Potential SCOTUS Pick Amy Coney Barrett Has a Church/State Separation Problem

Donald Trump is moving closer to nominating 46-year-old Amy Coney Barrett to the Supreme Court. Others remain in the mix, but she, more than the others, would cause conniptions in the church/state separation crowd, and that may be reason enough for Trump to choose her.

There are all kinds of reasons this would make sense for his base. Barrett is a woman who would almost certainly overturn Roe v. Wade, a graduate of a non-Ivy League law school, a resident of non-coastal Indiana (with a vulnerable Democratic senator who may be pressured into voting for her), a former clerk for Justice Antonin Scalia, someone who said Notre Dame shouldn’t cover contraception for students, and is already pre-approved by the Federalist Society as a justice who would side with conservatives for decades to come.

Another reason she’s a perfectly Trumpian pick is that she’s almost guaranteed to bait liberals who want to pick apart her faith. Barrett is a self-described Roman Catholic, though she belongs to a specific group called People of Praise that’s unaffiliated with the Church. (Her involvement with that group was unknown when she was confirmed to the Seventh Circuit Court of Appeals.)

Some of the group’s practices would surprise many faithful Catholics. Members of the group swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a “head” for men and a “handmaid” for women. The group teaches that husbands are the heads of their wives and should take authority over the family.

They also believe in “prophecy, speaking in tongues and divine healings.”

Is it weird? Hell yes.

Is it any more weird than believing a wafer turns into the body of Christ, that Jesus died then came back to life, or that a literal Devil exists? Not at all.

Just because we’re not used to seeing people with her chosen mythology as a Court nominee doesn’t mean it’s somehow worse. The only question is whether her faith would influence her thinking, and it seems very clear that Barrett, Like Scalia before her, already has a more powerful conservative dogma guiding her beliefs.

That doesn’t mean Democrats should avoid bringing up her religious beliefs during confirmation hearings. They just have to do it wisely and strategically. In other words, they can’t provide conservatives with easy fodder as Sen. Dianne Feinstein did last year, when she said during Barrett’s appellate court confirmation hearing last year that “The dogma lives loudly within you.”

Feinstein was suggesting that faith would influence Barrett’s decisions, but it was widely seen as a knock on Barrett’s faith itself and catnip for conservatives eager to shout “religious persecution.” (Let’s be honest: conservatives were going to do that no matter how Democrats brought up the issue of how her faith and decision-making would intersect on the Court, but Feinstein made it much easier for them.)

There are much better ways to get to the heart of how religion influences her thinking.

Here’s an example: In 2005, as a law student, she co-wrote an article for the Marquette Law Review about Catholic judges involved in death penalty cases. If the Church opposed capital punishment, but the law allowed for it, what should a Catholic judge do?

Barrett said on page 4:

we believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving.

(That last bit is a convenient cop-out for someone who may soon be in that very position.)

She wrote in the conclusion:

Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect.

While that may work out for liberals on the death penalty, it’s not hard to see how Barrett would find harmony between the Church’s anti-abortion stances and a Supreme Court decision to overturn what many conservatives have referred to as another “Holocaust.” In fact, in that same article (page 15), Barrett refers to abortion as “always immoral” and says (page 6) that abortion “take[s] away innocent life.”

Would she distance herself from that position? Not necessarily:

The article also noted that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by “the oath I took to support the Constitution and laws of the United States”; Barrett and [co-author John] Garvey observed that they did not “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”

That’s what Democrats were trying to get at last year when they asked questions about how religion would influence her thinking. It’s a legitimate question to ask, given that Barrett herself raised the concern. She responded by saying during last year’s testimony that, “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.” Whether or not we should believe that is a different issue. It’s absolutely fair game, though, to ask if she still agrees with her thinking in a law article she once wrote — and if that mentality would apply to abortion rights.

As law professor Mark Tushnet wrote for Vox,

[Barrett’s] article raises questions that can be asked in a confirmation hearing without devolving into anti-Catholicism. The questions should be about how an orthodox Catholic judge’s religious commitments interact with his or her legal ones — which are exactly the questions the article itself raises. If it’s not anti-Catholic to have written the article, which it surely is not, it can’t be anti-Catholic to explore the implications of its arguments for other matters.

He’s right. They should also be asking if she agrees with the words of Thomas Jefferson that there should be a “wall of separation between Church & State.”

Another disturbing thought? Barrett wrote in 2013 that legal precedent (stare decisis) could be called into question if the judge felt a previous decision was wrongly decided: “Soft stare decisis helps the Court navigate controversial areas by leaving space for reargument despite the default setting of continuity.”

It’s one thing when we’re talking about racist policies that ought to be overturned; it’s another when we’re talking about abortion rights.

(Got that, Susan Collins? She opposes contraception access, abortion rights, and stare decisis.)

The point is this: Barrett believes a lot of weird religious shit, as do so many other justices. But there are plenty of reasons to vote against her, if nominated, that have nothing to do explicitly with faith. I’m not worried her Catholicism will get in the way of good judgments. I’m worried that her conservatism and Scalia-like attitude will prevent good judgments entirely. There are enough reasons for sensible senators to vote against her without bringing her religion into it.

She’s going to overturn abortion rights. She’s going to block LGBTQ rights. If there’s a conservative position to take, she’s going to take it. That’s why she was placed on the Federalist Society’s list. That’s why, if she’s nominated, every Democrat — and at least one Republican — should vote against her confirmation when they have the chance. The lives of many women hang in the balance.

(Screenshot via YouTube)

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