At first, the press seemed intent on ignoring the obvious: that all five Supreme Court justices who recently voted to uphold a ban on a second-trimester abortion procedure in Gonzales v. Carhart are Catholic. Four are deeply conservative Catholics. But soon questions about Catholicism on the Court emerged in two prominent low-brow and high-brow forums, respectively: former morning talk-show diva Rosie O’Donnell raised them on The View, and Chicago law-school provost Geoffrey Stone cited the justices’ religious beliefs as a possible explanation for a badly reasoned decision.
Predictable cries of religious bigotry followed. An ostensibly objective ABC news report characterized these questions about religion’s influence as an “anti-Catholic backlash,” effectively endorsing right-wing talk-show host Laura Ingraham’s assertion that O’Donnell engaged in an “anti-Catholic rant” when she raised concerns about separation of church and state. The Wall Street Journal published an op-ed by former deputy assistant U.S. At¬torney General John Yoo titled “Partial Birth Bigotry.” Yoo dismissed as “silly” the suggestion that the justices’ religious beliefs influenced their decision, adding, “This religious critique recalls the nativist fear of Catholicism that too often appears in U.S. history.” (Yoo is best known as the author of the notorious 2002 Justice Department memo that authorized the Bush administration to ignore the Geneva Conventions and defined torture so narrowly as to permit its use against suspected terrorists.)
It’s irritating but not surprising when people who endorse or tacitly support infusing government with religiosity attack people who oppose it by labeling them bigots. The belief that religion (whatever is deemed “true” religion) strongly influences decision making for the better is the underlying justification for introducing it into policy making. Obviously, if you praise the influence of sectarian religious ideals on public policy, you ought to be prepared to hear it questioned. But, as the channeling of “faith-based” funds to an overwhelming number of Christian groups demonstrates, advocates of the Bush administration’s faith-based agenda tend to be more sympathetic to religious discrimination than religious equality. If it is hard to imagine five Buddhists or Jews sitting on the Supreme Court, it’s even harder to imagine that conservative Christian commentators and politicians wouldn’t raise the subject of religion if a majority of non-Christian justices voted to strike down an abortion ban.
Evaluating the role Catholicism played in Gonzales v. Carhart is not simple. As some liberal Catholics have pointed out, not all Catholics are conservative and not all oppose abortion rights. And even relatively conservative Catholics do not slavishly follow church doctrine: Justice Kennedy, who authored the Court’s opinion upholding the abortion-procedure ban, also authored the opinion in Lawrence v. Texas striking down a ban on consensual gay sex. But neither of these points is exactly responsive to concerns that Kennedy and his four brethren who voted to uphold the abortion ban (essentially ignoring expert medical opinion that the banned procedure is occasionally necessary) have obvious moral compunctions about abortion that just happen to coincide with the teachings of the Church.
Whether or not judges should, or could, jettison their religious convictions on their appointment to the bench is an interesting subject for debate. Personally, I doubt that, in general, people are capable of completely compartmentalizing long and deeply held religious beliefs and traditions that have helped shape their moral sensibilities.
That’s partly why I question the re¬markable dominance of conservative Catholicism on the Supreme Court. Religion’s inevitable effect on morality and opinion underscores the need for religious diversity in the judiciary, as fair-minded advocates of official religiosity should recognize. They should wonder how many non-Christian judges Bush has appointed; they should question an apparent preference for handing out political positions to a disproportionate number of graduates of Pat Robertson’s twenty-nine-year-old Regents University. (According to Slate writer Dalia Lithwick, 150 graduates of Regents have served in the administration.) You can be sure that if the president habitually singled out Muslims and Jews for appointment to high office, people would take notice (especially if they were Muslims and Jews who believed in marrying church and state). It’s the opposite of bigotry to recognize that, in a pluralistic country, law should not reflect—and the Supreme Court should not be dominated by—one sectarian point of view.
Wendy Kaminer is a lawyer and social critic. Her latest book is Free for All: Defending Liberty in America Today.
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