Everybody seems to have agreed to tiptoe around the report that Judge John G. Roberts said he would recuse himself in a case where the law required a ruling that the Catholic Church might consider immoral. According to Jonathan Turley, a professor of law at George Washington University, the judge gave this answer in a private meeting with Sen. Richard J. Durbin, D-Ill., who is the Senate minority whip. Durbin told Turley that when asked the question, Roberts looked taken aback and paused for a long time before giving his reply.
Attempts have been made to challenge Turley's version, and Sen. Durbin (who was himself unfairly misquoted recently as having made a direct comparison between Guantanamo, Hitler, and Stalin when he had only mentioned them in the same breath) probably doesn't need any more grief. But how probable is it that the story is wrong? A clever conservative friend writes to me that obviously Roberts, who is famed for his unflappability, cannot have committed such a bêtise. For one thing, he was being faced with a question that he must have known he would be asked. Yes, but that's exactly what gives the report its ring of truth. If Roberts had simply said that the law and the Constitution would control in all cases (the only possible answer), then there would have been no smoke. If he had said that the Vatican would decide, there would have been a great deal of smoke. But who could have invented the long pause and the evasive answer? I think there is a gleam of fire here. At the very least, Roberts should be asked the same question again, under oath, at his confirmation.
It is already being insinuated, by those who want this thorny question de-thorned, that there is an element of discrimination involved. Why should this question be asked only of Catholics? Well, that's easy. The Roman Catholic Church claims the right to legislate on morals for all its members and to excommunicate them if they don't conform. The church is also a foreign state, which has diplomatic relations with Washington. In the very recent past, this church and this state gave asylum to Cardinal Bernard Law, who should have been indicted for his role in the systematic rape and torture of thousands of American children. (Not that child abuse is condemned in the Ten Commandments, any more than slavery or genocide or rape.) More recently still, the newly installed Pope Benedict XVI (who will always be Ratzinger to me) has ruled that Catholic politicians who endorse the right to abortion should be denied the sacraments: no light matter for believers of the sincerity that Judge Roberts and his wife are said to exhibit. And just last month, one of Ratzinger's closest allies, Cardinal Schonborn of Vienna, wrote an essay in which he announced that evolution was "ideology, not science."
Thus, quite apart from the scandalous obstruction of American justice in which the church took part in the matter of Cardinal Law, we have increasingly firm papal dogmas on two issues that are bound to come before the court: abortion and the teaching of Darwin in schools. So, please do not accuse me of suggesting a "dual loyalty" among American Catholics. It is their own church, and its conduct and its teachings, that raise this question.
If Roberts is confirmed there will be quite a bloc of Catholics on the court. Scalia, Kennedy, and Thomas are strong in the faith. Is it kosher to mention these things? The Constitution rightly forbids any religious test for public office, but what happens when a religious affiliation conflicts with a judge's oath to uphold the Constitution? Some religious organizations are also explicitly political and vice versa—the Ku Klux Klan was founded partly to defend Protestantism—and if it is true that Scalia is a member of Opus Dei then even many Catholics would consider him to have made a political rather than a theological choice. Are we ready for a Scientologist on the court rather than having him or her subjected to the equivalent of a religious test? I merely ask. *
Another smart conservative friend invites me to take comfort from Justice Scalia's statement that a believer who finds his conscience in conflict with the law should forthwith resign from the bench. I wish I found this more comforting than it actually is. In the first place, Scalia's remarks had to do with a possible reluctance, on the part of a Catholic, to impose the death penalty. The church's teaching on this is not absolute and is not enforced by the threat of excommunication, though it's nice to know that Scalia regards weakness about executions as a "litmus." In the second place, it is not at all clear that Scalia admits the supremacy of the U.S. Constitution in the first place. In oral argument in March this year, on cases dealing with religious displays on public property (Van Orden v. Perry and McCreary County v. ACLU of Kentucky), he described the display of the Ten Commandments as "a symbol of the fact that government comes—derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds." At another point, he opined that "the moral order is ordained by God. … And to say that that's the basis for the Declaration of Independence and our institutions is entirely realistic." Display of the Ten Commandments, he went on to write, affirms that "the principle of laws being ordained by God is the foundation of the laws of this state and the foundation of our legal system."
To the extent that this gibberish can be decoded at all, it is in flat contradiction to the Declaration of Independence, which is unique precisely because it locates the just powers of government in the consent of the governed, and with the Constitution, which deliberately does not mention God at any point. The Constitution was carefully drafted and designed to guard against majoritarianism, another consideration ignored by Scalia when he opines that "the minority has to be tolerant of the majority's ability to express its belief that government comes from God." (Sandra Day O'Connor, in her last written opinion, phrased it much better when she said, "We do not count heads when deciding to uphold the First Amendment.") Speaking to the Knights of Columbus in Baton Rouge, La., in January, Scalia implored them to "have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world." Whether for "Christ" or not, Scalia is certainly a fool. He should have fewer allies and emulators on the court, not more. And perhaps secular America could one day have just one representative on that august body. Or would that be heresy?