“You know what concerns me?” Rosie O’Donnell asked last week on ABC’s morning gabfest, The View.
“How many Supreme Court judges are Catholic, Barbara?”
"Five,” responds host Barbara Walters.
“Five. How about separation of church and state in America?” asks constitutional law scholar Rosie, after the Court’s sweeping decision upholding a federal law banning partial birth abortion.
Barbara counsels against drawing conclusions, saying “we cannot assume that they did it because they’re Catholic.” But the theologian in Rosie can’t help herself.
“If men could get pregnant,”Rosie opines, “abortion would be a sacrament.”
Good heavens. Where does one start? Perhaps with the law the Supreme Court interpreted. It was approved by a bipartisan congressional coalition that included the Republican and Democratic leadership. In all, 17 Senate Democrats voted for it, in addition to 47 Republicans, the vast majority—I think we can assume—who are not Catholic. You could say the five justices in the majority voted to uphold a law that reflected the choices of those legislators, not to mention the some 30 states that previously had imposed similar bans.
Here’s what Geoffrey Stone, former law school dean and provost at the University of Chicago, had to say:
“All five justices in the majority in Gonzales are Catholic. The four justices who either are Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling to ignore,” Stone wrote on the University of Chicago Law School Faculty blog. http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased_.html
And why is it telling, Dean Stone?
“Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales,” Stone writes. “By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality.”
Geoff Stone (and Rosie and the cartoonist for the Philadelphia Inquirer who illustrated similar thoughts last week) is saying that the five justices voted to uphold the law only because of their religious beliefs. It’s only because they are Catholic—Stone, Rosie, et al, argue—that they could possibly interpret the Constitution to allow a federal law Congress passed with broad, bipartisan support. It’s only because the five are Catholic, Stone and Rosie argue, that they could possibly vote to uphold a law that banned an abortion procedure Congress found to be “gruesome” and “inhumane.”
No, the five couldn’t possibly have legal views that that the Constitution doesn’t protect the right to a partial birth abortion.
Here’s a different way of thinking about it: The five justices took a more restrained approach to the law than their colleagues and declined to substitute their own policy preferences for the will of the people.