That headline is perhaps too blunt a summation of an argument by the UCLA professor emerita of history, Joyce Appleby–but not by much. In a column in the Tallahassee Democrat, Appleby argues that Sonia Sotomayor’s nomination raises concerns because six of nine Supreme Court justices would be Catholic–and that has a big downside, because, well, you know Catholics:
This dramatic change in the composition of the Supreme Court can be traced to the country’s protracted struggle to achieve equality. It reflects our better selves, the ones who want to make up for decades of prejudice and discrimination. But because of the Catholic Church’s active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants.
In truth, religion is not a factor in the majority of decisions that the court will make each year. It might not be relevant at all had not the Catholic Church, with some other denominations, taken public stands on issues of great political significance today.
Abortion comes immediately to mind, but it’s not the only constitutional matter where religion and politics clash. This past week two eminent lawyers, David Boies and Theodore Olson, filed a lawsuit in federal District Court in San Francisco as co-counsel for two gay couples challenging California’s Proposition 8. The California Supreme Court’s upholding of the proposition’s ban on same-sex marriages triggered the action, which seeks relief for gay couples under the Constitution’s protection of equal rights.
The case could go all the way to the Supreme Court, raising questions about the vigorous opposition to same-sex marriages by the church to which five, and possibly six, justices will belong.
Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?
Umm, I would make that argument–and so would the Catholics on the court would argue the same, left, right, and center. I don’t want to go all “Catholic League” here, but this piece leaves me gobsmacked: Appleby seems like a historian condemned to repeat history–the Nativist part.
H/T: Catholic World News