For the past 20 years, Dr. Matthew E. Bunson has been active in the area of Catholic social communications and education, including writing, editing, and teaching on a variety of topics related to Church history, the papacy, the saints and Catholic culture. He is faculty chair at Catholic Distance University, a senior fellow of the St. Paul Center for Biblical Theology, and the author or co-author of over 50 books including: The Encyclopedia of Catholic History, The Pope Encyclopedia, We Have a Pope! Benedict XVI, The Saints Encyclopedia and best-selling biographies of St. Damien of Molokai and St. Kateri Tekakwitha.
For Catholics with a sense of history, yesterday’s confirmation hearing for 7th Circuit Court of Appeals nominee Amy Coney Barrett before the Senate Judiciary Committee brought to mind some of the darkest moments in the long traditions of anti-Catholicism in England and America. The Democrat senator from California, Dianne Feinstein, attacked Barrett, a Catholic law professor at Notre Dame, with the accusation that she is essentially unfit for service as a federal judge because of her deeply held religious beliefs. “You are controversial,” Feinstein declared. “You have a long history of believing that your religious beliefs should prevail.” The Senator then added what has already become one of the most incendiary and widely repeated comments in recent memory: “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you,” Feinstein said. “And that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”
An Ugly Confirmation Hearing
Barrett is a devout Catholic and mother of seven children. Her academic and legal career are first-rate, including her law degree from the Notre Dame Law School – where she was executive editor of the Notre Dame Law Review – and service as a law clerk to the late Supreme Court Justice Antonin Scalia from 1998 to 1999. She has taught at the Notre Dame Law School, where she holds presently the Diane and M.O. Miller Research Chair of Law and is Professor of Law. She was nominated by President Trump to serve as a United States Circuit Judge of the United States Court of Appeals for the Seventh Circuit in May.
As with any judicial nominee, their philosophy, track record, prospective judicial temperament and writings are all subject to discussion. All of those details, however, must be presented fairly, and Barrett like most nominees in today’s bitter political era was severely misrepresented by leftist groups opposed to her nomination and even by the Senators themselves for her views on abortion, the death penalty and same-sex marriage.
In questioning whether she thinks that judges should elevate their faith above the law, they focused especially on a law review article she wrote in 1998 when she was a law student and John Garvey, now head of The Catholic University of America, was her professor. In it, they argued that in certain circumstances a Catholic judge (like many Quakers, Episcopalians, Presbyterians, Methodists, and the member communions in the National Council of Churches) might be compelled to recuse herself or himself under 28 U.S.C. § 455, a federal statute that suggests a federal judge should step aside in the face of conscientious scruples.
For her part, at the start of the hearing, Barrett responded to a question from Senator Chuck Grassley, R-Iowa, chair of the committee, on when a judge should put their religious views above applying the law. “Never,” Barrett replied. “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.”
That, of course, is insufficient for Feinstein and other pro-abortion senators. Little wonder that Democrat Senator Dick Durbin from Illinois castigated Barrett for her supposed use of the term “orthodox Catholics” as it might malign those Catholics who dissent from Church teaching on abortion and the death penalty.
Other members followed with their own assaults upon Barrett’s character and Catholicity. Democrat Senator Mazie Hirono from Hawaii proclaimed, for example, “I think your article is very plain in your perspective about the role of religion for judges, and particularly with regard to Catholic judges.”
A New Test Oath?
Maureen Ferguson, the Senior Policy Advisor of the Catholic Association, declared:
Senators Feinstein and Durbin know full well that the Constitution prohibits any religious test for office, yet they proceeded with an offensive grilling of a highly qualified judicial nominee, Amy Coney Barrett, asking inappropriate questions about her Catholic faith. Senator Durbin asked directly, “Do you consider yourself an orthodox Catholic?” Imagine the universal outrage had a nominee of a different faith been asked the same questions; there is clearly a double standard at work.
One might argue that there is even more at work than a double standard. Article Six of the United States Constitution prohibits very clearly a religious test as a requirement for holding office in the government. The comments by Senator Feinstein and others, however, raise the specter that we may be facing a new effort to impose a test act on Catholics and others with deeply held religious beliefs who seek public service. During the confirmation hearing for now Supreme Court Justice Neil Gorsuch, several Democrat Senators peppered the then-nominee with multiple questions about his personal beliefs and whether they might disqualify him (or any nominee for that matter) from the judiciary.
The line of questioning for Professor Barrett followed the same pattern, although in her case it went even beyond the attacks on Gorsuch to the specific accusation that as a practicing Catholic she should be disqualified from serving as a judge. The pattern is also distinctly similar to the confirmation hearings of other judicial nominees, as Quin Hillyer documents in a piece for the Washington Examiner.
Catholics in England long faced a Test Oath from the government that placed severe limitations on public service for Catholics and religious non-conformists. Such oaths used the recognized official status of the Church of England to block Catholics especially from holding any position of public influence. One of the most egregious was the Test Act of 1673, known in full as “An act for preventing dangers which may happen from popish recusants,” that demanded of any person holding political or military office the acceptance of the Oaths of Supremacy and Allegiance and rejection of the Church’s teachings on transubstantiation. Catholics were also effectively barred from prestigious schools such as Oxford and Cambridge, even though they had been founded by Catholics. Such oaths were rescinded only in 1828 in England, but similar requirements were imposed on Catholics in Britain’s American colonies and even in several states.
In the aftermath of the hearing for Professor Barrett and other nominees, serious question has to be asked whether the era of the religious test has returned. Only where once it was demanded from Catholics by bigots in the name of the Church of England and “No Popery,” today it is extracted by secularists, the new atheists and progressives in the name of tolerance and protection of reproductive rights.
The Heart of the Matter
There should be no mistaking as well that at the heart of this Senatorial opposition to anyone of “deeply held religious beliefs” is abortion. Feinstein said to Barrett, “You’re controversial because many of us that have lived our lives as women really recognize the value of finally being able to control our reproductive systems. And Roe entered into that, obviously.”
With Neil Gorsuch, Feinstein went to great lengths to draw from him agreement that Roe v. Wade exists not merely as a precedent in law but as a “super-precedent,” a term with thin legal foundation itself that has been embraced by some pro-abortion lawmakers when assessing judicial nominees. Gorsuch quietly stated that Roe v. Wade does now have precedent, but, “A good judge will consider it as precedent of the United States Supreme Court, worthy as treatment of precedent like any other.”
In an op-ed written for the Washington Examiner, Garvey put the abortion issue in stark terms:
The case against Prof. Barrett is so flimsy, so transparently at odds with her opponents' own principles, that you have to wonder whether there isn't some other, unspoken, cause for their objection.
Senators Durbin, Hirono, and Feinstein seemed particularly troubled by Barrett's Catholicism. I don't think they objected to her membership in the Church plain and simple. That would violate the Religious Test clause of the Constitution. Nor do I think they were really worried that she, like Pope Francis, opposes the death penalty.
I suspect what really troubled them was that, as a Catholic, her pro-life views might extend beyond criminal defendants to the unborn. If true, the focus on our law review article is all the more puzzling. After all, our point was that judges should respect the law, even laws they disagree with. And if they can't enforce them, they should recuse themselves.
Professor Barrett will almost certainly be confirmed, as will other prospective judges with “deeply held religious beliefs.” The question going forward, however, is just how far the pro-abortion members of the Senate Judiciary Committee – and increasingly many in power across the fields of media, civil service, education and even law – will impose religious tests and oaths of fidelity to the Culture of Death upon Catholics and people of conscience. Such oaths will be carefully camouflaged under other names, but they will be religious tests all the same.
Meantime, let us consider the criticism that “the dogma lives loudly within you” something to which we should all aspire.