SEPTEMBER 22, 2020 BY RICK SNEDEKER
There is a flip side to the constitutional prohibition against “religious tests” for Americans seeking public office.
It is that, once elected or appointed, those public officials also have a duty to not prioritize their religious beliefs over the secular requirements of serving the public good and accommodating the laws of Caesar, so to speak, and not of God.
That is why Amy Coney Barrett is controversial. She very much appears to be mostly about God, although she denies that’s a factor in her judicial decisions.
A former Notre Dame law professor who is now a judge on the federal 7th Circuit Court, Barrett is widely considered President Trump’s favorite candidate for replacing late U.S. Supreme Court Justice Ruth Bader Ginsburg, who died September 18.
What would make a Barrett nomination to the high court so troubling to U.S. secularists and progressives is that she has long worn her devout, conservative Catholic faith on her sleeve, as it were, and conceivably might end up allowing her faith to directly affect her legal opinions. But she has consistently denied that this is a valid fear.
The president has said he will make a nomination to replace Justice Ginsburg this week and rush a Senate vote on it before the Nov. 3 presidential election or during a lame-duck session afterward. So there is a manufactured urgency under way, and a serious question of Senate fairness and integrity.
This after Mitch McConnell, majority leader of the Republican-controlled Senate, blocked a Senate hearing and vote in 2016 on Merrick Garland, the Supreme Court nominee of outgoing President Barack Obama. McConnell, with virtually all other Republican pols in lockstep, disingenuously insisted that the nomination must wait until after the coming election so that the “voice of the people” is considered first.
Now, of course, as if everything is totally “different,” McConnell announced his desire for an immediate nomination and vote before the coming election.
Enter Amy Barrett into the national consciousness, again.
You may recall the last time her name came up, when, as a 7th Circuit federal appellate court judicial nominee, Barrett at her Senate confirmation hearing briefly locked horns with veteran California Democrat Sen. Diane Feinstein. Feinstein grilled Barrett on how her deeply held religious beliefs might impact her judicial deliberations.
“The dogma lives loudly within you, and that’s of concern when you come to big issues that people have fought for years in this country,” Feinstein told her at the hearing, according to a Politico article.
Barrett snapped back: “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.”
Barrett’s opponents aren’t convinced.
The progressive Alliance for Justice (AFJ) organization, for example, contended that Barrett’s views are “so contrary to our system of democracy and justice that, in our view, they clearly disqualify her for the federal bench.”
AFJ explained that in an article she wrote titled “Catholic Judges in Capital Cases” (death-penalty cases) she “strongly criticized” late Justice William Brennan’s view that jurists take an oath to uphold the law and that “there isn’t any obligation of our faith superior” to that oath.
In response, Barrett wrote:
“We do not defend [Brennan’s] position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”
In other words, she seems to be suggesting that a jurist’s religious beliefs may trump the law.
A 2017 article in The New York Times noted that Barrett belongs to a conservative Christian group called People of Praise, in which women are understood to be subordinate to men. It’s a “secretive, cult-like” group” straight out of The Handmaid’s Tale,” writes Michael Stone in his Progressive Secular Humanist blog. According to the Times:
“Members of [People of Praise] swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a ‘head’ for men and a ‘handmaid’ for women. The group teaches that husbands are the heads of their wives and should take authority over the family.”
Considering that religious beliefs based on supernatural assumptions, as far as can be determined, are wholly unverified imaginings, I believe all of this poses a fundamental worry for America’s secular judicial system and equal, secular treatment under the law.
In a 2017 public statement, AFJ President Nan Aron wrote:
“Barrett takes the extreme view, unsupported by virtually anyone in the legal community, that a judge does not have to adhere to precedent if she believes a case was wrongly decided. This approach would threaten a wide range of rights and protections established by past court rulings, including rights for workers, LGBTQ Americans’ rights, and voting rights, in addition to women’s reproductive rights. Her views are completely at odds with the way in which our justice system works and would make it unworkable if adopted by judges.”
Barrett claims that she respects precedent.
Aron wrote that Barrett was cited in a Notre Dame publication for believing “life begins at conception” and that the Supreme Court’s landmark 1973 Roe v. Wade was wrongly decided, creating “through judicial fiat a framework of abortion on demand” that “ignited a national controversy.”
The news website Heavy in 2018 reported on a post in Rick Garnett’s legal blog that implied a stronger influence of her religion on Barrett than she admits.
“In a talk to Notre Dame graduates in 2006, a transcript reportedly showed her saying: (A) legal career is but a means to an end … and that end is building the Kingdom of God … If you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love and serve God, you truly will be a different kind of lawyer. This, where he talked about reading her transcript and what an impact it made on him, and by Fox News.”
Still, in her public statements Barrett has remained adamant that she keeps her faith and her jurisprudence separate.
Heavy reported that In a law review article she co-authored, Barrett said: “Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge.” She added:
“Were I confirmed as a judge, I would decide cases according to the rule of law beginning to end. In the rare circumstance that might ever arise, I can’t imagine one sitting here now, where I felt some contentious objection to the law, I would recuse. I would never impose my own personal convictions upon the law.”
That’s appropriate. Recusal would be the correct course for a Supreme Court justice who feels their faith and the law conflict in a particular case, as in reconsidering Roe v. Wade.
During the hearing on her 7th Circuit nomination, she doubled down on supremacy of the law over faith.
“If you’re asking whether I take my Catholic faith seriously, I do, though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”
Although her self-defense is plausible, her faith is clearly deep and the issues involved vis-à-vis the law critical, so healthy skepticism is warranted — especially since the stakes for the republic are exceedingly high at this fraught moment in American history.
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