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Bench Memos

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Red Herring



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Here are two reasons why the hand-wringing over Roberts and religion is misplaced.

One: Does anyone doubt that if Roberts were pro-choice that we would not be having this discussion? If Roberts said tomorrow that Roe was safe, do you think any liberal senator will say: “Now hold on there, Judge. Are you basing that on your religion? Some Catholics favor permissive abortion because, they say, the soul is not infused until some time well after conception–maybe forty days later. If you think that, Judge, I’ll have to vote against you for ignoring the separation of church and state.”

Do you think any conservative senator will say it?

Two: Would someone please identify one moral norm that might be involved in some decision a Justice Roberts would be called upon to render, but that moral norm cannot be known by unaided reason? Does not John Roberts’s
own Catholic Church say of the norms thatmight be so implicated: They are
written on the human heart? They are naturally knowable? They do not
depend upon revelation or religious authority? They are available to all reasonable persons–religious or not? In fact, name one moral norm that a Justice Roberts might apply in a case that was not, until a generation or a little more ago, the common morality of America and of America’s law?

What exactly, then, is it about Catholicism that we should be so worried about?



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