Cathleen Kaveny, the author of “Prophecy Without Contempt: Religious Discourse in the Public Square” and a columnist for Commonweal, is a professor of law and theology at Boston College.
Is Dianne Feinstein an anti-Catholic bigot?
Questioning Amy Coney Barrett, nominated by President Trump to the U.S. Court of Appeals for the 7th Circuit, the Democratic senior senator from California cryptically observed that Catholic “dogma lives loudly within you.” The conservative media pounced. Moreover, even some moderates were troubled by Feinstein’s remarks, which veered uncomfortably close to an unconstitutional religious test for office.
Feinstein’s comment was weird, almost mystical. After all, Barrett is a law professor from Indiana, not a Jedi Knight from the Galactic Republic. She wields a pen, not a lightsaber.
But there is no evidence that Feinstein was motivated by anti-Catholic bias. In fact, Sen. Richard J. Durbin (D-Ill.), who is Catholic, also asked Barrett about the impact of her faith on her jurisprudence. Is he a self-hating bigot? Or is it just the Jewish senator who is the problem?
In my view, both senators were striving, however awkwardly, to do their constitutional duty: to vet a candidate for a life-tenured federal judgeship. If confirmed, Barrett, who is in her mid-40s, will likely remain on the bench long after Trump has gone to his reward. What she thinks about the relationship between law and morality will have a large impact in a pluralistic society. The question of how her religious commitments will affect her decisions is fair game.
Barrett has repeatedly and publicly presented herself as a faithful Catholic. By that she means she believes what the church teaches in matters of faith and morals. Why does it matter?
Feinstein and Durbin clearly aren’t interested in religious dogma, broadly speaking. They don’t care whether Barrett secretly holds the Greek Orthodox position on papal infallibility.
Rather, they are concerned with how Barrett’s religion-infused moral beliefs will influence her judicial decision-making — and the day-to-day lives of the American people. Official Roman Catholic teaching does not govern only private matters of church and family life. It is also deeply concerned with social order and the common good. And it has clear and authoritative positions on many controversial matters at the intersection of law, morality and public policy.
Some of those positions map onto politically conservative views. Pope John Paul II proclaimed that legislation permitting abortion and euthanasia do not truly have the force of law, because they are morally illegitimate. Quoting St. Thomas Aquinas, he admonished that an unjust law is not fully legally binding. The U.S. bishops have taught that the Supreme Court decision constitutionally protecting same-sex marriage is a “tragic error” and have defended from the pulpit an expansive understanding of the free exercise clause that would protect the right of religious believers to refuse to serve same-sex couples.
But other Catholic positions are congenial to political progressives. Pope John Paul II also condemned the death penalty as morally illegitimate in stable and developed countries such as the United States. Pope Francis has critiqued Trump’s immigration policy, saying that wanting to build a wall is “not Christian.” And let’s not forget that the Rev. Martin Luther King Jr., a Baptist preacher, quoted Aquinas’s view on unjust laws in condemning Jim Crow.
Barrett has indicated that her faith-based moral views will not affect her judicial decision-making. That stance is puzzling. Law and morality are not easily separable, in either Catholic teaching or the U.S. legal system. While official Catholic teaching distinguishes between law and morality, it does not separate them. And many laws call upon judges to make moral judgments. At one extreme, the Eighth Amendment prohibits “cruel and unusual” punishments. At the other, the doctrine of promissory estoppel in private contract law requires the enforcement of some broken promises, limiting remedies “as justice requires.” A judge’s moral views — whether religiously infused or not — are relevant to his or her behavior on the bench.
To say “No Catholics (or Muslims or Jews or secular humanists) need apply” would indeed be a constitutionally prohibited religious test. But the Constitution cannot reasonably be read to prohibit asking a candidate for public office how her moral commitments would affect her public service. Religious believers don’t get a free pass.
Whether progressive or conservative, Catholic positions on matters of morality and public policy have significant implications for the legal framework governing American life. It is legitimate for citizens to bring those commitments with them into the public square. But it is also fair for others to ask hard questions about what that will mean.
American Catholics can’t say, on the one hand, that our faith has a public dimension — important implications for our public policy and law — and cry foul, on the other, when fellow citizens challenge us about those implications. We can’t have it both ways. That’s to be neither a conscientious Catholic nor a public-spirited American.