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By Lawrence M. Krauss
Who should replace Antonin Scalia? On Monday, the Times reported that the Justice himself had weighed in on the question: last June, in his dissenting opinion in the same-sex marriage case Obergefell v. Hodges, Scalia wrote that the Court was “strikingly unrepresentative” of America as a whole and ought to be diversified. He pointed out that four of the Justices are natives of New York City, that none are from the Southwest (or are “genuine” Westerners), and that all of them attended law school at Harvard or Yale. Moreover, Scalia wrote, there is “not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination” on the Court. (All nine Justices are, to varying degrees, Catholic or Jewish.)
Scalia’s remarks imply that an evangelical Christian should be appointed to the Court. That’s a strange idea: surely, the separation of church and state enshrined in the Constitution strongly suggests that court decisions shouldn’t be based on religious preference, or even on religious arguments. The Ten Commandments are reserved for houses of worship; the laws of the land are, or should be, secular. Still, I’m inclined, in my own way, to agree with Scalia’s idea about diversity. My suggestion is that the next Supreme Court Justice be a declared atheist.
Atheists are a significantly underrepresented minority in government. According to recent findings from the Pew Research Center, about twenty-three per cent of American adults declare that they have no religious affiliation—which is two percentage points more than the number who declare themselves Catholic. Three per cent of Americans say that they are atheists—which means that there are more atheists than Jews in the United States. An additional four per cent declare themselves agnostic; as George Smith noted in his classic book “Atheism: The Case Against God,” agnostics are, for practical purposes, atheists, since they cannot declare that they believe in a divine creator. Even so, not a single candidate for major political office or Supreme Court Justice has “come out” declaring his or her non-belief.
From a judicial perspective, an atheist Justice would be an asset. In controversial cases about same-sex marriage, say, or access to abortion or birth control, he or she would be less likely to get mired in religion-based moral quandaries. Scalia himself often got sidetracked in this way: he framed his objections to laws protecting L.G.B.T. rights in a moral, rather than a legal-rights, framework. In his dissent, in 2003, in Lawrence v. Texas—a case that challenged a Texas law criminalizing gay sex—Scalia wrote that those who wanted to limit the rights of gay people to be teachers or scoutmasters were merely “protecting themselves and their families from a lifestyle they believe to be immoral and destructive.” To him, religion-based moral objections seemed to deserve more weight than either factual considerations (homosexuality is not destructive) or rights-based concerns (gay people’s rights must be protected). Indeed, Scalia’s meditation on the Court’s lack of religious diversity was part of a larger argument that the Court’s decision on same-sex marriage did not reflect prevailing religious and moral values. An atheist Justice, by contrast, would have different intellectual habits. I suspect that he or she would be more likely to focus on reason and empirical evidence.
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