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April 20, 2007


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Kimball Corson

We do owe the Catholic Church a debt of gratitude for preserving literacy, the written word and the works of ancient Greece and antiquity during the Dark Ages. but since Aquinas no one can argue effectively that the Church has been at the vanguard of progressive, political, philosophical, reformist (aside from their own badly needed housecleaning during the counterreformation) or scientific thought. The facts just are not there to support such a contention. Too, Church doctrine has been fairly stable since then, being subject largely only to refinements. Finally, the Church reacts, often very defensively to new thinking rather than actually generating it. These facts are clear and put the Church behind, not ahead in modern thought and makes it look much narrower in its thinking by comparison. Catholics deny these points, but they are not really in dispute among those informed.


Professor Stone has attributed the recent Supreme Court decision which says that a law outlawing partial birth abortion is due to the fact that the five Supreme Court Justices who voted in favor of that law are Catholic.

There is no question about the fact that the Catholic Church opposes abortion. However, Professor Stone fails to note that abortion is considered a sin by most other religions, not just Christianity and definitely not just by Catholic Christians.

Thus he assumes a greater faithfulness among members of the Catholic Church than members of non-Catholic denominations.

I wonder whether Professor Stone would have broadened his indictment to all people of faith if some of the dissenting members who are members of other denominations had agreed with the justices who upheld the ban?

It would be interesting and revealing for Professor Stone to answer this hypothetical and if he then presumes to indict members of all religious faiths would he then propose a religious test for members of the judiciary? And furthermore would he oppose the installation of a member of the Supreme Court who professes a religious faith?

I am sure there are a great many people who would be more than comfortable with a religious litmus test which excludes people who profess a religious faith from participation in governmental activities. Charles Schumer comes to mind. However that exclusion from participation appears to be opposed to the wording of the constitution.

I have a vague suspicion that the version of the “living constitution” that Professor Stone prefers may evolve in that direction.


Professor Stone is a dummy.

gene d'

I think the point is much simpler. Every law of consequence reflects a moral judgement and is the consensus of the governed as expressed through their representative legislators. Roe was an exemption from that norm imposed by an activist judiciary never envsioned by the framers. Carhart is the first step in restoring the original intent of the framers... and is as advertised.


Attorney Patrick Frey in an exchange with Prof. Stone has exposed the fact that Stone can't support his claims about the court's decision -- for the full exchange of letter's go here:


Kimball Corson

No one here has addressed Stone's observation of Justice Brennen's laudible struggle to separate his religious views from his legal analysis in Roe, or LAK's observation that the majority Justices’ Catholic conception of faith based morality is necessarily imposed on us all in this case, including Jews who believe life starts at birth, because the majority understood, as the earlier record makes clear, the key “facts” that would support their view are demonstrably false. Too, as I have said here, decisions and policy made by governmental employees need to be based on demonstrable facts and proven relationships, not any one religion’s faith based morality. Yet the very opposite occurred in this case. Are we to believe, in these circumstances, that the identity of the majority result and the Catholic position is coincidence, when the key facts supporting that result are demonstrably false and contrary to the record? Not for a heart beat. The religionists’ rants here that Stone should be fired, that he should be given an “F,” that the University’s Law School is a disgrace and that anyone who disagrees with them is necessarily unreasonable become truly laughable in light of this analysis.

Again, I argue these Catholic and other religionists fail to appreciate the importance and need for the Establishment Clause and the idea of Separation of Church and State because they think their faith based moral vision is the only one that is “correct.” The problem, however, is that myriad other religionists who have different faith based perspectives also believe that they too are “correct” and each often seeks as well to have their view imposed on the rest of us. Obviously, in such circumstances, not everyone can be “correct” or fairly dominate. There is an imperative we live and get along together, with no one imposing any of their faith based moral views on the rest of us and that is why we have the Establishment Clause and the idea of Separation of Church and State. Catholics and those of other religious persuasions should not turn a blind eye to these Constitutional requirements and the policies that underlie them.

TM Lutas

In my challenge to Erasmussimo's assertion that "No religions have any fundamental restriction on abortion" I cited the 10 commandments prohibition of murder and provided the footnotes from other scripture that judaism and christianity really do believe that the soul (which for the religious in these faiths is the dividing line between rights bearing creatures and those without rights) is formed long before birth. But the act is not prohibited in any of my scriptural citations outside of the 10 commandments which even in his straightjacketed definition Erasmussimo agrees is "fundamental". My citations are mere footnotes to assist in the proper discernment of the 10 commandment prohibition. Thus Erasmussimo's assertion is ultimately indefensible. The 10 commandments contain the prohibition, the footnotes elsewhere explain why (ie that a fetus is an ensouled being who can be murdered), and Erasmussimo's argument is revealed for the sad, hollow thing it is.

Maybe Erasmussimo would like to shift to an assertion that it is the definition of unborn children as ensouled beings that is not foundational. He's welcome to try but I won't promise to hold in the laughter. After all, what is more foundational to a religion than who, or what, has a soul?

TM Lutas

John - Sadly, actual data on Catholic voting patterns show your "one issue voter" assertion (April 24, 2007 at 05:30 PM) to be a baselass one.

LAK - We have a legal ban on religious tests for a reason and a strong cultural aversion against the private advocacy of religious tests is a crucial part of maintaining that. Those "2000 year old cultist" [sic] happen to be the voting majority of this nation and any religious test adopted at your and others' urgings will likely be friendly to the voting majority. Christians who are repulsed by Stone's speculations argue against their own sectarian interest.

As for the pope changing doctrine on jews killing jesus, he did not change doctrine as any competent canon lawyer could tell you. Why don't you consult one before you embarrass yourself further.

Kimball Corson - I would recommend you pick up "How the Catholic Church Built Western Civilization" by Thomas Woods. Your assertion that Catholicism since the counterreformation is reactionary just cannot be supported by the facts.

Later I find it tremendously odd that you defend Stone who seems to be laying the groundwork for an anti-Catholic religious test by citing the Establishment Clause. In no way, shape or form is establishment of religion a part of this decision or discussion. What is at stake is whether Catholics, with their beliefs intact, may enter high government service or must they partially or wholly renounce their faith.

Frederick Hamilton

Prof Stone has now become per Hugh Hewitt the "Rosie O'Donnell of law professors". He is getting trashed on the internet. Not that that is all bad. He is in good company, look how Bush gets trashed on the internet. The goose and gander equality of the web.



The Catholic conspiracy theory falls apart when you recognize that Kennedy was the obvious swing vote and wrote the opinion for the majority. Kennedy's prior decisions (like Lawrence and joining Casey) amply demonstrate that he's not deciding cases on "faith based morality."

The opinion's unappealing reasoning doesn't justify leaping to the baseless conclusion that it was faith based.

As for the Brennan story, it's the classic flacid attempt to temper bigotry by saying "some of my best friends are black (or gay, Jewish, etc.)"

Kimball Corson

To TM Lutas,

I did not say Catholicism since the counterreformation is reactionary. I said it has largely been so since Aquinas. The Renaissance was basically the secularization of art and literature with Catholics sitting mostly on the sidelines and the Church has been in a more reactionary mode every since. Catholics believe the world turns around their Church, but it clearly does not, except where, as in this case, they get to impose their view by law on others.

Too, I find it amazing that you would say Stone seems to be laying the groundwork for an anti-Catholic religious test by raising the Establishment clause. This shows precisely the disregard for that Clause by Catholics and other religionists that I have railed against here. And then, to talk about denial, you go on to say “[I]n no way, shape or form is establishment of religion a part of this decision or discussion.” Yet, by Carhart II and in regard to partial birth abortions, Catholic doctrine is made the law of the land, even where the principal facts of record do not support that outcome. Talk about a biased and blind eye!

Kimball Corson


That Justice Kenney did not take the Catholic line in an earlier case does not necessarily mean that in this case, with a block of fellow Catholics (probably reminding him of his moral duty) he did not do so. This is a compositional fallacy.

Kimball Corson

To Frederick Hamilton,
Your last comment is all ad hominem and contains no substance at all. Too, the level of internet and public media discussion of Stone's analysis and conclusion is abysmally poor and reflects a lack of understanding of what happened in Carhart II. It is no test of anything. Like too many, the good doctor wades into law over his head again.

Kimball Corson


Do I correctly read you to write that Justice Brennen's personal struggle in Roe to uphold the Establishment Clause and the Separation of Church and State doctrine is ". . .the classic flacid attempt to temper bigotry." Absolutely amazing! Again and again here and elsewhere, I marval at the continuing and classical disregard by religionists -- and especially Catholics --to appreciate, understand and seek to have upheld the Establishment Clause and the Separation doctrine. By denial, they want both read out of the Constitution and they fail to appreciate the policies that underlie them, instead believing their religion is the Religion that the whole world should adopt, regardless. A very narrow, presumptuous and oppressive view, I say.

Kimball Corson

And with these commments, I literally sail away again.


Mr. Lutas, you have overlooked my point that the Fifth Commandment could not possibly have referred to abortion at the time it was written down.


"And with these commments, I literally sail away again."

Bon voyage, clear skies, and smooth sailing, Mr. Corson. We'll miss you.


Echoing many of the comments here, Prof. Stone's column is truly an embarrassment in legal (logical?) analysis. As someone who is pro choice, I wish that there was someway to retract this trite from the blogosphere - it is a disservice to anyone who believes that a woman's right to an abortion should be a federal constitutional right. But what makes this all the more disappointing is that it comes from a constitutional law scholar (an endowed professor to boot) at what some consider to be one of the Top 5 law schools in the United States. His observation and conclusion (re: the effect of catholic justices) is little more than a modified version of that old joke in which someone observed that more townsfolk were dying despite having more doctors. The punchline, of course, is the person making that observation fails to take into account that the town's population had grown exponentially. If Kennedy (who's opinion I am not defending) - one of the band of Catholics - actually wanted to overturn Roe because of his catholic predictions, he could have. But he didn't. So somehow he managed to rise above his personal beliefs (in Casey) and reaffirm a women's right (however limited by this decision) to have an abortion.


TM Lutas,

I apologizing for not knowing how the Catholic Church really works. Perhaps you can get a priest to transubstantiate me into a frog as punishment. I'm terribly embarrased for not knowing that it was a mere "clarification" that Jews are not to be held responsible for the death of jesus. But i should have known, as the Pope IS infallible.



The flacid attempt to temper bigotry was Comrade Stone's not Brennan's. I appreciate that Brennan thoughtfully struggled with the issue of abortion, much like the I appreciate that the current Catholic justices thoughtfully struggle.

But Stone makes a different point. He disparages current justices based solely on their Catholocism, then attempts to find cover from his worngheaded stereotype by citing his appreciation of Brennan. He might as well have said "Some of my best friends are Catholic, but . . ."


Now you ain't onea them there bigots are ye? Those Catholics- they're gettin all feisty again. We better keep them papists in their place. And them pesky doggone preceeedents. Why I just am a thinkin we better take a looookey at that darned Dre Scott deeecision. Wasn't that pre-ceeedent mister professer sir? But I'm a guessin that 's a different story Mr. pro-fesoor. Watch out fer that Mormon guy too we wouldn't want him ta get in there. Please don't use all that latin stuff me con't understand it like all you smart booklearnin people


I write this as an alum of the UofC (MD, PhD), embarrassed that such 3rd rate thought as Professor Stone's sees internet daylight. In full disclosure, I am pro-life and believe in a consistent life ethic.
A previous poster Gabi sums up the issue at hand. The critical error (or attempted legerdemain) is here: "By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental."
A few thoughts:
1. Law, in a democratic society, be it a republic or not, is essentially little more than the expression of collective morality.
2. Beliefs are moral axioms, the premises upon which our views are derived. There are only two ways to nullify an argument, neither of which Prof. Stone proposes. One is to demonstrate inter-axiomatic inconsistency, i.e., a set of beliefs are contradictory. The other is to demonstrate a flaw in logical reasoning from an axiom. Neither was provided by Prof. Stone.
3. As such, beliefs from religious faith versus "secular" morals are indistinct; they are all axioms. The corollary is in fact this: secular humanism too is a religion, merely one without God. I would also add that for someone who seems to indicate a knowledge of religion, Prof. Stone is clearly not familiar with the concept that religion can be atheistic. Buddhism and Jainism began as heterodoxies with respect to Hinduism in that the existence of God was denied.
4. Essentially, what Prof Stone attempts to get away with, and it is LUDICROUS, is in claiming that beliefs from one's religion should be treated differently from beliefs that are "non-religious" in origin. As I argue above, all beliefs are axioms, blind articles of faith, and are truly all "religious" - there is no such thing as a non-religious belief. As a practicing scientist and Hindu, I can tell you that science too has axioms, and is little more than a church with different tenets (which I happen to buy into).
5. The elusive distinction to which Prof Stone alludes is not elusive at all, although in his addled mind it might be. As above, he is trying to make the claim that beliefs should be stratified in terms of how our society to should view them based upon their source. What then is the logical basis for that? There is, of course, none - Because THERE IS NO RATIONAL BASIS UPON WHICH TO BASE BELIEFS, THAT'S WHY THEY ARE BELIEFS!!!!! So...the secular humanist argument is then, nyah, nyah, my beliefs are better than yours. This is laughable.

In summary, Prof Stone's argument is either: (a) stupid, or (b) intellectually dishonest. As I think a unlikely, I bet on b. It is a clever ruse to discriminate against religious belief.


UofCMD, I agree with much of what you say but I have a few nits to pick. First, you are off the mark stretching the definition of religion to include atheism. The term is commonly interpreted to refer to theistic beliefs. I suggest you simply rely on the notion that both theists and atheists establish their subjective value systems, and neither has an objective foundation for such value systems.

Second, you are playing a straw man when you make assertions about secular humanism. Your statements about that school are incorrect. I suggest that you confine your comments to specific statements made here, rather than imaginary statements of your own concoction.

U of C Alum

Professor Stone, you make me proud to be an alumnus.

Thank you for articulating the disturbing political reality of our day.

In an age when the executive branch is dissolving into a monarchy by way of presidential signing statements, it is not a stretch to say that five (male) justices on the High Court, prompted by their ideological leanings, waited expectantly to "deliver" a law we all know was long conceived by the religious right. Catholic or not, ideology did permeate the rhetoric of the opinion making them seem more like expectant fathers rather than jurists.

It ain't pretty, but it's the truth.

Syd Dursse

Mr. Stone's finding that a common religion and/or similar religious beliefs are the basis for the Court's decision is vapid. Accepting this theory, we may also believe that a mystical seance occurred among the five justices or that the Vatican transmitted its requirements to them, which they, mesmerized, applied.

Instead of examining the law, Mr. Stone follows an easy path - his emotional biases. This is where the twain will not meet: Pro-choice believers will not understand that the inter-uterine organism may be considered fully human, nor will the pro-life believers understand moral and good grounds for killing such. Pro-choice believers will not accept that over half the country is opposed to abortion. Pro-choice believers do not accept the Roe v Wade decision based on application of due process could be askew. Likewise, Mr. Stone is silent concerning the inspiration of religion and religious beliefs of the four opposed justices.

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