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Paying even a little attention to the news from the US Senate might have helped someone to recognize that the Democratic party has a religion problem. First, a while ago, Senator Bernie Sanders had difficulty when a religious belief about the salvation of Jesus caused problems. Then, Senator Diane Feinstein had difficulty with a judicial nominee who indicated that her religious beliefs led her to believe that if it was the case that one’s religious beliefs conflicted with the law, the judge should recuse herself. Senator Dick Durbin asked the same nominee if she was an “orthodox Catholic.”
The nominee, Amy Coney Barrett, had written an article in the Marquette Law Review that explored the topic of a judge who, on religious grounds, objects to the use of the death penalty. Despite the dishonest characterization of Senators Feinstein and Durbin, and organizations like the Alliance for Justice, Barrett argued that in cases where one’s religious or personal convictions made it impossible to rule on the merits of the law, the argument was made that judges should be wary of such conflicts and recuse themselves from the case.
But the bigger issue is the difficulty the Democratic party, and their members, appear to have with those who have strong religious convictions. Unless of course, such religious convictions align with their own beliefs. For example, the same Senator Dick Durbin used the story of Father Rey Piñeda, a priest from the Archdiocese of Atlanta who was brought to the United States at the age of two, in his statement of opposition to DACA. Determining whether or not Father Piñeda was an “orthodox Catholic” did not seem as important if the issue was not abortion.
The Democratic party is simply uncomfortable with strong religious conviction. Faith, it seems, should be something that is only for one’s private, unexpressed self. Using this logic, a person who believes that Jesus is universal Savior (most Christian religions) could not possibly be able to fulfill duties to non-Christians. Catholics, argue Feinstein and Durbin, are unqualified to be judges, precisely because of their religious beliefs.
As Sohrab Mohari wrote in a New York Times Op-ed piece entitled “The Dogma of Diane Feinstein”, Senator Feinstein’s questioning represents a tired line of reasoning among nativist Americans responsible for violence and bigotry against Catholics. The question should not be should a person of faith be denied a position to serve simply because they are a person of faith, but rather, does one’s personal and religious convictions make it impossible to give people the rights they deserve.
That same article points out the difficulty with Senator Sanders line of questioning. His contention from questioning is that Russell Vought, because he once wrote that Muslims “stand condemned” for rejecting Jesus. Not appear that all Christian religions would choose to word the belief in this manor. The question, however, should not be about his belief, but whether or not this belief renders him unable to do his job in a way that makes sure there is fair treatment for Muslims.
Even the understanding of stare decisis is a concept that is not always applied correctly. “Settled Law” has been overturned. There have been moments where rulings that serve as precedent have later been abandoned, precisely because it was viewed that the precedent was wrong. Plessy v. Ferguson, an 1896 court case allowing state-sponsored segregation was overturned by the 1954 decision Brown v. the Board of Education. Dred Scott v. Sandford was a previous court case that certainly could have formed a precedent, a stare decisis for other court rulings. Hirabayashi v. United States certainly cannot be morally considered a precedent upon which other rulings could be based.
The point is not to suggest that there are no areas of settled law or precedents, upon which future rulings can be based. And, Barrett did not suggest that this either. In fact, she recognized (as a third-year law student) that there could very well be times where religious and personal convictions might be such as to render a person unable to apply the law. In these instances, recusal is the option.
But this is not enough for today’s Democratic party. There was the public debate about whether someone who wants to be a Democrat can ever be one who sees abortion as an immoral choice. But it is hard to see how the Democratic party can become a truly national party with such positions. Most of America does have religious convictions. The election of Donald Trump should serve as a wakeup call that there are Americans who value their religious convictions and believe they should enter the public marketplace of ideas.
Questions about judicial rulings, legal positions, the interaction of church and state as it applies to law and the Constitution are appropriate questions for a judicial nominee to be asked. But questioning the fitness of one who believes in religious dogma or considers themselves orthodox members of their faith is not. The country’s constitution was written by people who came to this country precisely because of religious persecution. In writing the establishment clause, they were not concerned with personal belief usurping the government, but the other way around: they did not want the government to infringe on the free exercise of religion.
To that end, everyone, regardless of religious belief, should be concerned about Senator Feinstein’s line of questioning. For many people of faith, “the dogma lives loudly in them”. And people of faith do not become “second-class citizens” simply because of their religious beliefs.