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Mark Osler

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Diversity, Faith and the Supreme Court

Posted: 08/28/11 01:18 PM ET

On Aug. 18, President Obama issued an executive order promoting diversity in the workplace. In that order, he set out a compelling and principled reason for diversity: "We are at our best when we draw on the talents of all parts of our society, and our greatest accomplishments are achieved when diverse perspectives are brought to bear to overcome our challenges."

He is exactly right and should apply this principled thinking to one of the most important choices a President can make. In the interest of diverse perspectives, he or his successor should seek to fill the next vacancy on the U.S. Supreme Court with a Protestant. Currently, there are six Catholics and three Jews on that bench, leaving no one who shares a faith background with the 51 percent of Americans who are Protestant.

While no one would argue (I certainly don't) that Protestants are marginalized or under-privileged in the broader society, there still is something wrong with a Court that is so starkly different than the rest of the country. Faith is a difference that matters. Like race or gender, it shapes the way we think, even if it does not direct a conclusion. This is especially true in the way we think about morality, justice and punishment. Faith also plays a role in convincing us of what issues are most important -- a key process for members of a Court that has the power to pick a small number of cases to hear each year.

Many Americans are uncomfortable with the idea that religious background might be a consideration in naming Supreme Court justices because we are repelled by the idea that religion will directly shape the secular law. However, how is this different than other types of diversity? We certainly don't want Justices to decide a discrimination case based on their own race, yet we value racial diversity on the Supreme Court. Similarly, we don't expect women to vote a certain way simply because they are women, yet we still celebrate the increase in female justices over the past decade.

Morality and law are complex, and diversity works by providing divergent perspectives to a discussion between peers. This is especially true of an institution like the Supreme Court, which hears cases as a whole because of the importance of discussion between the parties and the Court and within the Court itself.

Some might argue that American society is "beyond religion," but that is shown to be untrue by the Supreme Court's docket itself. Every year, many of the cases for which Court review is sought deal with the meaning of the First Amendment's establishment and free exercise clauses, and cut to the core of the intersection between faith, law and culture. Among many other things, the Court has been given the role of evaluating which religions and religious practices are sincere (in order to evaluate tax status and particular practices which might otherwise violate the law), so these Justices even end up with the task of defining for the nation exactly what it is that religion is. Given this, it is especially odd that the majority religious group in the country is not represented on the Court.

There is no imminent court retirement pending on the Supreme Court, but the White House maintains an eye on potential candidates at all times given the possibility of death or illness on a court comprised of men and women with an average age of 65. In keeping that list, President Obama should follow the wisdom of his own words in the Aug. 18 executive order -- that "our greatest accomplishments are achieved when diverse perspectives are brought to bear to overcome our challenges.