TomPaine.com

Supreme Contradiction

Melissa Rogers

August 08, 2005

Melissa Rogers is an attorney who currently serves as visiting professor of religion and public policy at Wake Forest University Divinity School.

Here’s the bargain: Citizens have the right to bring their religious convictions into policy and political debates.  But those who do cannot hurl charges of anti-religious bigotry simply because others disagree with them.  The Family Research Council is quick to accept the first part of this bargain, but it balks at the flip side.

FRC is sponsoring another “Justice Sunday” event this Sunday, August 14.  The majority leader of the House of Representatives, Tom DeLay, will join the gathering, to be held in a church in Nashville, Tenn.  In an interview last month with The New York Times, FRC president Tony Perkins said, “the new telecast would again say that questions posed by Democrats about a [judicial] nominee’s personal beliefs on abortion and other issues would amount to an unconstitutional ‘religious test.’“

There’s a problem with this argument: Religious opponents of abortion have long argued that one can embrace their position on this issue without subscribing to their faith. For example, scholar and Catholic political conservative George Weigel has said: “You don't even have to believe in God to engage the Catholic Church's pro-life argument.” 

If one recognizes that a person can oppose abortions for non-religious reasons, one can’t say that those on the other side of the abortion debate are a fortiori anti-religious. Yet this is the argument some religious conservatives are making regarding the nomination of Judge John G. Roberts to serve as a justice on the United States Supreme Court.

Put another way: Imagine the Senate is providing its advice and consent on two hypothetical nominees for the Supreme Court.  Both nominees have written law review articles arguing that Roe v. Wade was wrongly decided and that abortion should be illegal in the United States. Their biographies reveal that one is Catholic, while the other subscribes to no religious beliefs. 

Would both nominees be opposed by some senators for their position on the abortion issue?  Of course they would, rightly or wrongly.  Thus, as Cathy Young wrote in The Boston Globe on April 25, it is simply incorrect to claim that mere opposition to a judicial nominee based on his or her views on abortion constitutes anti-religious bigotry. 

As Young further argued: “Let’s say that a Democratic president had nominated to the federal bench a judge known for passionate, Christian-based hostility to capital punishment.  Would it be ‘anti-Christian’ for Republicans to oppose the nomination?” Or, “[w]ould it be ‘religious bigotry’ to oppose the presidential candidacy of a devout Quaker who declared that his policies would be rooted in his religious belief that all use of military force is wrong?”  Of course it wouldn’t.  Neither conservatives nor liberals should be constrained in their decision-making on these issues simply because some positions may be based in part in religious convictions.
 
Thus, no one should oppose the nomination of John Roberts because he is Catholic or for his theological beliefs—that would be inconsistent with the religious test clause found in Article VI of the Constitution.  But it is quite fair to ask him about his judicial philosophy on legal issues, even if his perspective on some issues may be informed partly by religion.  And, whether it is good or bad, it is permissible for senators to oppose a  nominee solely for his judicial philosophy on abortion or on other legal issues—it does not constitute the imposition of a religious test.

Moreover, whenever religious groups claim that their opponents are anti-religious simply because they disagree on certain legal and policy issues, they are not playing fairly. Perkins opened the first Justice Sunday event by saying, “We believe we have a voice in this process. Just because we believe the Bible [is a] guidepost for life does not disqualify us from participating in our government.”  Religious people of all theological and political stripes clearly can take positions on public issues. Then others must be free to scrutinize and critique those positions. 

A focal point of Justice Sunday II apparently will be to underscore the argument that the court has been anti-faith.  Perkins has said that the Nashville event will focus on the Supreme Court’s “hostility toward religion and Christianity in particular” and that it would call attention to 5-4 decisions by the court on subjects including public displays of religion and aid to religious schools. The flier from Justice Sunday II says: “Only by confirming judicial nominees that follow the U.S. Constitution can we be assured that faith will not be removed from the public square.”

It has become fashionable to say that the court is demonstrating hostility toward faith when it prevents the government from promoting faith for us.  But those who make this argument are either ignorant of or willfully blind to the rationales expressed in Supreme Court precedent in this area. The court traditionally has refused to promote or to interfere with religion not because it is anti-religious, but because it wants to leave people free to make choices in matters of faith and to ensure that religious people and organizations may worship as they see fit, rather than as the government sees fit.  Further, anyone who suggests that the court has scrubbed religion from the public square is inexplicably missing the rich religious landscape all around us—a landscape that has thrived in the midst of the Supreme Court’s so-called “hostility” toward religion. 

Family Research Council has every right to hold this event. The precise role religion should play in public life, the exact place where the court should draw the church-state line, and the morality of abortion as well as other policy and legal matters are all legitimate topics for public debate.  Religious citizens have the same rights as non-religious citizens to argue their side.  But disagreement with those positions is not automatically anti-religious bigotry or hostility to faith.