To ask some questions is to answer them, and via Commonweal, I see that UCLA history professor emeritus Joyce Appleby has penned a lovely exercise in anti-Catholicism entitled, Should Catholic Justices Recuse Selves On Certain Cases?. Here is an excerpt:
But because of the Catholic Church’s active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants…
…Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?
In response, David Gibson at Commonweal notes that he, as well as all of the Catholic Justices on the Court, would argue that the teachings of the Church have no bearing on their rulings. Nevertheless, Ms. Appleby apparently believes the Justices cannot be taken at their word on this matter. Catholic justices, it seems, can’t be trusted.
What interests me about this line of argument is that both Mr. Gibson and Ms. Appleby implicitly assume there is something wrong with religious beliefs influencing Justices. And I am curious about what that something is. For instance, Judge Sotomayor is famously on the record for saying that a judge’s background (i.e. gender, ethnicity, life experience) influences their decision-making, as is Justice Ginsberg if I am not mistaken. Yet there have been no calls for the recusal of female (or male) judges from gender discrimination cases.
In gender, as in religion, there is no such thing as neutrality. A person is either male or female (with certain rare exceptions), is of some or no religious background, is appointed by a Republican or a Democrat, is of one socio-economic background and not another, etc. All of these life experiences influence a Justice in varyious ways, conscious and unconscious. What is it, specifically, about religious background that is seen as pernicious? If two judges hold the same position on racial discrimination, one as a result of their Protestant faith, the other as an agnostic, is the former’s view to be excluded from the judicial process, and the latter included? If so, why? If not, why?