As President Obama considers nominees to replace retiring Supreme Court Justice John Paul Stevens, a debate bubbles as to whether religion should play a role in his choice.

This is a no-brainer. The religious views of the next justice of the high court must absolutely be a decisive factor.

Though the court without Stevens will be left with six Catholics and two Jews, the open seat should not go to either domination. Nor should it go to a Presbyterian, a Lutheran, a Methodist, a Muslim or even a Zoroastrian. If it did, that would make nine people who all have one religious principle in common: a belief in religion.

Clearly, the next person to take the bench should be an atheist.


While few sitting politicians have the political courage to name a declared nonbeliever, it is something that Thomas Jefferson (and several others among the founders) might well have done.

In an 1823 letter to John Adams, Jefferson was forthright about his views of religion, and Christianity specifically. “And the day will come when the mystical generation of Jesus, by the supreme being as his father in the womb of a virgin will be classed with the fable of the generation of Minerve in the brain of Jupiter,” Jefferson wrote. “But may we hope that the dawn of reason and freedom of thought in these United States will do away with this artificial scaffolding, and restore to us the primitive and genuine doctrines of this most venerated reformer of human errors.”

In other words, Jefferson liked what Jesus, the man, stood for, but could definitely do without the rest of the bunk.

That’s right. Bunk. There aren’t a lot of us, but something like one out of six Americans calls himself a nonbeliever. Holy moly! That means we would still be underrepresented with just one justice. But those of us who refuse to subscribe to any religious hocus-pocus would be happy to take what we can get in a country where seemingly no politician, from either party, can resist the temptation of ending a speech with the empty phrase “God bless America.”


It’s rather staggering to consider that more than two centuries after our Constitution codified the absolute separation of church and state, we’ve never had a single top court justice who was an atheist. The closest we ever got were a handful of Unitarians. Close but no cigar.

Having an atheist justice, however, would not primarily be a matter of identity politics and some sort of equal representation. Rather, a nonbeliever justice would be a mighty blow in favor of the secular principles of “reason and freedom” of which Jefferson spoke.

Heaven knows we could use some more of that stuff. Religion plays far too influential a role in our political and civic life as is. I personally don’t care what sort of superstition makes you sleep better at night, but I think we would all benefit if you left it behind closed doors and kept it as far away as possible from public policy. How about a policy of don’t ask, don’t tell?

We’ve got quite a way to go to get even close to the stark separationism that is constitutionally enshrined but far too often ignored. We’ve recently been humiliated by a spate of local school boards dominated by fundamentalist Christians, undermining the teaching of science and inching us back into the shadows of ignorance.


While the U.S. Supreme Court ruled in 1961 that atheists cannot be denied elected office, there are currently seven states — including Pennsylvania, Texas and Tennessee — that retain laws keeping infidels out of government. These moldy statutes are, indeed, unconstitutional, and when challenged eventually fail. But “eventually” can be a long time. In the meantime, they are used, as is currently the case with a North Carolina councilman, to force an elected official to spend outsized legal fees defending himself or herself for not believing in God.

When it comes to some Sunday soul-searching introspection, or when faced with a personal crisis that haunts your nightmares, it’s your constitutional right to ask yourself, “What would Jesus do?”

When it comes to deciding who will be the ultimate arbiters and defenders of the most advanced and enlightened governing document in history, we would all be a lot better off if, instead, we asked ourselves, “What would Jefferson do?”

Marc Cooper is a contributing editor to the Nation magazine and director of USC Annenberg Digital News.