This op-ed appeared in The New Yorker on Feb. 19, 2016, and is reprinted with permission.
By Lawrence Krauss
Who should replace Antonin Scalia? On Feb. 15, The New York Times reported that the justice himself had weighed in on the question: Last June, in his dissenting opinion in the same-sex marriage case Obergefell v. Hodges, Scalia wrote that the court was "strikingly unrepresentative" of America as a whole and ought to be diversified. He pointed out that four of the justices are natives of New York City, that none are from the Southwest (or are "genuine" Westerners), and that all of them attended law school at Harvard or Yale. Moreover, Scalia wrote, there is "not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination" on the court. (All nine justices are, to varying degrees, Catholic or Jewish.)
Scalia's remarks imply that an evangelical Christian should be appointed to the court. That's a strange idea: Surely, the separation of church and state enshrined in the Constitution strongly suggests that court decisions shouldn't be based on religious preference, or even on religious arguments. The Ten Commandments are reserved for houses of worship; the laws of the land are, or should be, secular. Still, I'm inclined, in my own way, to agree with Scalia's idea about diversity. My suggestion is that the next Supreme Court justice be a declared atheist.
Atheists are a significantly underrepresented minority in government. According to recent findings from the Pew Research Center, about 23% of American adults declare that they have no religious affiliation — which is two percentage points more than the number who declare themselves Catholic. At least 3% of Americans say that they are atheists — which means that there are more atheists than Jews in the United States. An additional 4% declare themselves agnostic; as George Smith noted in his classic book Atheism: The Case Against God, agnostics are, for practical purposes, atheists, since they cannot declare that they believe in a divine creator. Even so, not a single candidate for major political office or Supreme Court justice has "come out" declaring his or her non-belief.
From a judicial perspective, an atheist justice would be an asset. In controversial cases about same-sex marriage, say, or access to abortion or birth control, he or she would be less likely to get mired in religion-based moral quandaries. Scalia himself often got sidetracked in this way: He framed his objections to laws protecting LGBT rights in a moral, rather than a legal-rights, framework. In his dissent in 2003 in Lawrence v. Texas — a case that challenged a Texas law criminalizing gay sex — Scalia wrote that those who wanted to limit the rights of gay people to be teachers or scoutmasters were merely "protecting themselves and their families from a lifestyle they believe to be immoral and destructive." To him, religion-based moral objections seemed to deserve more weight than either factual considerations (homosexuality is not destructive) or rights-based concerns (gay people's rights must be protected). Indeed, Scalia's meditation on the court's lack of religious diversity was part of a larger argument that the court's decision on same-sex marriage did not reflect prevailing religious and moral values. An atheist justice, by contrast, would have different intellectual habits. I suspect that he or she would be more likely to focus on reason and empirical evidence.
In addition, the appointment of an atheist justice would send a meaningful message: it would affirm that legal arguments are secular, and that they are based on a secular document, the Constitution, which was written during the founding of a secular democracy. Such an appointment would also help counter the perceived connection between atheism and lawlessness and immorality. That unfortunate and inaccurate link is made all too often in the United States. A Pew survey conducted in January showed that, once again, Americans would be less likely to vote for an atheist candidate than for a candidate who has no experience, is gay, was involved in financial improprieties, has had extramarital affairs, or is Muslim. Atheists are widely, absurdly and openly mistrusted.
That distrust has ancient roots: because religion long ago claimed morality as its domain, atheism has long been connected to immorality. To many people, religiosity confers an aura of goodness. In the U.K., when people who had listed their religious affiliation as Christian on the national census were asked by the Richard Dawkins Foundation why they had done so, most said it was not because they actually accepted the detailed doctrines of their faith, but because it made them feel like they were good people. This is a two-way street on which both directions point the wrong way. By the same token, when good people openly declare that they cannot accept religious doctrines or question the underlying concept of God, they are often classified as "bad."
The prejudice against atheists has real-world consequences. In December 2014, the Times reported that seven states — Arkansas, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Texas — still have laws on their books that make atheists ineligible to run for public office. And anti-atheist prejudice is shaping our presidential race, too. Consider the case of Donald Trump in South Carolina. After Trump insulted Ted Cruz using a sexist slur, one voter responded by saying, "The way he speaks — that doesn't sound like somebody who really believes in God that much. You want your children to look up at the president of the United States."
Implicit in that statement is the idea that a politician's belief in God is, in itself, a reason for children to look up to him or her. Meanwhile, other aspects of a candidate's character seem not to matter. If the opinions of Cruz's colleagues in the Senate and elsewhere are any indication, he seems to be rather unlikable; his competitors in the Republican primaries have suggested that he is less than truthful, as well. Still, Cruz captures a significant fraction of the evangelical vote because his character seems to matter less than his open and pronounced invocation of God in discussing his policies.
Our strange attitudes about atheism warp our politics and our laws. It's time to remove the stigma. One way to do that is by appointing an atheist to the Supreme Court. Happily, such an appointment would be a tribute to the spirit, if not the letter, of one of Scalia's last opinions. More than that, it would be a tribute to the secular principles upon which this country was founded.
Lawrence Krauss is an esteemed theoretical physicist and author who will be receiving the Emperor Has No Clothes Award at the 2016 FFRF national convention. See more on the back page.