Is SCOTUS Nominee’s Fervent Faith A Menace To Justice?

Is SCOTUS Nominee’s Fervent Faith A Menace To Justice? July 5, 2018

In a perfect America, one where balance and fairness for all should be paramount — not just partisan conservative rigidity in interpreting an aging Constitution — the jurist nominated to replace retiring Supreme Court Justice Anthony Kennedy should be a reasoned moderate compared with current sitting justices.

abortion
No entry. (Vanja van den Berg-Niggendijker, Flikr, CC BY 2.10)

But, as has been clear since Donald Trump was soundly defeated at the polls by some three million votes but elected by the obsolete and unrepresentative Electoral College process, a more perfect union is not what our commander in chief aspires to.

Bully America

By “Make America Great Again,” he means to make our country more globally aggressive for his own vainglory but at every American’s — and every other nation’s — expense. He envisions a bully America, a chest-puffed autocracy, patterned after those of brutal, self-absorbed authoritarians like Russian leader Vladimir Putin (who Trump can’t seem to stop kissing up to) and Turkish President Tayyip Erdoğan.

The president’s purposeful grab for ever-greater power, whose source he views as the rabid adoration of tens of millions of indiscriminate followers in his base, extends to packing the Supreme Court with hard-right conservatives who will make decisions they like.

Make no mistake, the conservative end game in who is nominated to the high court is overturning its momentous 1973 Roe v. Wade decision legalizing abortion as a constitutional right. Conservatives’ absolute and intractable view is that abortion is murder, full stop, no wiggle room. Most Americans, however, view it in far more nuanced ways.

Minority opposes abortion

In its 2017 report, “Public Opinion on Abortion,” the respected Pew Research Center on Religion and Public Life concluded:

“As of 2017, public support for legal abortion remains as high as it has been in two decades of polling. Currently, 57% say abortion should be legal in all or most cases, while 40% say it should be illegal in all or most cases. … Though abortion is a divisive issue, more than half of U.S. adults take a non-absolutist position, saying that in most – but not all – cases, abortion should be legal (33%) or illegal (24%). Fewer take the position that in all cases abortion should be either legal (25%) or illegal (16%).”

St. Augustine started it

Abortion is an ancient ethical issue. Even the sainted Catholic theologian Augustine struggled with knowing when a fetus actually acquired its soul and, thus, its status (in the priest’s view) as a full person eligible for legal protection from abortion. He wrote viscerally about abortion in De Nube et Concupiscentia 1.17 (15):

“Sometimes, indeed, this lustful cruelty, or if you please, cruel lust, resorts to such extravagant methods as to use poisonous drugs to secure barrenness; or else, if unsuccessful in this, to destroy the conceived seed by some means previous to birth, preferring that its offspring should rather perish than receive vitality; or if it was advancing to life within the womb, should be slain before it was born.”

Ultimately, Augustine roughly followed Aristotle’s lead regarding the viability of the soul in the person. An article in the website Religious Tolerance explained the Greek sage’s viewpoint:

“In ancient times, the ‘delayed ensoulment belief of Aristotle (384-322 BCE) was widely accepted in Pagan Greece and Rome. He taught that a fetus originally has a vegetable soul. This evolves into an animal soul later in gestation. Finally the fetus is ‘animated’ with a human soul. This latter event, called ‘ensoulment,’ was believed to occur at 40 days after conception for male fetuses, and 90 days after conception for female fetuses. … [thus, in common practice] abortions were not condemned if performed early in gestation … It was only condemned if the abortion was done later in pregnancy that a human soul was destroyed.”

Aristotle, Augustine on abortion

Today, conservatives are even more conservative on abortion than either Aristotle or Augustine were.

Therefore, right-wing Christians (the lion’s share of them Republican) view maintaining a conservative majority on the Supreme Court as their ticket to ending Roe v. Wade and other hot-button social issues. Currently (with Kennedy, a conservative who sometimes sided with liberals), the conservative-liberal ratio is 5-4. If conservative replaces Kennedy on the court, the reactionary constructionists will retain their controlling 5-4 edge. A moderate would bring the mix into greater balance and act as a swing vote.

Which brings us to Amy Coney Barrett, an Indiana judge on the Court of Appeals for the Seventh Circuit who is reportedly on the three-judge short list of nominees for Kennedy’s soon-to-be-vacant slot. The 46-year-old jurist is a staunch Catholic and the mother of seven children, two adopted. She is a darling of the hard-right wing of the GOP.

Barrett as martyr

In his July 3 New York Times column, Frank Bruni warns that Tea Party bomb-throwers in the GOP want to cause a partisan ruckus with Barrett’s nomination.

“And Republicans expect — and want — liberals to be so freaked out by this that they oppose her in a manner that can be branded anti-religious. They’re setting her up to be a Christian martyr, minus the grisly end, and daring Democrats to take the bait.”

Concerns are not overblown about how Barrett’s zealous faith might affect her considerations and rulings on the Supreme Court. She has declined to publicly reveal her attitudes about abortion, saying it would be unethical for her to do so, although she had broached the topic in articles and speeches over the years.

Faculty for Life

While a professor at Notre Dame, a Catholic university, Barrett belonged to its University Faculty for Life organization from 2010 to 2016. The group’s mission statement says it was founded in 1989 to:

“… promote research, dialogue and publication by faculty who respect the value of human life from conception to natural death. Abortion, infanticide and euthanasia are highly controversial topics, but we believe they should not be resolved by the shouting, news bites and slogans that have dominated popular presentations. Because we believe the evidence is on our side, we would like to assure a hearing for our views in the academic community.”

The online news site Heavy.com reports that Notre Dame Magazine in a 2013 edition marking “20 Years of Roe” published an article recalling a presentation Barrett made titled “Roe at 40: The Supreme Court, Abortion and the Culture War that Followed.” The article continued:

“By creating through judicial fiat a framework of abortion on demand in a political environment that was already liberalizing abortion regulations state by state she [Barrett] said, the court’s concurrent rulings in Roe and Doe v. Bolton ‘ignited a national controversy.’ Barrett noted that scholars from both sides of the debate have criticized Roe for unnecessarily creating the political backlash the known colloquially as ‘Roe Rage.’”

However, the article also noted that Barrett thought it “very unlikely” the court would ever overturn Roe and that she envisioned “the political battle shifting toward matters of public and private funding.”

Wary lawmakers

But some lawmakers are wary of the conservative jurist. When California Sen. Diane Feinstein, a Democrat, told Barrett at a 2017 Senate appeals court hearing that she was concerned “the [Catholic] dogma lives loudly within you,” the jurist insisted her beliefs would not affect her decisions.

Sen. Orin Hatch then accused Sen. Feinstein of making an unconstitutional “religious test” for office.

The framers of the Constitution (Jefferson, Madison, et al) wanted to keep religion completely out of government and, in particular, not allow any single sect to gain hegemony over any others in public affairs. So, whether a nominee for public office were Catholic, Baptist or Deist was and is, by itself, irrelevant to eligibility. This secular concept assumed that public deliberations would be for the broad public good, not for sectarian religious reasons.

So, that Barrett is Catholic is immaterial in this discussion. But that she has written and said things publicly regarding her religion-based views on abortion and other temporal topics is relevant to her nomination.

Of some concern to some opponents is her membership in a nondenominational, charismatic Christian parachurch organization, People of Praise, which is involved in Pentacostal-type religious behaviors that some find disturbing, such as “speaking in tongues,” “baptism in the Holy Spirit” and prophecy. The community reportedly also excludes women from leadership positions and holds that men are the spiritual heads of families.

As data shows Americans gradually but steadily receding from organized religions and supernatural faith, the religious depth and vigor of the people we choose to represent us becomes more relevant every day.

Not freedom of ‘public religion’

Of course, the Constitution now requires and we must accept, the freedom of all Americans to believe whatever religious creed they choose without persecution or reduced rights. But they must not inject purely religious reasoning into the secular civic affairs of the American body politic.

Because monotheistic religions are by nature tend to be absolute and binding in their doctrines and requirements, affecting virtually every aspect of life, it is reasonable to want to know just how religious our potential elected representatives are, and how committed to obeying the dogmas of their faith possibly over those of the republic. As the public demanded of John F. Kennedy before electing him. He said he honored the will of the American people over the Pope.

Religious freedom does not mean freedom to contaminate our public policies and spaces with airy ideas based on beings and realms that can’t be located. It means we can believe whatever we want. But when we serve the nation, we need to leave those unverifiable ideas at home.

Amy Coney Barrett should publicly declare her personal views on abortion, which, it’s important to note, her own religion fulsomely prohibits on pain of her immortal soul.

I’d much rather know how she thinks about it in reality.

Image/Public Domain

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