My colleague Professor Stone characterizes, in his recent post, the five Justices -- who are Roman Catholics -- who were in the majority in Gonzales v. Carhart as "Faith-Based Justices." The claim, as I understand it, is that by failing to invalidate the federal partial-birth-abortion ban -- which, in Professor Stone's view, is clearly invalid under the Constitution, correctly understood -- the Justices are best seen as imposing sectarian beliefs on those who do not share those beliefs. In my view, though -- as I have suggested elsewhere -- this charge misses the mark.
As Professor Stone observes, the five Justices in the majority concluded (as did Congress) that there are sound moral reasons for prohibiting partial-birth abortions even though, as he states, the law in question "does not prohibit any abortions." Congress endorsed former Sen. Daniel Patrick Moynihan's view that abortions done via this method are just "too close to infanticide" and that this proximity / resemblance morally justifies a prohibition on the procedure, and the Court declined to hold that this view was inadequate to justify the law.
Now, let's put aside the merits of the "Moynihan view." Professor Stone's claim is, I think, that to follow Sen. Moynihan in this regard is to "fail to respect the fundamental difference between religious belief and morality. To be sure," he says, "this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental."
The distinction is, indeed, "elusive." In any event, it is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law." What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.
It is interesting, I think, that Professor Stone invokes the example of Justice Brennan. Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice. And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith. Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?