The nomination by President Obama of his solicitor-general Elena Kagan to the US Supreme Court to fill the post vacated by Associate Justice John Paul Stevens has led some commentators to note that, if her nomination is approved by the US Senate, the US Supreme Court will no longer number any Protestants on its bench.   It will, instead, be made up of six Catholics (Chief Justice John Roberts, Justice Antonin Scalia, Justice Anthony Kennedy, Justice Clarence Thomas, Justice Samuel Alito and Justice Sonia Sotomayor) and three Jews (Justice Stephen Breyer, Justice Ruth Bader Ginsburg, and the putative Justice Elena Kagan).

The socio-cultural reasons for the disappearance of the male WASP from the US Supreme Court are difficult to pin-point precisely; and what its significance might be is again hard to discern.    Indeed, for some it is thought indecorous even to allude to the religious/cultural background of any the Justices.     On this view the very taking of the judicial oath involves newly appointed judges wholly disencumbering themselves of their past individual cultural baggage, and assuming for the future a wholly objective approach to the law, untainted by considerations of where they came from and how they got from there.  Thus, a wise Latina from the barrios should reach precisely the same decision for the same reasons as a prudent country club WASP.   Since Justice is blind, one can and should be blind to the Justices.    At the same time there are some tensions with this view.   In his essay “The Supreme Court Phalanx” first published in (2007) 54 New York Review of Books, (Number 14, 27 September 2007) and re-published as Chapter 4 of his The Supreme Court Phalanx: the court’s new right-wing bloc (New York: New York Review Books, 2008) at 47-48) Professor Ronald Dworkin, in his fury at many of the decisions emanating from these first five years of the Roberts court, has described the five Catholic male justices to constitute a “right wing phalanx … guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance”.

The dominant, indeed almost universal, approach to date in the UK has been to pay no heed whatsoever to the religious and/or cultural background of those who are appointed to the Bench, albeit that the Jewish Chronicle reports in brief that the appointment of Sir John Dyson to the UK Supreme Court to fill the vacancy created by Lord Neuberger’s appointment as Master of the Rolls maintains the number of Jewish justices on the court at four.  But in Locabail (UK) Ltd v Bayfield Properties Ltd and another [2000] QB 451 a specially convened Court of Appeal bench (made up of the then Chief Justice, the Master of the Rolls and the Vice-Chancellor – respectively, Lord Bingham of Cornhill, Lord Woolf and Sir Richard Scott who was subsequently ennobled as the Law Lord, Lord Scott of Foscote)  stated that:

“We cannot … conceive of circumstances in which an objection [of apparent judicial bias] could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge.”

The bench was emphatic that a judge’s particular religious convictions or cultural background or associations would not and should not be thought to influence his or her decisions on matters of law (see similarly Helow v. Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2418) holding that a Court of Session judge’s public membership of the pro-Israel lobbying group the “International Association of Jewish Lawyers and Jurists” was insufficient to make out a claim of apparent bias in the judge’s upholding of a lower court’s refusal of asylum to a Palestinian activist..

But even within the United Kingdom legal and constitutional context, there are signs of some tension developing on this issue.   In R. (on the application of E) v JFS Governing Body [2010] 2 WLR 153, the UK Supreme Court, by a 5:4 majority (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke forming the majority; Lord Hope, Lord Rodger, Lord Walker and Lord Brown dissenting) held that a Jewish faith school was not permitted to apply Orthodox rabbinical standards as to who counted as a Jew in its admissions policies.    Application of the requirement that prospective pupils require to have mother born a Jew, or duly converted to Orthodox Judaism, was held to constitute direct race discrimination.   If the school had applied a purely faith/belief/practice criterion (e.g. coming from an observant house-hold) its admissions policies would have passed muster.   But in applying a policy based on, in effect, the ethnicity of the mother of the pupil – albeit for religious reasons – the school acted unlawfully in breach of race discrimination law.   What is little remarked upon is that the UK Supreme Court was convened as a bench of nine judges, in part having regard to the religious/cultural backgrounds of the Justices hearing the case because of the particular religious and cultural sensitivities involved in the issue in respect of which the court was reluctantly required to adjudicate.

The claim that it might be legitimate to look at the individual religious/cultural background of the judges hearing a case has also received recent trenchant support from the former Archbishop of Canterbury, Lord Carey, in a witness statement lodged in support of a renewed application before the Court of Appeal of England and Wales for leave to appeal against a decision of the Employment Appeal Tribunal in McFarlane v Relate Avon Ltd. [2010] IRLR 196.  The case concerns a relationship counsellor who sought to be exempted by his employers from relationship counselling work with same sex couples where specifically sexual issues were involved, on grounds of his religious belief in the immorality of such conduct.    In the report on the renewed application for permission to appeal Lord Carey is quoted as saying this:

18.  I am concerned that judges are unaware of these basic issues on the Christian faith; further it is difficult to see how it is appropriate for other religions to be considered by the Judiciary where the practices are further removed from our traditions.

19.  It is for this reason that I support the application by Mr McFarlane for his appeal to be heard under the direction of the Lord Chief Justice and a freshly constituted five member Court of Appeal.

20.  Further, I appeal to the Lord Chief Justice to establish a specialist Panel of Judges designated to hear cases engaging religious rights.  Such Judges should have a proven sensitivity and understanding of religious issues and I would be supportive of Judges of all faiths and denominations being allocated to such a Panel.  The Judges engaged in the cases listed above should recuse themselves from further adjudication on such matters as they have made clear their lack of knowledge about the Christian faith.”

The retired (if not retiring) Archbishop’s claims have been rightly robustly rejected by Lord Justice Laws, in refusing the renewed application for leave to appeal who noted as follows:

“18.   Lord Carey’s observations are misplaced.  The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”.  Nor have they likened Christians to bigots.  They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.  ….

23.   The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves.  So it is with core provisions of the criminal law: the prohibition of violence and dishonesty.  …   But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled.  It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion.  This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence.  It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society.  Therefore it lies only in the heart of the believer, who is alone bound by it.  No one else is or can be so bound, unless by his own free choice he accepts its claims.

24.   The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified.  It is irrational, as preferring the subjective over the objective.  But it is also divisive, capricious and arbitrary.  We do not live in a society where all the people share uniform religious beliefs.  The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.  If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic.  The law of a theocracy is dictated without option to the people, not made by their judges and governments.  The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

25.   So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials.  Both principles are necessary conditions of a free and rational regime.

26.   As I have shown Lord Carey’s statement also contains a plea for a special court.  I am sorry that he finds it possible to suggest a procedure that would, in my judgment, be deeply inimical to the public interest.”

The paradox is that the obvious tension between the views expressed by Lord Carey and their unequivocal rejection by Lord Justice Laws arises precisely because of the expansion of anti-discrimination law explicitly to outlaw discrimination on grounds of religion or belief.    What the religiously motivated find difficult to understand or accept is that the freedom from discrimination on grounds of religion or belief which has been afforded them by the law does not extend to giving the religious a general right to discriminate (on otherwise unlawful grounds such as sex, age, race, disability, or sexual orientation) on the basis of religion or belief.    There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue.   The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.