book review forward

Michael McConnell michael.mcconnell at LAW.UTAH.EDU
Sat Jun 28 12:06:07 PDT 1997

Of course, the Justices' religious and cultural
backgrounds affect their decisionmaking. But not in the
crude sense of favoring Christians over non-Christians. The
Justices are, with a few exceptions, drawn from the secular
elite, which is not especially favorable to Christianity.
When I was a law clerk (1980-81), not a single Justice was
a churchgoer. Their bias is not against minority religions;
indeed, if anything, they have a (healthy) bias in favor of
minority religions.  Certainly nominal Christians on the
Court have no bias against Judaism; antisemitism would be
abhorrent, akin to belching in public. Their bias is the
bias of the secular elite: against Catholicism
(anti-Catholicism has been called the "anti-semitism of the
intellectuals") and against evangelical/fundamentalist
Christianity. (If you want an example of the latter, look
at Edwards v. Aguillard; for examples of anti-Catholic
bias, look at some of the opinions by Black and Douglas in
the parochial school cases.) Most significantly, their bias
is against the "intrusion" of religion into areas of life
where secular considerations, they think, shoule be
dominant. So long is religion is relegated to a small
private sphere, where it is irrelevant to everyone else,
the Justices are all for Free Exercise.

If you are interested in bias against Judaism, you should
talk to litigators in free ex cases on behalf of Jews. (Nat
Lewin, for example.) They will tell you that the greatest
resistance comes from secular Jews. In the Goldman case,
for example, Lewin spent much of his oral argument in the
D.C. Circuit arguing with Abner Mikva over whether Captain
Goldman's desire to wear the yarmulke was a genuine
religious conviction or a matter of personal preference. It
was the churchgoing Protestant, Judge Starr, who sided with
Goldman. And look at who was most hostile to the desire of
the Satmar Hasidim to maintain a separate and autonomous
way of life in Kiryas Joel: Stevens the secularist,
Blackmun the nominal Protestand, and Ginsburg, the Jew.

I think an important source of bias comes from within
religious communities--bias by the less observant against
the more observant. (If I may be forgiven a bit of armchair
psychologizing, I think this is becuase of feelings of
guilt.) Thus, secular Jews are the most intolerant of
Orthodox and Hasids; liberal Protestants are the most
intolerant of Protestant fundamentalists; and liberal
Catholics are the most hostile toward old-fashioned
Catholics. And, perhaps to a lesser extent, the more
observant return the favor (although this phenomenon is
less observable in free ex cases, both because the
judiciary has little representation from the more
observant, and because the more observant tend to generate
more free ex claims).

But to repeat: I see absolutely no evidence that the Court
favors Christians over non-Christians.

-- Michael McConnell (U of Utah)

More information about the Religionlaw mailing list