I am paying more attention to religion news these days.  I’ve written about it before but had turned my attention elsewhere until recently, for obvious reasons.  More and more non-specialists are now writing about religion. That is a good and a bad thing. Good because religion is increasingly covered in news pages (breaking a long tradition of segregating it), bad because they are–well–non specialists and a lot of lacunae then appear.  But some of these lacunae even infect those who concentrate on religion. SCOTUS

I’ll attempt a more comprehensive account of this, but for now, here is an example from this morning’s Religion News Service feed.  In a story titled “Why Catholics and Jews Dominate the Supreme Court?”    Yonat Shimron raises an issue that has been obvious for years but rarely commented on.  With confirmation of Kavanaugh, the Court will have three Jews and six Catholics (depending on how you count Gorsuch who was raised Catholic and attended Jesuit High School).

This is a real concern, not for the 1950s reasons of majority anxiety about “Papism” (remember the Kennedy election?).  We’re past that, fortunately.  No, it is a real concern to me because the Court is dealing with religion cases more frequently, and frequently exhibits a bias, not based on theology, but on its understanding of the nature American religious practice.  Simply put, Catholics (and I supposed Jews) see the nature and location and status of religious practice differently than Protestants do. For the latter, faith infuses everyday life (work, civic action, leisure) with moral purpose.  It is not something that is particularly marked by set-apart ritual.

That is a difference that makes all the difference when the court needs to decide how legitimate certain actions in the private sphere are.  The expected raft of “religious liberty” cases that we can anticipate before the court will surely try to greatly expand the range of private action that falls under the protections of religious expression.  The Masterpiece Cakeshop decision already did this, legitimating a faith-based exception to a public accommodation under the rubric that it was somehow “religious expression.”

What the Catholics and Jews on the Supreme Court may not be prepared for is the dizzying array of things that Protestants may come to seek protection for.  We’ll see.

But back to the story.  Shimron largely fails to adequately answer the question.  Her main explanation? that Catholics favor education, so there are a lot of educated Catholic lawyers out there.  She quotes John Fea, who suddenly is the global expert on American Protestantism, in saying that Evangelicals have stressed education less.

But this commits one of the most glaring fallacies inherent in contemporary journalism and commentary about religion. Exactly who–we might ask–dominated the court before all these Jews and Catholics showed up?  Well, establishment Protestants, that is who.  Did we not notice?  What happened to them?

The easy assumption that Protestantism=Evangelicalism is both lazy and a product of a decades-long campaign by the Evangelical intelligentsia to expunge from history the legacy of what we now call “mainline Protestantism” and replace it with Evangelicalism.  Fea himself is guilty of this in many of his public comments (though not so much in his scholarship).

As Shimron notes in the article, Catholics currently make up around 22% of the U.S. population (and Jews 2%).  She–and Fea–speculate that somehow proportional representation will lead to more Protestants on the Court down the road because 25% or so of the U.S. is Evangelical (a declining percentage, by the way–though these numbers are fungible in a number of ways).  But, according to Pew, 22% of Americans are Non-Evangelical but Protestant. What about them?  How will they be represented?

Shimron does end with a hint at the right answer to her question.  It is about politics, and largely about the politics of abortion.  Reagan and the Bushes both realized that conservative Protestants–the core of the Evangelical vote–could overcome any historical uneasiness about Catholic influence because of their shared focus on “life” issues (not all of those issues–of course–not about capital punishment or war, where the Catholic Bishops have taken a view quite different from conservative Protestants).  Those conservative Protestants and Catholics combined create a sizeable electorate.

That is why there are so many Catholics on the Court, and why we should be a bit worried.