Wednesday, January 03, 2007

Religion, Article VI, and Judicial Confirmations: Some Not-So-Hypothetical Questions

I came across this article in BYU Magazine. (I'm not a BYU alumnus and so I don't get their alumni magazine. I just happened to be in a position to read the article due to knowing others.)

There are two interesting things about the article. First, it is what I would call a classical Mormon approach to Jesus Christ and what He means to us. Virtually every devout member of the Church of Jesus Christ of Latter-day Saints (the "Church") would find the article compelling and inspiring. Second, it is written by Thomas Griffith, who was general counsel to BYU and is now a judge on the U.S. Court of Appeals for the D.C. Circuit, which is the second-most important federal appellate court, after the Supreme Court. Judge Griffith was nominated by President George W. Bush and approved after the Gang of 14 deal, I believe.

The Mind Begins to Work :
I love hypothetical questions. As I read that piece by Judge Griffith, it occurred to me that it provides a nice opportunity to tee up the Romney faith issue with a hypothetical.

The Hypothetical:
Imagine yourself as a conservative Republican and Evangelical Christian member of the Senate Judiciary Committee. Tom Griffith, now serving as general counsel to BYU and with a stellar legal background prior to that position, has been nominated by the president to the D.C. Circuit. You understand that court's importance and always pay special attention to D.C. Circuit nominations.

You have just read the BYU Magazine article, which one of your staffers gave you as background material on the nominee. The views expressed are very foreign to you, and in fact you find them very unacceptable theologically . In addition, the article reveals that Griffith has served as a Mormon stake president– a very high lay position in the Church, in which Mitt Romney has also served.

Some Questions

1. Would you you take the religious views expressed in Griffith's article into
account in deciding whether or not to support his nomination? Presumably no,
because the views are purely theological, and to take Griffith's religion into
account is flatly prohibited under Article VI to the Constitution.

2. Would your answer to Question 1 change if Griffith were before you as a nominee not to the D.C. Circuit, but as a sitting D.C. Circuit judge now proposed for elevation to the U.S. Supreme Court?

3. If your answer to Questions 1 or 2 is "no," do you see any difference between excluding Griffith's Mormonism from your consideration of him as a judicial nominee, on one hand, and excluding Romney's religion from your consideration of him as a presidential candidate, on the other?
I think there are fascinating answers to Questions 2 and 3. One of them might be that although some people tolerate Mormons serving on the federal appellate courts, in Cabinet positions, and in the Senate and House, elevating a devout Mormon to the Supreme Court is just a little "too much," because that would confer legitimacy on, or would "mainstream," Mormonism, an outcome Al Mohler finds deeply worrisome. In other words, Mormons can serve in high public office, but not in the highest of those offices. This leads to additional questions:

4. Would a Mormon serving in the presidency also be "too much?"

5. Are the views Griiffith expresses in his BYU Magazine article, which
relate exclusively to man's relationship with God and have nothing to do with
government or public policy, relevant in any way to a candidate's qualification
for office in the United States?

6. If you think the answer to 5 is "yes," then does your attitude fall within
the accepted definition of bigotry as "the state of mind of a bigot?" That is, a person
obstinately or intolerantly devoted to his or her own opinions and prejudices;
especially : one who regards or treats the members of a group . . . with hatred
and intolerance.

I greatly disapprove of using words as discussion-stoppers. The Left does this all the time, as in throwing "racist" and "homophobe" at anyone who sees certain issues differently than they. I think the word "bigotry" deserves careful consideration in the context of politics and religion. Anyone who would struggle with supporting Griffith for any federal court nomination, or with voting for Mitt Romney for any national office, based on either man's religious beliefs, should wrestle a little with whether their attitude fits that definition.

Lowell's essential question, plainly stated is, "Is there a difference between casting a vote in the Senate and voting booth? And if so, why is that not a form of bigotry?" There is a a difference between the Senate and the voting booth - accountability. A Senate vote is pubic and open for review, discussion, ridicule, and in extreme cases formal enforcment action in terms of the provisions of Article VI of the Constitution. The voting booth on the other hand may be the most private place in the entire nation and there is no one and nothing to hold you or I accountable in how we cast our ballots.

Which is where the word "bigotry" becomes, in my opinion, very important. You see, prevailing public sentiment matters to us whether we want to think so or not. It is an indirect form of accountability. If casting a vote against a Mormon, solely on the basis of religion, is generally viewed as "bigoted" it will serve as a check on the conscience of most voters. If, on the other hand, such a consideration is viewed as somehow "par for the course," voters will feel free to hold such considerations in their minds as they act.

That there are differences between African-American and Caucasian-American culture is an undeniable and inarguable fact in America. To argue to the contrary is to simply fly in the face of reality. And yet voting against a person of color on that basis would be undeniably considered a "bigoted" act. Now, while skin color is a matter of genetics, participation in black culture is not - that is a matter of personal choice and affiliation - just as religion is.

True conservatives are now barking, "Culture, well at least cultural values, IS a reason to vote against someone, and it's not bigotry." They'd be right, but the cultural values are the issue, not the skin color associated therewith. There are blacks that chose to hold those values and those that do not. The bigotry arises in using the too simple and formulaic "Black = NO Vote" when what is called for is a more sophisticated analysis of the candidate's positions and values.
And so it is with Mormons. The simple "Mormon = NO vote" is a form of bigotry.

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