“Faith-Based Justices”

“You know what concerns me?” Rosie O’Donnell asked last week on ABC’s morning gabfest, The View.

“How many Supreme Court judges are Catholic, Barbara?” "Five,” responds host Barbara Walters.

“Five. How about separation of church and state in America?” asks constitutional law scholar Rosie, after the Court’s sweeping decision upholding a federal law banning partial birth abortion.

Barbara counsels against drawing conclusions, saying “we cannot assume that they did it because they’re Catholic.” But the theologian in Rosie can’t help herself.

“If men could get pregnant,”Rosie opines, “abortion would be a sacrament.”

Good heavens. Where does one start? Perhaps with the law the Supreme Court interpreted. It was approved by a bipartisan congressional coalition that included the Republican and Democratic leadership. In all, 17 Senate Democrats voted for it, in addition to 47 Republicans, the vast majority—I think we can assume—who are not Catholic. You could say the five justices in the majority voted to uphold a law that reflected the choices of those legislators, not to mention the some 30 states that previously had imposed similar bans.

It’s not surprising that Rosie’s remarks have taken off like wildfire on talk radio, with conservative commentator Laura Ingraham leading the outcry. After all, it’s Rosie. This is the same person who shocked blacksmiths across the world with her declaration that September 11th was the “first time in history that fire has ever melted steel.” And the woman who implied that the terrorist attacks were an “inside job.” And the person who said “radical Christianity was just as threatening as radical Islam.”

But Rosie’s comments about last week’s 5-4 abortion decision aren’t as isolated as you may like to believe. Respected thinkers, including the former dean of my law school, are contributing to a growing anti-Catholic backlash over Gonzales v. Carhart.

Here’s what Geoffrey Stone, former law school dean and provost at the University of Chicago, had to say:

“All five justices in the majority in Gonzales are Catholic. The four justices who either are Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling to ignore,” Stone wrote on the University of Chicago Law School Faculty blog. http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased_.html

And why is it telling, Dean Stone?

“Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales,” Stone writes. “By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality.”

Geoff Stone (and Rosie and the cartoonist for the Philadelphia Inquirer who illustrated similar thoughts last week) is saying that the five justices voted to uphold the law only because of their religious beliefs. It’s only because they are Catholic—Stone, Rosie, et al, argue—that they could possibly interpret the Constitution to allow a federal law Congress passed with broad, bipartisan support. It’s only because the five are Catholic, Stone and Rosie argue, that they could possibly vote to uphold a law that banned an abortion procedure Congress found to be “gruesome” and “inhumane.”

No, the five couldn’t possibly have legal views that that the Constitution doesn’t protect the right to a partial birth abortion.

Here’s a different way of thinking about it: The five justices took a more restrained approach to the law than their colleagues and declined to substitute their own policy preferences for the will of the people.

Stone’s colleague Rick Garnett gets the better of him in a pointed, yet polite, response. http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased__1.html#more Stone “misses the mark,” Garnett says—even when he was talking about another Catholic Justice, William Brennan, who Stone says got it right.

Stone had clerked for Justice Brennan the year Roe v. Wade was decided. Stone notes that Brennan was the Court’s only Catholic in 1972-73 and that he “struggled…to separate his personal religious views from his views as a justice.”

But Brennan rose above it, Stone writes.  Brennan joined the decision in Roe “because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice.”

“It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example,” Stone concludes.

The separation of church and state?

That’s not how they taught First Amendment law when I was at the University of Chicago. Nor did they tell us to jump to baseless conclusions without any evidence—such as suggesting religion drove those justices. Or that different religious views influenced the protestant and Jewish justices to vote against the law.

Why not speculate that the five justices in the majority happen to like baseball--and therefore are more inclined to appreciate rules? That’s no less relevant or “telling,” as Stone put it, than their religious views.

And remember that Kennedy also refused to overturn Roe in 1992 in Casey, when he provided the key fifth vote to preserve a constitutional right to abortion. Four conservatives would have reversed Roe then: Rehnquist (Lutheran), White (Episcopalian), Scalia (Catholic) and Thomas (then Episcopalian/now Catholic).

Responding to Stone’s blog, Garnett also points out that the former Dean of his law school—while he’s praising Brennan for allegedly setting aside his religious views on abortion—doesn’t mention Brennan’s views on the death penalty. Brennan sharply opposed it.

“Was he, therefore, a ‘faith-based justice’ when he voted to strike down every death-penalty law in the nation?” Garnett asks.

Well?

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