Washington, USA - The five justices who turned the U.S. Supreme Court around last week and upheld a ban on one form of abortion have much in common. All are men. All were nominated by conservative Republican presidents. And, it was widely noted, all are Roman Catholic.
Did their religion matter? Should it even be discussed? Following the 5-4 ruling in Gonzales v. Carhart, these questions have been raised and debated in venues from the blog of the American Constitution Society (where Geoffrey Stone, a constitutional law professor, said the justices' religious identity was "too obvious, and too telling, to ignore,") to ABC's "The View," (where Rosie O'Donnell declared, "How about separation of church and state in America?" according to ABC News.)
The pushback from conservative Catholics was immediate, even pre-emptive. Bill Donohue, president of the Catholic League for Religious and Civil Rights, declared, "We need more, not fewer, Catholics on the Supreme Court."
On his Web site, the Reverend Richard John Neuhaus, an influential conservative who converted to Roman Catholicism in 1990, wrote last week, "I expect it is on the minds of many, but so far there has been only marginal public comment on the fact that all five in the Carhart majority are Catholics." He added, "What can one say? Know-Nothings of the world unite?" The Know-Nothing movement opposed permitting Roman Catholics to immigrate to the United States from Ireland in the 1850s.
This discussion was probably inevitable: Roman Catholics, for the first time, hold a majority of seats on the Supreme Court, after decades when there were, typically, only one or maybe two "Catholic seats" on the bench. Two of the Roman Catholic justices, Chief Justice John Roberts and Justice Samuel Alito, were confirmed only in the past two years, in an ideologically charged environment in which all sides were eager for clues on how they might rule on abortion rights and other hot-button issues.
With so much unknown about their legal leanings, their religion became a proxy for both sides, a source of reassurance for conservatives and of anxiety for liberals. But the nominees' supporters discouraged any questions about the role of their faith in the confirmation hearings, essentially arguing that it would amount to an unacceptable "religious test" for public office.
Now, with an actual opinion on abortion from the new court in hand, the debate has moved from the theoretical to the concrete. Some legal scholars say the Roman Catholicism of the five justices, in and of itself, means less than their conservatism. Yes, the church hierarchy denounces legalized abortion, but many Roman Catholics in government, over the years, have drawn a bright line between their private beliefs and their public duties (memorably, John F. Kennedy seeking the presidency in 1960 and Mario Cuomo in his campaign for governor of New York in 1982).
Scholars also note that Justice William Brennan, who was carefully appointed to the "Catholic seat" by President Dwight Eisenhower, turned out to be one of the key supporters of the constitutional right to abortion.
"There can be no greater proponent of a pro-choice vision of the 14th Amendment than William Brennan," said David Yalof, an associate professor of political science at the University of Connecticut and a scholar of the judicial selection process.
John Green, a senior fellow at the Pew Forum on Religion and Public Life, said the existence of a Roman Catholic majority on the court should not be minimized as a historical marker of "just how much the nation has changed over the last century." But, he added, "When it comes to predicting what they will do, it's important to note that this is a Republican Catholic majority."
In fact, Roman Catholicism is very much a two-party religion in the United States. Its vote has typically split in recent presidential elections, and Roman Catholic elected officials fill the top ranks of both parties. The speaker of the House, Nancy Pelosi, Senator Edward Kennedy, Senator Patrick Leahy and the 2004 presidential nominee, Senator John Kerry, are all Roman Catholics, and all are also Democrats who support abortion rights.
Ralph Neas, president of People for the American Way, has been a fierce opponent of many of the Bush administration's judicial nominees. "My problem with the right-wing block on the court is their view of the Constitution, not their religion," Neas, a Roman Catholic, said in an interview. "I am absolutely certain their views do not represent all American Catholics."
In short, any discussion of the new Roman Catholic majority on the Supreme Court only underscores the complicated, subtle role of religion in the public square, nearly 47 years after Kennedy tried to reassure an anxious country that it was safe to elect a Catholic.