No ordinary time
Amy Coney Barrett’s Supreme Court nomination underscores the battles to come over Roe v. Wade and religious liberty
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The morning after President Donald Trump nominated Amy Coney Barrett to the Supreme Court, the church bulletin at her Catholic parish in South Bend, Ind., bore the heading “The Twenty-Sixth Sunday in Ordinary Time.”
The phrase “ordinary time” refers to the period outside special seasons on the liturgical calendar, but the times on this Sunday felt far from ordinary.
Nine months into a painfully tumultuous year, the death of Supreme Court Justice Ruth Bader Ginsburg just six weeks before a contentious election jolted the nation—and the presidential race.
President Donald Trump dismissed Democrats’ calls to wait until after the election to nominate a replacement, and a week later Barrett flew to D.C. with her husband and their seven children for the president’s official announcement in the White House Rose Garden.
That came five days before Trump announced he and the first lady had tested positive for COVID-19, jolting the presidential race again. Within days, several more guests who attended the Rose Garden ceremony also tested positive for the coronavirus, including Sen. Mike Lee, R-Utah, and Sen. Thom Tillis, R-N.C.
It wasn’t immediately clear whether the outdoor gathering and an indoor reception acted as super-spreader events for the virus. Guests sat closely together, and many didn’t wear masks. But it was clear the outbreak had upended the presidential campaign—and possibly the timeline for Barrett’s confirmation process.
Lee and Tillis both sit on the Senate Judiciary Committee set to conduct the confirmation hearing. Sen. Lindsey Graham, R-S.C., chairs the committee and said members could participate virtually. But in the full Senate, Republicans have a thin margin to approve the nominee and can’t afford to sustain a handful of absences due to quarantines.
Back in South Bend on the morning after Trump’s announcement, churchgoers recited liturgy from the pews of St. Joseph Catholic Church, where Barrett’s family attends. The bulletin reminded congregants about volunteer needs, online hymn-sings, and the local pro-life prayer effort sponsored by 40 Days for Life.
“We shouldn’t be putting people on the court that share our policy preferences. We should be putting people on the court who want to apply the Constitution.”
It also included an insert created by the U.S. Conference of Catholic Bishops titled “Making Moral Choices and Applying Our Principles.” The group of bishops published the document in 2016 as part of a series called “Forming Consciences for Faithful Citizenship.”
Election season is a logical time for churchgoers to revisit the subject, but Barrett may visit the topic in front of the nation during her confirmation hearing. Some Democrats already have asked her, How do you apply your religious principles to your judicial decisions?
In 2017, Sen. Dianne Feinstein, D-Calif., grilled Barrett about her traditional Catholic beliefs during a hearing for a federal court appointment. Feinstein infamously intoned, “The dogma lives loudly within you.”
The panel confirmed Barrett, and conservative groups cheerily sold T-shirts with Feinstein’s dark declaration. But with the Supreme Court now in view, questions about Barrett’s views of Catholic doctrine and constitutional law are resurfacing.
The future of Roe v. Wade is on the minds of many, but upcoming cases related to religious liberty could carry massive implications as well. Parsing Barrett’s Catholic beliefs as part of examining her legal views could prove a tricky balance for Democratic senators. And it’s a tightrope they’ll walk in front of millions of Catholic voters who could help decide who controls the Senate and the White House.
THOUGH IT’S NOT AN ORDINARY TIME, Barrett does seem to lean into rhythms of ordinary life.
During her public acceptance of Trump’s nomination, she said that back home she’s better known as “a room parent, carpool driver, and birthday party planner.”
Unlike other justices on the high court, Barrett, 48, isn’t an Ivy Leaguer: She attended Notre Dame law school on a full-tuition scholarship and clerked for the late Justice Antonin Scalia. After years in private practice, she pursued teaching at Notre Dame, where she remains on the faculty. In 2017, she was appointed to the U.S. Court of Appeals for the 7th Circuit.
For six years at Notre Dame, she was part of University Faculty for Life, a pro-life group on campus. Critics question whether such an association hinders her ability to rule objectively on abortion-related cases, including any potential challenges to Roe v. Wade.
But Barrett would be one of six Catholics on the court, and pro-life views aren’t surprising for a Catholic who embraces her church’s official teaching.
They also aren’t surprising given her seven children. Barrett is the oldest of seven children herself, while her husband, Jesse Barrett, was an only child.
After they married, the couple had three children and adopted a daughter from Haiti. They hoped for a fifth but thought it might be impossible. They tried to adopt from Haiti again, but the paperwork bogged down over the course of 2009.
In January 2010, a 7.0 magnitude earthquake devastated the Caribbean nation, and the adoption agency called back: The government was easing the process for U.S. adoptions in progress before the quake struck. Did they still want John Peter? After the couple said yes, Barrett noticed she didn’t feel well. She learned she was expecting a baby.
In an interview with the Notre Dame Club of Washington, D.C., last year, Barrett said the couple had a three-hour window to decide if they wanted to move forward with the adoption. Could they handle six children?
Barrett said she threw on her coat and walked the short distance to the Notre Dame campus to think. As she sat on a bench in a cemetery, she thought: “What greater thing can you do than raise children? That’s where you have your greatest impact on the world.” The couple welcomed 3-year-old John Peter and a baby daughter later that year. Benjamin, a son with Down syndrome, was born soon after.
“It’s a full life,” she told the Notre Dame audience. “But it’s a wonderful one.”
WHILE BARRETT’S PRO-LIFE VIEWS aren’t new, they drew fresh scrutiny five days after her nomination to the Supreme Court: The Guardian newspaper reported that Barrett was one of hundreds of Indiana citizens to sign on to an ad placed in a paper by St. Joseph County Right to Life in 2006.
On one page, a statement said the signatories “oppose abortion on demand and defend the right to life from fertilization to death.” The organization placed another ad on the opposite page that called for “an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.”
Sen. Patty Murray, D-Wash., said that the ad is “certainly black and white to the extreme” and that it “puts a huge exclamation point on what’s at stake.”
Barrett will likely face questions about the ad, but it won’t be the first time she’s discussed Roe v. Wade. In a 2013 lecture at Notre Dame, she said she thought it was unlikely the court would overturn it: “The fundamental element, that the woman has a right to choose abortion, will probably stand.”
In 2016, Barrett again said she thought it was unlikely the court would try to overturn Roe: “The question is how much freedom the court is willing to let states have in regulating abortion.”
That’s already become a key question as states have passed a bevy of laws aimed at regulating abortion. In June, the Supreme Court struck down a Louisiana law requiring abortionists to have admitting privileges at nearby hospitals. Chief Justice John Roberts joined the majority.
When it comes to how Barrett’s religious or personal views of Roe would affect her work in a courtroom, Barrett told a Senate panel in 2017 that a judge should always adhere to the law—not her personal beliefs—when ruling. Democratic senators questioned Barrett about a paper she wrote as a law student in 1998 regarding whether a Catholic judge should recuse herself from a death penalty case if her religious convictions make it difficult to be impartial.
Barrett and her co-author wrote that cases could arise where a recusal would be necessary, but added that “judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”
Barrett told the Senate panel she wouldn’t write the paper the same way again 20 years later, but she added, “I continue to subscribe to the core argument of that article, which is that a judge may never subvert the law or twist it in any way to match the judge’s convictions.”
Barrett’s nomination has also revived reporting about her association with an independent religious group called People of Praise. The decades-old organization describes itself as a “charismatic Christian community.” The membership is reportedly largely Roman Catholic, but it’s open to Protestants as well.
The group calls its membership agreement a “covenant,” and members commit to participating in the group’s meetings and contributing to its work. (The organization has founded four private Christian schools, including an elementary school in a low-income neighborhood in Louisiana.) The group’s website says the membership agreement is not an oath or a vow and members are free to follow their own consciences.
Days after Barrett’s nomination, Newsweek reported that People of Praise was the inspiration for The Handmaid’s Tale—a dystopian novel (and now television series) about severe abuse and oppression of women in a fictional totalitarian state.
When the series author, Margaret Atwood, said the report was inaccurate, Newsweek changed its headline to: “How Charismatic Groups Like Amy Coney Barrett’s People of Praise Inspired ‘The Handmaid’s Tale.’” (It noted the group had used the term “handmaid” to describe female leaders in the past. The Washington Post also reported Barrett had once served as a female leader in the group.) A feeble correction at the end of the article said Atwood has never cited People of Praise as a source for her fiction.
Kevin Russeau, the priest at Barrett’s parish in South Bend, compared the group to other Catholic service organizations like the Knights of Columbus and called it “ecumenical, evangelical, and charismatic.”
Barrett could also face questions about past speaking engagements at the Blackstone Legal Fellowship—a program of the religious liberty legal firm Alliance Defending Freedom (ADF). During her 2017 confirmation hearing, Sen. Al Franken, D-Minn., chastised Barrett for speaking to a group he noted the Southern Poverty Law Center had labeled “a hate group.”
Franken didn’t note that three months before the hearing, attorneys from ADF had won a religious liberty case before the Supreme Court. The ruling was 7-2. By 2018, ADF attorneys had successfully argued seven cases before the Supreme Court in nine years.
WHATEVER HAPPENS WITH Barrett’s nomination, on the morning after the presidential election, attorneys from the religious liberty firm Becket Fund will dial into a conference call to make telephonic oral arguments before the Supreme Court.
The group represents Sharonell Fulton in the case Fulton v. City of Philadelphia. Fulton served as a foster mother with Catholic Social Services in Philadelphia until city officials shut down the religious organization’s foster care program: The organization refused to place children with same-sex couples, citing its religious convictions.
The case has implications extending beyond foster care and adoption placements for religious agencies. Attorneys are asking the justices to rule in favor of the Catholic organization by reconsidering a previous decision called Employment Division v. Smith.
Kim Colby of the Christian Legal Society says the 1990 ruling weakened religious liberty protections. It’s one of the reasons Congress passed the Religious Freedom Restoration Act (RFRA) in 1993.
RFRA offered significant protections for religious liberty at the federal level, but protections at state and local levels remained weak because of the Smith ruling. Some states passed their own religious freedom bills, creating a patchwork of laws across the country.
Colby’s group and others want the court to rule in favor of Catholic Social Services by essentially overruling the Smith decision. Colby says that would strengthen religious protections for other groups and private citizens on state and local levels.
That’s important because while the Supreme Court has ruled in favor of religious liberty protections for religious employers and organizations, the open question remains: What about the Christian or other religious person in a secular setting? Does he have the right to refuse to violate his conscience?
Colby says a victory for Catholic Social Services that includes reconsidering Smith would bolster protections and come closer to answering that question. The Supreme Court is waiting until after it weighs the foster care case to hear oral arguments in the case of a Washington florist who declined to arrange flowers for a gay wedding because of her religious convictions.
The tension heightened this summer when Justice Neil Gorsuch joined the majority in Bostock v. Clayton County. The court ruled the Civil Rights Act of 1964 includes nondiscrimination protections based on sexual orientation or gender identity.
The ruling narrowly applied to employment law, but that could expand if cases arise regarding how the Civil Rights Act would apply to areas like education and public accommodations.
Gorsuch noted that RFRA already offers religious liberty protections, but it could be on the ropes as well: If Democrats win control of the U.S. Senate, they say they’ll push passage of the Equality Act, legislation that would gut RFRA’s religious liberty protections.
Andrew Walker, an ethics professor at the Southern Baptist Theological Seminary, has called the Equality Act “the most invasive threat to religious liberty ever proposed in America.” He says the legislation could have widespread implications, including for public and Christian education.
If a Christian college won’t change its conduct code to accommodate sexual preferences, for example, it may not be able to participate in student federal loan programs.
Even without the Equality Act, Walker says, protections for religious citizens exercising their faith outside the walls of a church or religious organization remain tenuous. The high court’s decisions in upcoming cases will grapple with deciding how far the free exercise of religion extends.
Walker says such concerns aren’t just a matter of protecting Christians’ rights, but promoting the common good. “Religious liberty doesn’t paper over strong differences,” he said. “But it says, ‘We’re trying to craft laws that create the burden on the state to reduce someone’s liberty, rather than religion having to prove the burden of their liberty at stake.”
IN THE DAYS AFTER BARRETT’S NOMINATION, Democratic nominee Joe Biden didn’t focus on religious liberty or Roe v. Wade when discussing the Supreme Court.
At his first debate with Trump, Biden did say Roe was at stake in the election, but he spoke more about the Affordable Care Act (ACA)—also known as Obamacare.
The week after the November election, the Supreme Court is scheduled to hear a challenge to the federal healthcare program that Biden has said he would expand. Highlighting ACA in his discussion of the court may be a way for Biden to focus on an issue he believes will be at the forefront of many voters’ minds ahead of the election.
It also may be a way to avoid criticism of a Catholic judge’s views on social issues, particularly when Biden is a lifelong Catholic himself.
Catholic voters have sided with every winner of a presidential election since 2004, but it’s unclear how much Barrett’s nomination might influence this year’s contest. The stakes for the Supreme Court are high, but it may serve more to turn out each candidate’s base than push swing voters in a particular direction.
Still, the direction of the court likely will remain a pressing issue during the final weeks of the presidential campaign. Barrett’s nomination could shift the conservative balance to 6-3. But installing a certain judge won’t guarantee the course of every decision he or she will make, and justices sometimes surprise and displease court watchers expecting rulings to go in a different direction.
Barrett knows she’s in the middle of a political whirlwind in unordinary times, but she’s also spoken about the importance of sticking to the law. “We shouldn’t be putting people on the court that share our policy preferences,” she said in a 2016 speech. “We should be putting people on the court who want to apply the Constitution.”
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