The Family Research Council, a Christian conservative advocacy group, has organized an April 24 telecast, "Justice Sunday," which includes prominent conservative Christians speaking by simulcast to churches, Web sites and Christian broadcast networks. Under the heading "The filibuster against people of faith," a flier for the telecast reads, "The filibuster was once abused to protect racial bias, and it is now being used against people of faith."
Religious advocacy groups have as much right to engage in political speech as anyone else, and religious people have plenty of reason to be concerned about who gets onto the courts and who is kept off. Here, they profess concern that the filibuster is being used to discriminate based on religious beliefs.
Senate Majority Leader Bill Frist is contributing a 4-minute videotape to the program. Is it wrong for a politician to associate with religious leaders who are advocating a political position? I can see worrying that a particular group has a lot of political influence, but that is ordinary politics, not a reason to silence people who are speaking out on matters of public concern and who identify with or are motivated by a particular religion. And Frist agrees with them in opposing filibustering judicial nominees. He's not obligated to shun them because of their religious affiliation.
So what is the response from Democrats?
"Our debate over the rules of the Senate and the use of the filibuster has nothing to do with whether one is religious or not," Senator Richard J. Durbin, Democrat of Illinois, said at a news conference with Senator Harry Reid, the minority leader from Nevada. "I cannot imagine that God - with everything he has or she has to worry about - is going to take the time to debate the filibuster in heaven."
The first sentence of that statement is simple disagreement about the basis for opposing the nominees, and of course, one would expect people like Durbin to say they are not discriminating on a religious ground. That second sentence subtracts from the credibility of the denial, however, because it's little more than a mockery of religion.
Democrats seized on Dr. Frist's participation in an effort to portray Republicans as intolerant extremists. "In America, we are in a democracy, not a theocracy," Mr. Reid said, urging Dr. Frist to back out of the event. "God does not take part in partisan politics."
I don't see the sense of this statement. Religious people fighting for a cause they believe in do not make the government a theocracy. Many prominent and highly respected political activists -- notably Martin Luther King, Jr. -- have operated from a religious foundation. It's nothing new, and it doesn't deserve to be demonized. There's a tone of mockery toward religion in what Durbin and Reid are saying, as they twist the Council's political activity into the idea that God is somehow debating about or participating in partisan politics. I'm sure that draws easy laughs and gasps from people who scoff at religion, but it's quite unhelpful.
There's an important and serious argument going on now about who should be on the federal courts. The Senate Democrats are using the filibuster to block a small number of the nominees, ones they consider way too deeply embedded in social conservatism and thus at odds with the moral values they represent. The socially conservative Christians want these people on the courts because they want their moral values expressed through courts. It's a very important stand-off, but making it all about religion is a distraction. A person's fundamental moral beliefs play a role in his or her decisionmaking, even if that person is a judge and is trying mightily to follow orthodox interpretive methodology. So the Senators are right to fight about the nominees the way they do, and they will have to work out this issue of majority rule and the filibuster device. But these recent comments by Durbin and Reid are offensive, inflammatory, and manipulative.
In case you're thinking I just lean Republican, here are my recent posts critical of Republicans in the current fight over the judiciary:
DeLay backs down a bit about judges.
Congress and the judiciary -- with a response from Justice Kennedy.
More railing about judges.
The return of a reasonable tone?
The GOP and the judiciary.
UPDATE: Ramesh Ponnuru at The Corner links to this post and characterizes me as endorsing the FRC's contention that the filibuster is being used to block nominees "because they are people of faith and moral conviction." Hmmm... I don't mean to accuse of Senate Democrats of simple discrimination based on religion. I think that's how the Democrats characterize the FRC attack. I think the Democrats are opposing strong social conservatives, and I understand why they do. I don't even think it's wrong for them to do so, but I see why the FRC is pushing back the way they are. I'm not a social conservative myself, and I don't know enough about the individual nominees to have a position, but if I were a Senator, I'd vote against nominees that I thought they were deeply wedded to very conservative morality if I were not convinced that they make a special effort to exclude their personal morality from their judicial decisions.
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११ टिप्पण्या:
Ms. Althouse I don't know how many posts and comments you've made protesting you're more center than right and protesting other bloggers calling you conservative or right of center or pointing out how you criticize Republicans.
I read you because you are quite conservative, pretty tough on the Dems idiocy and interesting on more mundane subjects. I really don't know you seem so concerned with how you are perceived, and btw perception is reality and all the protestations in the world by you aren't going to change that. As Zappa said, "You Are What You Is" - go with it, don't try to fight it all the time. Your work speaks for itself and sometimes I think its hard to be objective about it. Even if you think you are exactly in the middle of the road, obviously the perception is you are slightly askew, but that's ok to be you know.
I am still waiting for an actual filibuster to take place instead of threats of them. Of course, there was that 30-hour "filibuster" but time was equally divided & managed.
We need Allen Drury to read his Advise & Consent novels to teach them how to filibuster!
Religious people fighting to have their religious beliefs determine our laws is tantamount to them fighting for a sort of theocracy. Religious people wanting to have their values limit the Bill of Rights is tantamount to them forcing their religion on other people.
If there is a problem with religious conservatives using religion to argue for policy, how is this type of reasoning any different from economists using economic reasons or scientists using scientific arguments?
What distinguishes religious grounding from any other type of reasoning? If we vote for a welfare proposal because it seems to be the greatest thing for most of us, haven't we all just become utilitarians?
I wonder if having goals influenced by faith or argued from faith is enough to establish religion and how much of it is just an effect of having the freedom to think what we want and hang out with people who think and act along similiar lines.
JB: If you look at the rhetoric of this group, they accuse anybody who disagrees with them is anti-Christian. Despite the fact that there are many millions of Democrats who are devout in their own Christian beliefs.
As Matt Yglesias says::
Apparently being a "person of faith" is now synonomous with "holding conservative views about constitutional interpretation and the role of precedent in the legal system."
And there are a lot of conservatives in the blogosphere who find these developments disturbing.
Moderates as well.
Another discomfited Republican, with a roundup of posts.
JB: These people are the Micheal Moores of the right, which does nothing for the credibility of their cause in the eyes of many Republicans as well as moderates.
From what I've been reading around the conservative blogosphere, this is becoming a wedge issue purely because of the rhetoric they've been using. Dr. Althouse has noted this on several occasions on her blog, here.
For the record, I'm a Libertarian myself.
Gerry: I considered ten small in relation to the number of federal judges approved, which is the comparison Schumer makes. You're saying the base number should be appeals court judges only, and not a number inflated by district court judges, who are not part of the filibuster effort. I'm not fact-checking that, but will assume it's true. In which case, good point. 20% is not a small number.
A couple of points.
First, there's absolutely nothing wrong with people of faith voting for -- and electing, if they can -- legislators who reflect their moral convictions and who, within broad constitutional limits, will seek to enact those moral convictions into law -- even though those moral convictions are based in religion.
Broadly speaking, religion is no less valid a source of moral belief than any other. And there should be no doubt that morality plays a huge role in public policy in this country -- and not just public policies that find most of their support on the right. Why do we have retirement benefits and disability insurance under Social Security, and why do states pay unemployment benefits? Because a great many Americans think it's just not right for people to be left starving and destitute, at least under many circumstances. That's a moral judgment. In fact, for many people, it's a moral judgment based explicitly in religious belief. FDR got much support -- but of course opposition, too -- from Christian ministers in his push for the New Deal, including Social Security. (None of this addresses whether the current system is the "right" way of accomplishing the goal.)
Those who don't approve of certain legislators' moral positions should seek to defeat them at the polls, or to persuade their supporters that those positions are wrong. If they fail, that's life in a democratic republic. (Again, of course, conceding that there are some constitutional limits on how far such legislators can go in enacting their morality into law.)
Second, I see absolutely nothing wrong with judges holding deep-seated religious convictions, any more than there's something wrong with judges being deeply committed to some variant of, for example, secular humanism. As best I can discern, they all ultimately rely on unprovable assertions.
However, there is something wrong with the assertion that judicial candidates should be chosen or rejected because of their religious beliefs. Nondiscrimination on the basis of religion is -- or at least, is supposed to be -- a pretty deeply held value in this country. Shame on Schumer, et al., for daring to claim that, for example, committed Catholics are unsuited to be judges. It's plain old bigotry -- and from a group that would like us to believe that it's cornered the market on tolerance.
It would be especially wrong to select judges based on the expectation that they would enact their personal moral beliefs as constitutional law, rather than basing their decisions on intellectually rigorous analysis of the law. I think progressive politicians have been guilty of this, and I don't approve. But it's also where the FRC -- with which Frist is associating himself for Justice Sunday -- worries me.
For example, the FRC has condemned a Virginia Supreme Court case striking a prohibition against consensual sex between adults as "judicial activism." The problem is that the decision seems quite reasonable in light of Lawrence, on which it was explicitly based. In attacking the ruling, it seems to me that the FRC is really saying that the justices should've voted a moral position, rather than deferring to a superior source of law (the U.S. Constitution, as expounded by the U.S. Supreme Court). If that isn't judicial activism -- which the FRC claims to oppose -- I don't know what is.
Religious judicial activism does seem to me to smack of theocracy, and it's just as unacceptable to me as the secular, "progressive" version. And I'm suspicious that what the FRC really seeks is not to end judicial activism, but rather to install its own judicial activists. (Of course the FRC doesn't explicitly say anything like that. Tony Perkins' statement on Justice Sunday, which speaks in generalities, sounds fairly reasonable to me. Some of the concrete criticisms elsewhere on the website -- such as the one I just mentioned -- are what worry me.)
When I initially blogged about this, I was disturbed by the image of a young man with gavel in one hand and Bible in the other, which is featured on the FRC fliers advertising this event. It seemed to represent the idea that judging is somehow a uniquely Christian endeavor. Stupidly, I had relied on a description of the flier, rather than the flier itself, which is here. Now that I've done what I should've done originally, and looked at the thing, I see that my interpretation was wrong. That's not at all the message it was intended to send. They're right: People shouldn't have to choose between faith and public service (except to the extent that their faith would prevent them from carrying out their duties -- in which case the choice should be a private one, not one made by the Senate, or the law).
Nevertheless, I still worry that Frist is associating himself with people who do in fact have an agenda that a great many Americans -- even people of faith, like me -- would find unacceptable. And even if the FRC's claim isn't that only conservatives can be genuine people of faith -- as Matt Yglesias interprets it -- it's easy enough to characterize it that way. So even if I'm wrong to be suspicious of the FRC's agenda, I suspect that this is a bad political move on Frist's part.
P.S.: Undergroundman, the First Amendment is primarily about freedom of conscience, not freedom of action. If your religion considered murder a sacrament, the First Amendment would provide you no refuge. And we're free to outlaw murder, and to determine what constitutes murder as opposed to justified or excused homicide, even though those decisions ultimately rest on moral judgments that are often deeply rooted in religion. (Compare the common law of self-defense, and the statutory right of self-defense in existence in most states, to Thomas Aquinas's discussion of the morality of self-defense. Our law of self-defense is fundamentally Thomist.) Of course freedom of action and freedom of conscience shade into one another, and the dividing line may be difficult to discern. But the broad claim that the First Amendment protects your right to be free from restrictions on conduct that are rooted in moral judgments by the majority -- even where they're explicitly religious -- is untenable.
Gerry: right. I usually look for tricks like that, but hadn't noticed it until you pointed it out.
Previous read in this thread,
"... secular government was born during the Enlightment and is based on things like the social contract and the rejection of Church authority."
Otherwise known as when Hell frozed over.
Undergroundman,
"If it were primarily about freedom of conscience then one could argue that although a Muslim woman is free to believe that she should veil herself public, the government may still not allow her to veil herself in public."
Under the Supreme Court's interpretation of the First Amendment, the government probably can prevent a Muslim woman from veiling herself in public (or rather punish her for doing it), if the prohibition is in the form of a "neutral rule of general applicability." See the anti-mask statutes and ordinances adopted by certain states and localities at various times. (Such statutes have sometimes been struck down or partially invalidated but, to my understanding, generally on free speech -- not free exercise -- grounds.) The Court has wavered between requiring and not requiring a "compelling" governmental interest for formally neutral laws that inhibit free exercise. I'd note that the Supremes' first free exercise case, back in 1878, took a hard line on the belief-conduct distinction, and essentially said that religiously based conduct enjoyed no special protection at all. (If such a law targeted certain conduct explicitly because it was an exercise of religious belief, it would be struck down.) The list goes on. Lots of laws inhibit or mandate conduct in ways that conflict with free exercise of religion.
"One does not need to invoke religious beliefs in order to proscribe murder."
One may not need to invoke religious belief in order to proscribe murder, but in fact many have and do, and apparently their votes don't count in your view.
Your Fifth, Ninth and Fourteenth Amendment arguments don't work because those Amendments merely restrict the activities of the state and its agents. They (specifically, the Fifth and Fourteenth Amendments, in which the right to life -- absent due process of law -- is stated, not "implied") guarantee you a right against being murdered by agents of the state, but they offer no such guarantee against private actors. Nor, normally, do they afford you a right to demand that the state protect you from private actors. That claim has been repeatedly tried and rejected (except under special circumstances), and even the attempt is a modern phenomenon.
"It is also understood to be implied by common law which is a part of our legal tradition."
But prohibitions of sodomy, which you (I gather) believe the Constitution prohibits, were also crimes at common law. So the Constitution mandates some parts of the common law, but prohibits others -- even those whose constitutionality was never questioned at the time of the founding or of the ratification of the 14th Amendment? And this distinction hinges on whether the common law was based on religious belief or can be identified in these secular traditions of yours? That must be handy.
"That goes against the secular principles that our government was founded upon. This is all quite clear."
The men who held these secular principles you refer to: Weren't they the same men who, as one of their very first orders of business during the First Congress, hired chaplains for the House and Senate? They would include perhaps Thomas Jefferson, who referred to God as "the only firm basis" for "the liberties of a nation", and the "God who gave us . . . liberty"? And James Madison, who said, "if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign"? The list goes on and on. Secular principles? Yes -- but nearly not the kind you imagine. To them, secularism meant not having your church outlawed, not being forced to join a state church, not being treated as a second-class citizen because of the particulars of your relationship with God. Your understanding of "secularism" would hardly have occurred to them.
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