The Still-Acceptable Prejudice

On October 5, Notre Dame law professor Amy Coney Barrett barely—just barely—won the approval of the Senate Judiciary Committee for her nomination to the 7th U.S. Circuit Court of Appeals. Nominated by President Trump on May 8, Barrett, a forthrightly traditional Catholic, garnered not a single Democratic vote (the committee tally was 11-9), and her confirmation vote in the Republican-majority Senate is expected to break down similarly along partisan lines. This for a judicial candidate whose paper qualifications are impeccable: She had been executive editor of the law review (a signifier of ultra-high grades) at the Notre Dame Law School, ranked No. 20 in the nation by U.S. News; had clerked for D.C. Circuit Court of Appeals Judge Laurence Silberman and U.S. Supreme Court Justice Antonin Scalia; and occupies an endowed chair at Notre Dame, where she has taught since 2010.

The Judiciary Committee’s hearing on Barrett’s nomination last month was a textbook case of the precise kind of anti-Catholicism that is permissible and even encouraged among Democrats. The committee’s ranking minority member, Dianne Feinstein, who isn’t even the most liberal of the Senate liberals (she’s being challenged on her party’s left in her upcoming reelection race), became notorious for her on-the-floor accusation that Barrett had absorbed too much Catholic “dogma” to be able to apply the law in the cases in front of her:

Why is it that so many of us on this side have this very uncomfortable feeling that—you know, dogma and law are two different things. . . . And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.

At issue—at least theoretically—was a 1998 article in the Marquette Law Review, “Catholic Judges in Capital Cases,” which Barrett, fresh out of law school and clerking for Silberman, had co-authored with one of her Notre Dame professors, John H. Garvey, who is now the president of the Catholic University of America. Garvey and Barrett asserted that Catholic judges should not be automatically “disqualified” from ruling in death-penalty cases just because Catholic teaching generally opposes the death penalty. Nonetheless, the two argued, Catholic judges have an obligation to “conform their own behavior to the Church’s standard” and voluntarily recuse themselves from cases that involve “enforcing the death penalty,” as by directly sentencing someone to death.

Now, opposition to capital punishment is an issue on which devout Catholics and liberals can actually agree (though not Feinstein, who supports the death penalty in some cases). But everyone knows that Feinstein’s objections to Barrett’s nomination (and, as the vote ultimately indicated, the objections of every Democrat on the Judiciary Committee) had nothing to do with executing criminals. The real issue was abortion. Though Feinstein seemed to impose an unconstitutional religious test for office-holding, the fact is that liberals have no problem with Catholic officeholders per se. Liberals loved Hillary Clinton’s running mate in the 2016 presidential election, the practicing-Catholic Democratic Senator Tim Kaine of Virginia. Kaine has repeatedly expressed his personal opposition to abortion, yet he has racked up a NARAL-approved 100-percent record opposing any restrictions on the procedure. He has voted against defunding Planned Parenthood, the nation’s biggest abortion provider. And for good measure, on contentious social issues, he has opined that the Catholic Church will eventually ease its prohibition against same-sex marriage.

That’s the kind of Catholic liberals like. Indeed, though some law professors, such as Harvard’s Noah Feldman, called on Feinstein to apologize for her committee statements, others only frowned upon Feinstein’s choice of the word “dogma,” with its connotations of nineteenth-century Know-Nothing-ism. In a September 13 op-ed for the New York Times, law professors Geoffrey R. Stone (University of Chicago) and Eric J. Segall (Georgia State) suggested not only that Feinstein was perfectly justified in her line of questioning, but that the First Amendment’s prohibition against the establishment of religion actually required it: “The potential impact of religious belief on government officials, including judges, is a matter of special concern in a nation dedicated to the separation of church and state, especially on such fundamental issues as abortion, gay rights and capital punishment,” Stone and Segall wrote.

That sounds like a backdoor way of saying “the dogma lives loudly within you.” Worse followed at the New York Times. On September 28, Times religion reporter Laurie Goodstein published a story headlined “Some Worry About Judicial Nominee’s Ties to a Religious Group.” The religious group in question is called the People of Praise. Its website bills it as “charismatic and ecumenical, a covenant community in 22 locations in the US, Canada and the Caribbean.” Goodstein describes the People of Praise as a secretive cult, about two steps less nefarious than Jim Jones’s People’s Temple: “Some of the group’s practices would surprise many faithful Catholics. . . . The group teaches that husbands are the heads of their wives and should take authority over the family. . . . Some former members criticize the group for deviating from Catholic doctrine, which does not teach ‘male headship,’ in contrast to some evangelical churches.”

Hmmm. People of Praise has been around for nearly fifty years—since 1971, to be exact—and its roots are precisely Catholic, since it was founded by a group of professors and students at Barrett’s alma mater and current employer, Notre Dame. It is part of a Catholic spiritual movement called Catholic Charismatic Renewal, which dates to the 1960s and incorporates aspects of Pentecostal worship—such as uplifted hands, praying in tongues, and faith healing—into Catholic worship. Charismatic Renewal might not suit every Catholic’s liturgical taste, but it is regarded as orthodox and has enjoyed the blessing of popes from Paul VI to John Paul II and Francis.

As for the idea that “husbands are the heads of their wives”—that language comes straight from St. Paul’s letter to the Ephesians (5:23–25). That passage from Ephesians was a part of the Catholic marriage rite until the Second Vatican Council, and even now Catholic brides and grooms may choose to have it read at their weddings. The passage says that husbands are heads of their wives just as Christ is head of his Church—and that husbands have a reciprocal duty to love and sacrifice themselves for their wives, as Christ loved and “gave himself” for his Church.

Goodstein duly trotted out some liberal law professors to contend that Barrett should have disclosed her People of Praise membership to the Judiciary Committee—so that Feinstein and others could grill her about that, too. “These groups can become so absorbing that it’s difficult for a person to retain individual judgment,” said one professor of constitutional law, who then continued: “I don’t think it’s discriminatory or hostile to religion to want to learn more.”

It won’t be surprising if Barrett just squeaks through her Senate floor vote, much as she just squeaked through the Judiciary Committee. Though anti-Catholicism is officially frowned upon, it’s still quite acceptable to be anti- a certain kind of Catholicism, known as faithful Catholicism.

Charlotte Allen is a writer living in Washington, D.C.

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