Saturday, July 30, 2022

Catholic Court in Disharmony with Constitution

    When John Kennedy was campaigning in 1960 to become the country’s first Catholic president, he sought to reassure anti-Catholic voters by declaring on a Sunday interview program, “Fortunately, my conscience and the Constitution happen to be in very close harmony.” Unfortunately, that cannot be said today about the Catholic justices who form a conservative supermajority on the current Supreme Court.

            As president, Kennedy did not invoke Catholic doctrine in U.S. domestic or foreign policy and did not establish, as some anti-Catholic voters warned, a hot line between the White House and the Vatican. To the contrary, Kennedy did not consider establishing diplomatic relations with the Vatican: President Ronald Reagan initiated that step in 1984. 

The First Amendment significantly includes two religion clauses, complementary but at some tension with each other. The First Amendment prohibits legislation abridging the free exercise of religion and likewise prohibits legislation regarding establishment of religion. The Supreme Court during the 2021 term issued sharply divided rulings that allow religious believers to enlist financial and legal support from the government to support their religious practices even at the cost of the constitutional prohibition against establishment of religion.

            Kennedy took no special steps to nominate Catholic jurists to the federal bench. In fact, his two appointments to the Supreme Court were Byron White, a New Frontiersman with no outspoken views as an observant Catholic, and Arthur Goldberg, a labor lawyer appointed as the Court’s fourth Jewish justice to succeed the Jewish justice Felix Frankfurter after Frankfurter’s retirement in 1962.

Throughout his 1960 campaign, Kennedy insisted that his religion was not an issue. Today, however, the religious right has made religion a major issue in politics and in law, to the detriment of the United States’ history of religious tolerance.

In fact, as my Congressional Quarterly colleagues Peter Canellos and Josh Gerstein reported in Politico on July 8, a leading figure of the religious right enlisted evangelical leaders as part of a lobbying campaign that he called “Operation Higher Court.” Rod Schenck disclosed that over a period of several years, he enlisted twenty like-minded couples to come to Washington and entertain three of the justices – Thomas, Scalia, and Alito – over dinner and drinks while bandying about key phrases in the religious right’s advocacy on culture war issues.

            Schenck told Canellos and Gerstein that the aim was to create an ecosystem of support for conservative justices, as a way of making them more forthright in their views. As Cannelos and Gerstein explained, this previously undisclosed initiative illustrates the extent to which some Supreme Court justices interacted with advocates for the religious right as the Court was grappling with such issues as abortion and gay rights.

            Imagine the scandal that this lobbying would have engendered had it been disclosed at the time. Or, conversely, imagine the likely uproar if the Chamber of Commerce were to enlist business leaders to come to Washington for private dinners with the justices to impress on them the importance of freeing corporate America from the burdens of labor laws, job safety laws, environmental protection, and the like.

            Scalia died in 2016, but Thomas and Alito are likely to continue as justices for perhaps another decade as part of a solid Catholic majority on the Court along with Roberts, Kavanaugh, and Barrett. Together, these five – along with Gorsuch – provided the votes for the religious right to run the table during the 2021 term.

            The religious right’s biggest victory came in the 6-3 decision to eliminate the constitutional right to abortion by overruling the 1973 precedent, Roe v. Wade. As the semi-retired Supreme Court correspondent Linda Greenhouse pointed out in an article in the New York Times [July 22], it was religious doctrine, not the Constitution, that drove the decision in that case. “It was not constitutional analysis but religious doctrine that drove the opposition to Roe,” Greenhouse wrote.

            As the author of the decision, Justice Samuel A. Alito Jr. implicitly confirmed Greenhouse’s analysis by taking a victory lap, not at an American law school, but in Rome at an event sponsored by Notre Dame Law School’s Religious Liberty Initiative. It is also worth recalling that Alito was granted an honorary degree five years ago by the Catholic St. Charles Borromeo Seminary in Wynnewood, Pennsylvania.

            Alito was part of the 6-3 majority in two other major decisions in the 2021 term that stretched the Free Exercise Clause so far as to virtually eliminate the Establishment Clause. The 6-3 ruling in Carson v. Makin forced the state of Maine to provide tuition assistance to families wanting to enroll their children in private religious schools. By the same vote, the Court held in Kennedy v. Bremerton School District that a local school district in the state of Washington violated a football coach’s free exercise right by suspending him for leading a post-game prayer ritual with players on the football field itself. The decision seemingly reverses, sub silentio, the school prayer rulings from the 1960s that prohibit classroom teachers from conducting religious exercises in public school settings.

            Dissenting in the Maine school case, Breyer persuasively explained that the two religion clauses together create what he called “constitutional neutrality” that would allow religious exercise without sponsorship or interference. “[T]he basic purpose of these provisions,” Breyer added, quoting from a prior decision, was “to insure that no religion be sponsored or favored, none commanded, and none inhibited.”

With Breyer’s retirement, the role of defending his concept of “constitutional neutrality” rests with his successor, Justice Ketanji Brown Jackson, and the two other liberal justices: Sonia Sotomayor and Elena Kagan, who dissented in vain as the Court tore down the wall separating church and state.

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