Sometimes readers wonder why we look at mainstream media coverage of abortion. A few have suggested it's not a religious issue. Yet many religion reporters routinely cover both the pro-life and pro-choice movements and cover abortion regularly. Well, the losing side of the recent Supreme Court decision upholding the federal Partial-Birth Abortion Ban Act has been noticing religion. Readers have sent along various anti-Roman Catholic opinion pieces -- most notably The Philadelphia Inquirer's cartoon and Rosie O'Donnell's screed on The View. But we don't care whether editorial writers or pundits have opinions on religious issues. That's just what makes for an exciting editorial page. Although even Rosie O'Donnell's crazy conspiracy theories don't salvage The View, do they? But it's worth noting a few mainstream media dips into this story pool. Robin Toney is a news analyst for The New York Times. Or at least I think she is. She used to be a regular reporter. Anyway, she wrote a column for the Times -- which I see is also being published as a news story in the International Herald Tribune -- about how all five of the justices who upheld the federal law are Roman Catholics. I feel this is a good time to mention that I tried to convince friends that Chief Justice William Rehnquist should be replaced by a Lutheran since he was Lutheran. Nobody seemed convinced.
Anyway, Toney says that Catholics typically held only one or two seats on the Supreme Court and this is the first time they hold a majority of seats (because they stole one from us Lutherans!). She says that during the confirmation hearings for Justice Alito and Roberts, their religion became a proxy way to assess how they would rule on contentious issues. But she provides another perspective:
Some legal scholars say the Roman Catholicism of the five justices, in and of itself, means less than their conservatism. Yes, the church hierarchy denounces legalized abortion, but many Roman Catholics in government, over the years, have drawn a bright line between their private beliefs and their public duties (memorably, John F. Kennedy seeking the presidency in 1960 and Mario Cuomo in his campaign for governor of New York in 1982).
Scholars also note that Justice William Brennan, who was carefully appointed to the "Catholic seat" by President Dwight Eisenhower, turned out to be one of the key supporters of the constitutional right to abortion.
"There can be no greater proponent of a pro-choice vision of the 14th Amendment than William Brennan," said David Yalof, an associate professor of political science at the University of Connecticut and a scholar of the judicial selection process.
Religion in the public square has a complicated and subtle role, she concludes.
ABC News legal correspondent Jan Crawford Greenburg also weighed in on the topic at her Legalities blog. She covers the Supreme Court, is a graduate of the University of Chicago's law school and is a member of the New York bar.
She notes that the federal law was passed into law by a broad bipartisan congressional coalition, including 17 Senate Democrats and 47 Senate Repubicans. She doesn't think they're all Catholic. She also notes that 30 state legislatures voted for similar laws. Ditto on their lack of religious unanimity. She derides the "growing anti-Catholic backlash" and particularly criticizes Geoffrey Stone, former law school dean and provost at her alma mater:
"Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales," Stone writes. "By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality."
Geoff Stone (and Rosie and the cartoonist for the Philadelphia Inquirer who illustrated similar thoughts last week) is saying that the five justices voted to uphold the law only because of their religious beliefs. It's only because they are Catholic--Stone, Rosie, et al, argue--that they could possibly interpret the Constitution to allow a federal law Congress passed with broad, bipartisan support. It's only because the five are Catholic, Stone and Rosie argue, that they could possibly vote to uphold a law that banned an abortion procedure Congress found to be "gruesome" and "inhumane."
No, the five couldn't possibly have legal views that that the Constitution doesn't protect the right to a partial birth abortion.
Here's a different way of thinking about it: The five justices took a more restrained approach to the law than their colleagues and declined to substitute their own policy preferences for the will of the people.
He'd gone along with O'Connor and David Souter in Planned Parenthood of Pennsylvania v. Casey in 1992, when the three joined forces and refused to overturn Roe v. Wade.
In Casey, Kennedy initially had cast his vote with Chief Justice William Rehnquist, who'd written an opinion that would have overturned Roe. At the last minute, he changed his mind and teamed up with O'Connor and Souter, providing the critical fifth vote that instead saved Roe.
Maybe Kennedy wasn't Catholic in 1992. Anyway, I think that the religious views of justices and politicians and anyone else who makes decisions is more than fair game for reporters. They just need to do a good job of understanding religious motivations and seeing when they matter and when they don't.
What do you think? What are the appropriate boundaries for discussing the religious views of decision makers? How do reporters investigate religious views? When does it smack of religious bigotry?