Ms. Barrett has meditated on this matter herself, as a co-author of a 1998 law review article addressing this genre of conundrum. The essay considers the options of Catholic judges hearing capital punishment cases, which the state permits but the church forbids. Ms. Barrett and her co-author maintain that Catholic judges must or should recuse themselves from such cases, concluding that “judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.” With individuals, this kind of resolution usually suffices.
But Catholic institutions are another story: It is in their fortunes that Locke’s suspicions have proven most prescient. Roman Catholic schools have warred bitterly over their exemption from anti-discrimination employment statutes, scoring a win in a case argued before the Supreme Court as recently as this summer. Catholic hospitals have found themselves embroiled in court battles for refusing to perform or even discuss abortions, regardless of state or federal law. And, perhaps most famously, the Little Sisters of the Poor, an order of Catholic nuns that operates nursing homes for low-income seniors, fought the Affordable Care Act’s contraception mandate all the way to the Supreme Court, and won.
In each case, Catholic institutions have asked for exemptions to various laws, citing the First Amendment. In Lockean terms, they have argued that business putatively conducted in the civil sphere actually belongs to the religious one, and thus ought not be subject to the rules of civil government. They are staking out and reclaiming jurisdictional territory from the state, in other words, and each victory adds ground to the church’s domain.
There are those who worry that the exemption solution won’t work forever, and those who worry that it will work too well, shrinking the role of religion in public life and reducing the ranks of the faithful. There are also those, like me (I should note that I, too, am Catholic), who suspect that both may happen at once: that religions whose ethics conflict with the broader culture will shift toward forming small, dense enclaves, where they are unlikely to encounter legal challenges to their preferred practices. Evangelicals, for example, already predict this fate for themselves. But since the Roman Catholic Church is enormous, highly organized and financially capable of fighting for its ground to a much greater extent than other religious groups, cases concerning Catholic institutions will most likely continue cluttering court dockets for the foreseeable future.
It’s into this context that Ms. Barrett would step as a piously Catholic woman and a Supreme Court nominee. She neither created this situation nor will she end it; no justice placed on the bench could. It has a life and a legacy bigger than any individual cast in it by history, and it seems poised to keep us in shocking, surprising times.