Phi Beta Cons

What Do Judge Walker and Justice Kennedy Have in Common?

They are judicial theologians.

Less than two months ago — as we’ve extensively discussed here on NRO — the Supreme Court ruled that a university with a so-called “all-comers policy” could in fact require a Christian student group to be open to non-Christian leadership and non-Christian voting membership. In other words, a Christian student group could not require that its leaders and voting members agree with the group’s statement of faith. The decisive fifth vote was cast (as it so often is) by Justice Kennedy, who declared, in his concurrence, “The era of the loyalty oath is behind us.”

Make no mistake, this is a theological statement — a theological statement with the force of law. Justice Kennedy injected himself into the very DNA of a private religious organization and declared that the “era” of its statement of faith was over. Private religious organizations recite statements of faith (also commonly known as “creeds”) for theological purposes: to perpetuate belief, to declare truth, to educate children, to affirm faith, and for many, many other reasons. In fact, it is the rare Christian who has not — at one point in their life — stood in their pew and recited the Apostles’ or Nicene creeds. By what possible constitutional standard does a justice of the Supreme Court declare that the era of such statements (and the Christian Legal Society’s own statement of faith is strikingly similar to these historic creeds) is “behind us?”

In yesterday’s Proposition 8 ruling, Judge Walker made his own bold theological statement: “Religious beliefs that gay and lesbian relationships are sinful or inferior heterosexual relationships harm gays and lesbians.” Such a statement presumes, of course, the falsity of such beliefs — a presumption that no federal judge is entitled to make. Moreover, it renders several thousand years of Judeo-Christian moral reasoning legally inferior to a marriage concept created out of whole cloth by coastal judicial elites less than a decade ago.

Judge Walker is of course entitled to his personal opinion and his personal religious beliefs, but placing the weight of his government office behind his theology gives him more “hard power” than the Pope. Is that what the American people really want? After all, not all federal judges share Justice Kennedy’s or Judge Walker’s theology, but they do have equivalent amounts of power.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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