Those who worry about a balance on the Supreme Court of adherents to Judaism, Roman Catholicism, Protestant Christianity and other religions are concerned about the wrong categories. There are two salient classes of religions – theistic religions and atheistic religions. If we define a religion as a system of beliefs, atheism is just as much a religion as theism is. The religious balance that should most concern us as we assess the composition of our courts is the degree to which our jurists seek to push theistic religions off of the public stage, inviting atheistic religions to take their place. The big question isn’t whether church can or should be allowed to play roles in our governments. Rather, the question is whether it is theistic or atheistic religion that will be invited to play those important roles.
Why is the distinction between theistic and atheistic religions the most salient for America? The great British jurist of the early 20th century, Sir John Fletcher Moulton, gave us the best metric I have found to assess the probability that democracy and free markets will flourish in a nation: The extent to which people instinctively obey unenforceable laws. Theistic religions teach their adherents that even if the police or court systems don’t catch them breaking laws, with perfect certainty God will catch and punish them. The remarkable and distinctive instinct of so many Americans assiduously to obey unenforceable laws is rooted in the belief that they and/or their ancestors have held that there are eternal, not just temporal, consequences for not following the rules.
Theistic religions are the predominant institutions in our society that work to inculcate the instinct to voluntarily obey unenforceable laws. The ability of Sarbanes-Oxley to inspire such obedience is minimal, when contrasted with the power of theistic religions to inspire compliance. There are certainly those who are not religious and yet obey such laws because it is now part of America’s culture. But it is a part of our culture because of theistic religions that in the past strongly influenced the way people lived their lives. Culture is not a reliable custodian of these instincts for America. The problem that jurists have created for America when they mistakenly have framed a mandated separation of church and state is that the religions of atheism and secularism offer us no institutions whose mission is to inculcate in the next generation of Americans the instinct to obey unenforceable laws. I cannot conceive of a body of decisions that in the long run will have proved to be more damaging to the strength of American democracy and prosperity than those that have pushed theistic churches under the back seat, and enthroned atheistic ones in their stead. The jurists who have done this simply don’t get that they are minimizing the very institutions that give us our civil liberties in the first place.
It is for these reasons that I believe that those concerned with a balance of Protestants, Catholics and Jews on the Court have framed the problem incorrectly, and have missed entirely a problem of vast consequence.
Clayton M. Christensen is the Robert and Jane Cizik Professor of Business Administration at the Harvard Business School. He is a member of The Church of Jesus Christ of Latter-day Saints (also called the Mormon Church). His views are his own, and are not official positions of his employer