An April 18 Supreme Court ruling approving a federal ban on a rarely used form of abortion has sparked discussion about what role the justices’ religious beliefs might have played in the decision.
The high court ruled 5-4 to let stand a ban on a certain type of late-term abortion in the Gonzales v. Carhart ruling. The lead opinion, authored by Justice Anthony Kennedy, cites “moral concerns” as a justification for curbing the procedure.
“No one would dispute that, for many, [the abortion method] is a procedure itself laden with the power to devalue human life,” wrote Kennedy. “Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”
The language alarmed Justice Ruth Bader Ginsburg, who wrote in dissent, “Ultimately, the Court admits, that ‘moral concerns’ are at work, concerns that could yield prohibitions on any abortion…. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent.”
Kennedy was joined in the lead opinion by the court’s other four Catholics – Antonin Scalia, Clarence M. Thomas, Samuel A. Alito and John G. Roberts. The justices in the dissenting bloc are Protestant or Jewish.
It took a few days for anyone to point this out. Tony Auth, a Pulitzer Prize-winning cartoonist with the Philadelphia Inquirer, got the discussion under way with a cartoon depicting the five justices in the majority wearing bishop’s miters. The cartoon is labeled “Church and State.”
Not long after that, University of Chicago law professor Geoffrey Stone wrote a blog item on Huffington Post, a liberal opinion Web site, accusing the court of relying on weak rationales.
“Here’s a painfully awkward observation: All five justices in the majority in Gonzales are Catholic,” Stone wrote. “The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out.”
The Washington Post reported that Stone’s observation sparked a spirited debate on a University of Chicago faculty blog.
The issue spilled into the popular culture when Rosie O’Donnell, a cohost of the popular daytime talk show “The View,” expressed concern that the ruling may have been influenced by the justices’ personal faiths and suggested it raised issues of church and state.
Religious Right operative Charles W. Colson, an evangelical Protestant who has worked hard over the years to bring Catholics into the Religious Right, quickly cried foul.
In a column in the Christian Post, Colson called the Auth cartoon “a graphic example of anti-Catholic bigotry” and accused O’Donnell of making “bigoted remarks about Catholics.” Colson also attacked Stone
Colson said he planned to circulate a statement condemning anti-Catholicism and said he would ask AU to sign it – even though AU issued no statements about the justices’ religious beliefs in the wake of the Gonzales ruling.
Americans United noted that Colson may be feeling a little defensive about this issue for a reason: While litigating against tax funding of Colson’s InnerChange Freedom Initiative at an Iowa prison, AU attorneys uncovered evidence that the program is rife with anti-Catholicism. This material was entered into the court record.
AU also pointed out that religion is often not a reliable guide to determining how a justice will vote on social issues. Former Justice William Brennan, for example, was a devout Catholic who took the sacrament weekly. Yet Brennan voted to uphold legal abortion and did not believe government aid to religious schools was constitutional.
The problem with some justices on the Supreme Court, AU asserts, is not where they worship; it is that they are right-wing ideologues who were put on the high court to roll back precedent in areas such as personal autonomy and church-state separation.