As I have previously pointed out Opus Dei cooperators and others on the Catholic Right such as former U.S. Senator Rick Santorum, see their Catholicism as entirely different from our first Catholic president, John F. Kennedy.  In 2002 the progressive National Catholic Reporter ("NCR") covered a Vatican event honoring Opus Dei's founder, Josemaria Escriva.' In his piece, reporter John L. Allen noted:

Though the sprawling congress touched on many topics, one recurrent theme was the relationship between public life and faith. While speakers stressed that neither Escriva nor Opus Dei impose a particular political option, they also insisted that Catholicism must shape one's approach to public policy.

Speakers cited a famous saying of Escriva: "Have you ever bothered to think how absurd it is to leave one's Catholicism aside on entering a university, or a professional association, or a scholarly meeting, or a congress, as if you were checking your hat at the door?" In contemporary Western debates, this idea of unity between faith and political allegiance often puts Opus Dei-inspired politicians on the right.

From the very same article, consider the former Keystone State's Senator's statement made at the same event:

Santorum was a forceful champion of this view. He told NCR that a distinction between private religious conviction and public responsibility, enshrined in John Kennedy's famous speech in 1960 saying he would not take orders from the Catholic church if elected president, has caused "much harm in America."

"All of us have heard people say, 'I privately am against abortion, homosexual marriage, stem cell research, cloning. But who am I to decide that it's not right for somebody else?' It sounds good," Santourm said. "But it is the corruption of freedom of conscience."

Or consider this tidbit from, again from the same event:

Mariano Brito, a former minister in the government of Uruguay, described how he had blocked a health care program because it included funding for in-vitro fertilization. His stance, he said, was motivated by the desire to defend the right to life, a way of carrying his Catholic faith into public policy.

Brito is a "supernumerary" member of Opus Dei, meaning a layman who is married.

As I emphasized in last week's piece I am not concerned about a general Catholic presence on the court. Justice William Brennan and perhaps until recently, Justice Anthony M. Kennedy acted as mainstream Catholics who seemingly separated their religious views from their decisions. As I commented, Catholicism is not monolithic. Just as we must be concerned with the theocratic impulses of certain Reconstructionist and Dominionist subdivisions of Protestantism, the same approach applies to certain intolerant impulses of ultra-traditionalist Catholic subdivisions.  

But with that said, it would be unprecedented to launch an inquiry into a justice or justices based on religious affiliation. It would be highly improper (as well extremely awkward) to attempt to expose a judicial nominee's affiliation with Opus Dei or another similar organization solely to proclaim, "Sir, simply because you are an Opus Dei cooperator I cannot vote for you." Besides sucking all the air out of the committee room, such a pronouncement misses the point of uncovering a possible abuse of public-entrusted power. It would simply backfire into charges of anti-Catholicism.

Yet, there is good cause to question future nominees for the federal judiciary on this point-- and there are fair and reasonable ways to do it.  While Opus Dei is no ordinary organization, the issue is not Opus Dei itself. What concerns us is the extent to which the nominee will act in accordance with the most orthodox of the organization's pronouncements, specifically when such activity would violate the separation of church and state.

Mainstream Catholics serving on the Committee on the Judiciary, Senators such as Dick Durbin, Ted Kennedy and Joe Biden have the necessary religious standing to question ultra-orthodox nominees about any affiliations they may have with the Catholic Right.  Here are some reasonable and inoffensive ways for Catholic Senators to inquire into such matters:

CATHOLIC SENATOR: Judge, you and I are both Roman Catholics. However, I have read that you are a follower of Josemaria, Escriva,' the founder of Opus Dei. If that were to be the case, while we both share the same basic faith, we may have differing views on what role our Catholicism should have in executing our public duties.

Now, a former member of this body, Rick Santorum is also a follower of Escriva' and his teachings. The former senator once stated that President Kennedy's distinction between private religious conviction and public responsibility has caused "much harm in America."

What both the American people and I would like to know is whether you agree with Senator Santorum's assessment; and if you do, please explain to us in what way?

And, as is the case with former Senator Santorum, the nominee has inicated that he abides by Josemaria's teachings as the means to act in his public office, then perhaps it is appropriate to ask the following:

CATHOLIC SENATOR:  If issues such as federal funding for embryonic stem cell research or a woman's right to choose came before you on the bench would the primary basis for your decision be more "motivated by the desire to defend the right to life, a way of carrying his Catholic faith into public policy" or solely by legal principles?

And if the nominee is close with the infamous Opus Dei priest, C. John McCloskey (as is the case with current Associate Justice Clarence Thomas) the following question is appropriate:

CATHOLIC SENATOR:  Judge, I see that you are quite close with the Opus Dei priest C. John McCloskey. To say the least, he has made some rather provocative comments, such as saying there are "...two Americas. One group in America is made up of Bible Christians and faithful Catholics who possess standards and convictions based on the natural law, the Bible, and the teaching authority of the Catholic Church and strive to live accordingly."

Father McCloskey then went on to characterize his fellow Americans in this manner:

"The other group in America, whatever its religious affiliation" as not believing "... in a normative moral truth or in a God to whom they are accountable in this life and in the next according to their actions here," ultimately describing them as "...culture of death."

Judge, could you please tell the committee if you share Fr. McCloskey's view that all other Americans except for those he believes are "faithful" Catholics or "Bible Christians" are part of a culture of death? More importantly, if you in fact do share Fr. McCloskey's view, would that adversely affect your ability to apply the law to equally to those you associate with "a culture of death?"

Lest anyone think such questions could never come up, consider what happened to Senator Patrick Leahy (D-VT) during the confirmation process for federal appeals court nominee William Pryor. Questionable at best about his commitment to church-state separation, Pryor once proclaimed in 1997, "God has chosen, through his son Jesus Christ, this time and this place for all Christians...to save our country and save our courts."

Leahy ,who is Catholic was attacked "anti-Catholic" by the National Review which framed the issue in terms of a factious and ultra orthodox version of Catholicism that is in hot pursuit of breaching and ultimately breaking the wall separating church and state. Opponents of their agenda are routinely described as anti-Catholic.

This agenda would infuse our common judicial system with a view of morality less based upon the notion of overlapping consensus and much more on a highly subjective form Catholic morality,  which looks to foreign head of state to inform American judicial philosophy. The foreign nation in question is the Vatican, a nation the United States recognizes and maintains diplomatic relations.  This is significant in part because while JFK was very clear that he would respect the separation of church and state in carrying out his responsibilities as president, adherents of Opus Dei and similar groups have a radically different view, as former Senator Santorum made crystal clear.

This goes beyond the separation of church and state.  It can be reasonably seen as the laws of sovereign state being imposed upon another sovereign state. And it must be remembered that in the United States, sovereignty is vested in the people who through the democratic process make their elected leadership accountable to them. Vatican sovereignty, on the other hand, is vested in a pope -- a monarch elected from among about 100 top church officials who are themselves appointed by a monarch.

The vast majority of American Catholics separate their faith from any sense of nationality. For me, Catholicism is a religion, nothing more, nothing less. But many on the Catholic Right see public office as an opportunity and an even an obligation to reshape American law and public policy in line with Vatican's sense of morality . In this age of the Vatican's abstinence-only AIDS prevention and its opposition to certain stem cell research, this is something for every American to ponder.

Having proposed a way to pose reasonable inquiries into how American Catholics judicial nominees relate the views of the Vatican to their role as American public servants, next week I will explore these matters in light of the actions of some current members of the Supreme Court.

An Opus Focus on the SCOTUS? (Part 3)