Written by Don Byrd
The Huffington Post pondered last week whether Supreme Court Justice Breyer might be an atheist, given a remark he made during the Court’s recent oral argument over the constitutionality of a city council’s opening prayer policy. Today they add to the discussion with a piece noting a split in public support for the idea of an atheist Supreme Court justice, according to a new poll. By 40-38 margin, Americans apparently would approve of the nomination of an atheist to the high court.
It’s nice to see that only 38% of Americans believe such a thing matters. The religion of a judge is clearly irrelevant to their effectiveness on the bench, even on matters relating to religion. We should be much more concerned about a nominee’s understanding of the relationship between church and state than their personal religious beliefs.
So what is the big deal about Justice Breyer?
During the recent U.S. Supreme Court oral argument in Town of Greece v. Galloway, the discussion occasionally turned to the issue of atheist objections to government prayer of any kind. The justices seemed to agree, for example, that, under current law, “atheists cannot get full relief” in the context of legislative prayer. As Professor Laycock said, arguing on behalf of the plaintiffs, “we cannot treat everybody, literally everybody equally without eliminating prayer altogether.”
An exchange on the subject earlier in the argument has been interpreted by some observers as Justice Breyer acknowledging his atheism. (Transcript here)
JUSTICE SCALIA: Mr. Hungar, what — what is the equivalent of prayer for somebody who is not religious?MR. HUNGAR: I would -JUSTICE SCALIA: What would somebody who is not religious -MR. HUNGAR: In the Rubin -JUSTICE SCALIA: — what is the equivalent of prayer?MR. HUNGAR: It would be some invocation of guidance and wisdom from -JUSTICE SCALIA: From what?MR. HUNGAR: I don’t know. In — in the Rubin case –(Laughter)MR. HUNGAR: In the Rubin case, a nonreligious person delivered invocations on multiple occasions.JUSTICE SCALIA: I suppose a moment -JUSTICE BREYER: Perhaps he’s asking me that question and I can answer it later.
Reading the section in context explains why Justice Breyer spoke up there. He is the one that introduced the idea that there may be such a thing as an “equivalent of prayer” for someone who is not religious. That is why he thought Justice Scalia’s question may have been meant for him. Still, is he saying he’s an atheist? Who cares?
Justice Breyer has been a strong and thoughtful proponent of religious freedom. He defends a robust Establishment Clause as the best way to ensure religious liberty for all. When it comes to protecting the freedom of religion, that’s what we need in a judge. Given that, what difference does it make whether he claims a religion or not?
