The "faith card": Right-wing P.C.
Cathy Young | April 25, 2005, 8:41pm
My latest column, which takes issue with conservative complaints about the "religious bigotry" of Democrats who are blocking socially conservative judicial nominees, has elicited (via the Volokh Conspiracy) an interesting response from Professor Stephen Bainbridge.
To my argument (with which Eugene Volokh agrees) that the issue is not religious faith as such but public policy views, Prof. Bainbridge replies that Volokh and I overlook the issue of "disparate impact." Under this principle, employment practices that are not overtly unfair constitute illegal discrimination if they substantially, disproportionately and adversely affect members of a particular race, ethnicity, gender, or religion. Prof. Bainbridge argues that opposing judges with hardcore conservative views on abortion or gay rights has such a selective adverse impact on "devout Christians."
Two points:
1. The human resources guide Prof. Bainbridge quotes refers to "any qualifying test that hurts minorities, and isn't job-related" (emphasis added). Indeed, the U.S. Supreme Court has stated that in order to be a violation of Title VII, an employment practice must be "unrelated to measuring job capability." For instance, job interviews that focus heavily on a prospective employee's familiarity with sports -- tending to screen out women -- are legally acceptable if you're hiring writers for a sports magazine, but not if you're hiring stockbrokers.
Is Prof. Bainbridge saying that a judge's views regarding the legality of abortion are not "job-related"? If the Democrats were refusing to confirm someone as, say, Secretary of Agriculture based on his or her anti-abortion zealotry, that would be mere prejudice. However, protecting the legal right to abortion is -- for better or worse -- a key part of the Democrats' political agenda. Thus, disqualifying judges who not only oppose abortion but passionately advocate its banning is, from their perspective, directly job-related (hence not discriminatory under the "disparate impact" standard).
2. Correct me if I'm wrong, but weren't conservatives supposed to be against nebulous standards like "disparate impact"? Creative interpretations of what is and isn't "job-related" have led to some absurd court decisions -- throwing out "gender-biased" physical strength and endurance tests for firefighters, or nixing written tests for promotions in the police force because they are disproportionately flunked by minorities. Do conservatives now want to extend this "logic" to the absurd conclusion that a prospective judge's views on important legal issues cannot disqualify him from the job if those views are based on religion? (By the way, would that also apply to a "devout Muslim" who advocated the adoption of Islamic sharia law in the United States? Just wondering.)
In a way, Prof. Bainbridge's invocation of "disparate impact" confirms a point I made in my column: that the cry of "anti-religious bias" has become the "political correctness of the right," a "faith card" similar to the left's race/gender card.
This still leaves open the question I raised about a double standard toward religious and non-religious beliefs. Take a hypothetical nominee for the federal bench who has publicly stated that male dominance is essential to a healthy social system. He is (a) an evangelical Christian whose beliefs are rooted in his understanding of biblical principles, or (b) an agnostic whose beliefs are rooted in his understanding of sociobiology. It seems that according to Prof. Bainbridge, the Senate would be allowed to hold the nominee's views against him in scenario (b), but not in scenario (a). Personally, I think that this particular belief ought to disqualify him whether it's based on the Bible, the Koran, Confucius, Darwin, Nietzsche, or the Gor novels.
Conservatives have been arguing for some time that the "no establishment of religion" provision of the First Amendment should not be interpreted so as to discriminate against religious viewpoints: for instance, political views rooted in religious values are just as legitimate as ones rooted in secular moral principles. Fine. But then let's really treat religious and non-religious beliefs equally.
kevrob | April 25, 2005, 11:00pm | #
Let's do a thought experiment. Assume that I attended law school and eventually was appointed to or elected to the state or federal bench. Moreover, I had never written any law review article, made any speech or written any appellate opinion that commented on
Roe v. Wade or related cases in any way. Since I took this career path, rather than the one in Our World, I never ran for another office, and certainly don't post my opinions about controversial subjects on blog comment sections. (Yes, I am David Souter, and you demand your $5.00.) Nobody has Clue 1 on what my opinion might be about a case that could limit or even overturn
Roe. After the President picks me for a Court of Appeals or SCOTUS spot, I refuse to answer questions about any such hypothetical case, as I may have to rule on it some day.
What would the Alliance for Justice types do? They'd notice that I attended a Catholic grade school, graduated from a Catholic high school, and have a B.A. from a Jesuit University. Newspaper reporters would look up my family connections, and notice that one of my brothers is a Roman Catholic priest. Editorialists would start to refer to me as a "Catholic." Any government functionary who asked me about my religion - FBI background checkers, Senatorial staffers - would be given a quick lesson in Article VI, section III of the Constitution of the United States, which says,
...but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Now, does anyone doubt that the Pro-Choice crowd would fear that I was in communion with Rome, and therefore unable to be trusted with the power to rule on constitutional law, lest I fail to uphold their view of the right to privacy, and start lobbying against me?
I expect that a few pro-lifers would be scratching their heads, wondering why I didn't proclaim Jesus' name, but amused that the Nan Arons of the world had nothing concrete to pin on me.
In fact, I do have a Catholic education, and a priest-brother, even though I am, myself, a mildly pro-choice atheist who has shot his mouth off on the issue aloud before potential constituents and online. So, should I ever get a law degree, there'll be no nominations coming my way!
I do think that, should the President nominate a nominal Catholic who has never made public pronouncements on the abortion issue, reflexive opposition to such a nominee does smack of bigotry. After all, about half of American Catholics don't agree with the hierarchy on the abortion issue, and even some of them who agree that it is a sin don't want to write that stricture into law. Nominating a Protestant from a conservative sect may be more of a pointer. One assumes that, if a Protestant disagrees with the dogma of his congregation, he will quit it and join one more to his liking.
Of course, the torches and pitchforks would really come out once it was learned that I was a
Reason reader!
Kevin
thoreau | April 26, 2005, 2:45am | #
We all know what this is about: abortion. We can say what we want about tradition, "judicial temperment", majority rule, the President's power to shape the courts, etc. etc. But at the end of the day it's about picking the next Supreme Court Justice, and we all know that the next Supreme Court Justice will be chosen based on abortion. The Senators might give long speeches about this that or the other thing, but at the end of the day it will be about abortion. It shouldn't be, but that's the way it is.
Some people on this forum, including many who would oppose a state law banning abortion, might argue that the solution is to overturn Roe vs. Wade and take the matter out of the judicial branch. And they might have a point. But overturning that ruling won't make the controversy go away. People will still seek a judicial remedy, however rightly or wrongly.
So here's my only half-facetious proposal: Create a fourth branch of government. Call it the "Obstetric Branch." Empower this branch of government to handle one issue and one issue alone: Abortion. I don't care how this branch is elected, how the seats are apportioned, and what their terms are, because I won't participate in those elections. The Obstetric Branch can ban it, legalize it, restrict it, turn it over to the states, subsidize it, deny any and all federal funding, whatever. They can pass a law allowing abortion up until the final toenail is delivered or they can institute the death penalty for any pharmacist who dispenses RU486. Whatever. Just take it away from the other branches of government.
I know, it will never happen. I'm not even all that serious about it. I just bring it up to make the pessimistic point that only extreme measures will defuse this issue.
Then again, I'm in a pessimistic mood today. I spent two and a half hours holding a professor's hand as he waded through a draft of a research article. Not fun.
Gerry | April 26, 2005, 7:36am | #
"ake a hypothetical nominee for the federal bench who has publicly stated that male dominance is essential to a healthy social system. He is (a) an evangelical Christian whose beliefs are rooted in his understanding of biblical principles, or (b) an agnostic whose beliefs are rooted in his understanding of sociobiology. It seems that according to Prof. Bainbridge, the Senate would be allowed to hold the nominee's views against him in scenario (b), but not in scenario (a). Personally, I think that this particular belief ought to disqualify him whether it's based on the Bible, the Koran, Confucius, Darwin, Nietzsche, or the Gor novels."
I find this strawman to be less than compelling, although you did knock it down with a certain flair after a very solid set-up.
We don't need to take a hypothetical extreme strawman. We can use a very real example-- William Pryor. The primary concern over him is that he feels so strongly about his religious, pro-life views that his nomination should be scuttled. While there are clearly those who believe that being pro-life is comparable to believing in male societal dominance, the fact is that being pro-life is a mainstream view. It may or may not be the majority view, depending on the poll and the way the questions are phrased, but it is not 'out there'.
So we are not dealing with a particular belief that should disqualify the candidate regardless of what it is based upon. But that is exactly what is being done. The Democrats are trying to disqualify Pryor, and others, for this very view. And they are doing it by demonizing it as being out of the mainstream by playing upon people's fear of a 'theocracy'.
On Althouse's blog, she quoted the very section I did above. The very first reply on it was a person who also brought up Pryor, and spoke of the Democrats in that person's circle:
"Pryor's voting record shows he can separate his conservative religious views from his wielding of the gavel - but they just don't trust him."
And why don't they trust him? Because of his religious views. That's discriminatory. And it is wrong.
Tom Perkins | April 26, 2005, 7:36am | #
XRLQ wrote: "Blocked != filibustered. The fact that one Republican Senate only managed to block "almost as many" Democrat nominees as the Democrat faction of another Republican Senate did to Republican nominees speaks volumes."
Biff replied: "It does, but not in support of your side. Republicans (specifically, Orrin Hatch) blocked Clinton's nominees from getting a floor vote because they knew those nominees would be confirmed, even by the majority-Republican Congress. That folks like yourself object to 40 Senators preventing a vote, but have no problem with a single Senator preventing a vote, does in fact "speak volumes", about your hypocrisy and mindless partisanship."
Biff is right, but I cordially hate his name ;^)
The "Block", whereby a nominee's home state senator can remove them from consideration, is a mechanism equally open to all party's dependent only on the success of the party at that local level. It was a proportional measure available to each party in the proportion they had political success locally. The "filibuster" is a purely obstructionist measure in this case acting nationally permitting an obvious political minority to prevent the national majority from having it's say. After the rules a simple majority of the Senate feels are followed, the Constitution prescribes an up or down vote.
I also have to point out that the 3/5ths majority to end a filibuster was lowered to that from 2/3rds by the Democrats when the Republican population of the Senate seemed to rise above that 2/3rds level semi-permanently in the late '70's. So screw the Dems, they deserve it.
The protection for a minority is intended to be found in the structure of government, the plain text of the constitution, and the respect for a common understanding of that document that exists commonly and publicly. Having worked tirelessly to destroy that for about a 100 years, the Dems should enjoy the fruits of their labors.
The notion that that traditional Christians tend have political views that reasnably exclude them from appointed office, is bigotry in result and therefore bigotry in fact. The disparate impact standard either is fair to use on this question or it is fair to use nowhere--but in this case, in her original argument, Cathy Young makes a distinction where no difference exists.
Cathy Young | April 26, 2005, 3:42pm | #
Let's see if I can make any sense of the arguments being made by my critics in this thread.
Argument 1: It's bigoted to oppose the judicial nomination of a "devout Catholic" on the assumption that he or she is likely to try to restrict abortion rights, because such an assumption is based on the bigoted notion that Catholics will take their lead from the Vatican rather than follow the law.
Argument 2: Being supportive of Catholic judges or politicians who do not favor banning abortion does not absolve one of the charge of anti-Catholic bigotry, because those aren't "real" Catholics -- a
real Catholic must support a ban on abortion.
Anyone see the contradiction?
Now, we
could get into the argument over whether it's proper for the party that doesn't control the White House to block the President's judicial nominees on ideological grounds. We could also discuss the problems posed by the activist judiciary, and the outsized place held by abortion in the national political debate.
But none of that is the issue right now. The issue is the baffling claim (still being made by some in this thread) that it is "discriminatory" to oppose a nominee/candidate for public office because of their views of public policy issues if those positions happen to be rooted in religious faith or church teachings.
That has to be the most absurd interpretation of anti-discrimination law I have seen so far. (Well, except for the idea of "anti-feminist intellectual harassment" that academic feminists were trying to push some years ago -- a concept which would have basically allowed them to bring charges of discrimination against critics who dismiss or "devalue" feminist work. Luckily it didn't fly.)
Of course, if this principle is applied consistently it would go beyond judgeships and apply to political candidates as well. For instance, would it be "religious bigotry" for a congressional candidate to slam an opponent for his anti-abortion-rights, anti-gender-equality, anti-gay views if said opponent happened to be an evangelical or a devout Catholic?
Are you basically saying that a whole range of opinions and ideas should be protected from criticism simply because they have a religious foundation? If so, then perhaps such ideas really do not belong in the public square -- because all ideas in the public square should be equally open to challenge and debate.
J Mann | April 26, 2005, 3:56pm | #
If I may:
Argument 1: It's bigoted to oppose the judicial nomination of a "devout Catholic" on the assumption that he or she is likely to try to restrict abortion rights, because such an assumption is based on the bigoted notion that Catholics will take their lead from the Vatican rather than follow the law.
Cathy, I don't think "bigoted" is helpful, although I'm sure plenty of religious are using the term.
I think it's unquestionably
discrimination to assume that a Catholic won't enforce the law accurately based on his or her private religious beliefs. Certainly, there are a number of religious people who do enforce laws that they personally oppose. The question is whether it's acceptable discrimination or unacceptable discrimination.
My answer would be that it depends on the case. John Kerry is a Catholic who claims that he would protect abortion notwithstanding his personal objection to the practice, and so is Judge Prior, and so was John Ashcroft (except he was Pentacostal, not Catholic).
Where you end up, most of the time, is deciding that Prior and Ashcroft are a little bit
too religious to take them at their word, but Kerry isn't
that religious, so it's ok. After all, Kerry's a longtime friend of abortion, but Ashcroft, despite faithfully defending abortion as state attorney general and governor, has been seen praying, and was annointed with Crisco!
So again, if you're saying that you believe Kerry but not Prior because Prior's a little bit too Catholic and Kerry's not, it strikes me as anti-religious discrimination. The only question is whether it's acceptible discrimination or not.
Cathy Young | April 26, 2005, 4:47pm | #
Dan:
If an active desire to make abortion illegal disqualifies a person from being a judge, does an active desire to make drugs legal also disqualify them? What about an active desire to abolish the death penalty? Is a judge who hears tax cases unfit to serve if he thinks taxes should be higher (or lower) than they currently are?
Are you suggesting that a federal judicial nominee who had campaigned for drug legalization in the past wouldn't get
clobbered over that issue -- by both Republicans and Democrats, for once -- no matter how much she swore up and down that she would uphold the law?
Are you suggesting that the Republicans wouldn't go after a judicial nominee who had actively campaigned against the death penalty?
If you believe that, you obviously live in a rather different reality than I.
Knemon:
I'll just say that if Pryor, who hasn't in previous judgeships issued any Papist fatwas that I'm aware of, is "radical" because he thinks Roe v. Wade was argued/decided incorrectly (an opinion which many quite liberal law prof.s share, because - let's face it - while it might make us feel warm and happy and progressive/libertarian fuzzy, it wasn't good law),
if this judge gets Borked because he's an orthodox Catholic in private life,
then that makes me less than gruntled.
Please notice how you're conflating orthodox Catholicism in private life with a
public policy position on
Roe v. Wade. (And yeah, I agree, it was an unsound decision from a legal/constitutional point of view.)
JMann, regarding your Kerry/Pryor comparison: The issue is not simply that Pryor is "more Catholic" than Kerry in his private life. It's that, in his
public life, he had been
an active champion of restricting abortion rights (for instance, advocating for legislation that would have allowed a judge to appoint a guardian
ad litem for the fetus of any underage girl seeking an abortion -- which, I should note, is quite different from upholding parental notification).
I'll reiterate again that I don't think Pryor's public policy decisions, for the most part, were particularly radical. Most of his attempts to restrict abortion focused on "partial-birth abortion," and I agree that the pro-abortion-rights movement has been much too dogmatic on that issue. (Though I think it's the same "camel's nose in the tent" syndrome that afflicts the National Rifle Association with regard to gun regulations.) But that's not about religion. It's about abortion.
Cathy Young | April 26, 2005, 5:31pm | #
I'm going to have to cut this short (a deadline beckons), but...
Estrada: haven't followed that debate very closely, the only thing I know is that the Republicans made an issue of his ethnicity. Was his Catholicism an issue? Links, please?
Knemon, re the "borking" of Pryor -- I think we're aguing about whether it was based on his religious views. From reading the anti-Pryor briefs, I think it was based largely on his strict federalist views. Which is not ok either, but doesn't inflame the passions quite so much as a cry of "religious bigotry," does it?
Ben:
Now you might argue that, see, it's the positions, not the religion. But anyone can claim to be of a particular faith if he wants. An 80-year-old Catholic who hasn't been to mass since he was 15 can still say he's Catholic.
So Rudy Giuliani and Arnold Schwarzenegger aren't real Catholics either, eh? (Be careful with words like "neutered" when talking about the Governator... ;) )
If the Dems' position is that they don't mind Christians as long as they don't espouse Christian moral beliefs, that's not a very defensible position.
How about "as long as they don't believe that Christian moral beliefs ought to be enshrined in law"? (Or, to be more specific, the moral beliefs of some Christian denominations.) Or more precisely: as long as they don't advocate public policy positions opposed by the Democrats, even if those positions reflect "Christian moral beliefs."
That's like a segregationist saying he doesn't mind blacks as long as they don't look black.
More right-wing PC. Reminds me of the arguments of liberals who would call the Republicans racist for opposing the nomination of pro-affirmative action, anti-death-penalty black judges. Point out that the Republicans do support conservative black judges, and you'll get the response, "Oh, the Republicans don't mind blacks as long as they don't
act black."
As for political candidates, all their positions are fair game. If I choose not to vote for someone because of his race or religion, that's legal.
You're sidestepping the issue. It's legal not to vote for someone because of their race or religion (though not socially acceptable to admit to doing so). However, race-baiting in a political campaign is widely regarded as unacceptable, and a candidate perceived as making bigoted attacks on her opponent would pay a serious political price.
Are you saying that slamming your opponent for her anti-abortion views qualifies as "religious bigotry" if those views happen to be rooted in religion?
A couple more quick points.
For the right, this is
not not about judges' personal religious beliefs: it's about judges being willing to impose those beliefs from the bench. For proof, look no further than the savaging of Judge Greer, the devout conservative Christian who committed the crime of upholding the law in the Terri Schiavo case.
Finally:
Juan Non-Volokh makes a persuasive argument, over on The Volokh Conspiracy, that the blocking of Bush judicial nominees is not only not about religion, it's not even about ideology. It's actually about "payback for Republican obstruction of Clinton nominees."
But the conservatives can't very well admit that, can they?
Ben | April 26, 2005, 6:14pm | #
Cathy,
"So Rudy Giuliani and Arnold Schwarzenegger aren't real Catholics either, eh?"
If by "real" you mean "devout" as the church defines it, no they are not.
"How about "as long as they don't believe that Christian moral beliefs ought to be enshrined in law"? (Or, to be more specific, the moral beliefs of some Christian denominations.) Or more precisely: as long as they don't advocate public policy positions opposed by the Democrats, even if those positions reflect "Christian moral beliefs."
How about this: Democrats do not want anyone on the bench who advocates the moral positions of conservative Christian denominations because they will thwart the activism of the liberal judges. Of course, this has the effect of excluding any devout Christian who holds traditional moral beliefs from the bench. Which is what the conservatives are complaining about and the Democrats are denying.
"Reminds me of the arguments of liberals who would call the Republicans racist for opposing the nomination of pro-affirmative action, anti-death-penalty black judges. Point out that the Republicans do support conservative black judges, and you'll get the response, "Oh, the Republicans don't mind blacks as long as they don't act black."
Sorry, Cathy, but that's a lazy argument. I think we can all agree that, unlike a religious affiliation, race does not come with a belief system attached. A person who tries to associate certain beliefs with a particular race is a racist. But particular beliefs are most certainly part of being associated with a particular religion.
"Are you saying that slamming your opponent for her anti-abortion views qualifies as "religious bigotry" if those views happen to be rooted in religion?"
Nope. Again, I think you are missing the point. If a voter says he will not vote for anyone who is anti-abortion, that pretty much rules out voting for a devout Catholic or other conservative Christian candidate. And if you ask him, he will probably admit this. The Senate Dems are doing the same thing, but refuse to admit that their position pretty much only affects traditional Christians who adhere to their church's teachings.
"For the right, this is not about judges' personal religious beliefs: it's about judges being willing to impose those beliefs from the bench. For proof, look no further than the savaging of Judge Greer, the devout conservative Christian who committed the crime of upholding the law in the Terri Schiavo case."
Right and wrong. True, the right wants judges who are not activists. As for Judge Greer, he is being savaged because many people do not believe he upheld the law in any shape, form, or fashion. He is seen as a lazy bureaucrat who just let the practically former husband literally get away with murder.
"Finally: Juan Non-Volokh makes a persuasive argument, over on The Volokh Conspiracy, that the blocking of Bush judicial nominees is not only not about religion, it's not even about ideology. It's actually about "payback for Republican obstruction of Clinton nominees." But the conservatives can't very well admit that, can they?"
Yes and no. Conservatives don't want wild-eyed judicial activists on the bench inventing new rights every five minutes, so they blocked some of Clinton's nominees. Democrats figure they won't be winning any more elections for a while, so they are more intent than ever to keep the courts as liberal as possible since it's the only way they can move their agenda forward. Who needs voters if the courts will just impose what you want?
Tom Grey - Liberty Dad | April 26, 2005, 6:56pm | #
Cathy, you're a fine writer. But abortion is the initiation of killing force against an innocent human fetus, one with different DNA than the mother, and therefore NOT "part of her body".
Judges have said that, based on unwritten but implied rights of privacy in the Constitution, women can ask doctors (almost all male) to abort any unwanted fetus. Had judges NOT accepted it, abortion would be explicitly legal in some states, prolly not legal in others.
In Terri Schiavo's case, Judge Greer could have ruled that Terri would NOT choose to be starved to death, in her condition; or that there was not clear and convincing evidence that she would -- which is what the 1998 Guardian ad Litem (Mr. Pease) wrote. The judged decided on death. Judges have that power of decision.
You are prolly right that it is not exactly religious bigotry of the Dems, despite the ACLU anti-God, anti-prayer, anti-10 commandments, etc. It is the huge, long, never ending culture war. One side is aptly named by Pope John Paul II as the Culture of Life. On the other side are secular humanists, secular fundamentalists, egoist hedonists, secular hedonists.
Right now I call them, you, "secular hedonists." And they've become parents of some 44 million fewer kids than they would have without legal abortion, so demographics will be making them obsolete as a democratic force, unless they can convince/brainwash more kids that their parents are more wrong than the PC teachers.
I actually like this Roe effect, as well as less crime, less teenage pregnancy, etc. But the good effects aren't worth it.
The Dem party has become a church of pro-abortion, and excommunicates any who are heretics. Many pro-life folks want to do that to the Reps, and are likely to succeed over time, but haven't yet.
Kerry should be denied communion, as should all pro-abortion politicians. Pope Benedict XVI has written that it is not a sin to vote for a pro-abortion politician for other reasons, but to vote for him because he IS pro-abortion would be a sin. Kerry should honestly choose his church: Roman Catholic (Sunday morning) or Dem Party (all the rest of the time).
Cathy Young | April 26, 2005, 10:48pm | #
Dan:
Religious beliefs are protected by the Constitution. You shouldn't oppose a judicial nominee because of their political beliefs either, unless you think they will dishonestly write those beliefs into the law, but political beliefs are not afforded the protection that religious ones are. You cannot have a religious test for public office; you may have a political test.
Except that you (and some others) are interpreting the ban on "religious tests for public office" so as to mean that
political beliefs rooted in religious faith cannot be a disqualification for any public office. I don't see where the Constitution says that.
Taken to its logical conclusion, your argument would mean that total pacifism cannot be a disqualification for the office of Secretary of Defense, provided that such pacifism is rooted in religious faith. Because, remember, the Constitution says nothing about "no religious tests unless relevant for the job."
A few words about the religious test.
Article VI of the Constitution of the United States says:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
The placement of the "no religious test" line, immediately after -- and in juxtaposition to -- the "oath of affirmation" part, makes it pretty clear what the, ahem, original intent was. An officeholder could not be required to take an oath affirming his allegiance to a particular religion or denomination, or even a general belief in a Deity. (Obviously what the Founders had in mind was something like the situation in England where an oath of loyalty to the Church of England was required of all officeholders.)
Some information on the debate surrounding the religious test ban at the time of the ratification of the constitution can be found in this
article. Also of interest is
this essay by noted jurist Oliver Ellsworth, a Constitutional Convention delegate from Connecticut and later the Chief Justice of the U.S. Supreme Court, which makes it quite clear that to the Founders, a "religious test" meant a requirement of belonging to a particular faith:
A religious test is an act to be done, or profession to be made, relating to religion (such as partaking of the sacrament according to certain rites and forms, or declaring one's belief of certain doctrines,) for the purpose of determining whether his religious opinions are such, that he is admissable to a publick office.
Of particular interest is a passage in which Ellsworth writes that while a test "requiring all persons appointed to office to declare ... their belief in the being of a God, and in the divine authority of the scriptures" would not in principle be objectionable, it would be problematic because an unprincipled infidel could easily make a false declaration of belief. Wrote Ellsworth:
If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.
In other words, the prohibition on a religious test was never meant to prohibit those who make appointments to public offices from taking into consideration the religious views of the would-be officeholder. It meant simply that there could be no litmus test either requiring officeholders to profess a particular faith, or formally exluding all who subscribe to a particular faith.
Let me ask you this: I am an atheist. Can a Senator ask me "Dan, do you think that this country should be considered 'one nation under God' and then refuse to confirm me when I say 'no'?".
If this question was couched in terms of your positoin on the Pledge of Allegiance, rather than your own personal belief or disbelief in God -- I think he can.
By the way, do you think Bush was endorsing an unconstitutional religious test for public office when he said that we need "commonsense judges who understand that our rights are derived from God"?
And here's another question. Do you think that a militant atheist who had been active in the cause of church/state separation would have a snowball's chance in hell of even being
nominated for the federal judiciary?
Your opinion seems to be that the "no religious test" clause makes it fine to deny office to actually devout people, and restricts the government only from denying office to people who claim membership in a religion but ignore its teachings. E.g., I can't deny office to Jews -- just to people who refuse to eat pork or work on Saturdays. That doesn't sound plausible to me.
Again, you're conflating private beliefs and behavior with positions on
public policy issues.
Here's a "religious test" that I think would be completely inappropriate and biased against devout Catholics:
Asking a nominee if he or she shuns artificial birth control.
Quizzing a nominee about the fact that when she was pregnant and the doctors warned her that the pregnancy was hazardous to her health, she chose to carry it to term because of her religiously based opposition to abortion (or quizzing a nominee about a similar situation involving his wife).
That would indeed be an impermissible "test" on religious grounds.
Michael B | April 26, 2005, 11:48pm | #
"Except that you (and some others) are interpreting the ban on 'religious tests for public office' so as to mean that political beliefs rooted in religious faith cannot be a disqualification for any public office. I don't see where the Constitution says that." C.Y.
At that point you are beginning to say more than you originally said.
I agree with you and Volokh that the Republicans are, in large part, confusing religious qualifications with ideological qualifications. Though I do qualify that by saying "in large part," simply because I don't believe there is a bright, unambiguous dividing line that separates the two - at least to some degree it remains a debateable issue. Still, in the main, I agree with you and Volokh, rather than Bainbridge.
Firstly, Lockean political beliefs (i.e., classical liberal political precepts), to a some substantial degree, are "rooted in religious" beliefs, or at least they are rooted in moral precepts that in turn are derived, in part, from religiously founded a prioris. I say "in part" in this instance because Locke et al also used empirical evidence, rational arguments, etc. as well. Locke grappled considerably with the faith/reason nexus, or dialectic, broadly reminiscent of Pope John Paul's
Fides et Ratio encyclical. (Disclosure, am not Catholic though am a Christian theist.)
This serves to highlight a second and primary point. Terms like "religious faith," "religious beliefs," etc. are typically bandied about in a manner that is far too ambiguous to be very helpful. There is a qualitative difference between religious dogma and beliefs per se (e.g., Mohammed as divine prophet, Moses as receiving the Law directly from Yahweh or the salvific blood of Jesus) and
moral precepts and tenets that are roughly derived from, to one degree or another, aspects of the religion.
Thou shall not murder,
thou shall not covet thy neighbor's wife, etc. are moral precepts, not metaphysical religious dogmas (e.g., a monotheistic deity) or beliefs (e.g., concerning angels, the after-life).
Every law on the books has a moral quality to it and the moral values of a people (in contrast to their
religious beliefs and dogmas per se), constitute legitimate grounds for debate before the legislatures elected to serve the people. Ours is a government that is constitutionally of, by and for the people, one not otherwise justified. Hence the
morality (or moralities) of the people, regardless as to whether that morality in turn stems from tradition, religious faith, ideological beliefs and faith, on purely utilitarian or pragmatic grounds, abstract reason, etc. (or some combination of all the above, which is often the case) forms a perfectly legitimate set of grounds for public debate and eventually debate before duly elected legislatures.
Randy | April 27, 2005, 8:29am | #
Belatedly, to the editors of the American Federalist Journal:
You said the following: "One point that must be considered - whatever the Democrat Senators' personal views about religion, they are heavily influenced by radical secularist outside lobbying groups, such as People for the American Way, Americans United for the Separation of Church and State, the ACLU, etc., that are anti-religion, especially traditional Judeo-Christian religion."
The same argument could be made regarding Republicans and the Heritage Foundation, Focus on the Family, Family Research Council, and other organizations that seek to meld the Bible and the Constitution, or even replace the Constitution with the Good Book. Also, I suggest you rethink your statement about the ACLU being anti-religion. In particular, check this out: http://www.stcynic.com/blog/archives/2005/01/aclu_defending.php In short, it details the ACLU's defenses of Jerry Falwell, a Nebraska church, a Catholic man forced to participate in a Presbyterian drug rehab program, a Virginia Baptist church, and, as the page concludes:
"It should perhaps also be noted that the ACLU was a staunch supporter, along with groups like the Family Research Council and the Christian Legal Society, of the Religious Land Use and Institutionalized Persons Act that was passed in 2000, as well as the Equal Access Act, which guarantees that religious groups have the same access to public facilities that any other community groups do. And of course there was the situation in Massachusetts, where the ACLU defended the right of an elementary school student who wanted to hand out candy canes to his classmates with a card attached that had a Christian message on it. Are these the actions of an organization that hates Christianity and wants to forcibly remove it from our society, as so many folks on the religious right claim?"
Ben | April 27, 2005, 10:01am | #
Cathy,
O.K., let me repeat: I do NOT hold the opinion that what the Dems are doing constitutes an unconstitutional "religion test." As merely a comment, however, I will say that I don't think the Founders ever envisioned a time when de facto agnostics who incorporated little or no religion in their lives would routinely claim a particular form of Christian identity as political window dressing as we see today.
But like I said, I am not claiming that a "religion test" is being invoked. What I am saying is that the Dems are dishonest about what they ARE doing.
The typical conservative Republican will freely admit that, while he is not opposed to atheists being federal judges in principle, he is opposed to giving judgeships to militant atheists who want to throw our nation's religious heritage in the trash. In fact, he'll even campaign on it. The Dems are doing the same thing, except in their case, they are opposed to devout Christians who hold traditional moral views. Only the Dems won't admit it. They try to pretend that the personal beliefs of a nominee like Bill Pryor are somehow separate from his religion, when in fact, the beliefs they are so opposed to are a direct result of his religion. In other words, the Dems are not willing to look a devout, traditional-morals Catholic voter in the eye and say, "We don't want your kind on the federal bench."
I understand why they do this, of course. It is a very distasteful political position to many moderate voters, many of whom grew up in the church and are now only moderately religious. The Democrats from the Northeast, especially, don't want to rile up their devoutly Catholic constituents by admitting the truth. They would rather pretend that there is something especially pernicious about Pryor or Janice Rogers Brown or Pricilla Owens that makes them different from the average devoutly religions, pro-life Christian. Republicans are pointing out the truth, and that's what has liberals so upset.
Sure, Republicans are using shorthand by saying that the Dems don't want any Christians at all. But the voters know the score. Devout, religious Catholics know who the "Christmas and Easter" Catholics are and consider them only barely co-religionists. Baptists all know folks who rarely step through the church door. And everyone knows where the Episcopalians and Presbyterians are these days.
So all I'm saying is: Stop the Lying. The Dems should just admit that for them, the bench is closed to those who are members of a conservative denomination and actually believe and follow what their church teaches.
Tom Perkins | April 27, 2005, 10:13am | #
Joe, almost none of them are traditional Christians. For reasons I personally think are good enough, traditional Christians are fairly rare, worldwide. There are more of them (percentagewise WRT population) in America than almost anywhere else. To the extent that the ten rejected nominees* have been "too radical" or "extremist conservative", their rejection is an attempt by the Democrats to prevent traditional christians from having a voice in the judiciary that is proportional both to the fraction of the population they represent and their desire to so participate.
I have the impression that mainstream Democrats (by definition the left most 48.5% or so of the voting population) regard traditional christians as stone-age savages*1 with actual potential influence--therefore their rights to participate in government must be voided by hook or crook wherever possible.
As I asserted before, the per-Senator blocks are no more constitutionally created or protected a practice than the filibuster, but the block is a qualitatively different measure than the filibuster. The block is 100% available to any senator, where once a nominee has been through the committee process, the Constitution does in fact require an up and down majority vote to take place in accordance with the Senate's rules--and a simple majority gets to make those rules.
* Several nominations have been prevented from coming to a floor vote because they are from states where previous Clinton nominees were blocked by Republicans, and the Democrats are playing tit-for-tat, and covering themselves by conflating their actions with an anti-extremist filibuster.
*1 I was going to say nazis, which I think is a better adjective for how the average Democrat feels about traditional Christians, but some idiots actually give credence to Godwin's suggestion.
Yours, Tom Perkins, molon labe, montani semper liberi, & para fides paternae patria
Randy | April 27, 2005, 11:42am | #
Ben-
You said, "Religions come with certain beliefs built in, not only theological but moral, as well. When a person says he is Catholic or Baptist, it should mean that he mostly adheres to his church's teachings, especially the big ones."
While this is most certainly true, it remains a fact that it is not one's religious beliefs, but one's willingness to impose them upon others, even when others are of a different belief. The Jew working in the FDA despite his or her belief that eating pork is wrong is the exact same thing. If he or she were to begin imposing his or her religious beliefs upon the people against their will, you would never stand for it. However, when a Christian seeks to do the same thing regarding things like birth control and abortion, it's hunky-dory according to the formerly by-the-book Republican party.
According to Frist, he and the Republicans are willing to change the rules however necessary to suit their agenda. He has actually said as much! Not to mention, of course, the rampant hypocrisy of Frist voting to filibuster in 1996 and then in 2005 saying about Republicans opposing the "nuclear option," "...if what Democrats are doing is wrong today, it won't be right for Republicans to do the same thing tomorrow." That's right. He used it himself, wants to take it away now that he has no use for it personally, and deprive his party of its use in the future, even though it was good enough for him and "right" back then.
Crap. I rambled. Anyway, the point is this: if Republicans and conservatives are, generally, people of faith, one would think they would believe in universal and permanent truths. After all, if one takes the position that most Republicans are Christians, that means most Republicans believe in the Bible as a constant and eternal source of truth. They believe in it as a beacon of how to live their lives. How a party so rooted in the belief that a single document should be revered - that rules were made to be followed rather than jettisoned when no longer convenient - could decide to turn its back on the very document that brings their political existence into being and cast aside rules that don't provide them any short-term advantage while creating new ones so they can play Ramses and build pyramids while forcing the minority to struggle to adapt to new and ever-changing rules of engagement is anathema and a political abomination.
J Mann | April 27, 2005, 12:31pm | #
Cathy,
Thanks for your response - I thought you put it very well.
This takes us back to the knotty subject of discrimination. I don't know your personal view, but I'd guess the general view at Reason (being libertarians) is that: (i) discrimination unquestionably happens; (ii) it's hard to tell, unless someone admits it, when someone is discriminating; and (iii) the cure is worse than the disease, so we should let discrimination wither privately rather than rooting it out.
Women and blacks and jews and everyone else have all had the experience of being pretty sure that they didn't get some job or opportunity because they were women or blacks or jews or whatever. The problem is that you have to rely on your gut as to *which* jobs you lost because of discrimination, and your gut tends to be much more sensitive than people outside of your group.
So is Prior being discriminated against because he's Catholic? If a given Senator would permit a vote on a similarly situated person who isn't Catholic, then I'd say yes. So if a non-religious candidate, who also had supported partial birth abortion legislation, would get a vote, then Prior's being discriminated against.
(None of this answers the questions of whether the discrimination is *rational* and whether it's *appropriate*, but just gets us to the point of whether it's discrimination.)
I do agree that if someone shows up and says "Because of my Catholic beliefs, I will never permit a person to receive the death penalty as a judge/law enforcement official/whatever", then it's silly and inappropriate for the person to cry "anti-Catholic bigotry" if he or she is not confirmed.
The trickier question is when the person says "although I am opposed to the death penalty, I will faithfully enforce the law as written," and Congress says "we don't believe you."
At that point, the question of discrimination becomes one of intent - does Congress not believe the person because he or she is Catholic or solely because of the statement - and it's not surprising that members of the target group (and advocates of the candidate) are more likely to cry "discrimination!" than others.
raymond | April 27, 2005, 1:00pm | #
I'm dazed by all this. Still, I'll try to add something to the debate, even if what I add is somewhat hors sujet.
1. Catholics are not expected to obey blindly. Catholics are supposed to follow the dictates of their consciences, even when these are in contradiction to Church teaching. Thus, the woman who is convinced that birth control is "good" may, in the eyes of the Church, have a conscience in need of fine-tuning. But by using birth control she is not "sinning".
2.
Petitioners’ protestations to the contrary notwithstanding, a constitutional right that protects “the choice of one’s partner” and “whether and how to connect sexually” must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia (if the child should credibly claim to be “willing”). For all intents and purposes, petitioners seek to enshrine as the defining tenet of modern constitutional jurisprudence the sophomoric libertarian mantra from the musical “Hair”: “be free, be whatever you are, do whatever you want to do, just as long as you don’t hurt anybody.”
...
Contrary to the cliché so tritely tossed about in freshman poli-sci courses, the States can and must legislate morality. John Stuart Mill is not a founding father... Human beings are by their nature social creatures, with concerns for the physical and moral welfare of others besides themselves...
Even legislation that is largely symbolic and infrequently enforced (due to other salutary checks on government power, like the Fourth Amendment) has significant pedagogical value. Laws teach people what they should and should not do, based on the experiences of their elders. The States should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences. Amicus Brief, Lawrence v Texas
I was led to read this Brief (by Pryor) as a result of a news story about the proposed Alabama bill forbidding public-school libraries from having books by or about homosexuals.
(It's fascinating. I'd say it goes counter to everything I believe in. This is definitely not a guy I'd like to see on the Federal bench.)
And suddenly, it all came into focus. The attacks on the Supreme Court for
Lawrence and
Roper v. Simmons, the attack on Whittemore and the federal judiciary in general, the book-banning and the proposed "marriage" amendment... They are all part of a concerted, moralistic attack on individual liberty and property rights.
Pryor et al. are not "pro-life". Their defense of state killing is evidence of that. What these conservatives want is to impose their moral values on me. They want me to act "morally". They want to deny my right to choose in any real way. They're playing eminent domaine on my body and on my mind.
Ashcroft, Gonzales, Rumsfeld, Pryor...
What a scarey country you've got there.
Tom Perkins | April 27, 2005, 10:20pm | #
Hello Cathy Young,
It's been my experience that people only invoke Godwin's assertion when they have no effective counter argument.
The Democrat's are making use of the filibuster because they can't get what they want with the block, because they don't have enough Senators in enough states to prevent people they find unnacceptable from being confirmed by the now Majority Republican party.
There is no consitutional provision either for the block or the filibuster, and the democrats are scheming to deny from traditional Christians the political clout which their numbers, organization, and determination make due them.
It is a fundamentally un-democratic act by a minority party to forestall the consequences of having lost both houses and the executive to the other party. The Constitution, while not supporting either a filibuster or block, plainly intends that when people of like mind are in the executive and both branches of the legislature, they run the show.
If the Democrats want to keep the Republicans from confirming their nominees, the above board way to do it is to win elections.
As for the innapropriateness of conservatives mentioning disparate impact, the obvious counterargument is that the left obviously places no principled credence in the concept, because they reject it as soon as it suits them.
Yours, Tom Perkins, molon lab, montani semper liberi, & para fides paternae patria
Randy | April 28, 2005, 7:35am | #
"Respecting the law," unfortunately, is subjective. Considering the leeway judges have regarding adhering strictly to legal precedent and statutes(albeit not a lot, but cumulatively it can mount pretty quickly), a judge can most definitely be seen as "respecting the law" by some while the other side seems that judge as an "activist." See also: Those damn activist Massachusetts judges who legalized gay marriage.
And I don't agree that we all want to impose our views upon others. Any good libertarian would prefer other people agreed with him or her, but would gladly allow others to live as they see fit so long as he or she can also live as he or she sees fit. If you'd consider that imposing one's views upon others, so be it, but you'd be wrong. Allowing others their views, so long as those views do not impose upon your rights, is the ultimate in keeping one's views one's own. I don't think people have any reason to own a .50 caliber rifle, but that doesn't mean I want to take away someone else's right to own one. It's like the old abortion saw: Don't like abortion? Don't have one!
"As for abortion, pro-lifers believe it is murder, so they can no more 'let everyone make their own decision' about it than they could stand idly by and let every man make 'his own decision' about whether or not to shoot his wife."
I think wearing a plaid shirt with polka-dot pants is a crime against humanity and should be punished by imprisonment. We punish other crimes against humanity, so shouldn't I, as a judge, be able to punish THIS crime of humanity by dint of my own opinion of its status as crime?
Regarding hypocrisy on all sides, we're in total agreement. Everyone is for their own advantage in politics. The irony is that Republicans made their hay by being rule-followers. Look at the 2000 election. Al Gore was busy trumpeting about a fairly counted vote, but what did Bush argue? These are the rules of the elections, and we must follow them exactly, for we are a nation of laws, not people. Suddenly, given a majority, they throw out the very philosophy that won them temporary favor and control of the executive branch to get a temporary advantage that almost surely will be used against them in the future and deemed unfair when it next happens.
And, once more, we agree regarding the changing of rules. If people refuse to both agree upon and cherish rules of engagement, be they in warfare or politics, there is no hope for any kind of compromise of any real significance (which is the whole point of the existence of the two-party system).
Tom Perkins | April 28, 2005, 10:06am | #
Jasn wrote:
"Those damn Democrats. Don't they understand that they have a constitutional duty to roll over and play dead? How insolent of them!"
If they are so pathetically incompetent they manage for many elections in a row to loose both houses and the executive--when the Constitution in fact demands nothing more than majority rule in each house--then their duty is to figure out how their party platform conflicts with what the majority of Americans want and change their platform accordingly.
Until they do that, they are in fact doing themselves and the country a disservice.
Among other things i don't much disagree with, Randy wrote:
"I think wearing a plaid shirt with polka-dot pants is a crime against humanity and should be punished by imprisonment. We punish other crimes against humanity, so shouldn't I, as a judge, be able to punish THIS crime of humanity by dint of my own opinion of its status as crime?"
If that's an argument you want to take to the people, by all means please do it.
Regfarding your comments about rule following, I think you are wrong to conflate the Republicans wanting actual statue laws (re Bush v. Gore) to be followed vs. changing rules in a deliberative body which is entirely at the discretion of a simple majority. BTW, I would have preferred the explicitly constitutional option have been taken of having the Republican legislature in FL pick that state's electors as opposed to the SC stopping the "counting until we get number we like."
I also think you mistake the nature of the two party system. It has never been about broad consensus, it has always been about getting the rightmost or leftmost 50% plus 1.
This is fine as long as government can only make laws where 3/4qtrs of the people have agreed to give them the authority to make laws. this fundamental supermajority requirement for effectively changing the constitution has long since fallen by the wayside, along with other crucial protections of liberty such a fully informed juries and the selection of senators by state legislatures.
Once the Progressive movement began to erode these protections (largely by enactments of the Democrats), no compromise is required to rule, and rule harshly at that. The democrats deserve to reap as they have sown. They wanted pure majoritarian democracy, now they should get it good and hard (apologies to Mencken)--except in this case, the Republicans are not in any way slighting the Constitution to do it.
Yours, TDP, ml, msl, & pfpp
Gordy | April 29, 2005, 8:57pm | #
When Dan wrote:
"And there is no reason why conservative Christians who hold this philosophy ["interpretism"] should be excluded,"
I finally clearly saw where I think he's wrong, and Cathy's right. It's the "should be excluded" bit, how they understand that as action or right.
I think Cathy has maintained the point that Senators do have the right (and perhaps the duty) to vote down a judge who they think will make a particular policy choice, in this case on abortion rights.
Dan seems to be saying that doing so is discriminatory because this policy preference on the part of the judge is based on his or her beliefs, and that having such beliefs is constitutionally protected (or whatever), or in other words, that it is unfair to keep this judge from having the chance to enshrine this conviction in law.
But, as again, I THINK Cathy is saying, it is exactly the job of a Senator (or one of them, anyway) to oppose nominees who he or she thinks will make (what they see as) the "wrong" decision (on any particular issue, but especially those that are important to that Senator's constituency).
Whatever the justification or belief or religious affiliation, what is at issue is that a judge will make policy. And if Democrats are against anti-abortion law, or for Roe, etc., it can't be discrimination for them to oppose opposite-minded justices, because their job, simply put, is to vote their own ideas.
And finally (and I think this was the initial point), that it is basically pathetic that people on the right are doing a poor-me dance, crying religious prosecution wolf, because they haven't yet been able to keep Democrats from holding off a vote.
I honestly don't yet know what to make of this filibuster mess, whether Republicans will be right to dissolve it, but after reading Cathy's articles, and reading what I have of the Sunday God-fest against the filibuster, I am sure that Republicans who support or defend such behavior aren't being honest enough about how silly and desperate it all looks.
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