A "Cathotic bloc" at the Supreme Court?

THE U.S. SUPREME COURT in April upheld a federal law that bans a rare type of late-term abortion. The vote in Gonzales v. Carhart was 5-4, and some observers couldn't help but notice that the majority was composed of all Roman Catholic justices.

Is this relevant? Should we care? Or is it religious bigotry to even raise the issue?

Raise it some did. Tony Auth, a Pulitzer Prize-winning cartoonist with the Philadelphia Inquirer, produced an editorial cartoon showing the five justices--Chief Justice John Roberts and Associate Justices Clarence Thomas, Antonin Scalia, Anthony M. Kennedy, and Samuel A. Alito Jr.--wearing bishops' mitres. Justice Ruth Bader Ginsburg is looking on in dismay. The cartoon is captioned, "Church and State"

The controversy escalated when Rosie O'Donnell, co-host of the popular ABC daytime talk show The View, asserted that the Catholic bloc's voting in unison raised issues of church-state separation.

Evangelical Protestant activist Charles W. Colson was quick to cry foul. In a column in the Christian Post, Colson called the Auth cartoon "a graphic example of anti-Catholic bigotry" and accused O'Donnell of making "bigoted remarks about Catholics" Colson also attacked University of Chicago law professor Geoffrey Stone, who wrote an item on the liberal blog Huffington Post stating in part, "Here's a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out"

In his Christian Post column, Colson went out of his way to criticize the organization I work for, Americans United for Separation of Church and State, even though we hadn't issued any media statements about the religious beliefs of the justices or even the abortion ruling. In fact, our comments about the decision were limited to pointing out on our blog that Kennedy's rationale for upholding the abortion ban--a fixation on the so-called "moral concerns" raised by late-term abortion--seemed awfully thin.

Colson may be feeling a little defensive. In a lawsuit challenging tax funding of a fundamentalist prison program in Iowa run by Colson's Prison Fellowship Ministries, Americans United uncovered evidence of anti-Catholicism in the program. I'm sure he'd like to deflect that by accusing others of harboring such bias.

But putting that aside, it's fair to ask if Colson has even a tiny point to make. Is it bigotry to speculate that the court majority might have been motivated by personal religious beliefs?

Bigotry is not a word to be used lightly. A bigot is someone who hates another simply because of that person's race, religion, or national origin. Bigotry is fueled by faulty assumptions made about entire classes of people. Hence, a white supremacist hates African Americans, Asians, Hispanics and others en masse. It is a fundamentally irrational viewpoint and incompatible with the tenets of humanism.

But not every criticism of a religious group is bigotry. Spirited opposition to the political goals of a religious or other type of group is fair game that is to be expected in a free society. The hierarchy of the Catholic Church, for example, has certain policy goals it would like to see enacted into law. These include a ban on all abortions, a prohibition of same-sex marriage, and tax subsidies for Catholic education.

These are controversial stands. Many Americans oppose them and do so quite forcefully. It isn't anti-Catholic to express this opposition publicly because the opposition expressed isn't to Catholicism as a religious force, but to the political goals of the church.

Cartoons like Auth's and quips like O'Donnell's--while they make for good one-liners--fail to accurately capture the nuances that operate whenever religion and politics reach a nexus.

Most American Catholics don't agree dogmatically with the bishops on matters of public policy. Indeed, polls show that most U.S. Catholics are pro-choice. Many support gay rights, and poll after poll has shown that an overwhelming majority of Catholics ignore church teachings on artificial forms of birth control. They divorce at about the same rate as everyone else. American Catholics do these things and still see themselves as faithful.

There would be little support, therefore, for laws making the Catholic view on birth control and divorce the standard for all. If such things were proposed, it would be appropriate to criticize the church hierarchy but short-sighted to attack church members, most of whom would have no sympathy for the proposed laws.

This dichotomy is often reflected in political life. One need only look at figures like Sens. Ted Kennedy (D-MA), Chris Dodd (D-CT), and John Kerry (D-MA) to understand that an embrace of Catholicism need not be incompatible with vigorous advocacy of privacy rights and a high church-state wall.

Indeed, we've seen this on the high court as well. The late Justice William Brennan was a devout Catholic who attended mass and took the sacraments every week. Yet he voted in favor of legal abortion and opposed tax aid to religious schools. Brennan understood that his guidebook in these contentious areas was to be the Constitution, not papal encyclicals.

It is also too simplistic to imply that the current court lineup is breaking down along religious lines. Justice Kennedy, who wrote the opinion in Gonzales, has voted in favor of legal abortion in the past and seems disinclined to overturn Roe v. Wade. Kennedy has also ruled in favor of gay rights and doesn't support government-sponsored school prayer.

What shifted the dynamic of the high court was the retirement of Justice Sandra Day O'Connor. O'Connor compiled a moderate voting record while on the bench. On social issues her record was mixed. She favored certain types of government aid to religion but didn't back state-sponsored school prayer, creationism, or overturning Roe v. Wade.

O'Connor may look inconsistent in retrospect, but it's safe to say she was no ideologue. The same cannot be said about her replacement, Alito. Roberts, who replaced Chief Justice William H. Rehnquist, seems to be cut from the same cloth.

That's why Alito and Roberts were put on the court: They were screened by President George W. Bush and his allies in the religious right for ideological purity. They were appointed with the expectation that they will roll back legal abortion, chip away at the church-state wall, and adopt other far-right positions. Both men just happen to be Catholic, but that wasn't relevant as far as the right wing was concerned. Roberts and Alito were tapped for their political views and narrow interpretation of the Constitution, not because of where they worship.

This makes them no less dangerous but does provide a roadmap for fair forms of criticism. Defenders of church-state separation, choice, gay rights, and other progressive causes would do better to criticize Roberts, Alito, Scalia, and others not on where they go to church but how they read the Constitution. They happen to read it in an exceedingly narrow manner--a way that many of their fellow congregants in Catholic churches all over America soundly reject.

Rob Boston is assistant director of communications for Americans United for Separation of Church and State.