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No Catholics Need Apply For The Supreme Court

So says progressive Ronald A. Lindsay, who laments the demise of good American Catholics who didn’t disagree with the liberal party line: [1]

In the past, Catholics in the U.S. have suffered from prejudice and bigotry. One of the traditional knocks against Catholics had been they did not and could not support the separation of church and state. John Kennedy, along with many other progressive Catholic politicians, did much to lay those fears to rest. They showed that support for a secular state is not necessarily incompatible with being a good Catholic.

Unfortunately, a majority of the Supreme Court may now be resurrecting concerns about the compatibility between being a Catholic and being a good citizen, or at least between being a good Catholic and an impartial judge. In accepting the Catholic Church’s extremely expansive understanding of what constitutes a burden on someone’s religious beliefs, while simultaneously being dismissive of concerns that would be raised by minority religions, the Court majority is effectively undermining confidence in Catholic judges and forcing us to ask the uncomfortable question: Is it appropriate to have six Catholic justices on the Supreme Court?

Ah. So Catholic Supreme Court justices, because they did not rule the way Ronald Lindsay wanted them to rule on a case involving freedom of religion, are now — nudge, nudge — un-American, and therefore not fit to serve on the Supreme Court?

Hey, these Catholic justices are “forcing us to ask the uncomfortable question.” It’s their fault for making poor Ronald Lindsay broach the subject of a religious litmus test for the Supreme Court. His illiberalism is being compelled, you see. “Unfortunately.” He really hates to ask the question, but hey.

Hey Ronald A. Lindsay [2], why don’t you write a column asking if Jews or Muslims are American enough to serve on the Supreme Court. See if HuffPo will publish you then. Unfortunately, you compel me to ask the uncomfortable question: are you an anti-Catholic bigot?

82 Comments (Open | Close)

82 Comments To "No Catholics Need Apply For The Supreme Court"

#1 Comment By Pinkjohn On July 2, 2014 @ 6:49 pm

One cannot blame him for asking these questions when the US bishops insist on forcing Catholic public officials to toe the line.

Your outrage feels a bit forced.

#2 Comment By EliteCommInc. On July 2, 2014 @ 6:51 pm

“this kind of religious protection exists for corporations, why not for all kinds of religious groups and issues?”

If I recall the reason a businesses are taxed is reflect either the person or persons who operate them – representatively. If in fact a corporation is taxed on that basis, as if a person, then it follows that they should also be entitled to other aspects granted people, as citizens.

I don’t like the idea. I am still not sure I buy it. But unless you intend on changing the tax code which operates on that basis, the contention will have legal weight.

#3 Comment By MP On July 2, 2014 @ 6:55 pm

“If this kind of religious protection exists for corporations, why not for all kinds of religious groups and issues?”

But the court acknowledged that (via RFRA) all religious groups have the same recourse – to let their objections be heard, and if they can be accommodated, they can. It’s case-by-case. Be careful not to read the Hobby Lobby case too broadly.

That doesn’t mean that every religious group’s objections can be accommodated nor does it mean that all objections from a particular religious group can be accommodated.

#4 Comment By LauraNo On July 2, 2014 @ 6:57 pm

Why didn’t you address his concerns about the ruling? They are no concern to you in defending the beginning of the end of theseparation of church and state, I take it. I would point out though, that any poll I’ve ever seen asking about the issue shows all Americans but the religious fringe think that separation is very important. I don’t think it is a liberal concern that Catholics on the court are ruling so regressively, so, so CATHOLIC instead of in an unbiased way. They even said this ryuling applies only to Christians objecting to birth control (though the case itself only objected to 4 forms, the very rightwing religious court wildly expanded their ruling to include any and all birth control!!! I wonder, will that include condoms if some person, excuse me, some corporation, claims to feel strong personal feels as owner of say, a 7/11? What a joke this is.

#5 Comment By MP On July 2, 2014 @ 7:01 pm

“Second, there is the notion that a religious belief, if “sincerely” held, overrides hard scientific fact. Here, the Greens believed that at least one form of contraception was, contrary to the best scientific evidence, an abortifacient.”

Is there evidence that an IUD does NOT prevent implantation of a fertilized egg? No. This is precisely what an IUD does.

This question is merely a smokescreen meant to discredit Hobby Lobby; it does not affect the substance of the case brought before the Court. Fortunately, thanks to this ruling, if I owned a business, I would have an objection to making a provision for any type of contraception, abortive or not.

#6 Comment By Mikhail the History Grad Student On July 2, 2014 @ 7:22 pm

While it could be phrased better, I think the point that the religious makeup of the Court is not even remotely representative is a fair point?

#7 Comment By jamie On July 2, 2014 @ 7:36 pm

Saying Alito “relies squarely on Catholic teaching about ‘complicity’ to explain the supposed burden”, as Lindsay does, is simply false, see Thomas v. Review Board.

Hmm, Thomas v. Review Board involved a JW, not a Catholic. Thus Alito on Monday:

The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.

A footnote leads to three authorities on ethics, one theologicaI. I don’t know, that sure sounds like Alito is using “‘complicity’ to explain the supposed burden.” The core of the decision is the establishment of the burden, and Alito identified the burden as the concept of complicity. It mere fact that the woman is choosing for herself wether she wants to use birth control pills does not relax the company’s moral obligations, because the mere fact of them making it available is enough to implicate them.

More interesting implications, like for example, firing an employee for discovering she was paying for birth control pills with her salary, are not explored. The Smith peyote case isn’t dispositive, because the use of birth control pills is not a religious observance, unlike the use of peyote. A religiously-informed right seems to trump a mere right.

#8 Comment By Caroline On July 2, 2014 @ 8:05 pm

Couldn’t robots be created, maybe nine of them, with all possible data about laws, precedents, etc. to replace the humans of the Supreme Court? Wouldn’t that ensure complete objectivity?

#9 Comment By Larry On July 2, 2014 @ 8:10 pm

I don’t think the SCOTUS was looking to the Catechism of the Catholic Church for incites on corporate personhood. I think more than likely they were looking back to there freshman year Law 101 textbook. The first law on the books from Congress 1. U.S.C. 1.
— “In determining the meaning of any Act of Congress, unless the context indicates otherwise […] the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

#10 Comment By Glaivester On July 2, 2014 @ 8:25 pm

Third, there is an insistence on explicitly restricting the ruling to contraception.

I assume that the point here was not to rule that this principle applies to contraception and only contraception, rather than the judges want to be able to rule on these issues on a case-by-case business. That is, if someone wants to sue about, e.g., blood transfusions, they need to bring about a separate case.

Perhaps the Court is reluctant to rule on general principles until they have more cases so they can feel out the possible implications of a broader decision.

#11 Comment By jamie On July 2, 2014 @ 8:49 pm

Before you freak out too much about liberals wanting to exclude Catholics from the Supreme Court, keep in mind that six out of nine justices are, in fact, Catholic.

And even then, most Catholics are perfectly fine with hormonal birth control and don’t actually abide by Humanae Vitae, so a broader point Rod might make is that No Catholics Need Apply to Be Catholic.

#12 Comment By Stephen R Gould On July 2, 2014 @ 8:55 pm

@Jason:The court undertook a very common sort of balancing test.

…which it had no legal basis for doing. Under all prior law and precedent back to the original ruling in the 19th C (IIRC) recognising a limited liability company as a legal person, such a company is a separate person from its owners, even if the number of owners is one (and there are types of LLC where there is indeed only one owner). This was a principle basically violable only in the case of fraud (and then independent of the number of owners).

The rule is simple – or at least, was simple until this clear example of judicial activism: any LLC is a separate person from its shareholders. So why the invention? Well, we all know why – it’s just that some people are reluctant to accept that reason.

#13 Comment By Stephen R Gould On July 2, 2014 @ 8:57 pm

@MP:Is there evidence that an IUD does NOT prevent implantation of a fertilized egg? No. This is precisely what an IUD does.

That was not the only type of contraceptive device under discussion.

#14 Comment By MH – Secular Misanthropist On July 2, 2014 @ 10:00 pm

@MP, the current medical evidence is that both IUD’s available for sale in the US prevents fertilization not implantation:

[3]

So they’re not abortifacients according to the medical evidence.

#15 Comment By David J. White On July 2, 2014 @ 10:24 pm

John Kennedy, along with many other progressive Catholic politicians, did much to lay those fears to rest.

Yes, and we know what a good Catholic JFK was.

#16 Comment By Siarlys Jenkins On July 2, 2014 @ 11:46 pm

There has never BEEN a Muslim on the Supreme Court, and Jews have never been the majority. I think Lindsay has a valid point. There are hazards to a MAJORITY of the Supreme Court being Roman Catholic. There are hazards to the way Scalia, Thomas and Alito, in particular, apply their Catholicism to their duties as justices.

A marked contrast would be Frank Murphy, who inspired Cardinal Spelman to say “I don’t understand how the Catholic member of the Supreme Court could go along with…” a decision that states may not provide funds to parochial schools. Murphy understood (although the Cardinal did not) that he was not there to represent the interests of his church, but to expound what the Constitution says. I’m not confident that Thomas or Scalia understand that, and its a little early to say for sure about Alito, but he’s had some bad days. On the other hand, Sotomayor is also Roman Catholic (and I don’t count her a sure vote for SSM either).

(David J. White is doing his best to prove that a “good Catholic” is NOT qualified to sit on the Supreme Court.)

:The court undertook a very common sort of balancing test.

Balancing tests are the problem. Either government has jurisdiction, or it doesn’t. Balancing tests are an invitation to judicial activism, as Justice Alito proved in his most recent opinion.

#17 Comment By William Dalton On July 3, 2014 @ 1:28 am

Everyone seems to have missed the fact that Justice Sotomayor is on the Supreme Court, and placed there by President Obama and a Democratic Senate. There may be a litmus test forming against those holding particular religious convictions, as much as there has been one regarding particular constitutional convictions. But that is not the same as church affiliation, and we are still a long ways from that.

#18 Comment By EngineerScotty On July 3, 2014 @ 2:04 am

As a liberal, I’m concerned first and foremost about the number of reactionaries on the Court. That they all happen to be Roman Catholic is interesting trivia.

As far as to whether or not the justices are permitting their religious faith to unduly affect the discharge of their duties (the key word is “unduly”), I often suspect this of Scalia. I don’t suspect it of Thomas or Kennedy, and don’t have an opinion about Alito or Roberts (or Sotomayor) in this regard.

#19 Comment By Deggjr On July 3, 2014 @ 7:39 am

Six, not five Catholic Supreme Court Justices, thanks Chris 1.

Now I’m 20% more mystified by the TAC story headline.

Catholics believe the pope is [4]. Catholic politicians are threatened with [5] for being pro-choice. Catholics who don’t follow every jot and tittle of Catholic doctrine are labeled ‘cafeteria Catholics’ (that seems to have lessened under Pope Francis I).

Lindsay’s question is a logical question when the Supreme Court grants corporations religious rights in order to rule according to Catholic doctrine.

#20 Comment By Franklin Evans On July 3, 2014 @ 10:22 am

David White: Why does that matter? I’ve spent my life meeting Christians who are shocked to learn what a nice person I am despite their being convinced I’m a devil’s spawn, Satan worshipping Pagan. Telling them point-blank that I know who my parents are and that I don’t believe in their Satan was not what convinced them.

Of course, keeping my horns and cloven hooves hidden doesn’t help either… sheesh.

#21 Comment By Franklin Evans On July 3, 2014 @ 11:52 am

Siarlys’ comment puts my objection into high relief:

I think Lindsay has a valid point. There are hazards to a MAJORITY of the Supreme Court being Roman Catholic. There are hazards to the way Scalia, Thomas and Alito, in particular, apply their Catholicism to their duties as justices.

Please, Siarlys, someone enumerate the hazards. Please be specific. I’ll disclose the standard I have in mind: that a justice, any justice, will rule against the jurisprudential precedent and logic of a case based on personal religious or other beliefs. In short, the justice will rule out of prejudice against the facts of a case.

I’m not any sort of lawyer, let alone a constitutional one, but it seems to me an impeachable offense to rule in fashion.

#22 Comment By MP On July 3, 2014 @ 12:33 pm

@MH:

“the current medical evidence is that both IUD’s available for sale in the US prevents fertilization not implantation”

Well, did you read the link you posted?

“One type [of IUD] releases the hormone progestin, which causes the cervical mucus to become thicker so the sperm cannot reach the egg. The hormone also changes the lining of the uterus, so implantation of a fertilized egg cannot occur.”

I grant that copper-releasing IUDs don’t prevent implantation. But popular IUDs such as Mirena absolutely do.

#23 Comment By MP On July 3, 2014 @ 12:37 pm

@Stephen R Gould

“That was not the only type of contraceptive device under discussion.”

So? Even if Hobby Lobby was wrong about _one_ type of contraception, it doesn’t negate their case, either specifically (seeing as how there ARE contraceptives that do actively attempt to prevent implantation should fertilization occur), or generally (Hobby Lobby could refuse coverage for all contraceptives if it so desired, according to the opinion of the Court).

These are merely attempts to discredit Hobby Lobby, which is a futile and largely moot point at this juncture.

#24 Comment By Stephen R Gould On July 3, 2014 @ 3:58 pm

@MP:Even if Hobby Lobby was wrong about _one_ type of contraception, it doesn’t negate their case

No, but it makes the decision more difficult – if a religious group holds a sincere belief which is contrary to fact, how much respect is owed that group or that opinion by the courts? If a group says, “we’re opposed on religious grounds to paying for X, and we believe that treatment Y has the effect of X so we don’t want to pay for X” should the courts say, “we accept your sincere belief wrt X but we find as a matter of proven fact that Y does not lead to X, so you cannot avoid paying for Y?” You would, presumably, say no. On fine capitalist principles, this approach would reward increasingly bizarre non-factual claims.

These are merely attempts to discredit Hobby Lobby

I’m not attempting to discredit Hobby Lobby. I am attempting to show the religious bias inherent in the majority decision – judging by the actual responses, so far successfully.

#25 Comment By MH – Secular Misanthropist On July 3, 2014 @ 7:22 pm

@MP, if the sperm can’t get through the cervical mucus then fertilization won’t occur, rendering implantation a non issue.

#26 Comment By MH – Secular Misanthropist On July 3, 2014 @ 9:16 pm

@MP, also during the Supreme Court case, the American College of Obstetricians and Gynecologists and several other medical associations filed an amicus brief stating there was no scientific evidence that emergency contraceptives or IUD’s were abortifacients.

They did say that if an IUD was used as an emergency contraceptive, then it could prevent implantation, but that’s not how an IUD is used.

Justice Alito essential conceded this point and said that the facts didn’t matter. Sincerely holding an erroneous belief was covered. That’s why many people are ticked off about the decision.

#27 Comment By Siarlys Jenkins On July 3, 2014 @ 10:58 pm

Franklin, nice summation. I think that was why I sort of inchoately thought of Justice Murphy and Cardinal Spelman as an example of how a Roman Catholic justice can be a credit to the court, and how one might not.

Glenn Garvin, a Miami Heraldcolumnist, critiqued the Aereo ruling, highlighting an admirable dissent by Justice Scalia — who seems more attuned to the high tech world. Garvin mentioned, dripping with justifiable sarcasm, “To be fair, Breyer wrote that cloud-storage services won’t be affected by the Aereo decision because, well, he says so. He didn’t offer a single shred of reasoning as to the difference. Then again, he didn’t offer any reason why Aereo is different than a host of other technologies that help you watch television.”

I think both the Aereo decision and the Hobby Lobby decision are showing the same weakness, the same lack of intellectual rigor and integrity. In both cases, a justice who is trying to be pragmatic and arrive at a desired end, assures us that the law they are writing will go no further than the specific end they seek.

You can’t do that with law. Either the government has power to act, or it lacks jurisdiction. Either the law shelters the plaintiff from state action, or it does not. Either the broadcaster owns its signal through each and every retransmission, or it loses ownership once it broadcasts into the ether. If you make one exception, you MUST make a host of others ( or some other courts will find themselves constrained to do so).

That is the essence of the EQUAL protection of the laws.

Exactly when or whether a given contraceptive device does or does not deny implantation to a fertilized zygote is irrelevant. The question is whether a power or authority which believes or disbelieves does or does not have legitimate jurisdiction to impose their conclusions on another party. Nothing more, nothing less.

#28 Comment By Pepe Fanjul’s gardener On July 4, 2014 @ 12:46 am

This gem of an ad is being run in the New York Times. The individuals who ran it would certainly fit in with an 1850s Know Nothing denouncing “Roman popery.”

[6]

#29 Comment By Siarlys Jenkins On July 4, 2014 @ 6:22 pm

gardener…that ad in the NYT is inflammatory, and does not get to a coherent analysis of what is wrong with the JUDICIAL decision it critiques. (Judges don’t legitimately make value judgments, they rule on what the law IS, and how the constitution allocates or restrains the exercise of power).

But, just because the ad critiques the undoubted impact of several justices’ Roman Catholic faith on the way they do their job, does not make the authors Know Nothings. If the church successfully exercised the level of control over its members that the Know Nothings claimed, then the Know Nothings would have been correct — Roman Catholics could not be trusted with the franchise in an elective republic. The argument against the Know Nothings boiled down to, ‘nonsense, Catholics are people and they think for themselves in a diverse variety of ways.’ Sometimes, events suggest the Know-Nothings may have been right after all. That’s sad, because it is certainly avoidable.

By the way, the slogan attributed to Margaret Sanger, “No God, no master” was not Sanger’s at all. It was carried on a banner prepared by an agent provocateur in the pay of textile mill owners during the strike of 1912. Elizabeth Gurley Flynn, the Irish Roman Catholic wobbly communist rebel girl labor agitator was furious.

#30 Comment By Franklin Evans On July 4, 2014 @ 7:14 pm

Please forgive me, friend Siarlys, but either you need to retract your “hazards” rant or actually answer my question’s specific implication that a charge of bias to this or any court is sour-grapes hyperbole of the most egregious order. So far, all I see is the use of an already recognized crime as being specific to (in this case) Catholics.

People accused Nixon of corruption. They then provided evidence. My position is either provide evidence of religious-bias corruption of just one SCOTUS justice or shut the f**k up.

No, I’m not happy about this tangent.

#31 Comment By Bob Zannelli On July 15, 2014 @ 7:40 am

In an ideal world, we wouldn’t have people mired in organized superstition making important decisions for the whole country and this is especially true in the courts. But we don’t live in an ideal world. However, you would hope that supreme court justices who have sworn to uphold the constitution wouldn’t ignore the constitution in favor of Catholic dogma. Imagine arguing about Birth control in the 21st century. Unbelievable.

#32 Comment By Nancy On January 1, 2016 @ 1:52 am

If it were true that there were six Catholics on The Supreme Court, then the Sanctity of human life from the moment of conception, and the Sanctity of marriage as God intended would be secured and protected. Catholics recognize the self evident truth that a human person can only conceive a human person, that every son and daughter of a human person can only be a human person, and that only a man and woman can exist in relationship as husband and wife, and thus be married to each other. It is not true that there are six Catholics on The Supreme Court as one cannot be Catholic if one is not in communion with Christ and His One, Holy, Catholic, and Apostolic Church. (Catholic Canon 750)