The Dogma Lives Loudly Within Me, Too

"I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern."

Amy Coney Barrett. Image from nd.edu

That was the statement of California Senator Dianne Feinstein last year during the confirmation hearing for Amy Coney Barrett, a Trump nominee to the 7th Circuit Court of Appeals who was confirmed, and who is being floated as a potential successor to retiring Supreme Court Justice Anthony Kennedy.

A Notre Dame law professor and the mother of seven, the 46 year-old Barrett also happens to be a devout Catholic. That was the origin of Feinstein's concerns, for how could Barrett serve the court impartially when her decision-making process is so strongly influenced by her religious beliefs? Indeed, it was the concern of Protestants in the 19th century as waves of Irish and Italian immigrants flooded through Ellis Island. How could they ever be good Americans? Even a century after the "Know-Nothings" were tarring and feathering Catholic priests and burning their churches, many were still asking how John F. Kennedy could be president when he was beholden to the pope.

The irony is that this stems from a misreading of a 1988 essay. In it Barrett and her co-author, John Garvey, now the president of the Catholic University of America, speculate about how Catholic judges can deal with capital cases, given the Church's opposition to the death penalty. Their conclusion is far from saying Catholic judges must commute sentences if they're opposed in conscience to the death penalty. Rather, Barrett and Garvey conclude that judges can recuse themselves when their personal convictions are at odds with the law of the land.

The concerns of Feinstein and others of our time and of the Know-Nothings of the 19th century are centered on the so-called Separation of Church and State. They say that an activist judge may foist his--or her--religious convictions on our pluralistic American populace. We are not all Catholics, and we are not all guided by Catholic beliefs or principles. Therefore it would be a problem if the dogma does indeed "live loudly" in Barrett.

Of course there is no evidence that I'm aware of that Barrett is an activist who would legislate from the bench, and in fact a careful reading of her essay shows precisely the opposite. But the bigger irony that I'm contemplating on this Independence Day is that the Founding Fathers separated Church from State in order to keep the State from interfering with churches, not the other way around.

As regards justices, or senators, or other government officials in our sordid age, would that the dogma lived more loudly in all of them. Government officials are not robots programmed to fulfill the wishes of the populace mechanically. Rather, they are (or ought to be) men and women of conviction, especially judges, whose job it is to interpret and apply the law to real human situations. Their convictions--religious, philosophical, whatever--should influence their reading of our founding documents and the law of the land. That's how we avoid a Dred Scott decision, for example, which was based on the false premise that blacks were not persons and were therefore not entitled to claim citizenship.

Dred Scott was logically argued--and so was Roe v. Wade, for that matter--but only a person of strong moral conviction can discern the underlying falsehoods. This is the criterion for public office that nobody seems to be talking about. And why not? Why are not calling loudly for public officials in whom dogma lives loudly? Why are we doing precisely the opposite?

As regards Barrett, I haven't read enough about her or the other potential nominees to form a strong opinion. I'll probably wait until Trump announces his short list before I bother. But on this 4th of July, I praise God for the gifts of life and liberty, and for the right to raise children in whom the dogma lives as loudly as it does in me.