Thursday, August 25, 2005


Are a judicial nominee’s "deeply held religious beliefs" a legitimate area of exploration for legislators charged with the advice and consent function? During recent confirmation hearings New York Senator Charles Schumer began pursuing this novel line of inquiry --apparently based on the belief that the first amendment not only creates a wall of separation between church and state (words not found in the Constitution) but also establishes special hurdles for individuals who take their faith seriously.

Naive observers might think that the primary qualification for judicial nominees would be their ability and willingness to interpret the law fairly. But as courts increasingly take upon themselves legislative prerogatives, a candidate’s philosophical views loom ever larger to politicians charged with the responsibility of deciding who is and who isn’t "qualified" to sit on a federal bench.

Under Schumer’s view of jurisprudence, constitutional temperaments seem to be compatible with deeply held views of all types--just not with deeply held religious views. Thus, even though more than 90% of Americans claim to believe in God, as far as judicial reflection is concerned, only god-free logic is clearly acceptable.

Imagine, for example, a judge with deeply held positions that are at odds with the vast majority of Americans when it comes to the age of sexual consent. Imagine that the judge’s name is Ginsburg. Would the philosophical roots of her views make any difference to Schumer and associates? Apparently not. All that would matter is that she came to her "progressive" views without relying on any religious convictions.

Now consider a judge with deeply held religious views that are roughly congruent with ideas embraced by at least half the country. Imagine the judge’s name is Roberts. Does the religious basis of his moral convictions become a major issue? Apparently so--since his religious beliefs trigger concerns arising from an expansive rendering of the First Amendment establishment clause.

In sum, secular nominees are OK, theists are questionable, and true believers are out of court. Ironically, this rule makes the following premise judicially illegitimate: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."

According to Jefferson, governments are founded to secure the aforementioned rights. But according to Schumeristas, judges in that government fall under a cloud of suspicion if they employ this traditional concept of natural rights when pondering the resolution of legal questions. (Over a decade ago Justice Thomas, in his confirmation hearing, was given grief by Senator Biden for subscribing to these same "self-evident" truths that undergird the Declaration of Independence.)

Judges are entitled, it seems, to reason based on penumbral emanations plucked from thin air. They are also entitled to patch together decisions under the philosophical banner "the greatest good for the greatest number"--a benign utilitarian phrase that Princeton’s Peter Singer employs to justify infanticide. But they are not entitled, by Schumer’s lights, to reason based on the axiom that life derives from God--at least not if the conclusion to that train of thought violates some "deeply held" abortion plank in his party’s platform.

This new approach to jurisprudence depicts people of faith as irrational, eccentric, and narrowly sectarian--persons whose aberrant ideas must be quarantined to prevent public contamination. Meanwhile, non-religious minds (or intellects that have been scrubbed clean of religious pollutants) are portrayed as legitimate jurists.

This view would come as a surprise to George Washington, whose Farewell Address contains these anti-Schumeristic observations: "Of all the dispositions and habits that lead to political prosperity, Religion and Morality are indispensable supports.... And let us with caution indulge the supposition that morality can be maintained without religion."

Removing religious symbols and rituals from the public square was a giant first step on this slippery suppositional slope. That policy made it possible to stigmatize as theocratic all public officials with strong religious views--especially judges. If both these strategies prove successful, the only persons deemed qualified to rule in our still religious nation will be those who are indifferent or hostile to the beliefs held dear by a substantial majority of citizens. The secular sieve that cleansed the public square of vital religious expression will have accomplished the same feat in the halls of government.


Anonymous said...

Hello Mr. Kirk,
I was wondering, where do you think morality comes from?

RKirk said...

The answer to that question parallels the answers to the (never asked) questions about scientific or mathematical truth. The latter aren't asked because they are taken for granted. The former is asked because people don't want to believe the testimony of their own hearts and minds--or the testimony of history. They want excuses to be self-centered--a trait that they deplore in others, but not in themselves. (Note that this "selective indignation" parallels the "selective" use of moral relativity in the "Who's to say?" ploy.)

C.S. Lewis in THE ABOLITION OF MAN responds to your inquiry as follows: "This conception in all its forms, Platonic, Aristotelian, Stoic, Christian, and Oriental alike, I shall henceforth refer to for brevity simply as 'the Tao'.... It is the doctrine of objective value, the belief that certain attitudes are really true, and others are really false, to the kind of thing the universe is and the kind of things we are."

In other words, the Tao, or morality, is the reality which humans imperfectly express when they try to situate themselves with respect to (or express in words) the true nature of things--including their own nature. I believe "moral truth" is every bit as much a part of that reality as "mathematical" or "scientific" truth. It isn't simply a coincidence or a psychological quirk that humans constantly ask (in various ways) what is the "right" or "moral" thing to do. Nor is it a coincidence that this question isn't satisfied with answers like "we've always done it that way" or "that's what most people do."

If one wants to use the word "God" to describe the reality that involves the concept of "quality", that's ok with me. If one wants to speak of "natural law" or "the Tao"--that is also fine. What is crucial, in my view, is that this reality is "objective"--not a human artifact. The moral systems are artifacts--but the reality to which they aspire transcends the system. (This is also true in science--an enterprise about which most folks are abysmally ignorant.)

Kate said...

Mr. Kirk, I have a question for you; of those 90% of Americans who believe in God, how many actively participate in a religion/religious atmosphere, and what exactly is the morality of that religious situation supposed to entail? According to a StatsCan survey, a surprising number of Canadians put "Jedi" down as their religion. I must admit that I always somewhat wary of statistics, as 99.9% of the time they are biased (case in point). Also, I would like to comment that I find American reaction to religion and politics rather interesting. Knowing that Jefferson (I believe, although I am not American so I make no claim to know your history by memory) argued for a separation of church and state, I do wonder why these issues seem to pop up again and again. Speaking from my own experience, when we (Canadians) are told that our Prime Minister went to Mass on Sunday, we shrug our shoulders en masse. This is possibly because for 10 months of the year, we're just too damned cold to care. It could also be because, as I have noticed in my own experience, Canadians are far less apt to wear their religion on their sleeve, and therefore (with the odd Albertan exception), religion in politics tends not to be an issue.

RKirk said...

Kate, since you both use and doubt the value of statistics, I am left in a bind created by your numerical ambivalence. One answer to your question, based on Gallup polls that go back for decades, is that appx. 40% of Americans regularly attend church services. I am confident that a miniscule number of Americans think of themselves as Jedi. (You didn't say how many Canadians constituted a "surprising number.") As to the inquiry about, in your words, "what...the morality of that religious situation (is) supposed to entail"--I am unclear about the meaning of your question. I am especially unclear about how that question relates to the essay upon which you are commenting--the thrust of which is absent from your remarks.

Put simply, the thesis is as follows: Morality may have a religious basis or a philosophical basis or (and this isn't in the article) a customary basis. It isn't the business of government to say that one of these sources is more suspect than another. That is hardly the meaning of (indeed, it is the inverse of) the idea that church and state should be separate. Separation of church and state had NEVER meant (until the latter part of the 20th century) the exclusion of religious expression from the public square--an exclusion that effectively relegates religion to the status of a communicable disease.

My comments have nothing to do with whether Americans "wear their religion on their sleeve." Many folks, more aggressively, wear their anti-Americanism or leftist beliefs or anti-religious bigotry and secularism on their sleeves (Did you ever listen to the anti-religious comments that eminate from Hollywood jerks like Bill Maher?). The point is that a "litmus test" that excludes from public service people whose moral values derive largely from their religious beliefs is precisely what the doctrine of separating church and state was designed to prevent. Jefferson had no thought to create in the government a god-free zone inhabited by persons who did not reflect the general views of the people they governed.

Note Michael Novak's book, ON TWO WINGS, for a brief overview of the religious perspectives of the founding fathers of American government. It should deepen your understanding of the way Americans (in the past)held tightly to religious faith without prescribing any particular creed. This quote from Jefferson (on the Jefferson Memorial in Washington D.C.) summarizes some of those beliefs: "God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of god?"....