Columnists say it should be irrelevant, and then go on to discuss it at length. I’m not at all sure it is irrelevant. It reflects a very major change in American public life. Of course, the Constitution prohibits a “religion test” and therefore it should be irrelevant to whether or not Judge Sam Alito is confirmed. But it is of considerable interest that, if he is confirmed, a majority of justices will be Catholic (John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Samuel Alito).
It was not always this way. Of the first 54 justices of the Supreme Court, only one was Catholic: Roger B. Taney, who is best, if somewhat unfairly, remembered as the author of the notorious 1857 Dred Scott decision. All the current Catholics were nominated by Republican presidents, who also nominated seven Protestants. (By way of contrast, all four Jews nominated since 1960 were nominated by Democratic presidents.) Of the seven Protestants nominated by Repubicans, six are considered pro-abortion, while four of the five Catholics are pro-life, with Anthony Kennedy at least opposing partial-birth abortion.
Pro-abortionists are not entirely unreasonable in seeing a connection between a nominee being Catholic and being pro-life. More important, however, is a justice’s judicial philosophy in opposing Roe v. Wade as, in the words of Justice Byron White (Episcopal), an act of “raw judicial power.” Is there a connection between being Catholic and being an “originalist” in constitutional interpretation? Perhaps, although there are on the bench and elsewhere many potential Catholic nominees who are proponents of “the living Constitution.” The crucial difference is between liberal and conservative, activist and originalist, and, increasingly, Democrat and Republican. If he is inclined to appoint an activist who is Catholic, the next Democratic president will find no shortage of candidates.
I’ve been telling reporters who call that a Catholic judge is obliged to rule according to the Constitution, not the teachings of the Church. At least one reader is distressed by my reported statement that a Catholic judge who ruled on the basis of the Church’s teaching would be violating the Church’s teaching. Did I really say that? And, if so, how do I square that with the argument that religion should not be excluded from law and public life?
Yes, I said that, and it squares quite nicely. A judge is solemnly pledged to uphold the Constitution. With very few exceptions, this comes down to determining whether a specific law is constitutional. The judge’s moral duty¯whether he be Catholic, Protestant, or atheist¯is to make that determination honestly, conscientiously, and in light of the facts of the case before him. No matter how restrained and modest may be a judge’s understanding of his task, there are instances when moral judgment comes into play. His decision will then be influenced by natural law, which is not a peculiarly Catholic doctrine. The Catholic Church has been a defender of natural law, but an understanding of natural law is firmly grounded in the American founding, and therefore part of the original understanding of the Constitution. It is, for example, a matter of natural justice, and not a peculiar teaching of the Catholic Church, that it is always wrong deliberately to kill an innocent human being.
We have four Catholic justices, and may soon have five. They are justices not because they are Catholic but because they are¯with the exception of Kennedy¯originalists. They know they are not legislators. Legislators are free to bring any consideration they wish¯philosophical, theological, ideological, whatever¯to bear on their decisions. Judges are not. The vigorous reassertion of this understanding holds high promise for remedying the judicial usurpation of politics.
The highest court of the United Methodist Church, the Judicial Council, has defrocked a minister who is living in a lesbian relationship. Perhaps more important, it has upheld the right of a pastor to exclude from church membership a man who is unrepentant about engaging in same-sex relations. The UMC, with about eight million members, is the third largest communion in the country, following the Roman Catholic (66 million) and the Southern Baptist Convention (15 million). In recent decades, the UMC has repeatedly turned back the advocates of changing that church’s teaching, and the teaching of two thousand years of Christian history, regarding the moral wrong of same-sex relations. The advocates are manifestly less certain that they represent the wave of the future.
The UMC is the largest of the mainline/oldline/sideline churches that have experienced declining morale, membership, and influence in the past forty years. Thomas Oden, long-time professor of theology at Drew University, is a leader of “confessional” movements in the UMC and other liberal denominations. We will be attending to his forthcoming book on “turning around the mainline” in the pages of FIRST THINGS. It is, I believe, a great mistake to dismiss the oldline churches as irrelevant to the future of Christianity in this country. About a third of the Christians in America belong to those denominations, and within them are many local churches of vibrant faith and witness.
What is happening with Evangelicals and Catholic Together? I am regularly asked that question and am pleased to answer that the project known as ECT is flourishing. The next meeting of the working group is this Thursday. If, please God, all goes well, there will be another statement next year, this one on the culture of life as an integral part of the saving gospel of Jesus Christ. Keep us in your prayers.