Lex Anteinternet: Confessional Supreme Court Firsts

Lex Anteinternet: Confessional Supreme Court Firsts:

Confessional Supreme Court Firsts

For most of its history, the majority of the Supreme Court has been made up, predictably, of the founding demographic of the country and reflected that.  Most Supreme Court Justices have been Protestant and the most frequently represented Protestant denomination has been the Episcopal Church.  Today, however, only one member of the court is Episcopalian and one member, Justice Thomas, is a former Episcopalian.  Indeed, oddly, Justice Gorsuch was raised a Catholic and became an Episcopalian and Justice Thomas was raised Catholic, became an Episcopalian and then reverted to his Catholicism.  There is, in fact, some speculation that Gorsuch may in fact regard himself as a Catholic, which some highly traditional Episcopalians do.

No other Protestant denominations are represented on the Court today at all.

The majority of those on the bench today are Catholics or a near majority, depending upon the degree of affiliation with the Church they actually have. Some are known to be quite observant, such as Justice Thomas.  Others, like Justice Sotomayor, appear to be nominal Catholics.

The first Catholic justice was Roger B. Taney, who was appointed in 1837 at a time with anti Catholicism was rampant in the country, making his appointment accordingly quite surprising.  That he was Chief Justice is all the more surprising.  His wife was an Episcopalian and his children raised in that faith, making him, at least to that extent, a non observant Catholic to some degree.

Fifteen member of the court have been Protestants without declared confessions.

Louis Brandeis was the first Supreme Court Justice who was Jewish.  He was appointed to the bench in 1916. Interestingly, however, Judah P. Benjamin would have had that honor in 1853 but declined it.  He want on to be the Secretary of State for the Confederacy, a much less honorable role.  There have been a total of eight Jewish justices to date.

The religious makeup of the Court is a significant matter as the Court tends to be weighted heavily towards intellectuals who are often deeply informed by their faiths.  The significant number of Catholic members and Jewish members in recent years says something about the demographics of the Court and it reflects back on the world view, albeit not perfectly, of those on the bench.  It tends to also show the degree to which the law reflects itself as a profession toward enduringly immigrant populations.  Law is often imagined as a career of the wealthy, but in reality it tends to be a profession of minorities, who always have need of it.

And let the rampaging Anti-Catholicism begin. . .

From, Klansman, Guardian of Liberty, by Alma Birdwell White.

It was only a matter of time.

Trump’s likely RBG replacement, Amy Coney Barrett, is a Catholic extremist with 7 children who does not believe employers should be required to provide healthcare coverage for birth control. She wants the rest of American women to be stuck with her extreme lifestyle.

Documentarian Arlen Parsa.* **

Anti Catholicism has been termed the last acceptable prejudice in the United States and there's a great deal of merit to that claim.  In certain quarters, anymore, there's a subtle to not so subtle anti Christian prejudice in general that people express more or less openly, however, so to at least some degree that statement isn't fully true.  And its certainly the case that people will openly express disdain to some religions in some regions.  The LDS faith, for example, is often a topic of some disdain on the margins of its territories.  Islam is definitely subject to widespread public disdain in the United States.***

The thing that's really different about anti Catholicism, however, is the degree to which its visceral and blisteringly open.****  Additionally, it's rooted in falsehoods of the Reformation even as its advanced by those who reject all strong tenants of Christianity in general, even if it's in their ancestral background.  Descendants of Puritans and near Puritans, whose ancestors hated Catholic based on lies that were told by the founders of their faiths in order to justify separation from the only body of Christianity that had existed continually since the First Century, still hate Catholics or disdain them in spite of the fact that they've often completely shed the religions that gave rise to their beliefs.

The United States is really a Protestant country in culture, although that culture has weakened massively in urban areas.  The retained belief, however, is that Catholics are a dangerous "other" to be feared, believing in strange dangerous beliefs.  That's about to come out in public in spades.

Observant Apostolic Christians continue to believe in a religion that's Christ centric in the way that Christianity was from its onset.  A significant aspect of that is a belief that God's laws are immutable and his Church hierarchical in aid of that.  All Apostolic Christians, including the Orthodox of every branch and all types of Catholics, if they are observant, hold that.  The essence of the Reformation rejected that, although even the first rebels against the Church in the Reformation actually didn't, or didn't at first.  Even today, five centuries after the Reformation, some Protestant churches worry about Apostolic succession, still viewing it as necessary to their authority.

Because Catholics, as Apostolic Christians, hold that, it has always been used against them in those European cultural regions where the churches of the Reformation were strong.  In English speaking countries, even though the Church of England and the Anglican Communion claim Apostolic succession, it's always been a way to vilify Catholics.  In part this was because of the English Established Church's strong animosity towards Catholicism and in part it was because dissenting Protestant English churches took an even more extreme position than the Church of England did. Those latter churches were also heavily invested in concepts of individuality and, moreover, they were very strong in early American history.  Some have claimed, although the claim suffers on analysis, that the individualism of those churches helped give rise to American democracy.

While that claim is strained at best, it has become the American Civil Religion that there's no inconsistency in holding your religion close to your heart but not acting upon it in public.  American Catholic politicians, always held back by prejudice against their faith at the ballot box (but interestingly not so much at the Supreme Court, where they'd been a presence since the middle of the 19th Century), adopted that view with John F. Kennedy's declaration that:

I am not the Catholic candidate for President [but a candidate] who happens also to be a Catholic. I do not speak for my church on public matters — and the church does not speak for me.

In retrospect, Kennedy was a pretty bad Catholic in general, but his position was embraced by American Catholics in a way that brought about sweeping changes.Catholic politicians, rapidly followed in Kenney's wake and adopted his formula, rejecting prior Presidential nominee Al Smith's position that:

I do not want any Catholic to vote for me . . . because I am a Catholic. . . . But, on the other hand, I have the right to say that any citizen of this country . . . [who] votes against me because of my religion, he is not a real, pure, genuine American.

Smith didn't walk away from his faith the way that Kennedy did, but thousands of Catholic politicians did to be followed by thousands of rank and file Catholics.  In essence, Kennedy advanced the position that a person's religion only really mattered as to what he did on Sundays.  Smith didn't state that.

A similar view was incorporated into the American Civil Religion after a time which at first came to hold that there general Judeo Christian values that we all agreed on, and what a person did beyond that was their own business, with everything else being co-equal.  This position is of course absurd on its faith.  Religious convictions are an individual's deepest convictions and should inform everything they do.

It's that knowledge that, in some ways, forms the basis for the societal hatred of Catholicism and the spreading disdain for Christianity in general.  It isn't that Christians in general or Catholics in particular "want[] the rest of American women to be stuck with [an] extreme lifestyle".  Rather its that they acknowledge that there's something greater than the individual and that Christians have to pick up their cross and carry it.

Moreover, the real fear isn't that a single Catholic judge is going to somehow impose her values on American society.  Liberals of all stripes, including non observant liberal Catholics, know, or at least should know if they stop to think about it, that not a single conservative judge on the Supreme Court proposed to impose any religious belief on society.  What liberals really fear, and won't acknowledge, is that for jurisprudential reasons, not religious ones, those justices will hold that there's a lot of things the United States Constitution doesn't address and therefore its up to the states to address them.

Nearly all of the recent and old hot button issues in front of the Supreme Court fit into this category.  Indeed, as we've stated elsewhere, there really aren't any jurisprudentially conservative justices on the bench or proposed for it.  That really shows in their approach to these issues.  Abortion is one such issue that is cited all the time, although most typically with the term "a woman's right to choose", by which is meant a person's individual right to choose on a matter of life or death for another person.  A jurisprudentially conservative jurist would hold that life was a matter of natural law, and that no person had the right to decide on matters of life or death for a third person except for individual self defense, a natural law paramount.  That would truly make abortion illegal, irrespective of the Constitution. That's not what a conservative justice of the type who will be on the bench, or who already is, will hold.

That sort of conservative, of which Barrett is part, would instead hold that its just not in the text, and therefore its up to the states.  In terms of supposed deep philosophical statements, that's really weak tea.  Its just being politically and textually conservative. That's it.  Likewise, on the issue of same sex marriage, the conservative justices simply dissented that it wasn't in the text.  They didn't opine on the nature of marriage in an existential or metaphysical or even biological sense.

Given that, the real fear on the part of liberals like Parsa and the thousands like him is that his fellow Americans of all stripes might hold the same conservative views.  It isn't that the court is going to make something illegal, it's that the American people will.  That's democracy.  That doesn't fit into a secular world view, however, of radical self definition and a "progressive" world, which most of the world actually rejects, which is even more radical than the anarchist "No Gods, No Master" ideology, as it takes the view of "I'm my own god and own master and nothing else matters".

The knowledge that something else does matter, and we know it, is inside of all of us however.  And that makes most people feel that they have a right to voice an opinion on really important matters rather than have nine elderly men and women of high but limited legal education and liberal values decide those matters for us.^  It isn't really the Catholic hierarchy or dogma that's feared here. The language of the Reformation remains, but it's the spirit of radical individualism in the tone.  What Parsa really meant was he wants American men and women to be stuck with no ability to put their beliefs into practice, both in their own lives and at the ballot.  If Americans, or even American women, the latter of which is the majority of the population, share his views, this presents no threats to those views at all.

One thing we can be assured of, as this matter progresses, is that Senators who previously were openly hostile to Catholicism at the time that Barrett was nominated to assume her current role on the Seventh Circuit Court of Appeals will struggle not to come across so openly that way again.  Diane Feinstein's blisteringly hostile comment will not be repeated by her, and she's even stated that at least to her, Barrett's religion is off limits.  Kamala Harris, who likewise felt free to make anti Catholic comments during Barrett's prior hearing, will have to be careful lest she damage the campaign she's currently in.  Durbin's petty comments, perhaps inspired by the fact that his Bishop has denied him Communion rights due to his stated positions, may well come back. But the hostility is going to be there just under the surface.  Out in the public and through pundits, it'll be on the surface.

*Parsa is a documentary film maker, but I can't say that he's a well known one, at least to me.  I picked up his quote from an article by C. E. Cupp.

**An interesting aspect of Parsa's bigotry is that he associates large families with conservatism and by extension small or no families with progressivism, although I'll be that in the case of families born out of the United States but which have immigrated into the US, his view is the reverse. At any rate, the question of whether or not an employer can be mandated to pay for health care raises moral questions for Catholics, to be sure, but beyond that it raises other philosophical and fiscal considerations that are completely outside of religion.  Whether or not society at large, for example, through mandated health care, should be required to subsidize individual acts and when they should  is the larger issue.  When a society has strongly divergent beliefs regarding this, it raises further questions pertaining to participatory democracy and such choices.

***Islam presents a challenge to liberals in that the religion can demand strict adherence to its tenants and always demand public observation of them by the faithful.  Indeed it shares that characteristic with the Apostolic Churches and conservative Judaism, in that some of those tenants cannot be ignored by their members.  Muslims may not ignore the daily calls and periods to prayer nor the season of fasting, at a bare minimum, must as members of the Apostolic Churches may not ignore periods of fasting or the obligation to attend Sunday Mass.  Mormons, mentioned in this paragraph, likewise have a series of tenants that they can't ignore or shouldn't ignore.

****In fairness, this is also true of Islam.

Antipathy towards Islam to date has been strongly concentrated in conservative circles, but as the Muslim population increases this is almost certain to present very strong challenges to liberals. Already strongly observant Muslim women are relatively frequent callers into Catholic radio on the topic of abortion, where they'll routinely note that Muslims are opposed to abortion and they seem befuddled that people don't realize that.

In Europe distinct Muslim dietary practices that are shared with Judaism have made Muslims and conservative Jews unlikely allies against laws pertaining to slaughter in some countries.  Moreover, while so far Americans are mostly familiar with Muslim women who have taken the opposite view, conservative Muslims have a strict dichotomy of roles and behavior as to men and women. This has also presented itself in Europe where various nations have attempted to ban Muslim female veiling and headdress.  The challenge in the United States will be to see if American society can accommodate to itself to conservative Islamic practices which fall outside the American norm.

^One of the refreshing things about a Barrett confirmation would be that she's not a graduate of Harvard or Yale, which have had a lock on the Supreme Court for some time.