Mirror of Justice

Here is Mario Cuomo's L.A. Times op-ed, "Put a little faith in Roberts:  Go ahead, ask him about his religious beliefs.  As long as he puts the Constitution first, there should be no problem." 

Well, not to be too flip, but there actually would be a problem -- wouldn't there be? -- if Roberts "put the Constitution first," ahead of his "religious beliefs".  Cuomo's real point, of course, is this:

The question about Roberts' beliefs in effect asks whether he would impose his own personal test, religious or otherwise, on his reading of the Constitution: Would he say he might ignore his oath to support the Constitution if faced with an overriding personal belief?

Now, as Gov. Cuomo knows full well, there is zero chance that Judge Roberts will say -- or that Judge Roberts believes -- he should "impose his own personal [religious] test . . . on his reading of the Constitution."  Presumably Gov. Cuomo -- as much as he frustrates me, I have no doubt that he is a decent man -- strongly believes that being a public official does not excuse acting wrongly (lying, cheating, stealing, etc.).  So, why does Cuomo think the question should be asked?  Payback, apparently.  Here is Cuomo's opening:

FOR MORE THAN 20 years, some conservative clerics and politicians have bitterly criticized Catholic public officials for refusing to use their office to "correct" the law of the land. They demand that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder and work to overturn Roe vs. Wade and other laws that make abortion legal.

Most of the targeted officials have been Democrats such as Ted Kennedy, Gerry Ferraro and John Kerry. But now that Judge John G. Roberts Jr. — their candidate — has been nominated for the U.S. Supreme Court, the shoe is on the other political foot. Conservatives are outraged that another Catholic public official might be considered deserving of the same criticism. They demand that Roberts not be asked about personal beliefs, including religious ones, because it would amount to a "religious test" prohibited by the Constitution.

So, Cuomo -- like E.J. Dionne, in his own recent editorial piece -- contends that consistency somehow requires "conservative" Catholics not to object to questioning about Roberts's religion, becuase they have (he says) "bitterly criticized Catholic public officials for refusing to use their office to 'correct' the law of the land" and have "demand[ed] that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder[.]"  Cuomo wants Roberts to be asked about religion, because he thinks it unfair that he (and Senator Kerry, and Mayor Rudy G., and Rep. Ferraro, etc.) were challenged by co-religionists.

I imagine it is comforting for Gov. Cuomo to imagine that he and Judge Roberts are similarly situated, and that his own support for abortion rights (and his opposition even to regulations of abortion that might be permissible under Roe and Casey) is not meaningfully distinguishable from, say, Justice Roberts's decision to vote in accord with the fact (and it is a fact) that the Constitution permits the death penalty, notwithstanding its immorality.

But the complaint of "conservatives" about politicians like Cuomo has not been -- at least, in my view, it should not have been -- that these politicians have not "ma[d]e political decisions reflecting their religious belief that abortion is tantamount to murder[.]"  It has been that (a) they are making political decisions that do not provide the protection to unborn children that justice -- not "religious belief[]" -- requires and (b) that they have, for political expediency, embraced a reading of the Constitution that is mistaken.  Roe v. Wade was wrongly decided, not because it conflicts with Catholic teaching, but because it cannot be squared with the Constitution's text, history, and structure.

It is also sad to hear Gov. Cuomo characterizing Catholics' opposition to abortion as reflecting nothing more than their "personal" "religious beliefs."  After all, the Catholic claim is not that abortion's wrong-ness is revealed, or a mystery of the Faith.  The Catholic claim that abortion is wrong -- which Gov. Cuomo refuses to support politically -- is not different from the Catholic claim that race discrimination is wrong.  These are moral claims, yes -- and maybe all moral claims are, in a sense, "religious" -- but I assume Governor Cuomo has no objection to political actors trying to use their office to bring about a more just, moral society (e.g., the Civil Rights Act, the Social Security Act, etc.).  The premise for Governor Cuomo's "I can't impose my personal religious beliefs on the Constitution" is, and has been for two decades, that the Constitution actually requires an near-unlimited abortion license.  But, it doesn't.  If we were talking about a conflict between religious belief and, say, the requirement that Representatives have attained the age of 25 years -- if we wondered whether Roberts's religion would compel him to require the seating of a 16 year old -- then the potential for that conflict might be worth exploring.  But we are not.

Finally, the whole "would Justice Roberts put his oath to the Constitution above his faith?" question is misconceived, in my view.  In an honest world, Roberts would say, "What a strange question.  Of course the Faith comes first.  No, I certainly would not, in exercising my office, culpably cooperate with evil.  But there is nothing about my oath to uphold the Constitution, properly understood, in my capacity as an appellate judge, that is remotely likely to conflict with my moral obligations or religious commitments.  The same cannot be said for you, though, Senator.  After all, you are responsible for many of the laws that I am charged with interpreting."

Am I being unfair to Gov. Cuomo?  Am I letting Roberts off too easy?

Rick