President Obama has picked Elena Kagan, former dean of
Harvard Law School and Solicitor General, to fill the next vacancy on the
Supreme Court.  Much will be said
of Ms. Kagan over the coming weeks–praise and criticism of all sorts.  But little will be in a form of lament,
and that’s what I’d like to offer here. 
A lament for the passing of American Protestantism. 

Ms. Kagan is Jewish. 
That means there will be six Roman Catholics and three Jews on the
Supreme Court in a country that was once the largest Protestant nation in the
world.  These days, of course, the
United States may still have the largest number of Protestants but the
percentage of the population that is Protestant has slipped to a mere 50%,
meaning that sometime in the near future, America will be a nation with a
religious plurality and not a majority.

I’m not lamenting the loss of representation; I don’t think
that Supreme Court picks should be ruled by affirmative action.  Rather, the primary qualification
should be that the person knows the law, understands the law, upholds the law,
and possesses a certain sort of empathy for the way that the law impacts the
lives of Americans.  Accordingly,
anyone–a Protestant, Jew, Catholic, Muslim, Buddhist, or atheist–can be an
excellent Supreme Court justice. 

However, the faith in which one was raised or which one
practices forms the basis of one’s worldview–the way in which a person
interprets contexts and circumstances. 
It involves nuances regarding theology, outlook, moral choice, ethics,
devotion, and community.  All
religious traditions provide these outlooks to their adherents, and they are
present in both overt and subtle ways through our lives.  I’m not lamenting the numerical absence
of Protestants.  Instead, I will
miss the fact that there will be no one with Protestant sensibilities on the
court, no one who understands the nuances of one of America’s oldest and most
traditional religions–and the religion that deeply shaped American culture and law. 

Historically, American Protestantism is a vast, diverse,
argumentative set of traditions. 
Sociologists include a wide array of denominations under the moniker, from independent
churches to Episcopalians and all sorts of Baptists, Pentecostals, Presbyterians, Methodists, Lutherans, and Congregationalists in between.  Despite such theological diversity, most Protestants retain
three general convictions that shape their worldview and impact the ways in
which they engage the public square:

First, Protestants hold central the idea that nothing should
or can impede individual conscience. 
From Martin Luther’s clarion call at the time of the Reformation, “Here
I stand, I can do no other,” Protestants of all sorts emphasize the free
expression of individual rights and conscience.  Those individual rights can–and do–empower liberation and freedom against corrupt institutions and unjust states.

Second, Protestants believe that symbols like the cross and
the flag mean something.  Going
back to the days when Protestants stripped churches of religious statues and
painted over icons, they believed that symbols convey the meaning of the thing
depicted.  Crosses, icons, flags,
paintings, and other representations cannot be separated from their theological
or political intention.  Thus,
Protestants have historically fought over the power of symbols and their
meaning in public space.  As a
result, they often argue for empty public space because they understand the
internal power of symbols. 

Third, Protestants (in partnership with free-thinking
Enlightenment philosophers) created the concept of the separation of church and
state in the 17^th and 18^th centuries.  Indeed, some historians argue that the Constitution’s
Establishment and Free Exercise clauses–the phrases that guide the relationship
between religion and politics–might well be the most important contributions of
American Protestantism to Christian theology. 

These three things–individual conscience, the power of
symbols to inspire and convince, and the separation of church and state–are not
merely areas of law to Protestants.  
No, these are the things that inflame the Protestant soul–the things we
have fought over, left other churches and start new denominations to uphold,
teach our children, sing of in our hymnody, of which we write books and hold
theological debates, and why we do good on behalf of our neighbors.  Protestants do not always agree on how
these principles work out in the law, nor have Protestants always followed
their own principles to their logical legal conclusions.  But these are the things that guide
Protestants, the insights that animate the followers of one of Christianity’s
great traditions.

Elena Kagan will be a fine and fair justice.  President Obama has made a thoughtful,
considered choice.  But, on this
day, I am a little sad.  Missing
from the bench upcoming years will be someone who empathizes with the Protestant
worldview in a visceral way.  As
religious cases multiply in an increasingly pluralistic world, I can’t help but
think that losing the lived memory of American Protestantism will be a loss for
all of us indeed.