Catholic Courier

Posted: December 21, 2009

Should Judge John Roberts be questioned about his faith?

By the time this week's column appears, its topic may very well have passed its expiration date. Events have moved rapidly. Judge John Roberts' has been nominated to succeed the late William Rehnquist as chief justice of the United States Supreme Court. The Senate Judiciary Committee may have already sent the nomination to the full Senate with a positive recommendation. In all likelihood Judge Roberts will be confirmed by a substantial bipartisan vote.

There is an issue, however, that will continue to be of interest and concern, especially if the next nominee to fill Justice Sandra Day O'Connor's seat on the court also has strong religious commitments. The nominee may be a Roman Catholic, as is Judge Roberts, or an evangelical or fundamentalist Protestant with deeply held views on abortion, gay marriage, embryonic stem-cell research, euthanasia and a host of other moral issues.

In the case of a Roman Catholic, those views may be reflective of a particular understanding of official church teachings on such topics as these. In the case of an evangelical or fundamentalist Protestant, the nominee's views may be derived from a particular interpretation of selected texts in the Bible.

In either case, it would not only be fair but mandatory for members of the Senate Judiciary Committee and for the Senate as a whole to ask the nominee whether she or he would, in effect, allow their own religious beliefs to override their obligation to interpret the Constitution in a judicially objective fashion.

Would the raising of such a question indicate a bias against religion in general, or against Catholics and conservative Protestants in particular? Some commentators seem to think so.

In a letter to the Los Angeles Times ("Religious animus," 8/29/05), William A. Donohue, president of the Catholic League for Religious and Civil Rights and a frequent guest on cable and network television, objected to the central point in former Gov. Mario Cuomo's op-ed piece published four days earlier.

Gov. Cuomo had argued that the Senate Judiciary Committee should raise the religious question in the Roberts hearings to satisfy itself, the full Senate and the country at large that, if confirmed, Justice Roberts would interpret the Constitution on the basis of recognized legal principles and precedents rather than his personal religious beliefs as a Catholic.

Donohue was caustic in his criticism of Gov. Cuomo. "This (question) would be obnoxious even if asked of every Supreme Court nominee," he wrote, "but that no one -- including Cuomo -- ever broached this idea when others were being considered for the high court suggests an animus so vile as to be indecent."

We leave aside here Donohue's innuendo that Gov. Cuomo, himself a practicing Catholic, bears an "animus" toward religion. It is never helpful, nor does it ever advance an argument, when one questions the integrity or motivation of an opponent.

Nevertheless, Donohue does raise a legitimate question in his letter to the Los Angeles Times, and it deserves an answer.

Why now? he asks. Why is the religious question being raised in the matter of the nomination of Judge Roberts to the U.S. Supreme Court when the question seems not to have been raised in any previous hearings?

The answer is that this is the first nomination to the U.S. Supreme Court in 11 years and the first since the religiously divisive presidential election of 2004 when conservative Protestants and conservative Catholics -- a few bishops in particular -- openly weighed in against the Democratic candidate.

Over the past decade, religion has assumed far greater prominence in the public sector not only on the issue of abortion, which has been on the front burner since Roe v. Wade in 1973, but on other polarized issues as well: gay marriage, embryonic stem-cell research, civil unions, Christian monuments on public property, prayer at public-school graduations and athletic events, the activity of chaplains at military academies and on and on.

Many citizens, religious and secular alike, are increasingly concerned about what they see as an unwarranted intrusion of a particular type of Christian religion -- evangelical and fundamentalist Protestantism and conservative Catholicism -- in political campaigns and in the workings of government at the executive, legislative and judicial levels alike.

The religious question is being asked today because certain politically active Protestants and Catholics have forced the issue.

To be sure, no one should question anyone's right to be religious and to practice their faith openly. But it is legitimate to inquire whether personal religious beliefs would ever override one's constitutional obligations as an executive, a legislator or indeed as a justice of the U.S. Supreme Court.

Father McBrien is a professor of theology at the University of Notre Dame.

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