The nomination of Amy Coney Barrett, a devout Catholic, to the Supreme Court has renewed the debate about the role of one’s faith in discharging her or his public duties and the place of faith and reason-based secularism in the founding documents of America, the Declaration of Independence and the Constitution.
To be a citizen, a politician, or a jurist in the multi-ethnic and multi-cultural US is truly a challenge as you are called to transcend your personal religious or secular beliefs and learn to live with others whose moral laws and philosophies of life spring from different theologies and worldviews. When we read the Declaration of Independence and the Constitution, we sense that the Founders struggled with this very problem and eventually came to language that balances the interests of faith and reason.
To justify the pursuit of freedom and independence from the oppression of the English King, the Declaration invokes the “Laws of Nature and Nature’s God.” The notion of laws of nature or natural laws has been around since the times of ancient Greek and Roman philosophers. These are laws of behavior endowed by nature to humans to guide their moral conduct. The Declaration also invokes laws defined and granted by Nature’s God. The Declaration is neutral though as to which faith’s God it has in mind. Thus, no God of a particular religion is identified as the supreme grantor of human rights. The language implicitly accepts two sources of discernment of laws: rational thinking for the laws of nature and faith for laws emanating from the God of Nature. This suggests the Declaration of Independence is open to secular and religious approaches to constructing and interpreting laws.
Keeping with this premise, the Constitution makes no mention of God or religion. It starts with the words “We the people . . .” The powers of the government come from the people and not from a Divine Authority as it was the case in the monarchies of Europe of that time. And as the First Amendment stipulates, the government should not favor any particular religion. We are free to profess any religious or non-religious beliefs but should not expect any helping hand or validation from the government in all its three branches. Respect for this constitutional edict implies we should not seek, or worse, apply undue influence to achieve such assistance from the government.
What is of interest to us who live the now and here is the realization of two important points. The first point is the historical evidence that both secular and religious moral laws have changed over time as humans have become more tolerant and more knowledgeable about our nature, human and physical. The second and more important point is that secular and religious moral laws vary across different secular and religious systems as well as peoples. Therefore, the peaceful coexistence under a constitution that invokes no particular religious dogma or secular beliefs and a Declaration that appeals to both, the Laws of Nature and Nature’s God, as the source of moral laws requires neutrality in the writing and interpretation of laws.
This understanding of the founding documents then shows the way as to how we should approach the nomination and vetting of candidates to the Supreme Court. Knowledge of a candidate’s adherence and degree of devotion to a particular faith or secular principles should not necessarily preclude nomination. Vetting, however, should ascertain the candidate’s adherence to the constitutional neutrality with respect to religious dogma and secular views. It seems to me the candidate bears the burden of proof of his/her adherence to impartiality. Consequently, rigorous vetting of a candidate’s impartiality, far from being mistaken as hostility or suspicion of the candidate’s beliefs, emerges as a basic responsibility of the Senators, who confirm Supreme Court judges.
A different approach is to argue that a candidate’s discharge of his/her duties as a jurist does not necessarily accord with one’s religious or secular beliefs. Here the premise is that most of us, and, hence, Supreme Court candidates, live compartmentalized spiritual and professional lives. This is what David Brooks has argued in a recent New York Times column. Specifically, he makes the point that faith has no or little influence on one’s political ideas, including legal ideas.
I would like this to be true, but I have reasons to believe it is more a wishful conjecture. The three Abrahamic religions, Judaism, Christianity and Islam, are strict moralistic faiths that prescribe a certain way of life. Moreover, since their founding, Christianity and Islam have practiced an active evangelization and conversion policy for the purpose to bring an ever-expanding number of people to live by the tenets of these religions. For centuries, Church law was also state law and to this day Sharia (the Islamic law) is still practiced in parts of the Muslim world. Therefore, the notion that religious adherents just believe in the creation and other holy stories of their religion while they bring universal moral values and beliefs to their professions (the practice of law, included) is just an assumption that requires empirical confirmation via vetting.
Such vetting is important in the case of confirming jurists to federal courts and especially in filling seats on the Supreme Court for obvious reasons. Members of Congress serve for finite terms; hence if the people are dissatisfied with a member’s performance in matters relating to the application of religious and secular principles, they can vote them out of office. On the contrary, Supreme Court jurists serve life terms without recourse to replacement if a jurist demonstrates systematic bias in favor of the tenets of a particular faith or secular dogma. Besides, Supreme Court jurists are the ultimate arbiters in interpreting the letter and intent of our basic governing charter.
Precluding anyone as a candidate for a seat on the federal bench on the basis of religious or secular beliefs would be prejudicial; vetting a candidate’s ability to be impartial and neutral in interpreting the law, on the other hand, is a necessity if we wish to do service to America’s founding documents.
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