Religious people in public life must be able to observe their faith. But they can still obey their duties

Wednesday, August 13, 2003

By H. Jefferson Powell

Partisan battles in the U.S. Senate over judicial nominations, including charges that anti-Catholic bias motivates the opposition to nominee William H. Pryor Jr., reveal the continued uneasiness in this country over the place of religion in American public life.

	H. Jefferson Powell is a professor of law and divinity at Duke University (powell@law.duke.edu). His books include "The Moral Tradition of American Constitutionalism: A Theological Interpretation."

As a constitutional matter, the United States is committed to giving the maximum possible freedom to persons of all religions -- and none -- to believe, and to act in accordance with their beliefs, and to participate equally in the public life of the nation without regard to their religious views. The United States is equally committed in its Constitution to avoiding anything which resembles what the First Amendment terms "an establishment of religion." In many respects, these are complementary goals, for only those happy with the government's orthodoxy enjoy religious freedom in a political system that establishes such an orthodoxy.

In practice, however, there are tensions as well. These tensions are not the product of some defect in the American constitutional design: They arise, instead, out of the nature of religion itself.

Religious commitments are, almost by definition, transcendent in the claims they make on religious people. "Here I stand, I can do no other" may sound implausibly heroic or unpleasantly self-assured, but its logic is shared by all the faiths with which I am familiar. In the event of a conflict between religious and secular duty, it is the transcendent claim which must be honored, the secular obligation which must give way.

To say to religious people that they are free to participate fully in public life . . . just as long as they put their most fundamental beliefs and loyalties on the shelf . . . is to make a demand to which they cannot agree in good conscience. There can be no religious people in public life unless they can observe their faith there.

The assertion (sometimes heard in academic circles) that it is somehow impermissible in a democracy to act on or advert to religious motives in public life is either a radical misunderstanding of religion, or a covert attempt to exclude religious people from the public sphere.

The Constitution, of course, does not permit any such exclusion. If the United States is to live up to its (quite secular) commitment to afford religious freedom to all of its citizens, all of us must live with the fact that some of us have allegiances deeper than our loyalty to the United States, however patriotic the religious may be. It is no legitimate objection to Pryor, who is the attorney general of Alabama, that his criticisms of the Supreme Court -- and in particular of Roe vs. Wade -- stem from his Catholic faith.

At the same time, our constitutional system presupposes that government officials will exercise their offices in accordance with shared (and secular) norms of conduct. Those norms are not (just) external rules, they are personal undertakings by the official -- indeed, promises solemnized by oath or affirmation -- to carry out his or her public duties as our political community understands those duties.

When someone takes the oath of office to become a federal judge, for example, he or she promises to act within the norms which define that office, one of which is that a lower-court judge must try in good faith to follow and apply relevant Supreme Court precedent. That duty applies to precedent the judge thinks wrong as much as it does to precedent he thinks right, and it does not change if the judge's objections happen to be theological in nature.

There is no conflict here with our constitutional commitment to religious freedom. As a citizen, a religious person is entitled to criticize Roe vs. Wade (or any other Supreme Court decision) and to do so on theological grounds. As a public officer, a religious person is bound by his own undertaking to execute his position of trust and responsibility in accordance with the expectations of the Republic.

If his faith will not permit him to carry out the judicial office in that fashion, then it would be an act of secular bad faith for him to take the oath of office.

Fortunately, in all the faiths with which I am familiar, religious people have their own (quite religious) reasons not to break trust with others. In considering any judicial nominee, the nominee's ability, candor, temperament and understanding of the law are fair topics for the Senate to consider. If a senator has serious doubts about Pryor's willingness to act in accordance with the norms of the judicial office, those doubts are a legitimate basis for voting against confirmation.

There can be little doubt that political conflict rooted in religious conviction is divisive and potentially explosive. That is surely part of the reason why so many societies have attempted to eliminate such conflict by defining a religious orthodoxy (or an anti-religious one -- think of the former Soviet Union). The fear of such conflict plainly motivates the many people in our society who want somehow for religion and politics to be kept apart.

The U.S. Constitution permits neither "solution." The result is at times extremely uncomfortable: It is also the only way to maintain a public life that is open to all.

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