The Uncomfortable Question: Should We Have Six Catholic Justices on the Supreme Court?

[trotsky]

http://www.huffingtonpost.com/ronald-a-lindsay/supreme-court-catholic-justices_b_5545055.html?utm_hp_ref=politics

In its decision in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has decided that the religious beliefs of employers, including closely held corporations, take precedence over the rights of employees to necessary medical care. The specific medical care to which the employers objected was certain forms of contraception. The five justices who decided that these employers' objections were entitled to deference are all Catholics. (One Catholic justice, Sotomayor -- a woman -- dissented from the majority ruling.)

This outcome, including the reasoning behind it, points to an uncomfortable question. Indeed, even by raising this question one exposes oneself to a charge of bigotry. But the question needs to be asked: Is it appropriate to have six Catholic justices on the Supreme Court?

As indicated, it's not just that five Catholic justices ruled that the government has to defer to the employers' religious objections. It's the reasoning on which the Court relied that causes concern. In explaining its decision, the majority made two very revealing points, one directly justifying its decision, the other distinguishing other, possible cases that might now cite Hobby Lobby as precedent. Both these points show how closely the majority adheres to Catholic teaching.

...

In Justice Alito's majority opinion, he relies squarely on Catholic teaching about "complicity" to explain the supposed burden. In doing so, he reiterates the argument that the Catholic Church has made in the dozens of lawsuits it has brought challenging the contraceptive mandate. According to the Church, it violates the moral obligations of a Catholic to do anything -- anything -- that would "facilitate" the provision of contraception to an individual. So even if one is not using contraception oneself, if one facilitates access to contraception by others, a grave moral wrong has been committed.

[HockeyMom]

1. If this Catholic employer finds out that an employee

is buying contraceptives, let's even just say condoms, is he "facilitating" contraceptive use by paying them wages? If he fired them, they would then not have "his" money to do so. Paying them wages to go out and buy birth control is facilitating also.

Will that be next? You only have to look at the employees fired by Catholic schools, etc, for not complying with their religious beliefs. Why not a Catholic private business owner also?

[trotsky]

2. Great point.

It's a slippery slope, and a perfect example of why religion needs to stay out of policy and lawmaking.

[unblock]

3. of course, actual patient medical information is private

even before hipaa, your employer had no right to know your medical information. when you fill out your medical information, it's supposed to go straight to the insurer. if your hr department collects it, they have no right to open it and read it. of course, if you seal your application in an envelop that says "not to be opened by hr", they can guess that you have an expensive condition, but in theory they can't know that.

all they can know if the aggregate information, e.g., that their pool of employees is a high-risk pool for insurance purposes, so someone likely has liver disease or aids or something like that.

that's because your medical information is none of their damn business.

even in this case, they have no right to know if you're using birth control pills. they only know that the policy covers it and so someone might be taking advantage of that feature of the policy.

which makes it all the sillier, because in theory they should never know if they're facilitating usage of birth control pills. as far as they're concerned, it might be a policy feature that no one ever actually uses.

[Starboard Tack]

4. Good post!

A topic worth discussing, especially when one considers the slippery slope potential. Otoh, is it good to impose religious quotas for SCOTUS? Wouldn't that create its own slippery slope?

[Lordquinton]

6. no different than race or gender

And thoes two don't promote this kind of misogyny

[Starboard Tack]

19. Do you think there should be gender quotas on SCOTUS?

[Lordquinton]

23. It's less about enforcing quotas

and more about recognizing that the deck is stacked, and maybe we should pressure future appointments to take into account that adding more of the same to the court won't help.

[Starboard Tack]

24. That makes sense.

Unfortunately, the way the system is set up, it tends to encourage the stacking of the deck. Let's face it, we wouldn't mind if it were stacked our way.

[TygrBright]

5. Why is this question "uncomfortable?"

While the primary consideration in nominating a justice should always be their knowledge of Constitutional law and their commitment to the ideals of the Constitution itself, there is nothing in the least inappropriate about considering diversity and demographics.

While Justices should be jurists first, they are also there to represent in some way the sense of the people about justice itself. Since issues of geographic, ethnic, gender, and philosophical/religious diversity affect how the citizenry view justice, reflecting that diversity is a worthy consideration in constituting the court.

Two-thirds of the nation's population isn't Catholic. And of course, Catholics themselves are not monolithic in belief.

While it would be poor juridical logistics to attempt to exactly match the profile of the citizenry on the court, a certain broad reflection should always be included in the desiderata for selecting nominees.

curiously,
Bright

[okasha]

15. Two thirds of our population isn't male, either.

Strangely enough, the five who voted to restrict HL employees' access to contraception were all men.

All three women on the Court dissented.

[trotsky]

20. Another problem for sure.

I think there should be fewer men and more women on the Supreme Court, just as I feel there should be fewer people who make rulings based on their religion and more who make them based on the law and human rights.

Do you agree?

[rug]

7. The question includes an endorsement of quotas.

[Small Accumulates]

8. Sadly, the theocrats have brought legitimacy to this question, and the answer is "yes."

The five have shown no qualms about warping our laws to the shape of their religion. If the judiciary is to be afforded that power, and it apparently has taken that power, it is unreasonable that the Catholic religion be over-represented. The court, in the costume of its new religious law making authority, should represent the make up of our nation, so that the religious laws imposed on us represent religious consensus, not Catholic dictates.

[rug]

9. How many do you suggest?

Should the last one seated be removed to make room for another?

[edhopper]

11. It's nice you have no problem

with justices using Catholic Dogma to rule on US Law,
Good for you.

[rug]

13. I have problems with quotas.

I have problems with broad brushes, which in this case ignores Sotomayor.

And I have problems with people who misstate my words.

[edhopper]

14. How do you feel about these Justices

using their own religious beliefs and dogma to settle US Law?

[rug]

28. I doubt they were appointed for their religious beliefs. They're republican appointees.

[edhopper]

29. Why they were appointed is irrelevant

what they are doing is apparent.

"In Justice Alito's majority opinion, he relies squarely on Catholic teaching about "complicity" to explain the supposed burden. In doing so, he reiterates the argument that the Catholic Church has made in the dozens of lawsuits it has brought challenging the contraceptive mandate. "

They are using theological rather than legal arguments. They also are stating that their own religious dogma takes president over others.

[rug]

30. Now, ed, normally I find your posts reasonable and engaging.

But that is one of the most ludicrous statements I've ever heard from you.

WHY a person is nominated to the Supreme Court IS the crux of the matter. It is far from irrelevant. These republican appointees are performing as expected. They would cite from the Cato Institute bylaws if necessary.

[edhopper]

31. Okay

not to get sidetracked.
In this case they are voting to give special dispensation to the beliefs of their own religion while saying other religions do not have the same rights. (Christian Science for example) even using religious doctrine in their opinion.
Are you saying their religion had nothing to do with their ruling?

[rug]

33. BTW, I wasn't ignoring your point about religious influence.

But I thought it important to stress the politics inherent in this.

Yes, religious thought does have an influence. Here's a good take on how it was used - or misused (for reasons stated above) - in this case.

http://www.americamagazine.org/content/all-things/catholic-moral-theology-supreme-court

[edhopper]

34. Unfortunately

for today's GOP there is less and less difference between political and religious influence.

What I find particularly egregious about this SCOTUS is their combination of Theocracy and fascism.
A Christian/Corporate government.

[rug]

35. There may be a tinge of wistful longing for theocracy but the real threat is the combination of

capitalism and fascism.

[edhopper]

36. Between the two

I agree that is the bigger threat.
But a lot of Republicans, and that includes people like Scalia, want "Christian" doctrine instilled into law. This is especially true in the area of women's rights.

[rug]

37. No argument.

[edhopper]

38. This SCOTUS

is starting to get into Dred Scott and Plessy vs Ferguson league.

[rug]

39. You'll be gratified to know Dred Scott was written by Chief Justice Roger Taney, a Catholic.

[edhopper]

41. I don't know enough to

say that had anything to do with it.
Contrary to what you may think, I don't consider the religion of Justices to be the major influence in all their decisions (Scalia excepted)

[AtheistCrusader]

10. hahaha the keyword driven advert in the corner is for the mormon church.

That was serendipitous.

[edhopper]

12. In the majority opinion they basically said

"this ruling only covers religious doctrine we agree with, but others like blood transfusions and surgery are not against our religion, so they stay."

[trotsky]

16. Some militant fundie atheist politician had this to say a few years ago:

Democracy demands that the religiously motivated translate their concerns into universal, rather than religion-specific, values. It requires that their proposals be subject to argument, and amenable to reason. I may be opposed to abortion for religious reasons, but if I seek to pass a law banning the practice, I cannot simply point to the teachings of my church or evoke God's will. I have to explain why abortion violates some principle that is accessible to people of all faiths, including those with no faith at all.

Now this is going to be difficult for some who believe in the inerrancy of the Bible, as many evangelicals do. But in a pluralistic democracy, we have no choice. Politics depends on our ability to persuade each other of common aims based on a common reality. It involves the compromise, the art of what's possible. At some fundamental level, religion does not allow for compromise. It's the art of the impossible. If God has spoken, then followers are expected to live up to God's edicts, regardless of the consequences. To base one's life on such uncompromising commitments may be sublime, but to base our policy making on such commitments would be a dangerous thing.

[edhopper]

17. And he is a fervent believer

as i was told here.

[trotsky]

18. How could that possibly be?

I mean, look at what he said - he doesn't think policy should be based on people's religious faith and beliefs! Why, that's exactly what I have said in this group and I've been branded an evil, bigoted, fundie, militant atheist unworthy of human interaction because I'm destroying the Democratic Party - so what does that make that guy?

[edhopper]

21. IOKIYAB.

[Starboard Tack]

25. Branded? Welcome to the world of the branded.

Speaking of which, how are you handling the latest Trotsky neocon accusation?

[rug]

26. One man's brand is another man's observation.

[Starboard Tack]

27. Aint that the truth

Good job we never get branded

[LeftishBrit]

22. I think any sort of religious quota would lead down a slippery slope

Also wouldn't it be against the American constitution, which says that there should be no religious test for office?

And the problem is really with ANY person who places their religious, or similar ideological, beliefs above the principle of equality under the law. One also would not want a RW Protestant like Pat Robertson or James Dobson or Mike Huckabee or Ian Paisley; a RW Jew like Naftali Bennett or Melanie Phillips; a Hindu of the Narendra Modi variety; a Muslim who wants Sharia Law; a worshipper of Ayn Rand; or an ultra-nationalist Communist like Nikolae Ceaucescu. One the other hand, William Brennan was a Catholic and a great Supreme Court justice.

[rurallib]

32. Theoretically religion should not be considered

Should a Catholic be president? How about a Jew or a Muslim?
What if there were 6 Muslim justices?

Religion should not be a consideration, but then the person appointed should not be acting as if an agent of that religion. Unfortunately we have no way to recall or remove SCOTUS judges.

This is a real paradox in our system.

If there were quotas, I believe atheism/agnosticism is pegged at @10 - 15% which means there should be one atheist justice on a nine member panel. What are the chances of an atheist ever being confirmed?

[pinto]

40. I just want a SCOTUS that sets aside religion when deciding cases brought before it.

Irregardless of personal belief, each justice ought to set a standard of impartiality. Citizens United opened the door for the Hobby Lobby set-up. I'm no legal scholar by far, but reasonably intelligent and fairly well-informed - the HL decision was the most convoluted I've ever seen.

[stone space]

42. I remember this issue coming up at Daily Kos when Judge Sotomayor was first nominated.

There were multiple diaries there suggesting that Judge Sotomayor was unqualified to sit on the Supreme Court because of her religion.

Unfortunately for those folks, Justice Sotomayor's nomination was approved against the rather strong religious objections against her by many.

It's a little late to do anything about it now, I suppose, since she's already sitting on the bench, whether folks like her or not.