Why It is Not Just Wrong But Dangerous to Defend the Nomination of Harriet Miers because she is an ‘Evangelical Christian’

I have the good fortune to be able to listen to Hugh Hewitt while I drive back from a teaching job I have about an hour and a half away from home. I hear him on a Christian station, and I am a fairly regular reader of his blog. I mention this because Mr. Hewitt seems to be part of a group of Christian Conservatives who seem to believe that assurances that Harriet Miers is an evangelical Christian who, for religious reasons, would vote to overturn Roe v Wade is a good thing.

I could not disagree more. I believe that the mere suggestion that Ms. Miers would consider overturning Roe v Wade due to her religious beliefs is not only an unacceptable way for a person who is sworn to uphold the duties of a secular position to behave but it would be a disaster for both evangelicals and the eventual demise of Roe v Wade.

First, and this may be an unpopular position (I know that my wife would take exception), Ms. Miers may be a fine member of the Body of Christ, and I am glad if she is, but her religious beliefs have no place in the interpretation of a secular document. The U.S. Constitution is a product of man and not God, its principles (while clearly reflecting the benefits of a Christian culture) are not explicitly Christian. Therefore, Christian theology is not a valid basis for opposing Roe v Wade in terms of the constitutional basis for deciding it. Christian views on the sanctity of life are irrelevant in determining if the meaning and intention of the founders with respect to the right to privacy (an implied right at best with the exception of the 5^th Amendment) and, if such a privacy right can properly be found in the Constitution the extent and boundaries of that right. This is a matter for scholars of secular constitutional theory and history. I am not saying that an evangelical Christian cannot do this, merely that one does not do it as an evangelical Christian, just as one does make medical decision differently if one were a Christian doctor (unless there is a moral question involved, but that does not change the technical procedures that the doctor would perform if he or she found that it was morally acceptable). To make a decision on the Constitution based strictly on Christian moral principles is as much an abuse as a secular progressive basing his interpretation of the Constitution based on his own set of preferred value outcomes. They are both warping the meaning to achieve an extra-constitutional objective.

What if a strict evangelical jurist held that the 1^st Amendment did not apply to speaking ill of your father and mother – clearly a very serious sin, punishable by death. I believe many people (including me) would hold that that jurist, however correct the theology of not speaking ill of your parents, had improperly limited the clear intent of the Constitutional right to free speech.

In contrast, an evangelical Christian should hold that Roe v Wade is unconstitutional because it is almost universally held (even by many who support the outcome of it) to be one of the worst constitutional decision ever made, not as a matter of morality, but as an abuse of the power of Constitutional interpretation and of deeply flawed legal reasoning that is completely unmoored from accepted principles of constitutional interpretation.

The greater danger of a having a justice who seems to indicate that she would be led by her religious beliefs and not by her respect for and understanding of proper constitutional theory, is that it would complete de-legitimize any overturning of Roe v Wade and would provide limitless fodder to those who argue that Justice Miers is imposing her religious values on the U.S. – and they would be right to argue this. No matter how much evangelicals are misrepresented in their desire to make a more justice and merciful society through the only proven method – the application of the teachings of Jesus Christ and the moral redemption that comes through His saving grace - or their desire to stop an abominable practice, the fact remains that the separation of church and state would clearly be violated if any Supreme Court justice argued that Christian doctrine was the basis for holding a particular position in a case before the court. I may like the outcome, but I could not defend the means. It is illegitimate. If we want to have society behave in a way that is compatible with Christian morality, we have to do it retail; by changing the hearts of individual Americans. We cannot do it by fiat. If we were to do so, then almost every charge the secular world makes about our supposed propensity for theocracy would be, at least in part, true. Therefore, we would be no better off nor would our argument be any more legitimate (from a secular legal point of view) than Harry Blackmun’s reasoning that supported Roe.

We do not need to take that risk and we would lose more than we would gain. Again, I am glad Harriet Miers is a devout Christian, but she is being considered for the U.S. Supreme Court – not the Sanhedrin.