Balkinization  

Sunday, February 12, 2012

More on religion and political candidacies

Sandy Levinson

I was going to post the following remarks in the "comments" section of my previous post on former Senator Santorum, but I strongly suspect that the reversion of the discussion to irrelevant attacks on President Obama and insulting remarks about one of the participants means that no one would read them. So I offer this new posting:

Let me suggest that reference to the JFK speech (or, for that matter, to Article VI's "no religious test oath clause") is quite irrelevant if candidates themselves place their religious views front and center about "who they are" and, indeed, what should be expected of them if they take political office. After all, some very serious Catholics, at home and abroad, have suggested the legitimacy of civil disobedience rather than obey immoral laws. Unless one takes the untenable position that all laws deserve obedience, then, inevitably, one will find oneself sypathetic with some of these calls for civil disobedience. Think in the American context of the Berrigan brothers or, for that matter, and far more recently the views of the arch-conservative Cardinal Mahoney in Los Angeles who suggested that there might be a moral duty to provide sanctuary to illegal aliens. At the same time, of course, one might be very much against other such calls, such as the suggestion several years ago by some Vatican officials that Spanish bureaucrats simply refused to obey a new law passed in that country legalizing same-sex marriage.

John Kennedy was by no stretch of the imagination a "serious Cathoolic" in the sense of being interested in Catholic theology or how its tenets might require shaping his own life. If we had the same category for Catholics as we do for Jews, I suspect that Kennedy might well have been classified as a "secular Catholic," in the way that there is no evidence that, say, Justice Ginsburg is anything other than a "secular Jew." (This is not meant as a knock on Ginsburg, since I certainly consider myself a "secular--and decidedly non-Halachic or, for that matter, believing--Jew.)" Justice Scalia, on the other hand, gave a very serious speech on how he would feel compelled to resign from the Court if he believed (which he does not) that the Church had made a definitive judgment on the (im)morality of capital punishment, in the way that it has on abortion, given his view that the Constitution, correctly interpreted, clearly accepts the constitutionality of capital punishment. I discuss the general issue of "Catholic justices" in two different essays in my book Wrestling With Diversity, as well as in a symposium several years ago published by the St. Thomas Law Review addressing the significance of the fact that a majority of the Supreme Court is now Catholic. (Needless to say, only a Catholic law school would or could have sponsored such a symposium, which was excellent, since it would otherwise be viewed as "anti-Catholic" to address the possibility that one's identity as a committed Catholic might even be minimally relevant to one's conception of judging or constitutional meaning.)

Comments:

"Wrestling With Diversity," a family effort, was a worthwhile read.

As with Jews, there are various strands of Catholics, including on the Supreme Court. Justice Brennan was a Catholic who strongly promoted abortion rights while Justice Kennedy's personal opposition has come out though he supports them enough to join Casey. Plus, he is the leading voice on homosexual equality.

Secular Catholics are likely to be influenced by certain values they obtained in their education and family life. The importance of individual conscience in the face of official authority that they believe is wrong is a clear lesson in respect to the high number who use contraceptives, perhaps even as they are in the confessional. (the pill working even then)

Art. VI allows all comers, it doesn't prevent the individuals themselves to be influenced or even use their religion as some sort of "test" of good public policy. They have an obligation to follow the Constitution. Render to Caesar and all as Jesus said.
 

Sandy:

What is the purpose of your past two posts? A president cannot constitutionally enact any law - enforcing the teachings of their faith or not.

Furthermore, your concern only appears to apply to Catholics and not "irrelevant" religious faiths like that of Mr. Obama. Why the distinction?
 

I wonder if McDaniel v. Paty has any role to play here.

http://www.oyez.org/cases/1970-1979/1977/1977_76_1427

Interesting all the same.
 

I am shocked, SHOCKED, that your post on "What is Rick Santorum's position on masturbation," did not result in a serious and substantive discussion of this important question. I haven't actually read the comments, but based on the several thousand Balkizination threads that I have read over the years, I cannot imagine that our commentators would have failed to give this issue the attention it deserves.
 

Mr. DePalma raises a fair point. Yes, it's true that presidents can't pass legislation on their own. But they have the veto power to block legislation supported by majorities of both houses of Congress, as Bill Clinton did with a so-called "partial birth" abortion bill and George W. Bush did with regard to stem cell research. Moreover, as Elena Kagan demonstrated in a brilliant article on the President Clinton's influence on administrative agencies (something that "unitary executive" buffs are especially interested in), a lot of de facto legislation can take place without ever facing a vote of Congress, as was true, for example, of the administrative regulations upheld in Rust v. Sullivan, a creation of Gary Bauer and not remotely of the Congress of the United States. So, contrary to MLS's remark, I continue to think it a fair question to wonder how far former Senator Santorum's seeming embrace of the views of sexuality articulated by a certain wing of conservative Catholics, led by the very smart Robert George, would be reflected in decisions he would in fact be able to take as Chief Executive, even if (or especially if) Congress failed to pass what he might regard as desirable legislation.
 

Point of Order: Perhaps there's a missionary position on masturbation that should be considered. While there should be no establishment, surely there should be no restrictions on free exercise.
 

Our yodeler's astute observation:

"A president cannot constitutionally enact any law - enforcing the teachings of their faith or not."

should be passed on to the GOP presidential candidates who outdo each other on what they will do to undo "Obama" laws immediately when they are elected, as if they are on political Viagra. True, a president cannot enact - or revoke - any law. These candidates seem to have the 4-hour problem. Perhaps what they should do is ....
 

"the very smart Robert George"

an example of smart v. wisdom
 

To Joe's list of important Catholic justices, let's not forget the author of the Dred Scott opinion, Roger Brooke Taney, the Court's first Catholic, and its first Catholic Chief Justice.
 

"A president cannot constitutionally enact any law - enforcing the teachings of their faith or not."

should be passed on to the GOP presidential candidates who outdo each other on what they will do to undo "Obama" laws immediately when they are elected...


Amen. Romney is the worst of the lot.

What will make it worse is that the bureaucracy has delayed implementing a reservoir of regulations until after the elections, which will be all unleashed starting the day after the voters fire Obama.

A GOP candidate is going to need to campaign on repealing Obama's agenda and get a GOP Congress elected to do it.

Then the GOP is going to have to scrap the filibuster at least temporarily to enact the repeal.

This is why fears of some socially conservative president enacting regulations on sexual activity are so far fetched. It is difficult enough to accomplish things the people are actually demanding.
 

Joe pointed out the example of "smart v. wisdom" with respect to the description of "the very smart Robert George" noted in Sandy's comment on his own post.

Joe's observation came to mind with Ken Kersch's comment "To Joe's list of important Catholic justices, let's not forget the author of the Dred Scott opinion, Roger Brooke Taney, the Court's first Catholic, and its first Catholic Chief Justice." Joe noted justices Brennan and Kennedy, not an actual or much of a list. But joe did not describe them as "important Catholic justices." although they very well may be.

So perhaps Ken's reference is an example of "important v. infamous." With six (6) Catholic Justices currently on the Court, I'm not quite sure that they would describe Taney as "important" as opposed to infamous (although I can't be sure).

Last night, PBS aired the documentary "Slavery By Another Name" that addresses post-Emancipation and the 13th Amendment. Taney surely contributed to this with his important?/infamous? decision in Dred Scott and efforts thereafter to thwart Lincoln as President.

Of course, current conservative Catholics might describe Justice Brennan as infamous rather than important; and they might also similarly describe Justice Kennedy. Ken's recent confusing (to me) posts at this Blog, with video links, seem to target America's first African-American President as anti-conservative Catholic. Or perhaps Ken is working on a "Rehabilitating Roger Taney" project.
 

Our yodeler's response to an earlier comment of mine with:

"Amen. Romney is the worst of the lot."

fails to elevate Gingrich, Santorum or Paul. [Our yodeler continues reluctant to tell us who is his current not-Romney candidate.] Perhaps someone with younger eyes, more nimble fingers and some objectivity might chart each candidate's statements on what they promise to undo of Obama laws from day one, if elected.

Then our yodeler takes the leap that one of the four (4) GOP stooges [which one is Schemp?] will become President, then providing a list of steps to be taken to undo Obama laws.

But our yodeler's closing paragraph:

"This is why fears of some socially conservative president enacting regulations on sexual activity are so far fetched. It is difficult enough to accomplish things the people are actually demanding."

is what women and masturbators old enough to vote really, really fear, based upon what the four (4) GOP stooges have actually been saying. So perhaps our yodeler's leap emulates that of Wiley Coyote.
 

Following my last two comments, I eventually got to last night's Daily Show, back from vacation, with its "The Vagina Ideologues." Perhaps someone with linking skills could provide a link that would respond to our yodeler's closing paragraph of his comment. Note that Santorum and Gingrich, not Romney or Paul, are featured.

Also, providing such a link might serve to counter Ken Kersch's recent posts with video links at this Blog, since no provision is made for comments on his posts.

Now let's see what Stephen Colbert had to say last night. Stay tuned.
 

OOPS! Stephen Colbert took a pass. Or was his feature on circular saw safety a metaphor on contraception?
 

On a more serious note regarding the current cultural wars being foisted on the American public, John Allen Paulos asks, at the NYTime website: "Why Don't Americans Elect Scientists?" Paulos is the author of "Innumeracy" that I read for a course I was auditing at a local university in my retirement. I think it is worth a reread in the current political environment. (Think of the trials and tribulations of Copernicus and Galileo.)
 

Per Shag's latest, Melissa Harris Perry will start her new weekend MSNBC show this week and as a recent NYT article noted "will be the only tenured professor in the United States — and one of a very small number of African-American women — who serves as a cable news host."

So, perhaps the issue is broader.
 

Eugene Robinson's WaPo column today (2/15/12) "Drumming up a phony war on religion" captures much of what I have been trying to say in this and a related thread.
 

Stephen Colbert's Valentine's Day Report may have been a day late (compared to the Daily Show) but was many dollars long with his "Contraception Crusade."

The GOP presidential candidates are providing full employment for comedians, which may "trickle down" and improve the economy so as to improve Obama's reelection bid in November. But will Obama's reelection result in comedic unemployment?
 

Is America in the process of a Fifth Great Awakening? Perhaps diverse (especially minority) religions, usually at loggerheads with each other and larger religious groups, may unite for this purpose. But at some point in the process some religions may realize that they may become the religious "other" in time. So perhaps wise foresight on the part of minority religious groups would keep them in self interest from joining such a movement. Our Constitution's Religion Clauses protect religion from government and government from religion to the benefit of "We the People." A Fifth Great Awakening based upon the GOP presidential candidates' culture wars would be a nightmare.
 

Off topic [or is it?], the post on Judge Wilkinson's new book "Cosmic Constitutional Theory" provides welcome commentary concerning originalism v. non-originalism. If my library doesn't get this book, I just may be compelled to buy it. I eagerly await reviews as it may lead to a "constitutional great awakening." If it takes a theory to beat a theory, then the search for the Holy Grail of constitutional interpretation/construction will continue.
 

Garry Wills' "Contraception's Con Men" at NYRblog:

http://www.nybooks.com/blogs/nyrblog/2012/feb/15/contraception-con-men/?printpage=true

gets at the roots of this phony issue.
 

I wonder if Rick Santorum - or his campaign staff - ever Googled:

"What does the Bible say about protecting the environment?"

Stephen Colbert's return last night (2/20/12) has a short feature on Santorum's recent explanatory comments on this topic, e.g., husbanding the earth, which Colbert turns into marrying the earth and then "fracking" it endlessly.
 

Art. VI allows all comers, it doesn't prevent the individuals themselves to be influenced or even use their religion as some sort of "test" of good public policy. They have an obligation to follow the Constitution. Render to Caesar and all as Jesus said.interactive website designForum Link Building scam
 

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