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Tuesday, April 13, 2010

"A Catholic Interpretation of the Establishment Clause"?

Go here for Scot Powe's review of Donald Drakeman's Church, State, and Original Intent (Cambridge).  The book is first-rate, in my view.  (Full disclosure:  I blurbed the book for the press.)

After a generally helpful review, Powe concludes, oddly, with a clunky pivot to the observation that  "[t]hree years ago, the Supreme Court ignored its own recent decision and ruled by a 5-4 margin that Congress could ban the procedure known as partial birth abortion" (I don't think it did, but never mind) and a reminder that Geof Stone had suggested, controversially, that the Court's decision might have something to do with the fact that the five justices in the majority are Catholic.  (I responded to Geof here.)  Powe then concludes:

A number of conservative Catholic legal scholars have shown support for Drakeman’s conclusion.  It is conceivable that a Supreme Court Justice might rely on Drakeman (with or without citation) for a Catholic interpretation of the Establishment Clause; and while decades ago Cardinal Francis Spellman had to lobby President Eisenhower to add a single Catholic to the Court (Ike picked William Brennan, who voted as a separationist and favored Roe v. Wade), six of the nine Justices are now Catholic. Church, State, and Original Intent is not priced for a wide readership, but if it gets the right five readers, it could have a major impact.

There are, it is true, a number of "conservative Catholic legal scholars" (and many others) who agree (as I do) with Prof. Drakeman that the Establishment Clause was misinterpreted, in the parochial-school cases of the 1970s and 1980s, as requiring strict "no aid" separationism.  But, this agreement does not make Drakeman's interpretation a "Catholic" interpretation, and a Catholic justice who voted in accord with Drakeman's interpretation would not be adopting (or imposing) a "Catholic" interpretation.  Nor would the fact that a Catholic justice (or legal scholar) embraced it make the interpretation "Catholic."

To be sure, there are "Catholic" ways of thinking about religious freedom and church-state relations.  For a good start, go here.

Posted by Rick Garnett on April 13, 2010 at 12:08 PM in Rick Garnett | Permalink


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