Perhaps you've been following the contretemps over the Supreme Court's recent decision that upheld a *very popular* law banning the partial-birth abortion procedure. Any number of commentators have noted that the five justices in the majority are all Catholic (though my understanding is that Kennedy's Catholicism is not particularly energetic). Chief among those making the claim that the Justices' Catholicism had *something* to do with the decision (it's never very clear what - maybe some albino priest came and told them what to do...hmmm...I'm seeing a book...) was Geoffrey Stone's post over at the University of Chicago's Law Prof blog. The post is, to my mind, a bit of an embarrassment and this post over at Mirror of Justice points out why.
I have thought a lot about the place that religion might play in our public deliberations (and I mean two-chapters-in-a-dissertation-a-lot) and I have tried to resist the temptation to chalk up the differing views on the matter to mere partisan affiliation (i.e. you approve of the religious arguments that are conducive to your side). But it's awfully hard to do so, awfully hard.
Michael, my whole dissertation is pretty much about that and it looks very partisan to me and very much the subject of a real life campaign.
ReplyDeleteWhat is so baffling about Stone's post is that the majority decision in Gonzales v. Carhart was very, very narrow. This was not the sweeping overturn of Roe that pro-lifers have been clamoring for. Complaining that the federal law at issue in Gonzales was "virtually identical" to the state law vacated in Stenberg is just silly; the Court specified in its Stenberg decision exactly what was wrong with the state law, and the federal law was written specifically to accomodate that decision. And on top of that, the notorious rosary-rattler Justice Thomas specified in his concurring opinion that Commerce Clause issues, which plaintiff did not raise, might easily have led to the opposite decision. Commerce Clause precedent is about as firm as warm Jello; if Catholic justices were determined to restrict abortion on personal religious grounds they could easily find a way to deny a Commerce Clause challenge. Yet here is Thomas practically giving the next plaintiff a road map to get a pro-abortion result!
ReplyDeleteOf course plaintiff did not raise the Commerce Clause because a finding that Congress has no authority under the Constitution to regulate abortions in the states throws into doubt a great many other statutes the abortion lobby approves, like FACE.