For the last several days I’ve been writing about religious beliefs and how they are tied to theory-making (see here, here, and here). In essence, my argument has been that (a) everyone has religious beliefs, (b) these beliefs form the basic presuppositions that shape our theory-making, and (c) since everyone’s theories are ultimately founded on religious beliefs, Christians (and other members of the Abrahamic faiths) shouldn’t be ashamed to proffer explicitly religious-based arguments.
A example of why this is an important concept, and how it is applied to law and public policy, is found in an article today on the Huffington Post. Geoffrey R. Stone, a professor of law at the University of Chicago, argues that the Catholic justices on the Supreme Court have allowed their faith to influence their decision-making on the issue of abortion. Stone finds that other factors, such as judicial philosophy and ideological leanings, cannot account for the pattern of votes on this issue and that religious faith appears to be the strongest correlating criterion.
Overall, I find his argument persuasive. It does appear that the religious beliefs of Catholic jurists shape how they decide on the legality of abortion. In fact, the only thing I find objectionable in his article is the presumption that such a move is illegitimate. Stone believes that their faith should have no influence on their decisions (a point sadly shared by many of these Catholic jurists).
In a follow-up exchange with Catholic legal theorist Rick Garnett, Stone makes it clear that the problem is not that individually held beliefs shape the decisions of these justices, but that religious beliefs are to be excluded from having such an influence:
I disagree with your post in the following way: I don’t believe it is illegitimate for judges to consider their policy beliefs in interpreting the Constitution (although I agree that should not be the touchstone for constitutional interpretation). But I do believe it is constitutionally illegitimate for judges to consider their religious beliefs in interpreting the Constitution. In my view, consideration of religious beliefs is on a par with consideration of partisan political beliefs. That is, it is (in my view) illegitimate for a judge to decide a case because the result will benefit the Democrats. Similarly, I believe it is illegitimate for a judge to decide a case because the result reflects his religious belief.
On the surface Stone’s answers appear to be incoherent or contradictory (what “policy beliefs” are not based on “partisan political beliefs”?). But what I think he means is that there are certain beliefs that are accessible to a majority, if not all people, through publically accessible reason. These are legitimate, while more narrow beliefs—based on such things as partisan politics and religion—are not because they are not (at least to him) publically accessible and held by a broad majority of citizens. This is a key premise in the argument for secular neutrality in law and public policy.
Unfortunately, many Christians have bought into this myth of secular neutrality, which requires that all that religious beliefs be checked before entering the public square. Ironically, the result is that certain religious beliefs (e.g., those that are reductionist and based on materialism) are welcomed while others (any religion that relies both on general and special revelation) are excluded.
However, even though such beliefs are openly excluded, they are still allowed to smuggle in the beliefs that the secular neutralists cannot derive from their own religious beliefs (e.g., atheists who are also materialists don’t have no basis for natural human rights, and so must borrow presuppositions from the theistic religions).
This is not to say that all religiously based arguments are legitimate or that they deserve preferential treatment in matters of law and public policy. However, to believe that religious beliefs should be excluded from the public square because they are religious is itself a belief rooted in a religious belief (i.e., a presumption of agnosticism). Why then do Christians cower and concede to those who make this argument when when it is based on neither reason nor reality?
September 3rd, 2009 | 2:38 pm
Good post. Faith is not optional – everyone takes leaps of faith all the time, even when simply getting out of bed in the morning. I argue along these lines all the time (even if it’s mostly in my own head or to my own long-suffering children). Some related ideas and corollaries:
You can be an atheist. You can be logically consistent. You can be moral. But you cannot be an atheist, logically consistent and moral (in any meaningful sense of the word) at the same time. I think this is implied in your statement that “atheists who are also materialists have no basis for natural human rights, and so must borrow presuppositions from the theistic religions.” (It seems you’re leaving room for that odd atheist who has no use for God but plenty of room for other mystical beliefs – I’d classify them as logically inconsistent on the face of it. Few would admit to the way I’ve described it – they’d claim, as one did to me, that the idea of ‘autonomous human beings’ having inherent rights is, somehow, based in observable reality.)
Personal rights is a premise, and, as such, isn’t ultimately really defensible as a conclusion. But if you’re going to take up a position on the Supreme Court, it seems to me, you’ve signed on to the concept. So, as you say, to argue that ‘religious’ beliefs should be excluded from the thinking of the courts is not just wrong, but really meaningless IF the courts’ thinking is imagined to compel us in any way.
To the extent that the legitimacy of the courts rests upon our acknowledgment that they are at least trying to make sense, the courts cannot reject ‘religious’ beliefs (under whatever guise) and expect the people to continue to honor their authority. That’s why incoherence and capriciousness are more damaging, ultimately, than any particular wrong decision.
September 3rd, 2009 | 2:54 pm
Just as a heads up, with all the recent hub-bub surrounding the healthcare “reform” debate, The Lutheran Church–MIssouri Synod’s World Relief and Human Care decided to put together a special section of our web site about the debate. Our site was developed to help our readers engage in the debate and find useful information about the areas of moral concern (abortion, end of life care, and ethics) that Christians can—and should– monitor. We tried to create a continually-updated repository of information that is free from political rhetoric and only focuses on those specifically moral areas where the church is called to give leadership —according to the Lutheran doctrine of the 2 kingdoms. We also used it as an opportunity to allow Rev. Matt Harrison to do some catechizing on the role of the church in the public square and included a quick video of him doing this. http://www.lcms.org/worldrelief
September 3rd, 2009 | 4:16 pm
I am very glad you blogged about the myth of secular neutrality. I remember that Fr. Neuhaus spent a great deal of his debates on dispelling that myth. When I heard on FoxNews that Justice Sonia Sotomayor asked people to pray for her to have wisdom, I did, and I e-mailed about her understanding of “empathy” for the downtrodden, especially a young girl, finding herself pregnant with an unwanted unborn baby. I was hoping that she could gain the wisdom to see that “empathy” could be for the innocent unborn as well as the poor Latina from the ghetto who wanted to make it in the world without the obstacles that a child and pregnancy would present.
It seems to me if she and Pres. Obama were so eager to let her Latina upbringing influence her decisions, then she should be just as eager to let her Catholicism enter her decisions, but I am afraid she is a Ted Kennedy type of Catholic whcih means pro choice.
September 3rd, 2009 | 7:00 pm
Good post, Joe, but I’m curious as to why you find Stone’s underlying argument particularly persuasive. Certainly reasonable minds can disagree on the subject, but I find nothing in the various statistics cited by Stone that would lead me to conclude that the decisions of the Catholic justices with respect to abortion are the result of their religious beliefs, rather than their judicial philosophy. For whatever reason, most of the leading Originalist justices on the Court during the past 30 years — with the exception of Chief Justice Rehnquist and (until his return to the Catholic Church) Justice Thomas — have been Catholics. As I read them, the decisions of the Originalist Catholic justices are entirely consistent with their Originalist judicial philosophy.
Stone dismisses this fairly obvious conclusion by noting that, unlike in abortion cases, the non-Catholic justices appointed by Republican Presidents have voted to strike down laws under the Equal Protection Clause in roughly the same percentage of cases as the Catholic justices appointed by Republicans (46% to 42%). Yet most abortion cases have been decided under the Due Process Clause, not the Equal Protection Clause. I would be interested in seeing if the Catholic justices have rejected constitutional challenges in abortion cases at the same rate that they have rejected constitutional challenges in other substantive due process cases. Although I have never attempted to quantify such cases, I would be surprised if there is any inconsistency among the Catholic justices in their decisions in substantive Due Process cases (with the possible exception of Justice Kennedy, who, at any rate, is hardly an Originalist).
Moreover, Stone’s methodology strikes me as simplistic and fails to account for significant differences among the supposed cabal of Catholic justices. Until Justice Thomas returned to the Catholic Church in the mid-90s (i.e., after Casey v. Planned Parenthood was decided in 1992), Thomas attended an Episcopalian church. It is not clear to me whether Stone counts Thomas’s dissenting vote in that case as the vote of a Catholic justice, even though Thomas had not yet formally returned to full communion with the Catholic Church. Yet, given Thomas’s church affiliation at the time, one could just as easily characterize the vote of Thomas in Casey as the vote of a non-Catholic justice.
For that matter, what is one to do with Justice Kennedy? Although he joined the — at the time, two — other Catholic justices in dissent in Stenberg v. Carhart and authored the majority opinion (joined by four other Catholic justices) in Gonsalez v. Carhart, he joined the plurality opinion in Casey, which upheld the core constitutional right to an abortion created by Roe v. Wade. In contrast, Rehnquist (both as an associate justice and as chief justice) and Justice White — both Protestants — joined the dissent in Casey. Stone neglects to point to any noticeable distinction between the decisions of Rehnquist and White in abortion cases and those of Scalia, Thomas, Alito, and Roberts in the same or comparable cases. Better minds than mine may detect a distinction between their decisions in abortion cases, but such a distinction eludes me.
As Stone himself admits, none of this proves anything, and his guess is as good as mine. So it may be that the decisions of the Catholic justices in abortion cases are informed by their religious values in ways that their decisions in other cases are not so informed. Or maybe — just maybe — we should take Scalia et al at their word and conclude that their decisions in abortion cases are in fact consistent with the judicial philosophy that they apply in other cases.
September 3rd, 2009 | 11:19 pm
Dan: Good post, Joe, but I’m curious as to why you find Stone’s underlying argument particularly persuasive.
Well, I wish I had a better answer but the truth is that not being a legal scholar, I found Stone’s claim about the Establishment Clause seemed plausible. (I also have to admit that since I didn’t find the conclusion objectionable, I didn’t put a lot of effort into disputing his premises.)
But you raise an interesting point, and I agree that it would be worthwhile to see more data. I’d also be curious to find whether those justices who subscribe to be Originalism agree almost always (as I assume they would).
September 4th, 2009 | 11:00 am
I did not think you had to be a legal scholar to comment or discuss this question. I also did not know that Clarence Thomas was a baptized Catholic as a child, although he attended Catholic Schools, because I thought he was a first time convert in the mid 1990′s. This column is teaching me a great deal. I do believe that the pro-choice Catholics who work in Congress and the liberal justices on the Supreme Court all fall into the myth of Secular neutrality, and wrongfully think they cannot let their religious beliefs influence their decisions.
September 4th, 2009 | 12:05 pm
I’d say that as a Christian, I refuse to cower. Instead I follow Aquinas’ thought that reason without the presupposition of God leads to unreasonable conclusions. In fact, my very engagement with secular culture (I teach in the public sphere) is predicated on that initial belief. I think too often Christians immediately concede the floor on faith’s rationality. If we had a fuller understanding of what it means to be a Christian, fully rational and yet fully mysterious, our entire culture would be better for it.
September 4th, 2009 | 1:03 pm
I must say, I do not find Stone’s arguments all that convincing, and in fact, he’s a bit incoherent. His most serous mistake is in implying a causal relationship to a simple correlation. The correlation he demonstrates, that the Catholic justices vote more often than the non-Catholics in “restricting abortion rights” (I would call it expanding the rights of the fetus) is without question. However, only a simpleton would leap to the conclusion that this voting pattern was caused by the Catholic faith of the justices. (Would Stone argue that wearing large shoes causes people to have large feet?) A better explanation is that there is a second correlation: between originalist thinkers and those who embrace orthodoxy. Originalism and orthodoxy share some important premises.
His essay is full of other silliness, as an example, consider this sentence:
I was confident, though, that I would have raised precisely the same question in a case in which all five African-American justices, or all five Jewish justices, or all five women justices voted together in a similarly controversial decision involving African-American, Jewish, or women’s issues, especially if all the other justices voted the other way.
First off, the statement makes the foolish implication that abortion is a Catholic issue- the specific point in human development that our governemt grants us the protection of the constitution is a constitutional question, not a Catholic question. Secondly, the statement does not support his basic argument: that religious beliefs are illegitimate considerations for the Supreme Court, since, as far as I know, African-Americanism and being a woman are not religions. The part about being Jewish might make sense if you could give me an example of a Jewish issue likely to come before the court. Was he thinking of truth in advertising regarding Kosher pickles?
I find Stone’s use of the word “belief” to be imprecise. A better word might be value. While it is true that an orthodox Catholic will value life, it is also true that a committed feminist will value unrestricted abortion. Why is the value of the feminist somehow more legitimate than that of the Catholic?
Finally, we have to remember that one of the strongest pro-life arguments, an eighteenth century Protestant belief, is also the basis for the founding of our nation: that the right to life, liberty and the pursuit of happiness is given to us by our Creator.
October 5th, 2009 | 12:26 am
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