Fe­in­stein and Dems’ un­seemly re­li­gious test

The Oklahoman (Sunday) - - OPINION - Michael Ger­son michael­ger­son@wash­post.com WASHINGTON POST WRIT­ERS GROUP

Some po­lit­i­cal tastes linger in the mouth like spoiled milk or a bad oys­ter. Con­sider the shock­ingly shabby treat­ment re­cently ac­corded by some Demo­cratic mem­bers of the Se­nate Ju­di­ciary Com­mit­tee to Amy Coney Bar­rett, a law pro­fes­sor at Notre Dame who is be­ing con­sid­ered for a po­si­tion on the 7th U.S. Cir­cuit Court of Ap­peals. Her ques­tion­ers dis­played a con­fu­sion of the in­tel­lect so pro­found, a dis­re­gard for con­sti­tu­tional val­ues so reck­less, that it amounts to anti-re­li­gious big­otry.

Bar­rett is an in­struc­tive test case of sec­u­lar, lib­eral un­ease with earnest faith, par­tic­u­larly in its Catholic va­ri­ety. She is, in the de­scrip­tion of a let­ter signed by ev­ery full­time mem­ber of the Notre Dame law school fac­ulty, “a bril­liant teacher and scholar, and a warm and gen­er­ous col­league. She pos­sesses in abun­dance all of the other qual­i­ties that shape ex­tra­or­di­nary ju­rists: dis­ci­pline, in­tel­lect, wis­dom, im­pec­ca­ble tem­per­a­ment, and above all, fun­da­men­tal de­cency and hu­man­ity.”

Bar­rett is also, not co­in­ci­den­tally, a se­ri­ous Chris­tian be­liever who has spo­ken like one in public. This was enough to make Illi­nois Sen. Dick Durbin, a fel­low Catholic, wary. “Do you con­sider your­self an ‘or­tho­dox’ Catholic?” he asked Bar­rett, ev­i­dently on the the­ory that pub­licly ac­cept­able re­li­gion must come in small, di­luted doses.

It fell to Cal­i­for­nia Sen. Dianne Fe­in­stein, how­ever, to ex­plic­itly de­clare Bar­rett part of a sus­pect class. “Dogma and law are two dif­fer­ent things,” she lec­tured. “And I think what­ever a re­li­gion is, it has its own dogma. The law is to­tally dif­fer­ent . ... 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 for years in this coun­try.” Trans­la­tion: Don’t let your dogma mess with my dogma.

Where to start? How about with the fact that Fe­in­stein’s line of ques­tion­ing was it­self a vi­o­la­tion of the Con­sti­tu­tion? Here is con­sti­tu­tional scholar and Prince­ton Pres­i­dent Christo­pher Eis­gru­ber: “By pro­hibit­ing re­li­gious tests, the Con­sti­tu­tion makes it im­per­mis­si­ble to deny any per­son a na­tional, state or lo­cal of­fice on the ba­sis of their re­li­gious con­vic­tions or lack thereof. Be­cause re­li­gious be­lief is con­sti­tu­tion­ally ir­rel­e­vant to the qual­i­fi­ca­tions for a fed­eral judge­ship, the Se­nate should not in­ter­ro­gate any nominee about those be­liefs.”

How about Fe­in­stein’s in­dif­fer­ence to the sor­did his­tory of an­tiCatholic bias? “Fe­in­stein leapt past 20th-cen­tury sus­pi­cions of Catholic al­le­giances,” le­gal scholar John Inazu told me, “to 19th­cen­tury big­otry to­ward Catholic iden­tity: Who you are as a Catholic is ‘of con­cern.’”

How about Fe­in­stein’s ig­no­rance of re­li­gion it­self? In de­fend­ing her an­i­mus, she called par­tic­u­lar at­ten­tion to Bar­rett’s state­ment that Chris­tians should be “build­ing the king­dom of God.” That would be the king­dom that Je­sus in­sisted is “not of this world.” It is a de­scrip­tion of trans­formed hearts, not a pre­scrip­tion for theoc­racy.

But the deeper prob­lem is a cer­tain type of lib­eral think­ing that seeks to de­clare sec­u­lar ideas the only valid ba­sis for public en­gage­ment. A neu­tral public square, in this view, must be a sec­u­lar public square. Since re­li­gious ideas and mo­ti­va­tions are fun­da­men­tally il­lib­eral, they must be con­tained en­tirely to the pri­vate sphere.

This is a thin and sickly sort of plu­ral­ism. It is per­mis­si­ble, in this ap­proach, to ad­vo­cate for hu­man rights be­cause John Locke says so, but not be­cause of a the­o­log­i­cal be­lief that the im­age of God is found in ev­ery hu­man be­ing. If your views on a just so­ci­ety are in­formed by John Stu­art Mill, they are al­lowed to tri­umph in pol­i­tics. If your views on a just so­ci­ety are in­formed by your deep­est be­liefs about the cos­mos, you can never pre­vail, be­cause this rep­re­sents the im­po­si­tion of re­li­gion. This is hardly “neu­tral­ity.”

In ef­fect, Fe­in­stein would make her sec­u­lar­ism the state re­li­gion, com­plete with its own doc­trine and Holy Of­fice. A judge is bound by the Con­sti­tu­tion, not by any creed — as Bar­rett has af­firmed again and again. But hav­ing a con­science and a char­ac­ter shaped by faith is not a prob­lem; it is part of a rich and pos­i­tive Amer­i­can tra­di­tion. Some­one should in­form the grand in­quisi­tor.

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