Earlier this month, in Town of Greece v. Galloway, the Catholic Boys Club known as the United States Supreme Court held that local governments may preface public meetings with exclusively Christian prayers containing the following kinds of content:
“Lord, God of all creation, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from his resurrection at Easter. Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life. Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn, and put us by His side. Amen.”
“Father, son, and Holy Spirit—it is with a due sense of reverence and awe that we come before you today seeking your blessing. You are a wise God, oh Lord, as evidenced even in the plan of redemption that is fulfilled in Jesus Christ. We ask that you would give freely and abundantly wisdom to one and to all in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever. Amen.”
It’s hardly surprising that the five justices in the majority are Roman Catholics who believe that what ails America is not enough God or Christian religion.
Once upon a time, I was taught (and credulously believed) that Supreme Court justices were guided in their decision-making by the dictum that personal biases and persuasions should be set aside. This dictum, along a portrayal of the decision-making process as constrained, deliberate, and objective, swaths Supreme Court opinions in a mystical aura which keeps legions of lawyers busy parsing their every word. If the Constitution is holy writ, then the justices are high priests who make canon law.
There was never any doubt that the Catholic justices, who take these ideas rather seriously, would hold that the Christian prayers and practices at issue in Town of Greece v. Galloway (pdf) did not violate the Establishment Clause. The Catholic justices decided this case on the basis of their faith (as they have previously done), and then justified the decision with page after page of impressive looking legal reasoning. It’s pure legal theater, or ex post facto casuistry. In more measured tones over at The Atlantic, my former law school classmate Garrett Epps has parsed the decision and is equally critical.
Given the majority-male Catholic makeup of the Court, every case involving or implicating religion (which in America means Christianity) has been and will be decided in favor of the majority faith. I find it amusing and ironic that one of the Catholic justices (there are six total) felt the need to specifically condemn Justice Kagan’s “troubling rhetoric” in her dissent. While Justice Kagan did not call a spade a spade and accuse the majority of deciding the case on the basis of their faith, she obviously struck some nerves sensitive to the charade.
The religion of these justices has long been a taboo subject, but that is belatedly changing. In this recent piece, Dahilia Lithwick takes aim at Justice Scalia’s hypocrisy on religious matters before the Court. Her piece was prompted by a new book which takes similar aim at Scalia:
In Scalia: A Court of One, Bruce Murphy painstakingly reviews the evidence, much of which lies in Scalia’s own writing and speeches over many decades, going back to his college commencement address at Georgetown University. Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court. Murphy’s conclusion—at once obvious and subversive—is that Justice Scalia is very much the product of his deeply held Catholic faith. The pristine border between faith and jurisprudence is largely myth and aspiration.