Martin Marty is, I think, right to complain about the unfairness and injustice, in the context of the judicial-nominations controversy, of equating "Democrats" with "enemies of people of faith." (Relatedly, for a detailed discussion, written by a prominent conservative commentator, of a related controversy -- i.e., the over-heated charge that the Democrats' attacks on the William Pryor nomination were "anti-Catholic" -- see this article by National Review's Byron York).
Update: National Review's Ramesh Ponnuru agrees that Frist and FRC missed the mark.
And, Marty is right to remind us all that religious believers will, in good faith, often come to different beliefs on a variety of political issues. (He would also recoil, I am sure, from the suggestion that no "real" Christian could come to, say, Michael Novak's views on the merits of democratic capitalism). The MOJ community, I would think, is Exhibit A for this proposition.
That said, the excesses of Sen. Frist, Rep. DeLay, or the Family Research Council do not change the fact that there is a powerful political constituency that strongly supports (with energy and dollars) the exclusion-by-law of religiously informed argument and expression from our public life, political discourse, and civil society. This constituency is, at present, focused particularly and aggressively on blocking President Bush's nominees to the Courts of Appeals, and has, at times, acted unworthily -- smearing intelligent, capable, honorable people and disingenuously characterizing the practice and purpose of the filibuster -- to achieve this goal.
To be clear: The "Democrats" are not "anti-religion." But there are powerful interest groups whose activities are animated by a belief that judges should not be confirmed -- period -- who believe that abortion is a grave wrong which may be reasonably regulated, or that the First Amendment permits government to accommodate religion and to include religious institutions in public-welfare programs. The political reality today is that these ideologically driven interest groups -- Americans United for Separation of Church and State, People for the American Way, the Alliance for Justice, etc. -- are underwriting and driving the Democrats' obstruction of qualified judicial nominees (as is their right, of course) in the Senate, not because these groups are passionately devoted, Seamless Garment style, to social justice and solidarity, but because, in the end, they want to maximize the scope of the constitutionally protected abortion license.
It is fair to say that these groups' "litmus test" can be expected to have a disparate impact on nominees who are "conservative" Catholics or evangelical Protestants. It is also fair to say, I think, that some Democratic senators seem to presume, almost conclusively, that a nominee with "deeply held" religious beliefs cannot be trusted to put aside those beliefs -- it is not clear, by the way, what it is meant by "puting aside" one's beliefs -- when deciding legal questions.
Again, I agree with Marty that the reponse to the Senate Democrats' unfair, undemocratic, and uncharitable tactics is not to call them "anti-religion," but to call them, well, "unfair, undemocratic, and uncharitable." (The appropriate response, by the way, to the latest argument that the filibuster is at the core of our constitutional structure, and is essential to a system of "checks and balances," is derisive chuckling). It is indeed, as Marty writes, "outrageous" and "egregious" to equate Democrats' votes on cloture with anti-religious bigotry; it is also, in my judgment, "outrageous" and "egregious" for Democrats to persist in slandering as "extremist," unqualified, and hostile to freedom the eminently worthy nominees like (to name just two) William Pryor and Janice Rogers Brown.
I should clarify, in conclusion, that I am not saying that there are no worthy or respectable arguments in favor of blocking these or other judicial nominees. I am saying, though, that these arguments are not doing the real political work in the current dispute.
Rick
Sightings 4/18/05
Furious with Frist
-- Martin E. Marty
Consult the Sightings archive and you will find
few columns that display a preoccupation with the Christian right. Many do
discuss the evangelical cohort -- fundamentalist, evangelical, Pentecostal,
Southern Baptist, conservative Protestant -- because more than one fourth of
Americans are adherents thereto. However, our mission, to help frame
issues rather than to spew ideology, has us keeping doors open, lines fluid,
witnesses on all sides heard, poles depolarized, etc. Predictability is an
enemy of good journalism, and we don't want to be about the business of knee
jerking. Something has to be really egregious, outrageous, and dangerous
to the republic before we venture forth. This week something
is.
I was moved to write this column because I received
an email this week asking why progressives, liberals, and moderates in religion
don't fire back when something offensive gets lobbed from the right, and had to
confess, "I don't know." Yes, there is Jim Wallis, an evangelical himself,
best-selling as a counter-attacker. Yes, there is the Interfaith Alliance,
steadfast and steady. The budget of all such individuals and groups,
however, is exceeded by two minutes of fundraising yield on, say, one Pat
Robertson TV program. Why not counterattack? While the politically
far right minority in the camp mis-dubbed "evangelical" is mobilizable because
their churches and movements make a virtual creed out of certain political
commitments, "mainline" Catholics, Protestants, and Jews include people from a
spectrum of political commitments, and don't want to march
lockstep.
So to the point: The outrageous, egregious, and
dangerous affront was an attack by Senator Bill Frist, the Family Research
Council, advocates of "Justice Sunday," and some evangelical and Southern
Baptist notables who know better and usually do better. Tom DeLay is in
this camp, having pioneered this kind of blunderbuss attack on fellow believers
with whom they disagree politically. They have assaulted and are
mobilizing slanderers against millions upon tens of millions of Catholics,
Protestants, and Jews (and fellow evangelicals?) who politically support efforts
not to "go nuclear" and hence kill the filibuster potential in the Senate.
In Frist's language, "Democrats" is the term that covers all these enemies of
people of faith, but many Republicans also firmly oppose his efforts and name
calling. An advertisement running in newspapers poses their political
viewpoint alone as being on the side of the Bible.
Fortunately, Senator McCain and other Republicans
and numbers of responsible and civil evangelicals are speaking up, trying to
cool the fury and quench the fires. They worry about the increasing
triumphalist and theocratic expressions from the Fristian and DeLayan
right. They point out that one can disagree with many court decisions,
even on some basic issues, without relegating all political opponents to the
"against-faith" camp.
Most of the international religion stories these days
have to do with theocratic suppressors of freedom, would-be monopolizers of
religious expressions. We've been spared such holy wars here. But
Frist and company, in the name of their interpretation of American freedom,
sound more like jihadists than winsome believers. It would be healing to
see them on their knees apologizing to the larger public of
believers.
----------
Various lawsuits have been filed against Illinois Governor Blagojevich's rule requiring dispensing of the "morning after" pill, including this one where the plaintiff is represented by the Center for Law and Religious Freedom of the Christian Legal Society (full disclosure: I serve on their advisory board). The following excerpt from the press release suggests a couple of points:
The lawsuit alleges that Governor Blagojevich's rule is void because it violates Mr. Scimio's rights protected by [among other things] the Illinois Healthcare Right Conscience Act. . . .
David Scimio is a pharmacist at Albertsons, a grocery store in Chicago, and a Christian. Mr. Scimio believes that human life is sacred, that life begins at the moment of conception, and that the destruction of a fertilized human ovum ends a human life. Mr. Scimio, consistent with his Christian beliefs, does not dispense emergency contraceptives, such as the "Morning After Pill" or "Plan B." Albertsons accommodated Mr. Scimio's religious beliefs until it was required to order Scimio to comply with Governor Blagojevich's "emergency rule" earlier this month. Under that accommodation, Mr. Scimio would refer patients seeking "Plan B" to another pharmacy less than five hundred yards from his store.
Rob, in his discussion of this issue, advocates protecting "value pluralism" on the issue of the morning-after pill by leaving the decision to each employer (pharmacy). But the health-care conscience act on which Mr. Scimio relies would (if it's applicable to pharmacists) protect him not only from sanctions by the state, but also from sanctions by his employer. In this particular case, the employer apparently accommodated the pharmacist until the governor stepped in and forced the accommodation to end. But the conscience act, if applicable, would bar even the employer firing the pharmacist on its own initiative. Health-care right-of-conscience acts in states around the nation do this. The Medicare and Medicaid statutes contain a protection for individuals against being fired for refusing to participate in a Medicare/Medicaid-funded medical procedure on the ground of religious or moral conscience (42 U.S.C. § 300a-7). Title VII of the Civil Rights Act also requires employers to make "reasonable accommodations" of employee's religious practices.
All of these statutes -- Rob, do you think they're all a bad idea? -- reflect the judgment that "value pluralism" should be protected not solely through the employment market, but by directly shielding the individual's right to decide whether to participate in giving health care that s/he believes is morally wrong. (Actually, it's not necessarily the solitary individual acting; objecting pharmacists have joined together in the group Pharmacists for Life, which it seems to me qualifies as among the associations to which Rob refers, that "create and maintain identities that diverge from -- and even defy -- the surrounding society's norms." At the very least, isn't Pharmacists for Life a better "identity-creating" association than Walgreen's?)
Protecting value pluralism through the market -- let each employer/provider decide -- is often a sensible strategy. But it is ineffective if the market becomes concentrated, as may well be the case with pharmacies (my untutored impression is that the "mom and pop"s are steadily getting crowded out or snapped up by the national chains.) If two or three of those chains require all their pharmacists to dispense morning-after pills, objecting pharmacists may be driven out of their life's work as a price for their conscience, which is a high price to pay in a society supposedly committed to the importance of conscience.
Of course, if the market were concentrated and instead a few chains refused to dispense contraceptives, that would make contraceptives effectively unavailable. The alternative approach to simply letting the market take its course is to accommodate the pharmacist's right of conscience as long as there are alternative ways for women to get contraceptives -- either from some other pharmacist at this store, or from another store nearby (like the one that, according to the Illinois complaint, was 500 yards away). This is a somewhat harder decisionmaking standard to apply. But it has advantages over simply relying on the market, which tends to protect "value pluralism" only indirectly. In a modern consumerist society, the value that tends to drive out all the others is "give the people what they'll pay for." That's not to dismiss the depth of moral arguments about the need for women to have access to contraceptives. It's just to say that the market will tend to respond to those who need or want to buy a legal product; so maybe those whose conscience forbids them to provide such a product need some protection from the law.
Tom
