the Washington-based Baptist Joint Committee for Religious Liberty said that Smith “gutted the Free Exercise Clause of its robust religious-liberty protection for all Americans.” In other cases, however, Stevens did vote in favor of protections for religious groups (Church of the Lukumi Babalu Aye v. City of Hialeah and Lamb’s Chapel v. Center Moriches Union School District, both in 1993).

I think the overarching issue that needs to be examined is Justice Stevens’ tenure on the Court in the context we discussed last week in class relating to the Feldman article, “A Christian America and the Separation of Church and State.” We discussed the seemingly inconsistent manner in which the Court has decided cases dealing with minority religious perspectives. It is evident that our country has developed with a strong Protestant influence and faith, and only sparingly has the Court ruled in favor of the minority groups. How can this be explained? Does the overall religious makeup of the Court have anything to do with this? Will it matter at all if there are no more Protestant members left on the Court? There are groups calling for the President to nominate someone as dedicated to the separation of church and state as Stevens was, and still others who want someone who will provide a more consistent voice in the Free Exercise realm. I wonder, though, if it might be time to call for a nominee of a true religious and cultural minority. The most recent addition to the Court was Justice Sonia Sotomayor, only the third female Justice and the first one of Hispanic heritage. Given the religious melting-pot that our nation has come to be, maybe it is time for the Highest Court to resemble such diversity.