Occassional reflections of a moderate (hey at least I think I am)

Tuesday, April 26, 2005

Are religious tests justified for some nominees?

Professor Bainbridge (and Juan Non-Volokh , among others) are arguing with Cathy Young (and Prof. Volokh , among others) about whether it is fair to say that Senate Democrats are engaging in religious bigotry against devout Catholic or Evangelical judicial nominees. I think it is fair to say that Prof. Bainbridge argues that the Democrats are -- in effect -- discriminating against devout Roman Catholics and Evangelical Christians since certain Democrats are referring to reservations about the nominees "values". Young and Volokh (among others) argue that (I think it is fair to characterize) we should refrain from saying that the disparate impact is evidence of discrimination against Roman Catholics and Evangelical Christians.

Here is how screwed up I am. I am more interested in the question that Stop the Bleating (who Prof. Bainbridge cites with approval) states, namely:
If Schumer truly does intend to create a test for judges on the basis of their deeply held moral beliefs about abortion, that test arguably isn't job-related.

and that Mark Kleiman goes some way to answering it (at least as it relates to devout Roman Catholics) when he points to a story where a Vatican official encourages Roman Catholic governmental officials not to execute the duties of their office, even on pain of losing their job.

The case in question there is a proposed law in Spain authorizing homosexual marriage. The Vatican argues that Roman Catholic officials should not officiate same-sex weddings even if it is their duty to. (Curious what the guidance would be for an official called upon to officiate a “civil union”.)

In light of this pronouncement by the Vatican would it be inappropriate for a Senator to ask the following question of a Roman Catholic judicial nominee:
Mr. Nominee you are aware that the Vatican has advised Roman Catholics who are governmental officials that these governmental officials should refuse to comply with appropriately enacted civil laws, even on pain of forfeiting their position. Let us assume that there are some laws of the United States, either by statute or by binding legal precedent, that are contrary to Roman Catholic teaching. Mr. Nominee if the Vatican were to advise judges of the Roman Catholic faith that these were not to approve of certain legal positions or civil laws that violate Roman Catholic teaching would you (a) follow the law, (b) refuse to follow the law or (c) resign your position?

Presumably answering (a) would be good and answering (b) would disqualify the nominee. What would happen if someone answered (c)?

Personally, I think nominees should be taken at their word if they assert that they can put aside personal beliefs (religious or otherwise) and follow the law, unless there is something in their statements to suggest otherwise.


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