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April 26, 2005

Religion, politics and discrimination

I found an interesting back and forth among some bloggers/columnists. Cathy Young, in a column argued that the Democrats rejection of devoutly religious judicial candidates did not constitute religious discrimination.

Of course, the issue isn't simply ''faith," but a nominee's views on public policy issues. A pro-abortion-rights litmus test for federal judges may be wrong, but it's preposterous to claim, as some conservatives have, that it amounts to a religious test that disqualifies ''serious" Catholics and evangelical Protestants from public office. Surely, it would apply just as much to atheists or agnostics who oppose abortion on secular grounds.

Eugene Volokh, agrees:

One can plausibly fault the Senate Democrats' opposition to the President's judicial nominees on various grounds, but "religious bigotry" is not one of them. As best I can tell, the Senators care about the nominee's politics, ideology on contested legal questions, and likely future votes on such questions, not about the nominee's religion.

Stephen Bainbridge, however doesn't:

The Democrat litmus test for judges has a disparate impact on devout Catholic and Evangelical nominees for judicial office, which is a perfectly appropriate ground for criticizing that litmus test. To reiterate, such criticism offers a "useful prophylactic for rooting out intentional discrimination, and it has the important side-benefit of doing away with rules and policies that hold back minorities devout Christians for no good reason."

Cathy finds fault in Stephen's reasoning:

The human resources guide Prof. Bainbridge quotes refers to "any qualifying test that hurts minorities, and isn't job-related" ... Is Prof. Bainbridge saying that a judge's views regarding the legality of abortion are not "job-related"? ...

Take a hypothetical nominee for the federal bench who has publicly stated that male dominance is essential to a healthy social system. He is (a) an evangelical Christian whose beliefs are rooted in his understanding of biblical principles, or (b) an agnostic whose beliefs are rooted in his understanding of sociobiology. It seems that according to Prof. Bainbridge, the Senate would be allowed to hold the nominee's views against him in scenario (b), but not in scenario (a). Personally, I think that this particular belief ought to disqualify him whether it's based on the Bible, the Koran, Confucius, Darwin, Nietzsche, or the Gor novels.

I think they're all wrong. It's very convenient to use the red-herring of “ideology” to explain away a consistent pattern of bigotry toward people of faith. The Liberal politicians that opposed Pickering and Pryor brought up “issues” that included the nominees involvement in religious groups, yet claimed they were focusing on the opinions expressed, not the religious involvement. But both had expressed those opinions outside of their respective involvement in religious organizations.

Stephen Bainbridge gets close to the truth, but like many lawyers (he's a corporate law professor at UCLA) he has the tendency to focus on the letter rather than the spirit of the law. The idea of allowing discriminating affects to be addressed by the law, rather than limiting it to provable intent, was to hamstring the efforts by so many throughout the years who hid their bigotry as something else. Blacks conveniently found themselves “unqualified” for jobs. Other groups (I'll not use the term minority because such discrimination happens to all groups, not just minorities) have experienced the same pseudo-legal slight-of-hand.

When the pattern of job-related criteria consistently hampers members of a recognizable group — a group those responsible for that pattern, are known to hold in contempt — then it's logical that discrimination is occurring. In this case, Senate Democrats are using a religious litmus test for judicial nominees.

Posted by Danny Carlton at April 26, 2005 10:34 AM

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