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Freedom of Religion is real issue behind Kavanaugh Nomination to SCOTUS

Freedom of Religion is real issue behind Kavanaugh Nomination to SCOTUS

By Jonathan Widell
VOL European Correspondent
October 8, 2018

Why does the nomination of Judge Brett Kavanaugh to the US Supreme Court matter? If it had not been for the high drama that surrounded the nomination process, it might have been hard to see the relevance of it especially if you live outside the US. Yet, the fact that many of us watched it outside the US shows that what happens in the US legal system does play a role outside the US. Of course, what happens in the Supreme Court will change the character of the entire judicial system in the US from top to bottom.

Even if the clamour surrounding Kavanaugh's alleged willingness to repeal the pro-abortion decision in case Roe v. Wade is what the controversy has centred on, it would be hard to image Kavanaugh adopting an openly anti-abortion stance in the Supreme Court. In her impassioned speech in the Senate the night before the procedural vote, Sen. Susan Collins said that she was convinced, based on the discussions that she had had with Judge Kavanaugh, that he would not vote to repeal Roe v. Wade because Judge Kavanaugh had told her that the power of precedent in American legal system was such that the case law based on Roe v. Wade had entered the DNA of American legal thinking. Although she said little about what Kavanaugh really thought about abortion, she concluded by saying that she did not see how it would be possible, with that in mind, for Judge Kavanaugh to repeal Roe v. Wade. She was more to the point when touching on a related matter, namely the rights of gays and lesbians. She said that he had told her that the American legal system, as it now stands, was right not to treat gays and lesbians as second-class citizens.

To understand what is likely to happen next, it is important to realize that the political battle in the Senate does not reflect what is going to happen in the Supreme Court. Yes, the nomination of Kavanaugh marks a rightward shift in the composition of the Court, which in turn reflects the composition of the Senate. However, whatever ideological battles may be fought in the Supreme Court will not follow the pattern of attack and counterattack that we have seen in the Senate.

First, whatever may have been said of Kavanaugh's judicial temperament or lack thereof, nobody really believes that he will explode and attack his opponent as he did when he was defending himself, his name and his family while responding to Dr. Ford's accusations against him. Judge Kavanaugh's judicial temperament is a legend and should put to shame those who accuse him of unpredictability.

Second, we have to realize that the situation has been dire for practicing Christians for a long time. The right of Christians -- as well as the adherents of other religions -- to practice their religion has been under attack. A stark reminder of that was the Masterpiece Cakeshop v. Colorado Civil Rights Commission case before the Supreme Court this year. Paradoxically, perhaps, it is the tendency to treat all religions equally that has led to this situation. Although many of the gains won by all religions may have benefited all of them, including Christians, many Christians feels that any gains are illusory and have been made possible only by setting the bar lower and lower. After all, Christianity does not play the same pivotal role and exert the same moral authority as it used to. That is certain. Faced with this reality, many Christian churches have been only too willing to change their doctrines to stop the gap from yawning at them, as if it were permissible for secular society to set the standards.

Yet, it is foolish to think that politics and law could or should be separated from each other altogether. Robert A. Dahl noted that already in 1957. To make too much of that separation, which is the bedrock of US system of government, plays into the hands of those who want Christianity and other religions to stop playing any role in the public square and, by implication, even in our churches and other places of worship.

The most viable strategy to keep Christianity from retreating may seem modest at first but has been working quite well recently. It is to fight for the freedom of religion. One of its most recent and impressive victories was the decision in the above-mentioned Masterpiece Cakeshop v. Colorado Civil Rights Commission in June. If the retreat of the freedom of religion in the public square is not stopped now, the next step is to have our voices silenced even in our churches. Indeed, it is not unheard of, even now, that one's opposition to same-sex marriage, for instance, is silenced in the church with the threat of a court battle. Whether or not such a case would have any chance of succeeding, which it would not, it is telling that it should be made at all. Once a certain legal misconception has crept into our popular imagination it is nearly impossible to leave it at the church door.

Liberals are right: the conservative majority in the US Supreme Court is going to change the legal landscape for years to come. It is not really Kavanaugh that they are afraid of as much as the conservative majority. Although Sen. Collins is also right that Supreme Court Justices have often voted against the wishes of the President who nominated them, it is also true that the Supreme Court has not had a conservative majority for a long time. Will things continue as they have before? That is unlikely. Do liberals have something to fear? That depends on them. When such a fundamental principle as the presumption of innocence comes under attack, as it has in Kavanaugh's case, they should.

Jonathan Widell is a language translator based in Europe and Canada. He is a committed Anglican Christian

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