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Elena Kagan, the Supreme Court, and a Lament for American Protestantism

BeliefNet
Monday May 10, 2010

President Obama has picked Elena Kagan, former dean of Harvard Law School and Solicitor General, to fill the next vacancy on the Supreme Court. Much will be said of Ms. Kagan over the coming weeks--praise and criticism of all sorts. But little will be in a form of lament, and that's what I'd like to offer here. A lament for the passing of American Protestantism.

Ms. Kagan is Jewish. That means there will be six Roman Catholics and three Jews on the Supreme Court in a country that was once the largest Protestant nation in the world. These days, of course, the United States may still have the largest number of Protestants but the percentage of the population that is Protestant has slipped to a mere 50%, meaning that sometime in the near future, America will be a nation with a religious plurality and not a majority.

I'm not lamenting the loss of representation; I don't think that Supreme Court picks should be ruled by affirmative action. Rather, the primary qualification should be that the person knows the law, understands the law, upholds the law, and possesses a certain sort of empathy for the way that the law impacts the lives of Americans. Accordingly, anyone--a Protestant, Jew, Catholic, Muslim, Buddhist, or atheist--can be an excellent Supreme Court justice.

However, the faith in which one was raised or which one practices forms the basis of one's worldview--the way in which a person interprets contexts and circumstances. It involves nuances regarding theology, outlook, moral choice, ethics, devotion, and community. All religious traditions provide these outlooks to their adherents, and they are present in both overt and subtle ways through our lives. I'm not lamenting the numerical absence of Protestants. Instead, I will miss the fact that there will be no one with Protestant sensibilities on the court, no one who understands the nuances of one of America's oldest and most traditional religions--and the religion that deeply shaped American culture and law.

Historically, American Protestantism is a vast, diverse, argumentative set of traditions. Sociologists include a wide array of denominations under the moniker, from independent churches to Episcopalians and all sorts of Baptists, Pentecostals, Presbyterians, Methodists, Lutherans, and Congregationalists in between. Despite such theological diversity, most Protestants retain three general convictions that shape their worldview and impact the ways in which they engage the public square:

First, Protestants hold central the idea that nothing should or can impede individual conscience. From Martin Luther's clarion call at the time of the Reformation, "Here I stand, I can do no other," Protestants of all sorts emphasize the free expression of individual rights and conscience. Those individual rights can--and do--empower liberation and freedom against corrupt institutions and unjust states.

Second, Protestants believe that symbols like the cross and the flag mean something. Going back to the days when Protestants stripped churches of religious statues and painted over icons, they believed that symbols convey the meaning of the thing depicted. Crosses, icons, flags, paintings, and other representations cannot be separated from their theological or political intention. Thus, Protestants have historically fought over the power of symbols and their meaning in public space. As a result, they often argue for empty public space because they understand the internal power of symbols.

Third, Protestants (in partnership with free-thinking Enlightenment philosophers) created the concept of the separation of church and state in the 17th and 18th centuries. Indeed, some historians argue that the Constitution's Establishment and Free Exercise clauses--the phrases that guide the relationship between religion and politics--might well be the most important contributions of American Protestantism to Christian theology.

These three things--individual conscience, the power of symbols to inspire and convince, and the separation of church and state--are not merely areas of law to Protestants. No, these are the things that inflame the Protestant soul--the things we have fought over, left other churches and start new denominations to uphold, teach our children, sing of in our hymnody, of which we write books and hold theological debates, and why we do good on behalf of our neighbors. Protestants do not always agree on how these principles work out in the law, nor have Protestants always followed their own principles to their logical legal conclusions. But these are the things that guide Protestants, the insights that animate the followers of one of Christianity's great traditions.

Elena Kagan will be a fine and fair justice. President Obama has made a thoughtful, considered choice. But, on this day, I am a little sad. Missing from the bench upcoming years will be someone who empathizes with the Protestant worldview in a visceral way. As religious cases multiply in an increasingly pluralistic world, I can't help but think that losing the lived memory of American Protestantism will be a loss for all of us indeed.