The Role of Faith in the Public Square

Say nothing of my religion. It is known to God and myself alone. Its evidence before the world is to be sought in my life: if it has been honest and dutiful to society the religion which has regulated it cannot be a bad one. – Thomas Jefferson

On September 12, 1960, then Senator John F. Kennedy, hoping to dispel concerns over the role his Catholic faith would play in the event he became President of the United States, gave a speech on the role of religion in public life before a group of protestant ministers in Houston, Texas. “I believe in a president whose religious views are his own private affair,” Kennedy said. “Whatever issue may come before me as president – on birth control, divorce, censorship, gambling or any other subject – I will make my decision . . . in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates.”

Although he did not say how his moral conscience or personal ethics may have been shaped or molded by Catholicism, Kennedy assured his audience, and ultimately the American public, that his personal religious beliefs, whatever they might be, would not play a role in fulfilling his duties as president. In his official actions, on issues as wide ranging as the economy and foreign affairs, from policies addressing poverty at home and economic aid abroad, to prayer in school and matters of war and peace, President Kennedy would not be influenced by his religious convictions.

Kennedy’s view on the public neutrality of government in matters of faith has been the standard liberal position for most of my lifetime; whatever a candidate or elected government official may believe or not on matters of faith should have no role in how the nation is governed. It is a uniquely American belief, embedded in the nation’s founding and reflected in our Constitution. The separation of church and state as set forth in the First Amendment is as essential to American notions of freedom as any constitutional doctrine upon which our democracy is based.

For Thomas Jefferson and many of our Founding Fathers, the ideals of religious freedom were more important than one’s specific religion. In Jefferson’s time, and for the next 150 years or so when the religion of most Presidents deviated little from mainstream Protestantism and religion was not used as a wedge issue in presidential politics, it was easy to maintain a principled and neutral view regarding a candidate’s faith. For me personally, and for most liberals (and many others), the principle that religious faith is a private matter, which should have no bearing on a candidate’s public responsibilities, has always been accepted wisdom.

Kennedy’s presidency put to rest the unfounded fears concerning a Catholic president. Not until Jimmy Carter was elected president in 1976 did a candidate’s religious beliefs again become a matter of some notoriety. Indeed, Carter’s brand of born-again Christianity made certain segments of the Democratic Party uncomfortable, particularly the secular left and many Jews, 40% of whom broke from their historically Democratic leanings to vote for Ronald Reagan in 1980. Although I believe that this was the result of an unfortunate misunderstanding of Carter’s faith -- which emphasizes a concern for all of God’s people and is what motivates his passion for human rights -- and a failure to distinguish Carter’s brand of Christianity from the more conservative elements that dominate evangelical Christianity today, it was also a reflection of America’s ambivalence toward expressions of religion in public life.

Ironically, it was Reagan’s presidency and the ascendancy of right-wing conservatism in the 1980’s that introduced a more aggressive form of politically inspired religion into the public arena. It was during this era when we witnessed the rise of the Moral Majority and the prominence of televangelists such as Pat Robertson, who advocated a conservative political agenda and founded the Christian Coalition and other socially conservative “Christian” groups that advocated a reversal of Roe v. Wade and the outlawing of abortion, pushed for a constitutional amendment limiting marriage to between a man and a woman, and called for the re-establishment of prayer in the public schools and public displays of religious symbolism.

As someone who was raised in a mainline protestant denomination, one which engages in public advocacy in a manner more respectful of America’s diverse religious and ethnic makeup, I am continually perplexed that conservative, often fundamentalist, Christians so dominate our public discourse. That the media makes little effort to point out the many misconceptions these self-proclaimed Christians have concerning their own religion and their lack of respect for the religious diversity and pluralistic traditions of American democracy, only adds to my frustration.

But while religious conservatives tend to dominate discussions of morality in the public square (particularly on issues of personal morality, to the exclusion of issues like economic justice and peace), liberals too often fail to understand the significance of religion in public life and are often reluctant to openly connect religious and moral principles to the issues that most matter to them. On this, our current president is different.

On June 28, 2006, forty-six years after Kennedy’s speech in Houston, then Senator Barack Obama reflected on what he perceived to be the role of religion in public life and how his personal faith has guided his own values and beliefs. Unlike Kennedy, Obama argues for the relevance of religion to political argument, declaring it particularly apt for liberals and progressives. For Obama, it is a mistake for progressives to “abandon the field of religious discourse” in politics. “The discomfort of some progressives with any hint of religion has often prevented us from effectively addressing issues in moral terms.” Obama contends that religion is, historically and culturally, a source of political rhetoric that resonates with many Americans, who comparatively speaking are a religiously inspired and devout people. He recognizes that the solution to many policy issues, from social and economic problems to issues of war and peace, require consideration of the moral dimensions of those problems.

“Our fear of getting ‘preachy’ may . . . lead us to discount the role that values and culture play in some of our most urgent social problems,” Obama said. But to address problems like “poverty and racism, the uninsured and the unemployed” often requires “changes in hearts and a change in minds.” Obama believes it a grave mistake to insist on a complete separation of religious conviction from public life, or to insist that moral and religious convictions are irrelevant to one’s views of politics and law.

Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, William Jennings Bryan, Dorothy Day, Martin Luther King – indeed, the majority of great reformers in American history – were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their “personal morality” into public policy debates is a practical absurdity.

As different as Obama’s and Kennedy’s statements are concerning the role of religion and public life, they actually concern two different notions. For Kennedy, it was important to emphasize that a President’s duty is to his country and the Constitution. He was attempting to counter the concerns then being expressed in some parts of the country to a Catholic president. Although some of this concern was simply anti-Catholic prejudice, there was at the time a sincere worry as to whether a Catholic president would be beholden to the Vatican and Catholic doctrine in the conduct of his public affairs. Similar concerns have been raised, and properly dismissed, of the potential influence the Mormon Church may hold on a candidate such as Mitt Romney. Indeed, Romney, who holds a position of importance in the Mormon Church and who proudly identifies as a Mormon, gave a speech in 2007 not dissimilar from Kennedy’s.

That Obama believes one’s religious convictions are relevant to politics and policymaking, however, does not mean he disagrees with Kennedy’s view of the official separation of churchly influence on public policy. What Obama contends is something altogether different – the notion that one cannot truly separate out the moral and religious influences on a candidate’s life and, ultimately, his or her policy positions. As I watch from afar the Republican presidential primaries in Iowa and New Hampshire, I believe it is important to know something about what the candidates believe, religiously, morally, and spiritually, and how those beliefs may affect their actions should they become president. Personally, any candidate who believes that evolution and creationism are worthy of equal treatment in our public schools, or who doubts the scientific efficacy of climate change and its importance to our planet’s future, is not a candidate I can trust to have a reasonable conclusion about anything. If a candidate’s brand of Christianity is one of judgmental piety, or is based on a literalistic misinterpretation of the Bible, it is a candidate I cannot support.

Although I do not care what religion our past, present, and future presidents are (or are not), I do care what moral and religious influences motivate their positions on matters of policy. One’s religion (or lack thereof) is an important part of one’s worldview and should not be off limits for any candidate. President Kennedy’s youngest brother, Senator Ted Kennedy, who symbolized and articulated a consistent vision of political liberalism for over forty years after his brother’s death, noted late in life that his politics were very much influenced by his Christian beliefs, specifically in the teachings of Jesus in the Sermon on the Mount, and in Matthew 25: 44-45 (Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you? [Jesus replied,] I tell you the truth, whatever you did not do for one of the least of these, you did not do for me.) This religious underpinning of Christian social justice, which molded the likes of Mother Theresa and Dorothy Day, and which forms the basis of Catholic social statements on economic justice, is what motivated Senator Kennedy in his lifetime to work for laws and government programs that benefitted the poor and the working class, to fight for human rights around the world, and to oppose discrimination on the basis of race, gender, disability, and sexual orientation. It is this kind of morality, not one’s personal moral shortcomings, which are of greatest concern to me in how a candidate will govern a country as diverse and complex as the United States.

Of course, one need not be a Christian to share Kennedy’s political vision, or to believe in equality, justice, and the fundamental right of all Americans to have access to quality health care, adequate housing, and economic opportunity. There are certainly many other moral and ethical influences to his brand of liberalism and a belief in the common good. But whether one is motivated by Christian or Jewish or secular ethical principles, I believe it relevant and important to know what religious and moral influences underlie a candidate’s positions.

The separation of church and state is a fundamental aspect of American constitutional democracy, and must never be diluted. A free society depends on a proper distinction between theology and law, between the free exercise of religious belief and the imposition of religious doctrine. But the personal influences and beliefs of our political leaders is always a relevant consideration in deciding whether they can effectively lead the nation in times of turbulence and despair, and whether their vision of America is one I can abide.

In Search of a Good Justice: Elena Kagan and the Supreme Court

A few weeks ago, I knew nothing about Elena Kagan, the U.S. Solicitor General who President Obama has nominated to replace Justice John Paul Stevens on the Supreme Court. My gut tells me, however, that she possesses the attributes we want in a Justice – an open mind, intellectual depth, a willingness to listen to opposing views and to seek consensus, a non-ideological approach to the law, one driven by reason, fairness, and a respect for democracy. Kagan has an impeccable resume, having clerked for the Supreme Court, taught at the nation’s finest law schools, and served as a presidential domestic policy adviser, Dean of Harvard Law School, and now Solicitor General of the United States.

Kagan does not have a prolific written record from which to determine where she stands on important legal issues, but she has known Obama since their days together teaching law at the University of Chicago, and reportedly shares Obama’s cautious and pragmatic judicial philosophy. She has politically progressive instincts, with a cerebral, yet practical approach to legal questions. Her academic writings, it is said, are completely non-ideological. When she served as Dean of Harvard Law School, Kagan was a forceful critic of the military’s ban on openly gay and lesbian service members, but she also was instrumental in bringing more intellectual diversity and conservative legal scholars to a law school previously mired in ideological divisiveness and political correctness. And while she greatly admired her former boss, Justice Thurgood Marshall, she has expressed ambivalence toward his jurisprudence, a brand of judicial activism anachronistic by today’s standards.

What makes a good Supreme Court Justice? What traits should we look for in a person when selecting someone to fill this all-powerful, life-tenured post? When the Founding Fathers met in the summer of 1787 to draw up a Constitution, they gave seemingly little thought to the judiciary. Article III of the Constitution says nothing about the qualifications of judges and almost nothing about the mechanics of the judicial process, only that “[t]he judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time establish.” And while Article II empowers the Executive to appoint justices of the Supreme Court “by and with the Advice and Consent of the Senate,” the Founders offered little additional guidance.

History, if not the Constitution itself, has dictated that federal courts fulfill weighty and far-reaching responsibilities, more than any other judicial branch in the world. The importance of the Supreme Court to the daily lives of all Americans and to the functioning of our democracy owes its origins to an opinion in 1803 by Chief Justice John Marshall declaring a federal statute unconstitutional. “It is emphatically the province of the judiciary to determine what the law is,” Marshall wrote in the case of Marbury v. Madison. In holding that the Federal Judiciary Act of 1789 conflicted with Article III of the Constitution, Marshall considered it “the essence of judicial duty” to follow the Constitution. He declared “that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” These seemingly non-controversial positions were unsettled at the time, as the Constitution said nothing about which branch of government had the authority to address the constitutional validity of federal and state law. Marshall’s bold and visionary ruling risked a constitutional crisis, for had the Executive or Legislative branches not accepted the Court’s self-declared supremacy on questions of law, it could have altered irreversibly the young republic. The ruling has withstood the test of time, and today stands as the classic expression of judicial review in American constitutional law. It is precisely why we care about the character, intellect, and judgment of the men and women seated on our highest court.

There exist many conflicting views on the proper role of the courts, from strict constructionists and those who believe in discerning the text’s original intent, to those who believe in a “living” Constitution that changes with the times. In U.S. history, the Supreme Court has been a source of great inspiration as a symbol of liberty and justice for all, as in 1954 when Brown v. Board of Education held that segregated schools violated the Equal Protection Clause. It also has been the source of embarrassment and shame, as in 1857, when the Court ruled in the Dred Scott decision that people of African descent, forcibly imported into the United States and held as slaves, were not “citizens of a state” within the meaning of the Constitution.

If confirmed, Elena Kagan will become one of nine individuals responsible for interpreting and applying a document that embodies 18th century ideas about the rights of man and the powers and limitations of government. It is a text written in a slower, agrarian time that now must be applied to the exigencies of a rapidly changing industrial and technological society, which faces issues and circumstances the Founders did not and could not envision.

The most important, if perhaps the most elusive, quality of a Justice is, quite simply, judiciousness – the ability to judge dispassionately and impersonally. A justice represents neither her political party, her geographic region, nor her ethnicity, but only the Constitution. When Benjamin Cardozo, one of the great judicial minds of the Twentieth Century, was nominated to the Supreme Court in 1932, he faced resistance in part because New York already had two justices on the Court. In defending the nomination, one senator noted, “Cardozo belongs to Idaho as much as to New York,” that there is but one U.S. Constitution and but one national law. In an essay published in The New Republic nearly forty years ago, historian Henry Steele Commager wrote, “We do not want judges who confess a regional view, a partisan view, a racial view, or an economic view; we want judges who express a commonwealth view. This may be a counsel for perfection, but if we are allowed to strive for perfection anywhere, it is in the judiciary.”

John Marshall said that “a constitution is framed for ages to come and is designed to approach immortality as nearly as any human institution can approach it.” But the Constitution contains concepts like due process, equal protection, and liberty; concepts that mean different things to different people, and which depend on the particular circumstances. When the nation awakened to its history of racial oppression and applied the ideals of equality and due process to the challenge of segregated schools, whites’ only businesses, and restrictive covenants, it took justices who foresaw the insincerity of the “separate but equal” doctrine and who truly believed in a colorblind Constitution. In the sexual and reproductive privacy cases of the 1960’s and early 1970’s, it took justices willing to infer a right to privacy as essential to ordered liberty in the due process clause, in order to forbid the government from intruding into our bedrooms and interfering with our most intimate, private decisions.

Elena Kagan has the ability to process diverse points of view and to mediate between different factions. But does anyone really know what her judicial philosophy is, or whether she has a “judicial philosophy”? It seems that Kagan, like Obama, is not enamored of the judicial activism practiced by certain adherents of the left or the right, those who put their faith in the courts to affect social and political change, outpacing and moving ahead of (or pushing back) our democratic institutions. Jeffrey Toobin of The New Yorker has suggested that “Obama’s jurisprudence may rest less on any legal theory or nomenclature than on a more primal political skill – the ability to keep winning elections.”

“It used to be,” Obama remarked last month, “that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” In the 1960’s and 1970’s, judicial activism was a liberal concept that emphasized racial and gender equality, enforcing through the courts – through expansive interpretations of Due Process and Equal Protection – what could not be obtained through the legislative process. The social and political progress made through the rulings of the Warren and Burger eras was mostly necessary at the time, particularly on issues of race, and the country is better off for it. Nevertheless, an expansive view of constitutional rights, particularly when such rights are implied and not found within the four corners of the text, poses philosophical difficulties in a democracy, when unelected justices are essentially creating new rights and entitlements that the elected representatives of the people have not embraced.

In earlier years, judicial activists were conservatives opposed to legislative protections for consumers, children, and employees, striking down laws that violated the “freedom of contract”, a right stated nowhere in the text of the Constitution but implied by the Fourteenth Amendment’s due process clause. Today’s judicial activists also are conservative – “movement judges” like Justices Scalia, Roberts, Alito and Thomas – who set aside judicial restraint to overturn long-standing precedent and laws with which they disagree. The Citizens United case, for example, applied an overly broad reading of the First Amendment to corporate and union political contributions and voided a duly enacted statute that placed limits on such contributions. Such activist, results-oriented rulings, whether from the left or the right, pose the same troubling questions for a democratic republic.

The constitutional doctrine of substantive due process – from which most judicial activism, left or right, stems – originated in the late 19th century, when the Court barred government action that abridged one’s “freedom of contract” or “liberty of enterprise” and thus restricted the ability of government, through its democratically elected representatives, to regulate private industry. Certain conservative justices believed that the “freedom of contract” was implied in the Fourteenth Amendment’s concept of liberty (i.e., that no state may deprive someone of liberty without due process of law). Progressive critics countered that, through an application of “freedom of contract,” unelected justices imposed their personal economic and political philosophies on the populace, acting as a “super legislature” by overturning the will of the people as reflected in democratically enacted laws. Many progressive judicial voices – men such as Louis Brandeis, Benjamin Cardozo, Charles Evans Hughes, and Harlan Fiske Stone, among others – criticized what they perceived as extra-constitutional jurisprudence.

In the mid-20th century, liberal judicial activists adopted an expansive notion of substantive due process for their own purposes, particularly in the area of civil rights (they similarly adopted expansive notions of procedural due process on matters of criminal and administrative law). In ending segregation in public schools, a unanimous Court in Brown v. Board of Education used sweeping language that, while morally and politically just, had no firm textual basis in the Constitution. Brown led to decades of expansive applications of Equal Protection and Due Process that fueled criticism from the political right, who conveniently ignored the prior brand of judicial activism. Conservatives are particularly adamant about the “right to privacy” cases – symbolized most boldly by Roe v. Wade – contending that, like “freedom of contract,” there is no explicit “right to privacy” in the four corners of the Constitution.

Some leftist legal scholars contend that there is a constitutional right to economic equality, and to housing, health care, and many other areas of life. The further one advances such arguments in the courts, the less democratic the law becomes and, at some point, the legitimacy of the courts must be questioned. Most constitutional principles should not be taken to extremes. While it is impossible to determine the original intent of the Framers on most constitutional provisions – they were far too smart and politically astute to attempt to draft a constitution that could anticipate every issue – it is important to understand the historical context in which the Constitution originated and to remain true to the spirit and principles of its text. That the concept of liberty in the Fourteenth Amendment would encompass a right to sexual and reproductive privacy is, to me, a very reasonable interpretation of the textual language of the Due Process Clause. Changing societal mores, advances in technology, greater enlightenment on social and medical issues are proper considerations in discerning the meaning and application of the Constitution’s enduring principles. On the other hand, imposing one’s economic ideology onto constitutional doctrines to void democractically enacted laws (as some on the right would do), or to force economic equality on all aspects of society through the courts (as some on the left would do) are equally misguided notions of constitutional jurisprudence.

Obama understands this. In choosing Elena Kagan, as with his choice of Sonia Sotomayor, Obama is not seeking a justice with an overly broad view of constitutional rights. According to Richard Epstein, who served as interim dean of the University of Chicago Law School when Obama taught there, “Obama has nothing much he wants from the courts. He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.” Obama’s jurisprudence essentially comes down to, “leave me alone on economic issues and protect me on civil rights.”

Regardless of one’s constitutional and judicial philosophy, there is no aspect of our economic, social, and political life completely unaffected by the Supreme Court. Who fills its nine seats is too important for an informed citizenry to ignore. Of course, how a justice will evolve once given the chance to shape a nation is impossible to predict. Earl Warren and William Brennan, among the most liberal activist judges of the past century, were appointed by a Republican President, as was Harry Blackmun, the author of Roe v. Wade. President Kennedy’s sole appointment to the Court, Byron White, turned out to be a disappointment to liberals. In 1986, Justice White authored Bowers v. Hardwick, a deplorable opinion that upheld the right of the government to criminalize private, consensual homosexual behavior (a beautifully written dissent by Justice Blackmun, and a separate dissent by Justice Stevens, would eventually become the prevailing constitutional view when Hardwick was more recently overruled).

It is clear that, since Marbury v. Madison, when the Supreme Court decidedly became the final arbiter of the Constitution and the limits of federal power, there have been, from the left and the right, varying degrees of judicial rule-making and differing interpretations of constitutional provisions. This is understandable given the human nature of the Court as an institution. The conservatives presently serving on the Supreme Court, for example, believe in a far more sweeping view of the Second Amendment than judges and scholars – including the Founders – ever applied. It is a form of judicial activism of the worst kind to conclude, as many gun proponents do, that Congress cannot ban the sale of assault weapons or place reasonable restrictions on the private ownership of deadly weapons. Neither side is pure on constitutional issues – ideologues on the left or the right simply do not make for good justices. But in choosing a justice, the President and the Congress must be attuned to how a justice’s world view, concepts of judicial restraint, and ideological leanings will translate into the decision making process in real life cases.

What we will think of Elena Kagan twenty or thirty years from now is anyone’s guess. But if she retains a cautious pragmatism and a fidelity to the Constitution that does not ignore the realities of life; if she has an open mind, is willing to listen to all sides of an argument; if she maintains a sense of fairness, compassion, and justice and a healthy respect for history, judicial precedent and the democratic process, she may indeed become a justice who serves with pride and distinction.