As the Republican majority in the Senate plows forward with President Trump’s nomination of Amy Coney Barrett to the Supreme Court, conservative media commentators talk nonstop about Democrats and progressives supposedly impugning Judge Barrett’s Catholic faith and engaging in what they deem to be “anti-Catholic” behavior.
It’s a well-worn playbook by the legal elites of the American right. Out of one side of their mouths come red meat pitches to Trump voters and religious conservatives openly declaring that they expect justices like Barrett to vote down abortion rights and other measures of contemporary America they don’t like. Out of the other side come cries of religious persecution when liberals rightly question these open declarations of judicial activism and ask: “I thought you said judges don’t make laws and should follow precedent, but here you are loudly proclaiming you have the final vote to overturn Roe v. Wade, both making law and rejecting precedent. Which one is it?”
Democrats so far have not fallen for the “anti-Catholic” trap set on Barrett, and smartly so. A nominee’s religious beliefs are not germane to the question of whether or not she can serve as an impartial adjudicator of constitutional law. Religious freedom is a bedrock principle of America’s founding and Constitution. The individual conscience and practice of any Catholic—as well as any other member of another religious or secular tradition—must be protected from the intruding arm of a potentially disapproving government.
Judge Barrett’s deeply held Catholic beliefs and institutional affiliations may not be to other people’s liking, but they are really nobody’s business and should not be up for debate. “The dogma lives loudly within you,” as infamously uttered by Senator Dianne Feinstein in an earlier hearing for Judge Barrett, is a callous and offensive statement.
However, it is perfectly reasonable and important for Americans to ascertain whether any nominee to the highest court, Judge Barrett included, is firmly committed to another founding principle: religious pluralism.
Along with religious freedom, protections for believers and non-believers alike, comes the constitutional mandate that the government must not impose particular religious views on others against their will or through the government itself. Thomas Jefferson and James Madison left behind the religious wars of Europe for a reason when arguing against the establishment of any state-sponsored religion in the United States. The founders knew that there was no hope for social harmony or individual freedom in our country if the government were to force citizens to follow the precepts of one particular religion.
So, Americans’ constitutionally protected right to practice their religion ends if, or when, they try to force other people who may hold equally strong but countervailing beliefs to live by their particular religious dictates. In political theory terms, this is “as American as apple pie,” as the saying goes.
Thus, “originalism,” in the form of our founding commitment to religious pluralism as a complement to religious freedom, is the crux of the issue many liberals today have with Judge Barrett, not her Catholicism. Does she genuinely believe that a judge’s personal or religious views should have no bearing on constitutional questions? If so, how would she apply or not apply these views to contentious social issues that have divided Americans for the past 40 years? How does she view the blanket statements by President Trump and other promoters that she is a definite vote for pre-determined conservative positions on key national issues?
More concretely, in a nation committed to religious freedom and pluralism, as enshrined in the Bill of Rights, and in practice since our nation’s founding, no one should be punished or mistreated by law for holding a strong pro-life position or opposing same-sex marriage and transgenderism, as many conservative Catholics do. This should be extended fully to Judge Barrett and other conservative religious adherents, Catholic or not. At the same time, though, no person making constitutional decisions about other people’s rights and freedoms should impose his or her particular religious views on other people by overturning precedent and creating new law from the bench that seeks to criminalize abortion or prohibit people from marrying whomever they want or embracing their own personal gender identity. The first act is a violation of religious freedom that punishes people for their religious beliefs. Yet the second is a violation of religious pluralism that seeks to elevate one set of views on reproductive decisions or family or personal identity above all others.
The question of the balance between religious freedom and pluralism is a genuine issue in American Catholic circles today. As reactions to Donald Trump’s presidency and Pope Francis’s recent encyclical show, American Catholics are increasingly divided politically on the tenets of their own faith and how those should or should not apply to American government. For example, what is the “correct” position for Catholics in political or religious terms when those on the conservative side of the Church argue for non-negotiable stands on abortion and other culture war issues while the leader of the Church itself, in his recent and important encyclical Fratelli Tutti, says Catholics should also focus on issues of international solidarity, support for refugees, and economic policies that serve the common good and individual dignity of all human beings? As a citizen, I would be interested to hear Judge Barrett’s views on these internal debates given her strong faith and legal background, and how they might factor into her consideration of issues related to immigration, health care, or poverty, if at all.
Ultimately, though, there is no “correct” position because each person must apply his or her understanding of their faith to the contentious and combative realm of politics—which by definition must seek to accommodate a range of competing viewpoints. And it’s certainly not up to the government to determine the correct position for Catholics or anyone else to hold. That’s why we embrace and promote religious pluralism.
The Pope, as the leader of the world’s Catholic faithful, coherently reconciles all of these aspects of Catholic teaching into a powerful commitment to human life and flourishing from conception to death. But many of us lay Catholics, and others who are not Catholic, are not that coherent or consistent. We must live together within political systems that are far more complicated than theoretical statements of beliefs, and we’re filled with compromises that are unavoidable if we are to produce a social order that respects interreligious differences as well as those who do not belong to any religion.
Internal deliberations on matters of faith, ethics, and morality are critical to our religious freedoms and therefore should not be subject to the decisive whims of lawyers or judges picking one side of these fights versus the other. These are all matters for debate and all sides should respect the rights of those who think differently on important religious and public topics. “You respect my views, I’ll respect yours,” should be the norm on these issues in our society and in our courts.
When it comes to the never-ending battles over abortion or same-sex marriage, American Catholics will remain conflicted on the morality and legality of these matters and many will not be in alignment with contemporary Church teachings, not to mention the majority of other Americans who are not Catholic. The only way for government to resolve these deeply contested moral battles is not to intervene at all in internal religious and moral disputes and to recognize that individual conscience and religious freedoms must be protected for all people, as centuries of secular constitutional law and jurisprudence has tried to uphold.
None of these issues will be resolved in four days of politicized hearings in the middle of a major presidential election. If Judge Barrett is confirmed, as is likely the case, hopefully she will rule wisely and compassionately, and live up to her stated belief that “judges don’t make laws” by respecting both religious freedom and religious pluralism consistent with constitutional precedent.