In a post titled “Roberts and Role Differentiation,” Brad Wendel at Legal Ethics Forum points to pro bono work done by young lawyer John Roberts as evidence Roberts can make a distinction between his role as lawyer or judge and his role as a member of a particular Faith. The case involved gay rights. Brad concluded:
“I can live with a conservative nominee who is likely to make a good faith effort to decide cases impartially as a judge. In fact, I think that’s the best anyone can hope for.”
I have a minor point and a major one. First, the Catholic Church does not oppose civil rights protections for gays — as long as they do not include the right to gay marriage. More important, the Church does not countenance role differentiation (separating one’s spiritual life from one’s job or civic activites). The authoritative text, Doctrinal Note on Participation of Catholics in Political Life, which was issued by then-Cardinal Ratzinger (now Pope Benedict XVI) says:
“By its interventions in this area, the Church’s Magisterium does not wish to exercise political power or eliminate the freedom of opinion of Catholics regarding contingent questions. Instead, it intends – as is its proper function – to instruct and illuminate the consciences of the faithful, particularly those involved in political life, so that their actions may always serve the integral promotion of the human person and the common good. The social doctrine of the Church is not an intrusion into the government of individual countries. It is a question of the lay Catholic’s duty to be morally coherent, found within one’s conscience, which is one and indivisible. ‘There cannot be two parallel lives in their existence: on the one hand, the so-called ‘spiritual life’, with its values and demands; and on the other, the so-called ‘secular’ life, that is, life in a family, at work, in social responsibilities, in the responsibilities of public life and in culture.’ [emphasis added]“The branch, engrafted to the vine which is Christ, bears its fruit in every sphere of existence and activity. In fact, every area of the lay faithful’s lives, as different as they are, enters into the plan of God, who desires that these very areas be the ‘places in time’ where the love of Christ is revealed and realized for both the glory of the Father and service of others. Every activity, every situation, every precise responsibility – as, for example, skill and solidarity in work, love and dedication in the family and the education of children, service to society and public life and the promotion of truth in the area of culture – are the occasions ordained by providence for a ‘continuous exercise of faith, hope and charity’ (Apostolicam actuositatem). Living and acting in conformity with one’s own conscience on questions of politics is not slavish acceptance of positions alien to politics or some kind of confessionalism, but rather the way in which Christians offer their concrete contribution so that, through political life, society will become more just and more consistent with the dignity of the human person.”
(Related posts: What if John Roberts is a “Serious Catholic”? and on Bainbridge and Roberts’ Catholicism )
In an earlier post, you wrote: “so many supporters of John Roberts have
so strongly stated that there is nothing about Roberts’ Catholicism that would require
him to take stands based on his faith, as opposed to his legal philosophy and analysis. I think they’re wrong (and most know it)… If Roberts is such a Catholic, his Catholcism
will trump the Constitution on numerous important issues.”
The Constitution does not speak to the issues you are discussing. Hence, there is no “trumping” of the Constitution even if he does decide cases on his faith instead of his own made-up morality (as other justices do when they issue substantive due process decisions). Unless you suggest it is entirely improper for a judge to consider morality in judging (a strange position that would have little to do with justice) and instead advocate a consistent and clear originalist or textualist position, then Roberts’ faith is legitimite. Nothing in the Constitution conflicts with ANYTHING required by Catholic theology. It is ok for a judge to vote to outlaw abortion, because the Constitution doesn’t speak to that issue. And Catholicism doesn’t weigh in on the moral value of having 3 branches of government, or any other explicitly defined rights, powers, limitations, or procedures in the Constitution.
You might be legitimiately curious, but what you’re really doing is setting up an illegal Religious Test, or worse, a persecution against Catholics or serious religious believers. Unless you’re willing to state that moral influences should NEVER impact a judge, then the mere fact that Catholicism demands more of its believers than would a militant relativist athiest is irrelevant.
I find your entire investigation of this issue profoundly disturbing. Do you have any shame?
Comment by Sydney Carton — August 5, 2005 @ 2:42 pm
In an earlier post, you wrote: “so many supporters of John Roberts have
so strongly stated that there is nothing about Roberts’ Catholicism that would require
him to take stands based on his faith, as opposed to his legal philosophy and analysis. I think they’re wrong (and most know it)… If Roberts is such a Catholic, his Catholcism
will trump the Constitution on numerous important issues.”
The Constitution does not speak to the issues you are discussing. Hence, there is no “trumping” of the Constitution even if he does decide cases on his faith instead of his own made-up morality (as other justices do when they issue substantive due process decisions). Unless you suggest it is entirely improper for a judge to consider morality in judging (a strange position that would have little to do with justice) and instead advocate a consistent and clear originalist or textualist position, then Roberts’ faith is legitimite. Nothing in the Constitution conflicts with ANYTHING required by Catholic theology. It is ok for a judge to vote to outlaw abortion, because the Constitution doesn’t speak to that issue. And Catholicism doesn’t weigh in on the moral value of having 3 branches of government, or any other explicitly defined rights, powers, limitations, or procedures in the Constitution.
You might be legitimiately curious, but what you’re really doing is setting up an illegal Religious Test, or worse, a persecution against Catholics or serious religious believers. Unless you’re willing to state that moral influences should NEVER impact a judge, then the mere fact that Catholicism demands more of its believers than would a militant relativist athiest is irrelevant.
I find your entire investigation of this issue profoundly disturbing. Do you have any shame?
Comment by Sydney Carton — August 5, 2005 @ 2:42 pm
Sydney, your closing sentence “Do you have any shame?” suggests that you have no interest in a civil (much less Christ-like) discussion. So, I won’t waste my time responding at length, and will let my materials speak for themselves.
As I pointed out in today’s just “worried” about getting to the truth post, even Prof. Bainbridge agrees there will likely be cases where serious Catholic judges like John Roberts “would be religiously obligated to put one’s faith-based beliefs ahead of, say, one’s views of precedent or socially accepted moral norms.” He’s also noted that “[I]t’s worth remembering that Catholic judges are bound by both [judical ethics] rules and the dictates of their faith. The latter bars formal cooperation with evil . .”
Comment by David Giacalone — August 5, 2005 @ 3:26 pm
Sydney, your closing sentence “Do you have any shame?” suggests that you have no interest in a civil (much less Christ-like) discussion. So, I won’t waste my time responding at length, and will let my materials speak for themselves.
As I pointed out in today’s just “worried” about getting to the truth post, even Prof. Bainbridge agrees there will likely be cases where serious Catholic judges like John Roberts “would be religiously obligated to put one’s faith-based beliefs ahead of, say, one’s views of precedent or socially accepted moral norms.” He’s also noted that “[I]t’s worth remembering that Catholic judges are bound by both [judical ethics] rules and the dictates of their faith. The latter bars formal cooperation with evil . .”
Comment by David Giacalone — August 5, 2005 @ 3:26 pm
Putting one’s faith ahead of precedent or socially accepted moral norms is not a bar to service on the Court. In fact, it’s probably a DUTY of a judge, given the proper set of circumstances. Such practices are not inconsistent with a proper reading of the Constitution, which neither requires a deference to precedent nor requires deference to specific social norms. And, as I recall, many judges firmly planted their own morality ahead of precedent and society’s moral norms when they decriminalized sodomy in Lawrence. If that was ok, then it’s ok for a Catholic to vote to outlaw abortion.
Your failure to distinguish between a faith-based moral reasoning and relativistic or self-created moral reasoning on the bench by judges is a flaw to your entire analysis. Either judges abandon morality entirely, or they use it from whatever source.
Comment by Sydney Carton — August 5, 2005 @ 4:28 pm
Putting one’s faith ahead of precedent or socially accepted moral norms is not a bar to service on the Court. In fact, it’s probably a DUTY of a judge, given the proper set of circumstances. Such practices are not inconsistent with a proper reading of the Constitution, which neither requires a deference to precedent nor requires deference to specific social norms. And, as I recall, many judges firmly planted their own morality ahead of precedent and society’s moral norms when they decriminalized sodomy in Lawrence. If that was ok, then it’s ok for a Catholic to vote to outlaw abortion.
Your failure to distinguish between a faith-based moral reasoning and relativistic or self-created moral reasoning on the bench by judges is a flaw to your entire analysis. Either judges abandon morality entirely, or they use it from whatever source.
Comment by Sydney Carton — August 5, 2005 @ 4:28 pm
There are over 33,000 Protestant denominations (not to speak of a ton of new age religions). If the next Supreme Court nominee comes from one even more hard-lined than the Catholic Church in terms of non-negotiable principles, then are you going to be equally suspicious? What if the nominee were a Protestant minister, or a new age prophet, or someone else who would in his eyes hold the equivilent position of Pope?
The fact is: Judges use morals in their service of justice. The source of SOME of those are faith-based, and are “required” because of that faith. Oh, the horror.
What this DOES feel like is a religious test. The reason for that is, it IS a religious test. How can you possibly square this kind of sinister questioning with the wisdom and policy of the Constitution specifically barring such a practice? (especially given the history of the Test Acts and other anti-Catholic prejudices?)
Let’s be frank: you wouldn’t have a problem if this had anything else to do with other than abortion, would you?
Comment by Sydney Carton — August 5, 2005 @ 5:26 pm
There are over 33,000 Protestant denominations (not to speak of a ton of new age religions). If the next Supreme Court nominee comes from one even more hard-lined than the Catholic Church in terms of non-negotiable principles, then are you going to be equally suspicious? What if the nominee were a Protestant minister, or a new age prophet, or someone else who would in his eyes hold the equivilent position of Pope?
The fact is: Judges use morals in their service of justice. The source of SOME of those are faith-based, and are “required” because of that faith. Oh, the horror.
What this DOES feel like is a religious test. The reason for that is, it IS a religious test. How can you possibly square this kind of sinister questioning with the wisdom and policy of the Constitution specifically barring such a practice? (especially given the history of the Test Acts and other anti-Catholic prejudices?)
Let’s be frank: you wouldn’t have a problem if this had anything else to do with other than abortion, would you?
Comment by Sydney Carton — August 5, 2005 @ 5:26 pm
Give me a break. Establishment of religion is very specific and goes beyond a judge using morality in upholding justice. You haven’t addressed the historical use of the Test Act, and the reason for the Constituion’s ban on religious tests. I assume you disagree with them, even as you avoid the issue by proclaiming that you’re merely asking hard questions and looking for the truth. And now you bring out the Establishment clause without its specific historical context (states had established religions, and didn’t want the Fed Gov’t to impose one on them) or his history of persecution in England? If you complain about my hyperbole, then I complain about your pathetic avoidance of Constitutional history in attempting to ask questions that a wiser man knows leads only to one thing: religious bigotry and political persecution of religious minorities. But go ahead and ignore it, Mr. I Don’t Duck Hard Questions.
Comment by Sydney Carton — August 7, 2005 @ 1:49 am
Give me a break. Establishment of religion is very specific and goes beyond a judge using morality in upholding justice. You haven’t addressed the historical use of the Test Act, and the reason for the Constituion’s ban on religious tests. I assume you disagree with them, even as you avoid the issue by proclaiming that you’re merely asking hard questions and looking for the truth. And now you bring out the Establishment clause without its specific historical context (states had established religions, and didn’t want the Fed Gov’t to impose one on them) or his history of persecution in England? If you complain about my hyperbole, then I complain about your pathetic avoidance of Constitutional history in attempting to ask questions that a wiser man knows leads only to one thing: religious bigotry and political persecution of religious minorities. But go ahead and ignore it, Mr. I Don’t Duck Hard Questions.
Comment by Sydney Carton — August 7, 2005 @ 1:49 am
Sydney (self-appointed “wiser man”), I hope you watched “Meet the Press” this morning, where Mario Cuomo and Prof. Kmiec discussed this issue of a “religious test.” Cuomo correctly explained that asking whether a candidate would put the mandates of his or her religion over the Constitution is not a religious test — that is, it is not requiring the candidate to affirm or deny membership in a particular religion in order to qualify for the job. However, the inability to declare the consitution as the supreme law to be applied would be a disqualification.
It’s strange that you believe that asking questions “leads only to one thing: religious bigotry and political persecution of religious minorities.” It appears to me that religions who claim to have all the Truth — and want to impose their Truths on the entire nation — are the citizens most likely to spread bigotry and try to de facto take away the rights of other religious (and non-religious) minorites.
Comment by David Giacalone — August 7, 2005 @ 11:55 am
Sydney (self-appointed “wiser man”), I hope you watched “Meet the Press” this morning, where Mario Cuomo and Prof. Kmiec discussed this issue of a “religious test.” Cuomo correctly explained that asking whether a candidate would put the mandates of his or her religion over the Constitution is not a religious test — that is, it is not requiring the candidate to affirm or deny membership in a particular religion in order to qualify for the job. However, the inability to declare the consitution as the supreme law to be applied would be a disqualification.
It’s strange that you believe that asking questions “leads only to one thing: religious bigotry and political persecution of religious minorities.” It appears to me that religions who claim to have all the Truth — and want to impose their Truths on the entire nation — are the citizens most likely to spread bigotry and try to de facto take away the rights of other religious (and non-religious) minorites.
Comment by David Giacalone — August 7, 2005 @ 11:55 am