APPLIED PROJECT

1

ISS 512

Module 2 Paper

December 12, 2020

Secularism is one of the most complicated and misunderstood concepts in American culture and politics. The term is used to describe detaching the impact and role of religion on governance, public policy, and politics. The Founding Fathers stressed the need to establish individual liberties and rights of citizens, which allows the American people to choose, integrate, and practice any religion or spiritual background of their preference without fear of persecution. Thomas Jefferson was one of the key actors, who promoted the idea of separation of church and state vias his letters to the Danbury Baptists. His goal was to emphasize the importance of allowing citizens to freely exercise and practice their religion without fear of persecution or government interference. Jefferson also feared that allowing the government to endorse or promote a specific religion violated individual liberty (Bill of Rights Institute Org., 1802). However, historically U.S. government institutions tend to show a favoritism toward Christianity, which is shown through the celebration and recognition of certain holidays, messages on money, and positions on reproductive rights, abortion, religious liberty protections in business, and same-sex marriage contracts.

Many of these issues reach and are decided in the Supreme Court. One of the difficulties in promoting and maintaining a high degree of ethics in protecting secularism is the fact that the religious views of Supreme Court justices often shape decisions in key legal cases. This is extremely important because the decisions of the Supreme Court tend to be last for decades, and shape the direction of future cases and applications of law. Supreme Court justices are also protected by lifetime tenure within the court, which enables them to shape the legal and court system for a lifetime. There are certain theorists and writers, who suggest that judges and justices should use their religion to guide important decisions in Constitutional cases. For example, author Dent argues that most religions tend to promote human freedom and happiness, which are key elements of the utilitarian perspective (Dent, 2001, p. 39). Utilitarianism describes that the best decisions and course of action tends to create the highest amount of good for the greatest amount of people.

Religion is also often tied to ideas about morality, ethics, fairness, and justice. From this lens, supporters of religion suggest that using religion as a framework for arriving at decision in landmark cases within the Supreme Court is a great strategy and route for promoting and safeguarding the highest moral standards and norms within society. The problem with such a view is that such supporters make assumptions that integrating religious standards, beliefs, and values always advances desirable levels of morality and ethics for all parties involved in a decision. However, due to the high number of competing religious and spiritual groups in American society, a small number of justices applying their own moral, religious standards against complex, interconnected cases and issues may not always generate decisions beneficial to American citizens as whole. As a result, allowing religious views and values to shape the decisions of the court may not necessarily produce the greatest amount of good for collective society.

A recent example is the decision of the conservative, Catholic leaning Supreme Court to allow churches to avoid COVID-19 health restrictions in New York that governor Cuomo was trying to put in place to limit the spread of the virus in New York over the holidays in terms of religious service. The court in a 5-4 opinion essentially barred the new restrictions and allowed churches to engage in services because of religious liberty protections, despite a surge in cases (Liptak, 2020). This shows that directly allowing personal religious views to impact court cases potentially places the health of American citizens at jeopardy during times of crisis. Again, supporters of religion tend to think that such decisions are necessary to protect religious liberty and influence in government. However, allowing and protecting such decision-making processes defeats the purpose of secularism and religious diversity in America.

Religion is not necessarily a negative or harmful influence on all decisions involving the American citizenry. Dent Jr. argues that religion should be used in ways that align with social understanding and circumstances. The belief of pro religious parties is that religion should be able to operate in public institutions and processes like other private organizations (Dent, 1999). Such positions argue that the original framers of the Constitution were influenced by their religious beliefs and values. As a result, modern leaders like Supreme Court justices should be permitted and persuaded to incorporate their own religious beliefs and principles within the framework of complex court cases and challenges. The problem with this view is that it rejects the fact that religious views and ideologies are not diverse within the Supreme Court. As a result, the decisions of the court often reflect a secularism in which the values, decisions, and preferences operate around the influences of Christianity. Ultimately, the religious influences of the court are not very religiously pluralistic in nature.

The history of the Supreme Court is one that lacks religious and spiritual diversity. Actually throughout American history the bench of the Supreme Court was controlled and dominated by Protestant Christians. Today, the composition of the Supreme Court is mostly Catholic and Jewish (McCammon & Montanaro, 2018). The 2020 confirmation of the Amy Coney Barrett to the SC makes the court lean even more Catholic, which is an interesting trend because her style of Catholicism is thought to be controversial. Barrett is known to hold extreme views on the construction and composition of the family, marriage, and gender roles in society, which are deeply rooted in traditional Catholic values and beliefs. As it currently stands, the Supreme Court is now 2/3rd’s Catholic because 6 of 9 total justices identity as Catholic. This is concerning for many Americans because only 20% of the entire country identifies as Catholic (Escobar, 2020). With this type of misrepresentation it is impossible for the decisions of the court to not be dominated by Catholic ideals and values. This is a significant problem in regard to secularism and religious diversity within the court.

The composition of the U.S. is changing in terms of religious affiliation, but the Supreme Court is not representative of these shifts. There is an increasing number of citizens that do not even identify with any religion, but none of these views are represented on the court. Other religious backgrounds like Islam, Hinduism, and Buddhism are also not represented or considered on the Supreme Court. While secularism is often preached by Supreme Court justices and Congressional leadership, it is often the type of secularism that considers the positions of Christianity on multi-layered issues, while rejecting other forms of religion and spirituality. This is clear with debate and decisions regarding controversial issues like abortion, access to reproductive treatment, and the recognition of same-sex marriage. This is tremendous concern of late, that abortion rights, access to contraception, and the legality of gay marriage may be threatened with President Trump’s recent nominations to the court.

From an ethical perspective there are practical ways to enforce real secularism by promoting and adopting religious diversity on the court. One recommendation is enforcing term limits, which reduces the ability for justices to make decisions based on their religious views and beliefs for decades at a time. A second recommendation to promote reform and religious diversity is creating quotas for the number of justices from different religious and spiritual backgrounds on the Supreme Court bench. For example, a modern, progressive bench might include, 2 Christians, 2 Jewish justices, 2 Buddhists, 2 Hindus, and 1 member of the Muslim community. At the end of a court’s term limits, the religious composition of the court could be rotated and altered to ensure that each religious community is gaining representation at some point in time. This limits the ability for any one denomination to dominate the court’s decisions. This is necessary in an age in which the United States religious and ethnic composition is drastically changing.

The main problem with current conceptions of secularism currently is that they are purely based on the Establishment Clause listed in the First Amendment, which prevents the federal government from establishing or endorsing an official religion. The Free Exercise Clause, which promotes the free practice and engagement in religion, which aligns with religious freedom and diversity appears to be an afterthought when breaking down court cases in the Supreme Court. The only way to change this process is by fostering religious diversity within the court, and preventing any single religious from dominating the judicial system.

References

Dent Jr., G. (1999). Secularism and the Supreme Court. BYU Law Review, 1(1), 1-74.

Escobar, A. (2020) Why do Catholics make up a majority of the Supreme Court? America Magazine. Retrieved from https://www.americamagazine.org/politics-society/2018/07/18/why-do-catholics-make-majority-supreme-court

Liptak, A. (2020). Splitting 5 to 4, Supreme Court backs religious challenge to Cuomo’s virus shutdown order. The New York Times. Retrieved from https://www.nytimes.com/2020/11/26/us/supreme-court-coronavirus-religion-new-york.html

McCammon, S., & Montanaro, D. (2018). Religion, the Supreme Court and why it matters. NPR Org. Retrieved from https://www.npr.org/2018/07/07/626711777/religion-the-supreme-court-and-why-it-matters