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Friday, April 27, 2007

More on the "Faith-Based Justices"

I have finally been moved to write on the debate over "Faith-Based Justices" by Geoffrey Stone's latest post.  For those who need a recap:  In a post last week on the Chicago Law Faculty blog, Prof. Stone wrote in the wake of Gonzales v. Carhart that, in his view, the majority had reversed an earlier decision overturning a "virtually identical state law," and had done so with no rational basis.  He explained this in part by observing that the five Justices in the majority were Catholic, and asserting that they had relied on a moral argument that the law could be prohibited.  He added: "By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality.  To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental."  Our co-blogger Rick Garnett wrote in response that the distinction "is, indeed, 'elusive,'" that it is not clear why moral claims made about the status of fetuses are necessarily religious ones, and that even if they were, it is not necessarily violative of church-state separation to accept such moral arguments as a basis for upholding a law.

Prof. Stone now writes in response to those commenters (not Rick!) who have accused him of anti-Catholic bigotry.  He says it is not illegitimate per se to ask questions about the ways in which Justices vote, and the relevant "personal values and beliefs" that might affect their votes.  He says he is particularly intrigued by this question in the context of religion "because I'm trying to understand whether the principle of separation of church and state should create a special responsibility on citizens, legislators, and judges not to impose their religious beliefs on other citizens."

I agree with Prof. Stone that the question is not itself illegitimate.  Many thoughtful and quite religious individuals write and think at length about the question of the duties of the religious judge, legislator, or citizen.  More generally, we think and write all the time about how judges' backgrounds, beliefs, and preferences may or may not influence their decisions.  It is not the case that we can ask such questions about judges' class backgrounds, race, education, or gender, but not about their religion.  Treating religion as a forbidden topic, as I have argued in closely related contexts, is the opposite of genuine respect for religion; it is far better that religion be fully accepted as one among many grounds of motivation and topics of public discussion than that it be disabled in any way from being a part of the mix in our public square, even if that fact may lead religion to be the subject of criticism as well as praise.  (Of course, that's precisely why I differ from Prof. Stone, who seems to believe that not only judges but legislators are in some way disabled from relying on religious reasons in passing a law -- so that, if I read him right, the Civil Rights Act would be illegitimate if it were passed by a legislative majority that relied on expressly religious grounds for non-discrimination.)

But if that discussion is to be at all useful, surely it requires a genuinely thoughtful and nuanced effort to think carefully and respectfully about how religion does or does not influence public decision-making, and when that might or might not be problematic. 

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For one thing, we should not lightly run together "citizens, legislators, and judges" as if their roles and obligations are identical; they certainly are not.  Prof. Stone does not say otherwise.  But is there not a hint of his having done just that in the fact that he assumes that the Justices in this case were making moral (and, in his view, perforce religious) judgments on their own, as opposed to concluding that those moral arguments made in the law itself were, at least in the absence of an absolute restriction on access to abortion the presence of medical dissensus, relevant factors in upholding the law?  Whatever the merits of either the Court's decision or the act of Congress itself, surely there is a difference between legislators making moral judgments, religious or otherwise, and judges making the same judgments.  Similarly, surely there is a difference between a judge making a first-order moral judgment, and a judge deferring in appropriate circumstances to moral judgments made by legislators.  Prof. Stone might think that legislators are barred from enacting their moral preferences into law in a way that infringes fundamental constitutional rights.  But is he saying that legislators are barred on church-state grounds from making such moral judgments, and that judges are barred from accepting any such judgments when they are enacted into law?  Much more could be said here, of course.  Suffice it to say that any serious consideration of these issues at the very least requires some careful thought about the different roles and functions played by different players in the system.

Beyond this, as Prof. Stone notes in his latest post, there are a host of other reasons why the majority in this case might have ruled as it did.  If we are to productively talk about religion and judicial decision-making, without stereotyping or anathametizing religion and thus poisoning public discourse, we ought to readily consider those other factors.  Perhaps the relevant factor here is the fact that four of the Justices in the majority share a very different methodology from the other five members of the Court, and that the fifth, Justice Kennedy, had already made clear his view that the relevant earlier precedent was wrongly decided.  Perhaps the political conservativism of these Justices was more relevant than their religious faith.  Perhaps the appointing President was the most relevant factor here.  We should not lightly assume that religion was the only possible explanatory factor here.  Indeed, for all we know, the religion of the five-member majority was utterly irrelevant to their decision-making process, and deeply relevant to the views of some or all of the dissenting Justices last week. 

Prof. Stone now says that the point of his earlier post was to "pose the question and to invite people to think about it."  I read his earlier post differently: it seemed to me to suggest that in his view nothing could explain the decision save for religion, particularly because he seemed to conclude that any moral reasons presented by Congress and/or the majority were necessarily religious.  Thus, it did not simply pose the question; it purported to answer it.  In any event, as I have said, it is not illegitimate to raise the question of religion and its relation to voters, legislators, and judges.  Poisoning the well of public discourse can happen in two directions, and we should not lightly assume that someone who raises such issues is bigoted.  But if we're to productively discuss these questions, we will have to find ways of having far more informed and nuanced conversations than simply pointing to the religion of a particular public actor as if it is conclusive, or even persuasive, proof of anything.                

Posted by Paul Horwitz on April 27, 2007 at 02:55 PM in Constitutional thoughts | Permalink


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Very well said, Paul. In my view, Geoff's mistake was not in "raising" the issue. What I question(ed) was his apparent assumption that nothing -- !!! -- could explain a vote to uphold the federal partial-birth-abortion ban except religious commitment.

Posted by: Rick Garnett | Apr 27, 2007 6:28:57 PM

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