c. 2005 Religion News Service

(UNDATED) How, in a country born partly in rebellion against state-imposed religious tests, could religion loom today as a measure of fitness for high office?

Didn’t we put that all behind us with John Kennedy’s election in 1960 and, in particular, his declaration before a Houston ministers’ meeting that he was not his church’s spokesman in matters political?

Well, we thought we did. But that was a better time. The sudden concern over whether Judge John G. Roberts’ Roman Catholic faith should be an issue in his nomination to be a justice of the Supreme Court indicates the extent to which our ideology-driven politics has lost its way today.

Morality and religion surely inform one’s values and understanding of right and wrong. But the great religions can and do differ on what is and is not moral _ abortion, for one thing, or the death penalty, or when and what kind of war is justified. Accordingly, there has been _ at least up to now _ a don’t-touch attitude in this country about religion and judicial nominees.

What has changed that? Ironically, it’s a byproduct of the determined campaign of the religious right to impose its brand of Christianity on American public life and politics. In response, some besieged liberals have reacted in kind _ questioning whether Roberts’ Catholicism will affect his ability to abide by the Constitution in difficult cases like those involving abortion and a woman’s right to choose.

It’s worth noting that none of the three Roman Catholics currently on the high court, Antonin Scalia, Clarence Thomas and Anthony Kennedy, encountered any overt questions about their religion and their fealty to the Constitution. But this is a nasty moment in American politics, thanks in part to the religious right.

To the extent that many religions are by nature authoritarian _ they claim to know God’s will, after all, and demand conformity from their members _ concern about the extent to which public officials might follow religious dictate is perhaps understandable. But as former New York Gov. Mario Cuomo pointed out, that raises only one valid religion-based question that can be asked of Roberts: Is there anything in his religion or his personal religious beliefs that clashes with the Constitution or would prevent him from ruling according to the Constitution?

Any answer other than “No, sir” would be stunning and is not to be expected.

All that being said, it should also be made clear that Roberts is not the political innocent _ detached from the partisan Republican politics of the time _ that President Bush and his right-wing backers would have us believe. Quite the contrary.

During his time in the Reagan administration, Roberts authored or was a principal adviser on such Reagan gambits as attempts to placate the South by reducing the reach of the 1965 Voting Rights Act, challenging the U.S. Civil Rights Commission on busing and affirmative action in housing and education, and opposing the improvement of prison facilities for women as too expensive. At one point in 1982, Roberts produced a 27-page memorandum for his boss, Solicitor General Kenneth Starr, that argued for stripping the Supreme Court and the appellate courts of power to hear discrimination cases and other civil rights issues.

It was too much of a stretch even for the Reagan Justice Department. It junked the idea as, if not lame-brained, probably unconstitutional.

Roberts was a committed conservative as a young man _ presumably still is _ and an ambitious lawyer. He was determined to please his Republican bosses and advance his career. But whether he shared their convictions or was merely being their dutiful advocate _ and whether he is now the fire-breathing right-wing ideologue Democrats and left-liberals would have you believe _ is less clear. The whole issue of what Roberts truly believes was complicated last week by disclosure that, as a private lawyer doing pro bono work, he helped homosexuals win a landmark case.

Conservatives had a cow. How dare he get so far off the reservation?

What it comes down to is this: Roberts, barring evidence that he’s done time in Islamist training camps in Afghanistan, is going to be the next member of the Supreme Court. He’s an unapologetic conservative, but Democrats are just going to have to get over it. And no one knows for sure how he’ll rule on any major issue.

Most of all, beyond the question suggested by Cuomo _ is there anything in Roberts’ Catholicism that would prevent him from ruling according to the Constitution?

Any challenge to his nomination on the basis of his religion would be un-American, if not unconstitutional.

MO/RB END FARMER