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Illustration by Ford Williams

BEN WILLIAMS — Gorsuch: The one Protestant

Ben Williams

On April 10, 2017, the unorthodox 6-year, 11-month, 21-day drought of a Protestant on the U.S. Supreme Court presumably ended.  With his English wife of 20 years by his side and left hand resolutely on the family NIV Study Bible, Neil Gorsuch accepted the second lifetime appointment of his brief forty-nine year life.

I say “presumably” because the country’s first Generation X justice, though raised Catholic, married into and serves as an usher in the Episcopal Church.  The church, formally named in its constitution as the “The Protestant Episcopal Church in the United States of America,” describes itself as “Protestant, Yet Catholic.”  Since the Episcopal Church is Protestant and Justice Gorsuch is active in the church, then it is judicious to consider him a Protestant.

From the U.S. Supreme Court’s beginning in 1790 to 1996, Protestants, at all times, constituted a majority of justices. The Protestants lost that majority for the first time in 206 years, when Justice Clarence Thomas reconverted to Catholicism.  The appointment of Chief Justice John Roberts in 2005 advanced the Catholics to a plurality, and on January 31, 2006, the Catholics commanded a majority with the appointment of Samuel Alito.  Sonia Sotomayor’s appointment in 2009 elevated the Catholics to a flummoxing 6 of 9 seats on the Court, which fell to 5 seats on Justice Antonin Scalia’s unexpected death in 2016. The Catholic concatenation is relatively recent, as there have only been 13 Catholic justices in the history of the United States, and 5 are still on the bench.

Sequentially, Justice Gorsuch filled Scalia’s vacant seat, but viewed piously, he replaced retired Justice John Paul Stevens – the last Protestant to serve on the Court.  Justice Stevens was born in 1920 and retired from the bench in 2010 at the age of 90.

Currently, the Court is composed of five Catholics justices (Roberts, Kennedy, Thomas, Alito & Sotomayor), three Jewish justices (Ginsburg, Breyer & Kagan), and the one Protestant justice (Gorsuch).

Objectively, a single Protestant justice on the Court is intriguing.  Presidents appoint justices and the only non-Protestant U.S. President in history is John F. Kennedy, a Catholic.  There are no JFK appointees left on the bench.  The U.S. has never had a Jewish president. The U.S. Senate, constitutionally charged with “advice and consent,” has always been predominantly Protestant.

Illustration by Ford Williams

Yet, Protestants who make up 46.5 percent of the U.S. population constitute only 11.1 percent of the Supreme Court.  Catholics, though 20.8 percent of the U.S. population, constitute 55.6 percent of the Supreme Court.  Jews, a mere 1.9 percent of the U.S. population, constitute 33.3 percent of the Supreme Court.  Counterintuitively, I find the statistical incongruity reflective of an absence of religious bias in the appointment process.

Religious affiliations have had their effect on the Court. The first appointment of a Jew to the Court – Justice Louis Brandeis – engendered some functional disruption.  No official photograph exists of the 1924 Court term as Justice James McReynolds refused to sit beside the Jewish interloper.  The more recent all-Catholic majority 5- 4 ruling in Gonzales v. Carhart (2007) – upholding a partial-birth abortion ban – hardly went unnoticed. University of Chicago Law Professor Geoffrey Stone, in a polemic 2007 article, articulated the “too obvious,” “too telling” and “painfully awkward observation” and even accused Catholic Justices Roberts, Scalia, Kennedy, Thomas and Alito of failing to “respect the fundamental difference between religious belief and morality.”

On April 19, in just his third day of oral arguments as a Supreme Court Associate Justice, Gorsuch heard arguments in a religiously charged case that may culminate in reversal of existing constitutional law precedent. Trinity Lutheran Church of Columbia, Inc. v. Comer deals with the separation of church and state or, more accurately, the Anti-Establishment Clause of the First Amendment. The Anti-Establishment Clause prohibits the government from passing laws that establish a religion or prohibit the free exercise of a religion.

In Trinity, the federal trial court and appellate court sided with the State, finding no constitutional objection to Missouri’s denial of a state grant to resurface school playgrounds due to the licensed preschool’s church affiliation.  The church argued, inter alia, the Missouri law penalizes the church and school for the free exercise of religion. In the non-legal jargon of the Alliance Defending Freedom, “A skinned knee hurts just as much on the playground of a religious school as it does on the playground of a non-religious school.”

The U.S. Court of Appeals for the Eighth Circuit dutifully followed Supreme Court precedent, including Locke v. Davey (2004).  Still, the appellate court noted the different “direction the Court seems to be going” and even favorably quoted from Justice Scalia’s dissent in Davey:

“When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.”

The appellate court gave credence to the “logical constitutional leap” of a favorable ruling for Trinity Church, but ultimately opined: “only the Supreme Court can make that leap.” It further quoted from a 1997 Supreme Court case authored by Justice Sandra Day O’Connor: “lower courts should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”

Associate Justice Neil Gorsuch, an Article III judge on the only federal court created by the U.S. Constitution, is now 1/9th of that prerogative.

The U.S. Supreme Court’s opinion in Trinity is expected before the Court’s summer recess in late June.

» Ben Williams is a Mississippi attorney.  Email Ben at MBWJ@aol.com.  Ford Williams attends the Savannah College of Art & Design.  

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