The Blog

The Catholic Test, Part 2

Big media has been avoiding the new Democratic religion test, but the blogosphere has answered the bell.

12:00 AM, Aug 7, 2003 • By HUGH HEWITT
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CHARLES CHAPUT, the Archbishop of Denver, issued a stinging rebuke to Catholic senator Richard Durbin and concluded that "a new kind of religious discrimination is very welcome at the Capitol, even among elected officials who claim to be Catholic," and the national news media barely took note. A single Washington Times story cited Chaput's column on the William Pryor nomination, and the sole mention in the Washington Post was contained in a letter to the editor from C. Boyden Gray, who is leading an effort to break the Democratic filibuster of the Catholic Pryor.

The blogosphere did better. Discussions of Chaput's charge broke out at Powerline, The Brothers Judd, The Inn at the End of the World, and InfiniteMonkeys, among others. But the big blogs stayed away from the Chaput statement and from the Pryor controversy generally, touching on them--if at all--in a glancing fashion. Joshua Micah Marshall was the most disingenuous of all, refusing to reference Chaput's statement in either his blog or his column in the Hill, even after we had specifically discussed it on air and off. Instead of attempting to respond to Chaput in an intellectually honest fashion, Marshall quotes me without naming me, describing me as a "fulminating right-wing commentator." Marshall's bad form is the best indicator yet that the hard-left senses that anti-Catholic bigotry is a disastrous tactic.

Some interesting commentary followed publication of The Catholic Test in THE DAILY STANDARD on Tuesday. OutsidetheBeltway.com was dismissive of the argument that a new anti-Catholic test had emerged from the Democratic strategy on Pryor, and LegalTheoryBlog spent considerable energy analyzing the proposition. Previously SouthernAppeal had joined the fray, and with luck, more serious blogs will follow.

The resurrection of anti-Catholic bigotry in the form of a bar to professing Catholics joining the federal appellate bench is a watershed moment. Democratic Senators and their cheerleaders like Joshua Micah Marshall are eager to dismiss scrutiny of their appalling tactics with invective, but it is impossible to dismiss Bishop Chaput or constitutional history. The Senate Democrats have erected a test that will keep faithful Catholics off the federal bench as surely as the demand that Catholics in Restoration England renounce the doctrine of transubstantiation kept them from service in government. The Senate's radicals--Patrick Leahy, Richard Durbin, and Tom Dashle--have led their caucus to demand that Catholic nominees at least keep silent on their acceptance of Church teaching on abortion.

Critics of the charge of anti-Catholic bias come in two categories: Those who argue that the criticism is too small and those who argue it is too large. Fred Barnes, for example, has argued that the bias of the Democrats is against people of all religious backgrounds who oppose abortion, and thus to confine the argument to anti-Catholicism is to overlook the broader fight. Defenders of the new test simply assert that it is a simple, completely nonreligious, and appropriate test that excludes all anti-abortion nominees, regardless of their faith, from the bench.

Professor Jonathan Adler of Case Western Reserve Law School walks a middle ground. "Is this Catholic bigotry?" he asked. "Not by traditional definitions. There is no anti-Catholic animus as such. There is, however, a clear disparate impact on Catholics (among others) and this impact is foreseeable. The policy is anti-Catholic in effect, if not in intent. Under the definition of discrimination advanced by the left--and championed by Senator Kennedy and other Democrats in the debate over the 1991 Civil Rights Act--this is actionable discrimination."

Tempting as Adler's position is, it misses the genuine problem with the Democrats' position: Their test falls inevitably on Catholics who are faithful to the Catechism, and that faithfulness can be inferred from other behaviors without a question ever being asked and answered. Truly, can it possibly escape the notice of Leahy's crowd that a nominee is a daily communicant? Does it really seem possible that the minority staff on the Judiciary Committee draws no conclusions from the religious practices revealed in FBI background reports? If a nominee to the appellate bench declares himself a faithful Catholic, trying to conform his or her life to the teachings of the Roman Catholic Church, isn't a filibuster inevitable?

This inevitable blackball is what I believe triggered Bishop Chaput's denunciation, as well as the elite media's avoidance of his denunciation. It is damned unpleasant to talk about such things, just as it was unpleasant to talk about who could and could not join certain clubs, and who could and could not eat in certain restaurants, and who could or could not attend certain universities. Bigotry is unpleasant stuff.

The Supreme Court declared in Everson v. Board of Education (1947) that "State power is no more to be used so as to handicap religions, than it is to favor them," and that the federal government cannot force anyone "to profess a belief or a disbelief in any religion." Justice Robert Jackson, in striking down a compulsory salute to the flag, fairly thundered that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

The Senate Democrats have discovered an exception: Opposition to abortion rooted in "deeply held religious beliefs" is their new orthodoxy, violation of which will trigger a filibuster. This is a striking development for the Democratic party, which as John McGreevy notes in his new book, "Catholicism and American Freedom," counted among its members a number of prominent anti-abortion Democrats as recently as the 1970s, including Edmund Muskie and Tip O'Neill. In the Democratic party of the early post-Roe years, a litmus test that excluded faithful Catholics from the federal bench would have been unthinkable. Perhaps Senate Democrats have dropped the pretense of welcoming devout Catholics into the federal appellate judiciary because, as McGreevy notes, "[p]racticing Catholics are increasingly likely to vote for Republicans in presidential elections."

Embarassed by the attention paid to their radical application of a new test act, some of the Democrats who are also Catholic have held out their own church identification as a defense to the charge of bigotry. This is, of course, not a defense at all; it is truly beside the point.

The central argument is that Senate Democrats are forcing the repudiation (or, at best, the silencing) of religious belief. Substitute the demand for a repudiation of "the belief of the immorality of abortion" with the demand for a repudiation of "the belief in transubstantiation" and you have the perfect analogy. Service in government is predicated in both instances upon an abandonment of a central religious teaching--a religious test, supposedly prohibited by Article VI.

There isn't a Catholic lawyer in the country who misses the implication of this showdown. If the Senate Democrats prevail, those lawyers had better drop either their overt Catholic practices or their ambitions to serve as a circuit judge. You can't have both under the Democrats' rule. Edmund Burke warned of the result of such obvious threats to belief: Men will "suborn their reason to declare in favor of their necessity," he concluded. "Man and his conscience will always be at war. If the first races have not been able to make a pacification between conscience and convenience, their decedents come generally to submit to the violence of the laws, without violence to their minds."

Senate Democrats would prefer that this suffocation of a robust Catholic bar opposed to abortion occur quietly, and the elite media is apparently in agreement on the non-necessity of attention to the issue. Archbishop Chaput disagrees. He sees the stakes clearly.

Hugh Hewitt is the host of The Hugh Hewitt Show, a nationally syndicated radio talkshow, and a contributing writer to The Daily Standard. His new book, In, But Not Of, has just been published by Thomas Nelson.