Roberts is right, and Turley is wrong... except for one thing

John Roberts was asked the other day by "Gulag Dick" Durban what he would do if the law required a ruling which his Catholic church considered immoral.

Roberts replied, after hesitating, that he'd probably have to recuse himself.

John Turley of Georgetown Law School says that this was "the wrong answer;" that in view of his oath to uphold the Constitution, Roberts should ignore his faith and his conscience, and support an immoral ruling.

Now, Turley is a law professor, and I suppose he has credentials to address the legal side of this issue. But theologically, it's Turley who is wrong. And I'd argue that he's wrong constitutionally, too. Far from making Roberts unfit to sit on the Court, his answer was the only answer anyone morally fit to sit in judgement on others in any capacity could possibly give- and the only one which honors the right of a judge to have a religion other than secularism.

None of us would be safe if the people who sat on our courts checked their consciences at the door and understood their oath of office as obligating them to do evil if the law so dictated. And the First Amendment would be toast if a religious test were imposed for membership on the Supreme Court. Mind you, a religious test is exactly what we're discussing here. As one who has some credentials, at least, in the theological field, I think Turley needs to reflect on the fact that, in the eyes of any Christian theology with which I'm familiar, the position he advocates is sheer idolatry.

It would require a Christian judge to place his allegience to the law above his allegience to God. It would require him, in essence, to make a religion of the law- and, by extention, of the State which promulgates it- and to effectively renounce his own.

A religion need not involve a belief in a deity; Confusionism and Taoism and Buddhism are all religions without gods. Nor need it involve a belief in an afterlife; Confusionism lacks such a belief, and it's a purely optional element even in Judaism! Rather, a religion is a philosophy or approach to life which defines one's ultimate values and most deeply-held beliefs.

Roberts did not say that he would ignore the law and rule the way the Pope told him. Rather, he said that if he faced a conflict between the law on one hand and his ultimate values and most deeply-held beliefs on the other, he would recuse himself. Regardless of what religion he followed, no religious person with an ounce of integrity could do otherwise!

No- check that. No person with an ounce of integrity could do otherwise!

If Turley is right, forget pluralism. There is only one religion whose members could be judges. It would be ultimately the same religion the Christians had to deal with in Roman times: the idolatry of the State. The Mennonites and the Jehovah's Witnesses would be right, the First Amendment pretty much a dead letter, and nobody unwilling to make a god of the law could administer it!

I'm sure that Roland Freisler of Hitler's infamous People's Court would have passed Turley's test with flying colors. But do we really want Roland Freislers on our courts?

No. Turley is wrong, and Roberts is right- except for one thing. Given the difficulty the media and liberal politicians have getting their minds around the difference between participation in public life by people of faith and the very "establishment of religion" warned against by the First Amendment (and threatened by their own cluelessness!), Roberts' answer probably will come back to haunt him. And the resolution of the questions Turley raises will go a long way toward demonstrating whether we have become so completely post-modern in our society that secularism has become our established religion, and a judge's recusal rather than violate either his conscience or the law is seen as heresy.

If Turley's viewpoint wins out, Freislers on the bench may not be that far away. After all, if the State's claim on your conscience is the highest one, who is there to dictate what the State may demand?

This is not a "Two Kingdoms" issue. In Lutheranspeak, the question here is whether or not God is, in fact, the Ruler of the Kingdom of the Left Hand, too. The question any Christian judge would be faced with should Turley's viewpoint prevail would be precisely that faced by the martyrs in the arena: is Jesus Lord, or is Caesar?

Comments

Eric Phillips said…
Bob,

I agree in principle, but this isn't an executive position we're talking about; it's a judicial one. If a judge is doing his job correctly, he's only interpreting the laws and the constitution the way they were written (and the best thing I've heard about Roberts is that he's a strict constructionist, and therefore will take this responsibility seriously). If a good judge is asked to interpret a bad law, and there is no good grounds for finding that law unconstitutional, simply by being honest and doing his job he may end up with a ruling he dislikes as much as he dislikes the law on which the case had to be decided. That's not his fault; it's the fault of the legislature.

I would still respect a judge's choice to recuse himself, but I wouldn't EXpect it.
That's a good point, Eric- as long as we're talking about interpreting a law
or the Constitution. The question as Turley phrased it was broader than that- and as we all know, these days judges, rather than legislatures, all too often make laws, as exemplified by Roe,Cruzan, and the other rulings which would fall into that category.

And would the Catholic church ever consider the mere interpretation of the Constitution immoral- given the Constitution's content? Isn't this really, almost by definition, a question which implies judicial legislation?

However, even so, you're right. So long as it's a matter of interpretation, a judge's job is simply to interpret- and while I cannot conceive of the Catholic church ever finding a good-faith interpretation of the U.S. Constitution immoral, any law which the Catholic church regarded as immoral would likely also raise constitutional questions.