This is how the article begins (notes omitted):
Imagine that you are watching a hearing of the U.S. Senate Judiciary Committee on television. Each member of the Committee is asking questions of, and in some cases interrogating, the president’s most recent nominee to the United States Supreme Court. She is an accomplished attorney with not only a law degree from an elite institution but also a doctorate in biochemistry and specialization in private practice on issues over which science and law overlap and intersect. For several years she has served on the federal bench on the D.C. circuit and has done so admirably, showing professional competence and jurisprudential insight that has become the envy of her peers, some of whom disagree with her conservative judicial philosophy. Over the years, she has published well-received articles in numerous law reviews and peer-reviewed science publications dealing with issues as wide ranging as the Daubert standard,1 the reliability of DNA testing in capital murder cases, and whether the Supreme Court’s holdings in its reproductive rights cases provide support for a constitutional right to clone oneself.
She is also a devout Roman Catholic and has published several law review articles critical of the Supreme Court’s reproductive rights jurisprudence, and in particular, the Court’s reluctance to make an argument on the question of when human life begins. In fact, in one article in particular, she offers her own argument by which she defends the Catholic view of the human person as a defeater to the right to abortion.
As the hearings proceed, the senators ask her a variety of questions about the most important court cases concerning equal protection, substantive due process, and criminal procedure. Several senators ask her questions about issues overlapping law and science and how some of them may play a part in future cases the Supreme Court may hear. She smartly and prudently declines to offer any answers about specific legal disputes, though in the process of her modest reluctance, she reveals a deep and sophisticated understanding of the sciences in which she was trained and has done research. The senators are impressed.
They now move on to questions about her views on abortion and how they are informed by her religious beliefs. And then the requisite inquiry is posed: Are you going to allow your deeply held personal religious beliefs to influence your judgments on the bench? Such a question, of course, is not asked of the nominee’s beliefs about biochemistry or the issues in which law and science intersect on which she has opined, even though on those beliefs and issues, as in the question of abortion, there are a wide variety of informed and thoughtful perspectives. And yet none of these beliefs and issues are described as “deeply held personal beliefs,” as if they were irreducibly subjective opinions about which rational deliberation is not possible. It seems safe to say that it would never cross a senator’s mind to ask the question of whether the nominee’s background in science would influence her judicial opinions on the Supreme Court. And it would not really matter if she had instead possessed identical expertise in history, political science, psychiatry, or zoology. For a sitting senator would be thought foolish to imply that there was something amiss with a judge who brought the resources of her education, training, and knowledge to bear on her opinions in appropriate cases, whose end we all agree should be on her opinions in appropriate cases, whose end we all agree should be justice.
This sort of thinking—exhibited by the fictional senator in this story—is ubiquitous in federal court opinions that address the nature of religious beliefs as well as those views and beliefs that are informed and shaped by a citizen’s religious tradition. This thinking is also found in the works of legal and political philosophers who argue that political views and policy proposals that have their source in a citizen’s or a government official’s theological tradition should be excluded from political or legal consideration unless the religious believer has a public justification that could in principle be accepted by those whose liberty the policy is intended to limit. They argue that such views and proposals, because of their source, are inconsistent with liberal democracy’s commitment to state neutrality on matters theological. Some, in fact, have maintained that this understanding of liberal democracy serves as the philosophical justification of the establishment clause of the First Amendment.
Although this understanding is widely embraced, I want to argue in this paper that there are good reasons to call it into question. However, because I cannot adequately present in the space allotted me the full orbed assessment that this point of view deserves, my case is merely suggestive of the conclusion that I believe is correct, namely, that there is no sufficient reason to exclude theologically informed public policy proposals and that the federal courts err in offering a flawed understanding of the epistemological standing of religious belief. To make my case, I first address two questions—(1) What does theological knowledge look like?; (2) What do the federal courts say about theological claims? I then offer a brief analysis of one issue over which the question of theological knowledge has been raised in both the literature and the public square; (3) the permissibility and federal funding of embryonic stem cell research. I also use this issue as a point of departure to briefly discuss what I believe is an unjustified privileging of non-theistic understandings of knowledge.
You can read the whole thing here. It is part of a larger project I was working on during my year at Notre Dame (2008-09) as the Mary Ann Remick Senior Visiting Fellow in the Notre Dame Center for Ethics & Culture. I am still working on this project and hope to have a book manuscript to submit to a publisher in the late Fall.