Just two months after Sen. Bernie Sanders (I-VT) declared a nominee to federal office to be unfit for daring to hold the personal belief that Jesus Christ is necessary to salvation (which was discussed at Crisis by your faithful correspondent here), a fresh controversy has arisen in the hearing chambers of the capitol. This time, Sen. Diane Feinstein (D-CA) used her time in the confirmation hearing of Amy Coney Barrett, a law professor at the University of Notre Dame who has been nominated as a federal judge, to probe the nominee about her religious beliefs.
Barrett is a Catholic, and has written and spoken about the intersection between faith and law, and the responsibilities of a faithful Catholic in participating in the legal profession. Among other comments, Barrett told “Notre Dame graduates in 2006 that ‘your legal career is but a means to an end, and … that end is building the kingdom of God.’ In 1998, Barrett said, ‘Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.’” Yet, lest anyone take this in a theocratic sense, Barrett clearly stated elsewhere that when a judge’s conscience conflicts with law, “judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”
Even so, in response to these citations Sen. Feinstein expressed her worry (and those of her Democrat colleagues) that Barrett’s Catholic beliefs on issues like abortion and same-sex marriage would affect her application of the law, stating:
Why is it that so many of us on this side have this very uncomfortable feeling that—you know, dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.
Why is Sen. Feinstein so concerned? What is so threatening about the possibility of Judge Amy Coney Barrett? As more and more issues have been decided not by Congress but by the courts, the judicial nomination process has become increasingly combative. When the judiciary abrogates to itself such foundational and controversial questions as the definition of marriage and the legal status of unborn children, control of those seats, held for life, becomes crucial. This is why nearly every nominee to a federal court is questioned by left-wing politicians as to whether they believe Roe v. Wade to be a “super-precedent,” and why the hope of an originalist Supreme Court justice most likely tipped the election in favor of Donald Trump. When judges begin to legislate, their policy preferences and personal beliefs, rather than their judicial philosophy, suddenly become of primary concern.
But that problem aside, the truly worrisome thing about Sen. Feinstein’s question was not any possible anti-Catholic bias that might have animated it, but her presuppositions about what is and is not fit for the public square. Feinstein disagrees with the conclusions that Barrett would reach, since they would not carry forward Feinstein’s left-wing agenda, so rather than address her reasons and argumentation, she dismisses both her reasons and conclusions by labeling them “dogmatic” and hence unreasonable. It is fundamentally an intellectually dishonest maneuver.
The position of many on the political left is that certain beliefs, such as opposition to abortion or same-sex marriage, could only be grounded in a religious conviction—that they could only be an article of faith but could have no rational basis to them. Justice Anthony Kennedy claimed as much in Romer v. Evans when he wrote that disapproval of homosexual acts could only spring from an “irrational animus.” Any idea deriving from a religious conviction or rooted in an article of faith has no place in the public square, they say. Personal belief is not fit for public policy. Dogma is separate from law.
This is, of course, an absurd position on a number of levels. No one is trying to legislate dogma or impose it by judicial fiat. No Catholic judge has ordered it be acknowledged that Christ is one person with two natures, or that angels exist, or that the Blessed Virgin Mary was conceived without sin. But every single politician, no matter his or her faith commitments, operates based on personal belief, on what they believe to be true and good and just. The very same politicians who will say that a personal belief based in religious faith is inadmissible in public debate will turn right around and say things like “I believe that health care is a human right and should be made available to all.” One wonders what makes this appeal to personal belief more acceptable than to say “I believe life has dignity and worth from the moment of conception and should be legally protected.” Each is a “personal belief” not shared by all in a pluralistic society. Why is one acceptable to voice and the other not?
Second, this position is also quite simply false: one can easily argue against abortion and same-sex marriage without any appeal to a religious authority. These positions might be part of the content of Catholic doctrine, but that doesn’t mean that only reliance on Scripture or submission to the pope will justify them. Indeed, it’s a tenet of the Catholic faith that moral principles are accessible to reason unaided by revelation. While Twitter trolls might claim that only silly sky fairy worshippers would oppose abortion, Atheists for Life would disagree. A Catholic can enter the public square and present cogent and persuasive arguments based in natural law reasoning for any number of policies friendly to Catholic teaching that would be persuasive to those who didn’t share his faith commitments.
One would think that this fact would be welcomed as an area of common ground among people of different faiths and of no faith, the forum in which the disparate elements of our society could forge a public consensus. Instead, it is ignored, and replaced with the erroneous claim that certain positions are at best non-rational and at worst irrational. This is a tactic used to discredit the beliefs of millions of Americans without having to discuss or debate them, a straw man erected to be side-stepped without opposition. It’s akin to the stratagem that labels any argument opposing the new social orthodoxy simply as “hate” or “bigotry” rather than engaging it. And now, it appears to be a grounds to disqualify someone from federal office in the eyes of some senators.
Thankfully, Sen. Feinstein has received the appropriate opprobrium from wide quarters—the president of Princeton University and the Los Angeles Times have both written condemnations of the senator’s line of questioning. Yet one can expect that in an increasingly post-Christian society, such attacks on Christians will only multiply. The Constitution may explicitly forbid religious tests for office, but since when has the text of the Constitution hindered left-wing politicians?