6 Questions for S. Court Nominee

JUST LAW AND RELIGION By Michael Kessler President Obama will soon announce his nominee for the next Supreme Court justice. … Continued


By Michael Kessler

President Obama will soon announce his nominee for the next Supreme Court justice. We should pay close attention to how this new justice conceives of Constitutional protections for fundamental rights, especially religious liberty.

The President’s criteria involve a refreshing mix of principled legal analysis and personal moral characteristics. In announcing Justice Souter’s retirement, President Obama said: “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving as [sic] just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.”

Empathy?! President Obama had already sent some conservatives on the war path, convinced he will nominate a “judicial activist” who will create policy and “legislate from the bench” (of course, they were convinced he would nominate a raging liberal before he uttered the “E” word). If you want the clearest explanation of what Obama might mean by “empathy,” see the excellent legal analysis of Professor Orin Kerr blogging at the Volokh Conspiracy. And most of the debate will be consumed by where the nominee stands on the spectrum of law about access to abortion and individual choice.

But what about the rest of these “constitutional traditions?”

So, here are some questions that I would propose President Obama ask his potential nominees about how they would protect fundamental rights–particularly religious and moral liberty:

1) Do you agree with Justice Souter in McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), that “the Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate?” Do you think this means that sometimes the Courts–on the basis of the Establishment Clause–must stop the government from actively becoming involved in religious speech, displays, or doctrinal endorsements?

2) In Employment Division v. Smith, 494 U.S. 872 (1990), Justice Scalia authored the majority opinion which held that there was no basis for religious exemptions to laws restricting behavior so long as the legislation was neutral and unbiased against particular religions and generally-applicable and binding on to all citizens. Scalia argued that the Court has “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” This has meant that government regulations that impose burdens on sincerely held religious beliefs are not subject to stronger scrutiny, even though they impose restrictions on an enumerated fundamental right. A wide range of religious conservatives, liberals, and advocates for individual liberty have condemned this decision. Do you agree with it and if not, is there a better alternative that preserves the rule of law while recognizing that individual religious liberty requires special protection under the express terms of the Constitution?

3) Do you agree with Justice Kennedy in Lawrence v. Texas, 539 U.S. 558 (2003), that moral and religious animus or disapproval alone, even when enacted by a majority of a state legislature, is insufficient to ground a law if it violates some fundamental right or liberty protected by the Bill of Rights and Constitution?

4) Do you agree with those like Randy Barnett who argue that the Constitution is built upon a “presumption of liberty that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow fundamental?” Thus, when the government imposes regulations on basic individual liberties, the burden is on the government to prove that the regulation is compelling and necessary, rather than to presume in the first instance that the legislation is Constitutional.

5) As a candidate, Senator Obama said: “If you get a federal grant…you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them or against the people you hire on the basis of their religion.” It is unclear how President Obama will resolve this issue. How would you resolve the conflict between the First Amendment’s protection of religious liberty and the establishment clause’s prohibition on endorsing particular viewpoints, in this contested area of whether to allow faith-based organizations who receive federal funding to use religious criteria in hiring?

6) Do you think the First Amendment protection of religious liberty allows for, or even requires, exemptions from laws regulating actions or services that violate an individual’s conscience? Thus, should a florist who does not want to provide flowers for a legal same-sex marriage ceremony be exempted from state anti-discrimination laws? Can a medical practitioner who does not want to participate in an abortion procedure, or provide information about abortion, be exempted from laws that may otherwise require the services?

While President Obama’s nominee will be scrutinized heavily for his or her responses to the de facto abortion litmus test, the answers to some of these questions will reveal much more useful information about the nominee’s views of individual liberties and the role of the Constitution in protecting liberty and justice for all.

Dr. Michael Kessler is Assistant Director of the Berkley Center for Religion, Peace, and World Affairs and Visiting Assistant Professor of Government at Georgetown University.

By Michael Kessler | 
May 15, 2009; 8:37 AM ET

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Just Law and Religion

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  • Max5ties

    First, it should be made clear to all, that we do not live in a theocracy. Our government is supposed to be secular. The basis of this policy is found in the Separation Clause of the First Amendment.To fully understand what the Separation Clause means, read the Virginia Statute for Religious Freedom, authored by Thomas Jefferson. This is the document from which our Separation Clause was crafted. It would be wise, as well, to read Jefferson’s letter to the Danbury Baptists. Both documents can be found online.Social conservatives will be on the war path no matter who is picked for the court, unless the nominee holds their religious views. They will always scream “activist judge” every time their view isn’t supported.President Obama should ignore the clamor from the religious right, where, oddly enough, much sectarian hate is born and broadcast.

  • CCNL

    BO’s first question should be:Do you realize that I am president because a majority of the “mothers and fathers” of 35 million aborted babies voted for me???

  • Counterww

    Actually, max people like you like to quote only Jefferson, but the founding fathers had different thoughts about the seperation clause.Others, such as Washington, thought that the Pious or religious had much to bring to to the table. They did institute Chaplains in the Senate. They did not intend to have ALL religion absent from the government, and that is the truth of the matter. Anyone that claims this ignores what other founders thought on the subject.

  • walter-in-fallschurch

    Counterww,that side LOST. jefferson, madison, adams, franklin and to a lesser extent washington (he was a big panderer in his public statements, his “letters” are much more interesting) miraculouly disestablished all that religious rights crap. they created an entirely new kind of government.

  • walter-in-fallschurch

    on congressional chaplains, in “detached memoranda” madison said,“Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.“The establishment of the Chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship against the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers, or that the major sects have a right to govern the minor.“Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right principle, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one.”Now that’s a wall of separation.

  • walter-in-fallschurch

    washington was at best deferential toward religion. as a politician he was very respectful of others’ beliefs, and understood that others felt they derived their morality from their religion.given that it was the 1700s and every government that had ever been founded up to that point had claimed it’s authority from god, it’s pretty darn amazing how jefferson, madison, adams et. al. limited the mention of “religion” to only TWO places in the constitution – and those only to LIMIT religion’s influence:the first amendment prevents congress from “establishing” religion, and article 6 prevents a “religious test” for public office (as mentioned earlier, up to that point these “religious tests” were common in the individual states).now of course many of the founders were religious. they just wanted it out of government. yes, to the dismay of madison, they prayed before meetings. old habits die hard. here’s adams on the founding principles of the constitution:”The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an era in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or in America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses. Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, and which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind.” John Adams, A Defense of the Constitutions of Government of the United States of America, 1788.It turns out Adams was too charitable. We indeed do “pretend” our Founders “had interviews with the gods,” and were “under the influence of Heaven.”