Church and State, Cont.

The discussion between Steve Bainbridge and his UCLA Law colleague Eugene Volokh continues, with each man weighing in and a blogging colleague of Volokh's, the pseudonymous Juan Non-Volokh, takes Bainbridge's side.

At issue is whether or not Democrats' efforts to block appointment of Bush's judicial nominees constitutes, or is analogous to, anti-religious (and especially anti-Catholic) bigotry. Here's a portion of Juan Non-Volokh's take on the matter:

I think it is fair to say that at least some Democratic Senators -- and some outside interest groups -- have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect.

Eugene Volokh , responding those words, argues again that, while the effect of the Democrats' policy may be the exclusion of Catholics, their intent is based not on opposition to Catholics qua Catholics, but on opposition to a belief (that abortion involves the murder of a human being) held by Catholics. Volokh goes on to offer a couple of analogies, including one in which Bush refuses to appoint judges who are not in favor of the death penalty. This, he says, would have the same effect: banning Catholics.

Here, however, Volokh is wrong. Although John Paul II taught that he believed the death penalty should almost never be applied, Catholics are under no obligation to agree with him. That is, it is not an article of faith, and it was not pronounced ex cathedra, from the Vatican as ratified by the Pope and the College of Cardinals. Catholics should take this view into account, but they're not obligated to agree or to act on the late Pope's beliefs on this matter.

Another of Volokh's analogies claims that a college's decision to admit students only on the basis of high test scores wouldn't make it anti-black, even though such a policy might have the effect of admitting fewer blacks. But here, the subject has shifted from analogy to alternative argument, because we've moved from a discussion of argued opinion (or faith) as a basis for exclusion to one of qualitative criteria as a measurement instrument for qualification to office and/or admission. No one, that is, has challenged the professional qualifications of Bush's nominees, as would be the case if they discovered that Nominee X graduated dead last in his class, took 14 years to make it through law school, and cannot articulate his views on any legal matter. Were that the case, then Volokh's example would suffice as an analogy; as it stands, he's changed the subject of the debate.

That said, neither Volokh nor Cathy Young has demonstrated that Democrats who oppose Bush's federal judicial nominees aren't, in practice, so opposed to some central beliefs of Catholic doctrine that they are not, in effect, anti-Catholic. This is not a qualitative measure of the appointees suitability for office, but rather part of a larger cultural movement within secular liberalism (and in some quarters of what Walker Percy called "post-Protentant" belief) that is implacably hostile to traditional religious dogma. In that sense, the Democrats who oppose any Bush nominee who is Catholic would surely oppose, just as fervently and with perhaps more outward displays of condescension, an evangelical who was also pro-life.

Let's put the question another way, a way that reflects not cold academic debate (read the Federalist Papers and tell me if our founding beliefs were offered as utterly rational, bloodless, ahistorical logical proofs, or if you think we'd be better off if they were): How many opponents of abortion are also atheists? I can think of one -- Nat Hentoff -- but no more. I'm sure there are others, but few would argue that the overwhelming majority of people who oppose abortion do so on overtly religious grounds. Therefore, to exclude, a priori, any who oppose abortion from the federal bench is to, of necessity, create a situation in which de facto discrimination against persons holding widespread religious beliefs is practiced.

Paul Greenberg discusses the anti-religious bent of modern liberalism, as it's played out in the Senate, with specific reference to Mark Pryor.

It's unbecoming, you see, for church people to participate in the low rough-and-tumble of politics. Their tactics, he says, could "make the followers of Jesus Christ just another special interest group."

So shut up, he explained.

It's all enough to bring back memories of the good ol' bad old days in these Southern latitudes. Back in the Furious '50s, those defending the political status quo relied heavily on the filibuster, too, and they, too, objected to preachers sticking their noses into politics and riling folks.

Back then, it was the Rev. Martin Luther King Jr. and his Southern Christian Leadership Conference (talk about mixing politics and religion) that caused all the trouble and stirred up folks for no good reason.

Religion may be a fine, stained-glass thing in its purely ornamental place, but to actually take a stand on religious conviction and fight for it, whether it's picketing a lunch counter or driving the money-changers from the Temple, well, then you've gone from preachin' to meddlin' -- and become a special interest, to use Mark Pryor's damning description.

Greenberg goes on to argue, persuasively, that religious convictions have played a central role in American politics since our founding, and that neither Pryor nor any of his colleagues on either side of the aisle have any business trying to exclude one group's religious beliefs from the public arena. That's what we're seeing in action today, even if the left isn't hanging up signs that read "No Catholics, No Jews, No N******." What they fear may not be one's ancestry, per se -- after all, the Senate if filled with men and women whose ancestors doubtless found abortion an abomination. But the effect of the litmus test they're applying to judicial nominees strikes at the soul of the believer just as surely as older forms of bigotry struke at skin color or ancestry. The exceptions to this, of course, can be seen whenever conservative blacks or Hispanics are nominated for high office. Just ask Miguel Estrada or Condoleezza Rice.

Update: Steve Bainbridge has posted some responses to his earlier arguments.