The President and the Pope
paul-finkelman at utulsa.edu
Mon Jun 14 21:42:01 PDT 2004
Eugene, I can promise you, if I want to express my contempt for the
Bush administration, I will not, if you will excuse me, beat about the
Bush, I will be quite blunt.
No, I am merely pointing out the ironies of politics and history. I am
not entirely sure that the policies of Republicans in the 1960s are so
distant from those today. The anti-immigration movement has been much
stronger among Republicans, such as Pete Wilson of California, than
among Democrats, although clearly this is bi-partisan hostility to
immigrants. Most of that hostility has been directed at Catholics from
Central and South America and Haiti.
I don't see any great legal issues here. I think the president can talk
to the Pope if he wants and he can ask the Pope for help in getting
reelected. Politicians can seek out religious leaders as they wish.
I suppose there might be issues of "non-profit" tax status if a Church
enters a political campaign, but I do not think that is the issue here.
I should also add that while I do not think it is illegal or
unconstitutional for a president to seek the help of religious leaders,
I wonder it there might be some campaign law issue here of accepting
funds or aid from non-citizens and foreign governments. That is, if the
Vatican is a foreign government, and since we have an embassy there, I
presume it is, then perhaps seeking the aid of the Pope is something
akin to accepting money from other countries. I was unable to read all
the posts on this issue, so perhaps someone already raised it. I
confess (if I can use that term in this discussion) that I have no
strong view on the matter, but would love to hear what people who know
something about the campaign finance laws think.
However, in the end I do not see this issue as being terribly
legalistic; it is far more political and cultural. Those things do flow
into law, even for those of us (and I think Eugene and I are probably in
the same camp here) who are not "post-modern" or "deconstructionists."
I do wonder, however, how the Bush administration would respond if in
fact the Pope or other Catholic leaders condemned him for his policies
on the death penalty, torture, and unjust wars.
As for picking and choosing, I think it is clear that most people pick
and choose which religious dogmas they will follow. Some religious
people believe in separation of church and state because otehriwse the
church will be corrupted . I think the opinion in Lynch v. Donnelly is a
great example of that, as the Court decided that the second most holy
symbol of Chritianity was not in fact a religious symbol. Same is true
in the pledge case, with the Bush administration arguing in effect that
when we say "under God" we really don't mean it. Similarly, the
persistent push of "non-sectarian" or "non-denominational" prayer is an
affront to people who take religion serious.
On the other hand, while people may choose their dogmas, church leaders
are more constrained. Thus, I would imagine if the Catholic Church
leaders took their teachings seriously -- and they felt they should
become involved in electoral politics -- they would condemn most
politicians for supporting things the church opposes -- whether it is
birth control or capital punishment or what some might think is an
I do find it ironic -- and nothing more than that -- and I am sorry if
irony is not something you like to deal with -- that a party which has
historically been anti-Catholic would suddenly turn to the Pope for help.
Volokh, Eugene wrote:
>I don't understand. Paul began by saying that (1) he imagined that if Bush were condemned by Catholic bishops for his stand on the death penalty, there'd be howls from the Bush camp about the separation of church and state, and (2) he thought it was "fascinating" that Bush would "pick and choose which Catholic doctrine he likes."
>I then suggested that item 1 was an odd argument, because it's based pretty much entirely on imagination; there's no evidence that he gives that the "Bush people" would behave this way, rather than disagreeing with the Catholic bishops on the merits. I also suggested that argument 2 was equally odd, partly because even American Catholics (both laypeople and politicians) pick and choose which Catholic doctrine they like -- but more importantly because *of course* people who seek common ground with other groups will "pick and choose" to ask for help on beliefs they share, rather than for beliefs on which they disagree. That's perfectly proper, even often laudable, politics.
>Paul responds by bringing up an entirely different argument: That there "is some irony in this," because of past Republicans' disapproval of Catholicism, dating back to the 1850s. Well, there's about as much irony in this as in Democrats reaching out to black leaders, given that after all Democrats are the party of slavery -- which is to say no irony at all. Some Republicans' misdeeds in the 1850s, 1920s, or 1960 aren't terribly relevant to what other Republicans believe today.
>Now I don't want to constrain Paul's "imagination," "fascinat[ion]," or sense of "irony" -- all three of which are fine things to have, and give ourselves a lot of pleasure. But as best I can tell, Paul's posts are largely ways to express his contempt for the Bush Administration, and possibly for Republicans generally, and not terribly persuasive ways at that. What's more, they seem to me to have precious little by way of argument about whether a President's appeal to religious leaders are unconstitutional (whether the question is justiciable or not) or illegal.
>Paul Finkelman writes:
>There is some irony in this, since the Republican Party has never nominated a Catholic for the presidency and in two campaigns many Republicans attacked the Catholicism of the candidate (Al Smith and John F. Kennedy) as being a tool of the Pope. I remember Republicans arguing that if elected Kennedy would have a "hot line" to the Vatican. I rememebr many people shaking their head in wonder, asking how anyone could support a "Catholic" for the Presidency. Protestant, Catholic, it was all the same to this Jewish kid! But, the Republicans have a long history of religous bigotry and opposition to foreigners, going back to the immigration quotas of the 1920s and indeed to some of the Party's anti-Catholic roots in the 1850s. Now we have the ironic reversal, the Republicans *want* a hot line to the Pope so he can campaign for them.
>Volokh, Eugene wrote:
> It's always hard to argue with people's imaginations, but I would assume that at least many of Bush's supporters would simply say that the Catholic bishops have it wrong on the merits -- they're entitled to express their religious views, but voters should disagree with those views.
> As to "picking and choosing which Catholic doctrine he likes," that's hardly a matter of just Bush's doing it. Most American Catholics do it, in deciding how to act, both personally and politically. Many American Catholic politicians likewise do the same.
> Nor is there anything wrong with Bush's doing it: Whenever someone asks someone of a different religious group or political group to make common cause on issue A, they aren't necessarily insisting on the same as to issue B. If the ACLU asks the NRA to join them on an anti-BCRA brief, there's nothing terribly fascinating in seeing the ACLU pick and choose which NRA beliefs they like: It's enough that they agree on the First Amendment issue, even if they don't agree on the Second Amendment.
> To tie this to the law of government and religion: The question, as I understand it, is whether there's any constitutional problem (whether or not justiciable) with the President seeking political help from religious groups in pushing some aspects of his agenda, whether it's a pro-civil-rights agenda, anti-abortion-rights agenda, pro-environmentalist agenda, anti-poverty agenda, or whatever else. I think the answer is definitely "no," even when people who dislike the President might imagine that the President's side would make Establishment Clause objections had the tables been turned (an objection that would be just as unsound as the objection to the President's current actions), and even when the President is stressing one aspect of the religious group's views and not another aspect.
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Monday, June 14, 2004 6:11 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: The President and the Pope
> I wonder how Bush would respond if the Bishops all said that no Catholic voter should support a man who 1) vigorously endorses the death penalty, whcih the church opposes, and as a chief executive did not do everything in his power to oppose the death penalty and who did not use all his powers to pardon anyone who might be executed. I imagine we would hear howls from the Bush people about separation of Chuch and state. Similarly, what would happen if the Bishops attacked those executives who do not do enough to end world poverty and hunger. It is fascinating to see Bush pick and choose which Catholic doctrine he likes; I am sure, however, that His Holiness can see through all of this.
> Paul Finkelman
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Chapman Distinguished Professor of Law
University of Tulsa College of Law
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Tulsa, OK 74104-3189
paul-finkelman at utulsa.edu
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