One of the things I loved about living in Waco from 2000 to 2010 was the ability to speak openly about faith. It is a wonderful freedom. It is also not a normal thing in other parts of the country. Upon moving to Waco from Detroit, I was surprised when people asked if I “had found a church home.” At first, I thought they were wondering if I had purchased a home fashioned out of an old church.
An underlying truth informed those conversations I had in Texas: that faith shapes us. It plays a role in determining not only what we believe but how we think and what we see as important. It is because of this essential truth that religious diversity is crucial to a highly functioning Supreme Court. As President Obama ponders his nomination to replace Justice Scalia, this should be one of the factors he considers.
The current Supreme Court line-up includes five Catholics (with Scalia, it was six) and three Jews. There was no collusion to produce this result, which is simply a historical accident produced unintentionally by wildly disparate presidents. Yet the result of that accident is important. Not one Protestant, in any of its many varieties, sits on the Court. Nor is there a representative of the fastest-growing group in the United States, the “nones” — those who have no religious affiliation.
This lack of diversity and failure to represent the largest religious group in the United States matters because of what most people know: What we believe about God is an important part of our identities.
Certainly, the justices of the Supreme Court don’t cite their religious beliefs as the explicit reason for their outcome on a given matter (though they have often quoted the Bible and other religious sources). In the same way, they don’t cite their race or gender as the reason they vote one way or another, yet we value racial and gender diversity. We do so because we know race and gender profoundly affect the way one sees the world and the way the world sees us. The same is true of faith.
An argument can be made that faith is only one of the elements of diversity missing from the Court, of course. In fact, Justice Scalia made exactly that argument in his dissent from the same-sex marriage decision last year. For example, all of the current judges (and Scalia) went to either Harvard or Yale for law school. When I was at Yale, we talked about the law as if it was ours to create. Should it surprise us when that outlook sometimes leads to arrogance and legislating from the bench? Similarly, all of the current justices and Scalia were born in coastal states (though Chief Justice Roberts was raised in Indiana), leaving a remarkable gap in the middle of the country.
Like many other lawyers, the Supreme Court fascinates me. My own exposure to the Court is slight; I won a case there, but it was decided on the briefs (which I wrote at the kitchen table with the help of my Baylor Law student Dustin Benham), and no argument was held. I have written briefs in other cases, and Justice Stevens quoted me once. Mostly, I watch and read from afar. Even from that distance, though, I can see the humanity of the judges. They are not so unlike us. They worry, and celebrate, and die.
They also worship. They grew up in homes and went to schools where the religious roots of Western civilization were not ignored. Their faiths taught them how to read a text and derive truth from it. Their identity — as Jews and Catholics — was formed in part by being part of those minority faiths within our society, each with its own kind of insularity.
I can’t say precisely how the faiths of the justices shapes their jurisprudence. I can’t even say precisely how my own faith has shaped the things I choose and what I think is important. Yet that faith — like race and gender — is a part of me, and a part that matters. I would not be the same without it.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas in Minnesota.