Doug Kmiec on a Court Packed with Catholics (Wall Street Journal)

If Judge Sonia Sotomayor is confirmed by the United States Senate, she will be the 6th Catholic among the 9 United States Supreme Court justices. Doug Kmiec, my constitutional law professor in the area of the Bill of Rights at Pepperdine University, discusses what this will mean in a recent interview with Suzanne Sataline of the Wall Street Journal .  Kmiec is a former White House adviser under both President Reagan and the first President Bush and a devout Roman Catholic.   Michael Peabody, Editor RLTV

EXCERPT:

Hi Professor Kmeic. So what will be the impact of having Catholics comprise two-thirds of the justices on the Supreme Court?

The Catholic understanding is that the nature of the office has to be respected and the judicial office . . . should not be a policy making position and the church does not assume it is . . . . It would be an entirely improper criticism for any churchman to make of Judge Sotomayor that she needs to rule in a way that is dictated by the faith. She is to follow the law as it is given to her and that is the oath she takes.

…

In what sorts of cases can we see those beliefs in action?

[Kmiec said he’s read about 50 or 100 of her rulings, perhaps a quarter of her authored opinions.] She does seem to be particularly sensitive to freedom of religion issues. She protected inmates in prison, for instance, who asked to have their faith traditions accommodated.

Read the full article at http://blogs.wsj.com/law/2009/05/27/doug-kmiec-on-a-court-packed-with-catholics/

NEWS / OPINION: Law Professor Denied Communion Because He Supports Obama

No Religious Tests for Public Office? What about Political Tests to Receive Sacraments?

Pepperdine University School of Law Professor, and former Constitutional law advisor for President Ronald Reagan, Douglas Kmiec was denied communion recently at a mass connected with a gathering of Catholic business people. The priest denounced Kmiec’s endorsement of Sen. Barack Obama, then refused to give Kmiec communion.

Professor Kmiec describes the situation in his article “The Politics of Apostacy” in The Catholic as follows:

Having been drawn to Senator Obama’s remarkable “love thy neighbor” style of campaigning, his express aim to transcend partisan divide, and specifically, his appreciation for faith (“secularists are wrong when they ask believers to leave their religion at the door before entering into the public square”), I did not expect to be clobbered by co-religionists.

On the blogs, I have been declared “self-excommunicated,” and recently at a Mass before a dinner speech to Catholic business leaders, a very angry college chaplain excoriated my Obama-heresy from the pulpit at length and then denied my receipt of communion.

National Public Radio also picked up the story and produced audio at http://www.npr.org/templates/story/story.php?storyId=91087067 and Andrew Sullivan provides his take on the story at http://andrewsullivan.theatlantic.com/the_daily_dish/2008/05/the-theocon-thr.html

The Catholic Church has distanced itself from the actions of the priest, but it raises an interesting question.  Does the Constitution only disallow religious tests for public office, or does it also disallow political tests for participating in church activities?  For years, the stock response has been that churches jeopardize their tax exempt status when they engage in this type of politicization, and from a practical standpoint, most clergy would do well to avoid engaging in political controversy.

On the other hand, there is a constitutional right of association, which by its terms is also the right to exclude. Typically, churches can exclude on theological grounds, moral grounds, and based on what people express on a number of issues, but they cannot exclude based on politics.  This is probably a good thing as the last thing America needs is for even more of its pulpits become political soapboxes.  We’ve seen enough of that this election year to last a lifetime. From situations involving Barack Obama’s pastor on the left to the actions of a local priest on the right it raises problems.  And, as Professor Kmiec points out, the response of “co-religionists” can indeed have a clobbering effect as their political ideas are powered by omnipotent faith.

But what I’m wondering is whether, from a legal standpoint, aside from jeopardizing their tax exempt status, what prevents churches from engaging in full-blown political activity?  How far can churches go under existing law? What do you think?