Posted on by rjonakait

Snippets

In anticipation of the overruling of Roe, states passed new abortion laws, a number of which do not permit abortions even when the pregnancy was the result of rape or incest. These laws were passed primarily with the votes of conservative men. I assume they are concerned that otherwise their potential offspring might not be carried to term.

After the draft abortion opinion was leaked, many people, including Clarence Thomas, said that the leak irrevocably harmed trust in the Court. Now that the opinion is out, I no longer hear how harmful the leak was. How much was your faith in the Supreme Court harmed by the leak?

I have been thinking of a truism: Life is a sexually transmitted disease.

At this time of year, I remember the truism: Nothing is responsible for more false hopes than one good cantaloupe.

Was the comedian right who said that he believed in abortion and that often it should be mandatory–and retroactive?

At the riveting January 6 hearings, I notice that witnesses and representatives swig and swallow water from little plastic bottles. Is this environmentally unsound practice some sort of security measure?

I had not thought of Donald Trump as a contemporary artist before, but I am almost positive that I saw broken crockery on the floor with ketchup dripping down the wall in an offbeat gallery a few years ago.

The football coach’s prayers at the 50 yard line are constitutionally protected according to the Supreme Court. I assume that he was unaware of Jesus’s guidance in Matthew 6: 5-6: “And when you pray, you must not be like hypocrites. For they love to stand and pray in the synagogues and at the street corners, that they may be seen by others. Truly, I say to you, they have received their reward. But when you pray, go into your room and shut the door and pray to your Father who is in secret. And your father who sees in secret shall reward you.”

Many “patriots,” it seems, besought pardons from then President Trump for their activities in trying to overthrow an election. Trump did give pardons and commutations to some, such as Michael Flynn and Roger Stone, for crimes that were not related to January 6. Why, then, not to the others? I went to the closet in the guest room where I had tucked away my lawyer’s hat and put it on. I wondered what advice I would have given Trump about those pardons. First, I thought, “Get the money upfront.” Criminal defense attorneys know that it is hard to collect fees once a client has been sentenced to jail. And with Trump’s penchant for stiffing people (and for his not-very-likely-but-wished-for incarceration), the imperative–Get the money upfront–would have been even more important. Once I got beyond that financial consideration, I realized that I would have advised Trump not to give out pardons for anything related to January 6. Once Jim Jordan, Rudy Giuliani, Mark Meadows, and others were pardoned, they could no longer incriminate themselves about January 6 because they would no longer face criminal charges concerning those events. They could no longer validly claim the Fifth Amendment right against self-incrimination. Legally they would be required to testify about anything to do with trying to stop the lawful transfer of power or face contempt. It could not help my hypothetical client Trump to have such testimony. Therefore, I would have advised, don’t give the pardons.

The person who claims to be a self-made man usually admires his maker.

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The Termination of Roe

          The Supreme Court has terminated Roe v. Wade. Many of the most important consequences of aborting the constitutional right to abortion are obvious, but I have also been thinking about other effects.

          There is a glimmer of good news in the Supreme Court case that overruled Roe v. Wade. The opinion in Dobbs v. Jackson’s Women’s Health Organization averred that there was no right to abortion specified in the Constitution, but it also held that access to abortion was an issue for the states to decide. I had little doubt that the Court would kill Roe, but I was concerned that in doing so, the majority would suggest that a fetus was a human being. This, of course, is a common view. For example, in an opinion piece in the New York Times published on the day Roe was overruled, Karen Swallow Prior, a research professor at Southeastern Baptist Theological Seminary, wrote that if you believe as she does “that abortion unjustly ends the life of a being that is fully human [Emphasis added], a life that exists independently of the will of the mother, is self-organizing and unique, developing yet complete in itself, then you will understand Roe not as a ruling that liberates but as one that dehumanizes—first the fetus, then the rest of us.”

          People who have beliefs like Prior’s will seek to have states that do not already have laws making abortion criminal to pass them. They will not have success everywhere. I doubt that will be the end of their efforts. When they lose in the state legislatures, they will turn to the courts hoping to get rulings outside the democratic process that a fetus is a human being. If courts ever conclude that, then an abortion would be depriving a life without due process of law. Abortion would be illegal everywhere.

          But right now, there is that small bit of good news that the Dobbs Court held that abortion is an issue for the states.

          A justifiable concern is that with Roe overruled, other Supreme Court precedents that relied on reasoning similar to Roe’s will also fall. Clarence Thomas concurring in Dobbs said that Griswold v. Connecticut (1965), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015) should also be reconsidered, and there is little doubt that he would overrule them all. Alito’s opinion stressed that only abortion was at issue in Dobbs, and Kavanaugh concurring suggested that the Court should not consider other precedents. However, if the Court is consistent, these other decision, too, could be overruled. So what would that mean?

          Obergefell held that there was a constitutional right to same-sex marriage. The consequences of striking it down and returning the issue to the states are obvious. Griswold held that married couples had the constitutional right to access birth control, a right that was extended to non-married couples by the Supreme Court in 1972 in Eisenstadt v. Baird. I don’t imagine that states will rush to outlaw condoms and birth control pills. At the time of Griswold, only Connecticut and Massachusetts had such laws. However, many state legislators have stated an intention to ban the morning-after pill and intrauterine devices under the theory that IUDs and the medication cause abortions. If Griswold is overruled, these laws will be constitutional because states can not only regulate abortion, they can also regulate these forms of contraception.

          Lawrence is thought to hold that laws prohibiting gay sex are unconstitutional. If it is overruled, states could again criminalize this behavior. Lawrence, however, did more than that. Thomas was correct in saying that the case constitutionalized “the right to engage in private, consensual sexual acts.” Some state anti-sodomy laws made oral and anal sex illegal for all people. In these places, married people who engaged in fellatio or cunnilingus were violating the law. Even if Lawrence is overruled, states might not pass such laws again. However, the assumption is that with the fall of Roe, anti-abortion laws that were in effect before Roe and remain on the books are again operative. A similar thing could happen if Lawrence is overruled. Laws still on the books would be back in effect. Gays, and perhaps others, would be breaking the law.

          This makes me think back to my childhood. I read the local newspaper of my town of 45,000 growing up, and I learned early that people were arrested for adultery, fornication, and cohabitation, and some even went to jail. I understood what murder and assault were, but I did not understand these other crimes. I asked the parents what these offenses were. I could tell that my question embarrassed them, and their explanations were vague and filled with hemming and hawing. What I did learn at the age of eight was that at least sometimes I needed a source of knowledge other than the mother and father. So, when there was an arrest for rape reported in the paper, I looked up the definition in a dictionary and I learned that rape was “unlawful carnal knowledge.” That did nothing to further my understanding.

          In the local Sheboygan police reports, it seemed that people were being arrested for such offenses on a weekly basis. And, indeed, A Wall Street Journal article in 1968 reported that in 1967 in my hometown “there were thirty-five arrests for adultery, eleven for fornication, twenty-seven for lewd and lascivious cohabitation.” Elizabeth H. Pleck, in her book Not Just Roommates: Cohabitation After the Sexual Revolution, says that the local paper, the Sheboygan Press, published with pride the entire WSJ article, and the town took honor in being the cohabitation arrest capital of the United States in the 1970s. (Not Just Roommates can be found on Google books.) The cohabitation law was repealed in 1983, but it was enforced as late as 1978.

          I believe that the fornication law, too, was repealed, and in any event, such laws are unconstitutional under Lawrence. I have read that the Wisconsin adultery law, although now not enforceable, is still on the books as a felony, and probably other states also retain such a law, too. If Lawrence is overruled, those laws can again be enforced. Of course, there will be nothing like full enforcement of the laws against adultery or fornication. Our court and jail systems could not handle the cases even, perhaps especially, in the South where divorce rates are higher than in much of the North.

We can, however, expect that there will be pockets around the country where the laws will sometimes be enforced. Back in the day the Sheboygan police chief said that most of the arrests for sexual offenses resulted from neighbor’s complaints. The arrests, however, also clearly comported with his personal sense of morality. Offended neighbors are still with us as are enraged spouses or ex-spouses, and in some places, they will clamor for arrests and prosecutions. And religious zealotry is certainly with us. After all, while the Bible does not mention abortion, it does condemn adultery and fornication. We can expect that some police chiefs and sheriffs will hear the call from what they think is God (as well as the call of publicity and political ambition), and they will do what they claim is His will.

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Snippets

The headline referred to “corporate profiteers.” Isn’t that redundant?

Do the French call it the English Channel?

A hockey player was suspended for slew footing. Slew footing must be the greatest name ever for a sports infraction. Surely baseball’s balk, basketball’s charge, soccer’s offside, and football’s pass interference don’t measure up. (But false start has some potential on the colorful front.) I am not a great hockey fan and don’t believe that I have ever seen it, but I gather slew footing is dangerous. When I first heard of slew footing, I did not know that it was a hockey term and assumed that it was something that happened in a Harlan County holler.

I like Christmas carols, or at least most of them. However, I could live happily if I only heard The Twelve Days of Christmas once in a season, or perhaps not at all. And it contravenes the Christmas spirit to give someone 78 gifts.

Knitting seems magical to me. How do those two needles and a ball of yarn construct something that stays together in a useful shape?

I assumed that the Michigan school shooter was not Black when I realized that Fox News was not running wall-to-wall coverage of the killings.

I have seen reports that the country is having an increase in murders. Another way to say this is that the increase in firearm killings that began under President Trump continues.

I like manatees. I have swum with manatees. But I don’t believe that they exist. They are not mentioned, not even once, in the Bible.

I read the Bible fairly often. I have read much Shakespeare and have seen many performances of his plays. Yet, to my deep regret, I can quote from memory little of the Bible or Shakespeare.

“What men usually ask of God when they pray is that two and two not make four.” Anonymous.

“The formula ‘Two and two make five’ is not without its attractions.” Dostoevsky.

“The handwriting on the wall may be a forgery.” Ralph Hodgson.

A topic for further consideration: The grounds upon which the Supreme Court narrows or overrules Roe v. Wade are crucial. If the Court decides that women do not have a constitutional right to abortion, states can pass laws that allow women to terminate pregnancies. If the Court says that a fetus is a human being with rights, then states could not allow abortions.

“He is a prince.” Doesn’t sound derogatory. But compare: “She is a princess.”

I adopted an Asian child. They take care of their parents in old age.

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Let’s Expand the Texas Abortion Law

 I admire the Texas abortion law. The admiration does not extend to its substance, which bans abortions once a fetal heartbeat is detected, about six weeks after conception. Its substance is blatantly unconstitutional. Instead, I admire the law for its ingenious enforcement mechanism and wonder how that mechanism could be extended to other new laws. But first, what do we know about the new abortion law in Texas?

Texas Senate Bill 8 (SB 8), the Texas Heartbeat Act, states that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” In short, the doctor must test for a fetal heartbeat and keep records of those tests.

While this provision effectively outlaws almost all abortions, SB 8’s real innovation is its enforcement mechanism. Other abortion restrictions criminalize the procedure and put enforcement in state hands. Those seeking to prevent the application of such laws have sued to prevent the government officials from enforcing the statutes. In Roe v. Wade, for example, Wade was the Dallas District Attorney, and the plaintiff asked the court to enjoin or stop him from enforcing the abortion laws.

The Texas Heartbeat Act, however, expressly forbids all state and local government entities or officials from enforcing the law. Instead, the law “shall be enforced exclusively through the private civil actions described” in the law. The law states that “any person, other than an officer or employee of a state or local governmental entity in this state [Emphasis added], may bring a civil action against any person who: performs or induces an abortion” after a fetal heartbeat or “knowingly engages in conduct that aids or abets” such an abortion “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation” of the law. A person successfully bringing such a suit shall be awarded “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced” after a fetal heartbeat or for each such abortion that a defendant aided or abetted.

 “Any person” can bring an action under SB 8. The law does not restrict claimants to Texans. Californians and New Yorkers can seek the money. That may be surprising, but even more surprising is the conservatives who enacted this law allow even undocumented migrants to be claimants. Indeed, the law on its face allows Russians and Chinese to bring the civil actions. Its breadth is breathtaking, [deleted because it seems to refer to an aborted fetal heart] but the expansiveness goes beyond the pool of people who can enforce the law; it includes a remarkable number of people who are liable under the law.

The statute authorizes an action not only against the doctor performing an abortion after detection of a fetal heartbeat, but also against anyone who aids or abets such a procedure. However, it makes a radical change to the legal concept of aiding and abetting. Liability is not limited to those who know or suspect that a prospective procedure will be illegal. Instead, the law provides for liability “regardless of whether the person knew or should have known that the abortion” would be performed after a fetal heartbeat. The aider or abettor can escape liability only if he or she “reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied” or would comply with SB 8. The law, however, does not give a clue as to what constitutes a reasonable investigation. Is asking the physician sufficient? Or must a person see and be able to interpret the heartbeat test result? Or perhaps an opinion from a second physician who is not otherwise connected with the proposed abortion will be necessary. Only when, if ever, courts authoritatively define a “reasonable investigation” can abortion aiders or abettors know how to avoid liability, and until then they will have the risk of liability for violating the statute.

The risk of liability is expanded by the law’s provisions that there is no defense for reliance on a court decision overruled on appeal, “even if that court decision had not been overruled when the defendant engaged in conduct that violates” the law. For example, assume that a court has ruled that a defendant had conducted a reasonable investigation by getting a signed assurance from the physician that no heartbeat has been detected. The nurse or anyone else assisting in other abortions may wish to rely on this court ruling. But wait. The nurse can still be liable if a higher court, perhaps years later, rules that a reasonable investigation now requires more than the signed assurance. The nurse will have years of risk of liability, and there will be nothing that person can do to mitigate the risk, except, of course, stop participating in abortions altogether, which seems to be one of the purposes behind the law.

The Fetal Heartbeat Act does not define what actions fall within aiding or abetting, and no one can now know what is covered, for this is a new concept. SB 8 unmoors the terms from their accepted meanings in criminal law. A person does not aid or abet a crime unless he at least knows that a crime is being or will be committed. Donald asks you to drive him to the bank because, he says, his car is at the mechanics. You do the favor, but once inside, Donald robs the bank. Since you did not know he was going to do that, you are not guilty of aiding or abetting the robber.

The Fetal Heartbeat Act, however, makes someone liable if he “knowingly engages in conduct that aid or abets” an abortion after a fetal heartbeat “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation”[Emphasis added] of the law. The driver, who knowingly drove the car, is only liable for the bank robbery if he also knew about the intended theft, but the abortion aider is liable without any knowledge of the forbidden procedure or perhaps without any knowledge of an abortion at all.

Uber dispatches a car to pick up a passenger. A woman, not visibly pregnant, gets in and the driver transports her to 123 Abbott Drive. The driver may not know that that destination contains an abortion clinic; he may not be aware of it even when he arrives since the clinic may keep a low street profile. An abortion in violation of the statute is performed. The Uber driver has no way of knowing about that procedure. Is the Uber driver civilly liable as an aider or abettor? I aid and abet a robbery only when I consciously transport the robber to the location knowing his plans. That action, with the guilty state of mind, makes me criminally liable. No guilty state of mind, however, is required for liability under the Fetal Heartbeat Act, but only the conscious act that aids. The Uber driver has knowingly transported the woman to the location and therefore should be liable.

Perhaps it seems farfetched to make the driver and Uber pay $10,000, but the literal words of the statute apply, and until the highest court in Texas rules otherwise, Uber and the driver are both at risk for at least $10,000 in damages. The claimant who seeks damages from the physician alleging a violation of the statute has every reason to include the driver and the company in the suit since it will take the claimant and the attorney little more time and effort to name them as defendants in addition to the doctor. With this risk hanging over such businesses, soon the drivers and companies will know that 123 Abbott Drive houses an abortion clinic and will refuse to take passengers there.        

But the risk for “third parties” extends to many more than Uber drivers.

(continued Sept. 22)

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Baptists-American, South, and Right (concluded)

          In the days when I attended the church, Baptists seldom mentioned abortion. That may have been because then there was little public discussion of it. I have learned since then that there were many private conversations about the practice because many people sought one. The lack of a Baptist discussion, however, may also have been due to Baptists’ reverence for the Bible and for liberty of conscience. The last time I checked a biblical concordance—admittedly quite some time ago, but surely this has not changed—the word “abortion” was not in it. One has to interpret or extrapolate from verses and contexts to conclude that the Bible condemns abortion. Biblical passages can be construed to say that life begins at conception, but what “conception” meant in biblical times is not clear. I doubt to ancient Israelites it meant a sperm fertilizing an egg. Other biblical passages, however, indicate life begins with the first breath. But even though the Bible does not explicitly, and may not implicitly, condemn abortion, it is also hard to suggest that it supports the view that abortion should be the choice of the woman and her doctor.

          A Baptist, however, might extrapolate from Baptist principles and conclude that because there are ambiguities in the Bible on the matter, whether an abortion is sinful must remain a matter of conscience. The opinion would hold that the state cannot dictate what is sinful and should not dictate that a woman cannot have an abortion. In fact, when some states began to change their absolute proscriptions of abortion before Roe v. Wade in 1973, many Southern Baptist leaders held quite liberal views on the subject. For example, a poll in 1970 found that 70% of Southern Baptist ministers supported abortion to protect the mental or physical health of the pregnant woman; 64% supported abortion in cases of fetal deformity; and 71% supported abortion in cases of rape. The next year the Southern Baptist Convention passed a resolution stating, “We call upon Southern Baptists to work for legislation that will allow the possibility of abortion under such circumstances as rape, incest, clear evidence of severe fetal deformity and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.”

          This liberal viewpoint, however, soon vanished. Since Roe v. Wade, the Southern Baptist Convention has passed many resolutions about abortion that are much different from the 1971 pronouncement. On the thirtieth anniversary of Roe v. Wade, the Convention stated that that Supreme Court “decision was an act of injustice against unborn children as well as against vulnerable women in crisis pregnancy situations. . . . We lament and renounce statements and actions by previous conventions and previous denominational leadership that offered support to the abortion culture. . . . We pray and work for the repeal of the Roe v. Wade decision and for the day when the action of abortion will be not only illegal but unthinkable.”

In the last quarter of the twentieth century, then, Southern Baptist shifted away from dogmatic opposition to school prayer and aid to religious school and towards dogmatic opposition to abortion.

And now comes Critical Race Theory, a slogan that appeals to the emotions more than a meaningful phrase that can be rationally discussed. (See posts of June 23, 2021 Advice About Critical Race Theory – AJ’s Dad (ajsdad.blog) and May 10, 2021 From “Socialism” to “Diversity” – AJ’s Dad (ajsdad.blog)) I gather that Southern Baptists are not agreed about CRT, but many maintain that it is anti-Christian. I confess to not fully understanding why. I think all agree that it is neither condemned nor praised in the Bible, but somehow, to some, it promotes a worldview that is “unbiblical.” Perhaps I have not applied myself enough, or perhaps I don’t care enough, but I don’t understand this worldview stuff. I do note, however, that income inequality, incarceration of children at our southern border, a low minimum wage, or the blind eye turned toward sexual abuse apparently do not promote an unbiblical worldview.

Perhaps the changed views about public aid to non-public schools, abortion, and critical race theory are religious ones, but they are assuredly different from those about adult baptism or transubstantiation (I think it was Mark Twain who said, “Do I believe in adult baptism? Yes. I have even seen it.”) They are all opinions that affect how people vote, not how people worship. Southern Baptists, for example, now want their elected officials to be strongly against abortion, generally friendly to public support of religion (or at least some forms of religion), and against the promotion of the concept of structural racism. This certainly has had importance for the country since the Southern Baptists, even with a membership decline, remain the country’s largest Protestant denomination.

Over the last generation or two Southern Baptists have moved even further to the political right than they were before. Theology does not define them as much as their rightist political views, which often includes a commitment to gun rights and exemptions from laws because of religious beliefs.

Baptists and other evangelicals, have become a major political force. Baptists are at the core of the modern conservative movement even though these Baptists no longer seek the traditional principles that defined Baptism. They now advocate the intermingling of church and state. Toleration of private consciences no longer seems a defining principle.

Nevertheless, when I see one of those white frame New England Baptist churches, I still hope that their congregants believe that religion should not be founded on ritual or coercion or enforced rules. Instead, it should be founded on the consciences of individuals, persuasion, reason, and toleration. I want those bedrock principles of Baptism, and of the country, to remain.

 

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To Save Your Soul

John F. Kennedy’s watershed speech to the Greater Houston Ministerial Association in September 1960 still reverberates. Kennedy, of course, was a Catholic, and a group of Protestant ministers that election year had promised to “oppose with all powers at our command, the election of a Catholic to the Presidency of the United States.” Norman Vincent Peale, one of the most revered clergymen in the country, headed another religious group that stated that the Catholic Church was a “political as well as a religious organization” that had frequently repudiated the sacred principle “that every man shall be free to follow the dictates of his conscience in religious matters.” Protestants and Other Americans United for the Separation of Church and State stated that it could not avoid the “fact that one church in the U.S., the largest church operating on American soil, officially supports a world-wide policy of partial union of church and state where it has the power to enforce such a policy.”

 In his masterful Houston speech, Kennedy responded:

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all. . . .

Whatever issue may come before me as president — on birth control, divorce, censorship, gambling or any other subject — I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

Kennedy’s speech defused his “Catholic issue,” helped him win the election, and has had a lasting effect. Mainstream figures no longer question a Catholic’s fitness for the presidency. I don’t remember John Kerry’s religion being raised in a negative way at all when he ran for President, and although Trump may have suggested that Joe Biden is somehow bad for the religious, voters don’t seem to be for or against the former Vice President because he is a Catholic. Indeed, we have gone further. Polite political society tends to eschew any questions about how an office seeker’s religious beliefs might affect his governmental performance. (For example, there was little discussion of Mitt Romney’s Mormonism.) Even if, however, this is generally a good thing, there are times that we should drop this political correctness.

Perhaps the most significant development from Kennedy’s speech has been on the Supreme Court. We have not elected another Catholic as President, but the highest court, which for generations had but one Roman Catholic, now has six Catholics out of the eight justices. The conservative bloc of five are all Catholic men: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, and Amy Coney Barrett, also a Catholic, if confirmed, is expected to join those five men on the conservative wing of the Court. (On the liberal side, Sonia Sotomayor is also Catholic.) This Catholic domination of our highest court draws only a few comments as has the waning of white Anglo-Saxon Protestants on the judiciary, but, of course, it was once much different. Aristide R. Zolberg in A Nation by Design: Immigration Policy in the Fashioning of America (2008) reports that of the federal judges appointed by Harding, Coolidge, and Hoover, 170 were Protestant, 8 Catholic, and 8 Jewish. (Change came with FDR. Over a quarter of his judicial appointments were Catholic.)

 JFK, who attended public schools, maintained that his religious views were irrelevant in his quest for the White House. In that 1960 Houston speech, he stated, “I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens to be Catholic.” Even so, Protestant evangelicals opposed Kennedy. His speech may have diffused some anti-Catholic animus, but the evangelicals sixty years ago were still more than a little suspicious of a Catholic president.

The world is different today. Evangelicals today enthusiastically support Amy Coney Barrett. Their support is not in spite of her Catholicism but because of it. They assume that her religious background foretells constitutional and statutory interpretations that evangelicals and other conservatives want. Ads supporting Barrett’s nomination highlight that she is “grounded in faith” and is a “proud Christian.” What is widely reported to be her deep devotion to her religion is part of the reason she was nominated and is given as a reason she should be confirmed.

I expect, however, that she will maintain that her decisions will only be what the law and Constitution require and not because of her religion. She will in effect make a JFK-like pledge to be a secular justice in spite of what those ads and her supporters hint at. Conservatives will fulminate at any mention of religion in the confirmation hearing and suggest that questions that touch on her Catholicism would be an attack on religion that are un-American in our tolerant country. But there are questions that should be asked, and they are not an attack on religion. If, for example, a judicial candidate held a million dollars of stock in IBM, a Senator should be concerned about whether these holdings might affect the candidate’s potential decisions if IBM was a litigant before the court. Such Senatorial questions would not be an attack on the stock holding but a question about a potential conflict of interest.

Money, which can cause conflicts for judges, is a relatively trivial matter compared to concerns for devout Christians such as Barrett about immortal souls and eternal damnation. I am not a Catholic theologian, but my understanding is that the Catholic church maintains that abortion is a mortal sin, brings automatic excommunication, and, if unrepented, results in eternal damnation upon the sinner. In our country of the free exercise of religion, Barrett is entitled to those beliefs and no government official should criticize her for them. On the other hand, it is fair to ask whether those religious views would affect her secular job of being a Supreme Court Justice. Of course, state restrictions on abortions and even whether Roe v. Wade should stand may come to the court. Would Barrett be enabling others to commit a mortal sin if she believed that a pro-choice outcome was the correct legal decision? Would she herself be committing a sin by making a legal decision that goes against Church doctrine? Would she believe that she is putting her soul in jeopardy? I don’t know if the Church has ever denied sacraments to a judge because of judicial rulings, but at least some powerful Church officials have said that legislators who support pro-choice positions should be denied mass, an essential sacrament for a Roman Catholic. (Some church officials have aimed more widely than just at legislators. Last week a news story from La Crosse, Wisconsin, reported, “At St. James the Less, where the faithful eschewed masks, the Rev. James Altman denounced the Democrats. ‘You cannot be Catholic and be a Democrat, period,’ he said in a YouTube Video.”)

          Such questions are not attacking her religious beliefs but inquiring about impartiality. Can you be impartial in your judicial rulings if by your beliefs you are putting the immortal souls of others, and perhaps your own, in jeopardy? (Of course, such questions would be appropriate about issues other than Roe v. Wade and might also be asked about artificial contraception and LBGTQ rights.) And the real issue is not just impartiality, but the appearance of impartiality. A federal statute states, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The judge must not just convince herself that she is impartial, she must appear to be impartial to others.

          Barrett co-authored a law review article in 1998 that is relevant for her confirmation. She considered that our Constitution permits capital punishment but that the Catholic church finds the death penalty immoral, placing Catholic judges in a moral and legal bind. The abstract to the article states that “litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense. .  . . While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating.” The secular law may authorize a death sentence, but Barrett suggests that a Catholic judge cannot impose capital punishment and goes on to maintain that a Catholic judge should recuse herself in the death penalty.

          The law review article was about the death penalty, but it seems to be an illustration of a broader position. If a Catholic judge has to choose between the law and moral strictures as laid down by the Church, the Catholic judge must take the moral road. However, that judge can avoid the dilemma through recusal.  The judge must remove herself from a case that presents such a conflict.

          Barrett, however, might think that there is no dilemma for her when it comes to abortion. She may believe that the Constitution does not protect a woman’s right to choose, a defensible position, and therefore conclude that there is no conflict between the law and her Catholic faith. But the litigants and public are entitled not only to impartial justice but also to the appearance of impartial justice. Just as a judge may sincerely maintain that his decision favoring IBM was impartial, others may think that his stock in IBM at least subconsciously affected the decision. There are reasons to question his impartiality. Barrett may sincerely maintain that she is being impartial in finding no constitutional right protecting abortion, but others will think that her faith affected her judgment at least subconsciously.

          The Senate Judiciary Committee should explore these issues with Amy Coney Barrett. Unless Barrett addresses them in a convincing manner, her intellectual integrity will be suspect, and that is neither good for her nor the Supreme Court.

The dilemma for the Catholic Supreme Court Justice between the law and the Catholic faith on morality does not mean that Barrett’s nomination to the Supreme Court should be rejected. A judge is different from a president. John F. Kennedy pledged that if his presidential duties conflicted with his religious conscience, he would resign the presidency. A president, however, does not have the ability to avoid issues through a recusal. A Supreme Court Justice, however, can avoid having to make decisions when there is an apparent conflict between her religious and secular duties, as there is for a Catholic judge in death penalty cases.

The Senate should be asking Barrett to pledge that when she believes that a legal decision might put her soul or the souls of others in mortal jeopardy, she will recuse herself. This would not be an attack on religion, but an attempt to secure the impartiality and the appearance of impartiality of our Supreme Court.

I can hear you saying, “But the other judges were not asked to make such a pledge.” And I answer, “They should have been.”

Posted on by rjonakait

Conscience of a Baptist (concluded)

          In the days when I attended the church, Baptists seldom mentioned abortion. That may have been because then there was little public discussion of it, although I have learned since that there were many private discussions of the practice as many people sought one. The lack of a Baptist discussion, however, may also have been due to Baptists’ reverence for the Bible and for liberty of conscience. The last time I checked a biblical concordance—admittedly quite some time ago, but surely this has not changed—“abortion” was not in it. One has to interpret or extrapolate from verses and contexts to conclude that the Bible condemns abortion. Biblical passages can be construed to say that life begins at conception, but what “conception” meant in biblical times is not clear. I doubt to ancient Israelites it meant a sperm fertilizing an egg. Other biblical passages, however, indicate life begins with the first breath. But even though the Bible does not explicitly, and may not implicitly, condemn abortion, it is also hard to suggest that it supports the view that abortion should be the choice of the woman and her doctor.

          A Baptist, however, might extrapolate from Baptist principles and conclude that because there are ambiguities in the Bible on the matter, whether an abortion is sinful must remain a matter of conscience. The opinion would hold that the state cannot dictate what is sinful and should not dictate that a woman cannot have an abortion. In fact, when some states began to change their absolute proscriptions of abortion before Roe v. Wade in 1973, many Southern Baptist leaders held quite liberal views on the subject. For example, a poll in 1970 found that 70% of Southern Baptist ministers supported abortion to protect the mental or physical health of the pregnant woman; 64% supported abortion in cases of fetal deformity; and 71% supported abortion in cases of rape. The next year the Southern Baptist Convention passed a resolution stating, “We call upon Southern Baptists to work for legislation that will allow the possibility of abortion under such circumstances as rape, incest, clear evidence of severe fetal deformity and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.”

          This liberal viewpoint, however, soon vanished. Since Roe v. Wade, the Southern Baptist Convention has passed many resolutions about abortion that are much different from the 1971 pronouncement. On the thirtieth anniversary of Roe v. Wade, the Convention stated that that Supreme Court “decision was an act of injustice against unborn children as well as against vulnerable women in crisis pregnancy situations. . . . We lament and renounce statements and actions by previous conventions and previous denominational leadership that offered support to the abortion culture. . . . We pray and work for the repeal of the Roe v. Wade decision and for the day when the action of abortion will be not only illegal but unthinkable.”

In the last quarter of the twentieth century, then, Southern Baptist shifted away from dogmatic opposition to school prayer and aid to religious school and towards dogmatic opposition to abortion. These moves have had more than a religious impact because they are all opinions that affect how people vote. Southern Baptists, for example, now want their elected officials to be strongly against abortion and generally friendly, at least, to public support of religion, or at least some forms of religion. This certainly has had importance for the country since the Southern Baptists are the country’s largest Protestant denomination.

Over the last generation or two Southern Baptists seem to have moved even further to the political right than they were before. Perhaps people who are better historians, sociologists, or theologians than I can explain why, but I do point out that the Southern Baptists were not alone in the rightward lurch during this period. Something similar also occurred with the National Rifle Association, which had been largely an apolitical group interested mainly in marksmanship and gun safety, but was captured by an element that began the NRA’s move to become one of the most important conservative organizations in the country. Both Baptists and the NRA moved to the right at the same time. Is there a connection?

          Baptists, and other evangelicals, have become a major political force. Baptists are at the core of the modern conservative movement even though these Baptists no longer seek the traditional principles that defined Baptism. They now advocate the intermingling of church and state. Toleration of private consciences no longer seems a defining principle

Nevertheless, when I see one of those white frame New England Baptist churches, I still hope that their congregants believe that religion should not be founded on ritual or coercion or enforced rules. Instead, it should be founded on the consciences of individuals, persuasion, reason, and toleration. I want those bedrock principles of Baptism, and of the country, to remain.