Religion and public life

Matthew Hoy
By Matthew Hoy on December 21, 2002

There's a couple of pieces of news today on what appears to be a new religious test for office. While liberal commentators often like to compare religious conservatives to the Taliban, it's the liberals who are acting like the Taliban. If you fail to meet their requirements (atheism or "culturally" Christian -- that is, you go to church on Christmas and Easter -- if then), then you're obviously unqualified for public office. Call it the John Ashcroft standard.

From today's New York Times:

[T]he California Supreme Court is considering a proposal that would forbid the 1,600 judges in the state to belong to the Boy Scouts because of its refusal to accept gays.

California judges are prohibited from joining groups that discriminate based on sexual orientation, but nonprofit youth organizations are exempt. The Supreme Court took up the proposal to consider changing the rule at the request of bar associations in San Francisco and Los Angeles.

Ever since the Supreme Court said that the Boy Scouts of America can determine its own membership policies, liberals have been out to get them. They have tried to get various United Way organizations to kick out the Scouts. They have mounted a PR campaign against them.

And now they're trying to limit who can be associated with them.

Let's state right off, that if the California Supreme Court is stupid enough to go through with it, they're going to get slapped down -- for the very same reason they did in the Boy Scouts case -- the right of association.

Of course, the Boy Scouts did have something to day on the issue:

A spokesman for the Boy Scouts of America reacted with outrage to the proposal, which was announced on Thursday.

"It would be wrong, inappropriate and unconstitutional," the spokesman, Gregg Shields, said. "The proposed policy would be just as inappropriate as a policy forbidding judges from being Roman Catholic or Baptist or Orthodox Jewish or any of numerous faiths which share the Boy Scouts' views."

And it's not just on the state level. Despite what the Constitution says, liberals have no problem creating a religious test for office.

Last week the New York Times reported that President Bush was considering nominating me (Douglas W. Kmiec) to the U.S. Court of Appeals for the District of Columbia Circuit. While many friends from my days in the Justice Department, former students now practicing at law firms across the country, and sitting judges wrote or called to encourage this development, a stark, inside-the-Beltway question emerged from the report: Can an avowedly pro-life Catholic actually serve on such court?

The Times noted fairly that over my 25 years teaching law, I have "written about the need for judges to interpret the Constitution with an eye to what . . . scholars call 'natural law.' " Properly, the report traced this conviction not to a particular religious belief but to the country's fundamental incorporation document--the Declaration of Independence.

It was my assumption that the average, well-informed citizen would find all this to be rather more basic than controversial, but this is not the way of activists with fax machines in Washington. By the afternoon, the speculation of my nomination produced an overly heated press release from an organization that styles itself the Alliance for Justice--a group that generally opposes Bush nominees, but apparently has a special dislike for those who are pro-life.

And some like to claim there's no hostility towards Christianity in the public square?

What rock are they hiding under?


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December 2002



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