Catholic Judges and the Religion Clauses

As the Supreme Court starts its first full term with five Catholic justices, my colleague, Joe Thai has two questions pertaining to Catholic Legal Theory and the Religion Clauses of the First Amendment:

“My colleague Michael Scaperlanda has graciously agreed to post to this blog a few questions of mine related to the religion jurisprudence of Catholics on the Supreme Court.

With the addition of Justices Roberts and Alito, the Court now has a Catholic majority.  The others are, of course, Scalia, Kennedy, and Thomas.  I have often been struck by the influence that Catholics have had in the development of the Court’s modern jurisprudence in both the Free Exercise and Establishment areas.  With respect to Free Exercise, Brennan gave us Sherbert, which Scalia’s Smith overruled.  Kennedy then invalidated Congress’ attempt to overrule Smith (RFRA) in Flores.  With respect to Establishment, Catholics have been less dominant (who, other than O’Connor, has?) but no less forceful, and their views appear somewhat closer in alignment, along the axis of coercion (direct, in the case of Scalia and Thomas, and indirect, in the case of Kennedy).

I recognize that these are simplifications of the nuanced views of the Catholic justices, but I hope they’re adequate to set up my questions, which are (1) what, if anything, is “Catholic” about the jurisprudence of these justices; and relatedly, (2) is it possible to identify what a “Catholic” position should be to on, say, the conflicting Sherbert and Smith approaches to FE, or the various EC principles out there.

Although I’m a Catholic myself, I am no expert at Catholic jurisprudence, and would very much appreciate any insights members of this blog may share on these questions.  Thanks.

Joseph Thai

Associate Professor of Law

University of Oklahoma College of Law

P.S.  I apologize if these questions have been discussed before, and if so, would appreciate pointers to the relevant discussion.  I’m treading with some trepidation as an uninformed interloper!”