The Supreme Court of the United States is overwhelmingly composed of Roman Catholics. Of the nine justices, six affirm themselves as Roman Catholic, while the other three self-identify as Jewish. This is a very new phenomenon, in place only since 2010, when John Paul Stevens, Protestant, retired, and Elena Kagan, Jewish, was appointed. Since 1789, only in the last four years have no protestant denominations been represented on the Supreme Court. Christianity remains the majority of the court, and is solely represented by Roman Catholics.
With this in mind, it is with terrible disappointment that I read the majority opinions concerning the affirmative action case this week. In case you didn’t see the news, the court was deciding whether the state of Michigan was within constitutional limits when it recently passed a state constitutional amendment outlawing affirmative action. The court heavily sided with Michigan, voting 6-2 (Kagan recused herself), thus allowing the Michigan constitutional amendment to stand. This ruling will set a precedent for state’s rights concerning race for the foreseeable future.
Two majority opinions were offered by Roman Catholics: Justices Kennedy, Roberts, Alito offered one; Justices Scalia and Thomas offered another. Justice Sotomayor offered the dissenting opinion, several times as long as any of the majority opinions. All the documents can be found here.
Race and the Opinions of the Court
Since I am not a lawyer but a theologian, the tragedy of the court’s decision comes not only from the fact that this decision will disproportionately harm already-oppressed and marginalized populations, but from the way the five Roman Catholic justices talked about race when they made their decisions.
In the first majority opinion, offered by Justice Kennedy, joined by Roberts and Alito, all Catholic, the justices argue that
If it were deemed necessary to probe how some races define their own interest in political matters,still another beginning point would be to define individuals according to race. But in a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend. (p. 12)
In other words, by classifying individuals according to race, they argue, we are in danger of making racist judgments ourselves. And really, the above quote seems to argue, “those lines are becoming more blurred” anyhow. But just in case we might want to argue the opposite, the opinion concludes with the warning:
Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate. (p. 18)
The final line is terrifying: “democracy does not presume that some subjects are either too divisive or too profound for public debate.” One might ask the court, shall we have a public debate on the re-institution of slavery or the sterilization of mentally disabled individuals? What if a few percent of the population approves? What if, as in the case of the mid-1800’s, the vast majority of the population approved of slavery?
In the second majority opinion, offered by Justice Scalia and joined by Justice Thomas, both Catholic, the justices conclude with the following argument:
As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way….(And doubly shameful to equate “the majority” behind §26 with “the majority” responsible for Jim Crow. Post, at 1–2 (SOTOMAYOR, J., dissenting)). (p. 17-18)
The study of race and racism has progressed a LOT since Harlan’s defiant statement from 1896, and using his statement for the opposite reason–using his statement, which argued for the equality of an oppressed minority, in an argument for the rights of an oppressive majority–is highly disrespectful to Harlon’s intentions.
In the lone dissenting opinion, offered by Justice Sotomayor, herself also Catholic, and joined by Justice Ginsberg, who is Jewish, the justices conclude with the following rebuttal:
The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. (p. 57)
Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government. (p. 58)
At the outset, I find the language terribly stark from the majority to the dissenting opinions–despite the legal arguments, Justices Sotomayor and Ginsberg are clearly arguing on behalf of historically marginalized groups, and this alone places them in Christianity’s good graces (not to mention Judaism’s good graces, of course).
However, beyond even this, I find extremely troubling the majority opinions and their treatment of race, especially from the perspective of Catholic theology. Perhaps because so much of our attention is focused on the Pope these days (like the very high profile double-pope-canonization this weekend), Catholics in the US seem to forget about national issues. Or, perhaps, we see pictures of a multi-racial world, of a global Catholicism, and the stigma of “American” and “slavery” and “racial inequality” melts away to a generic consideration of universal Catholicism that cares only for a select small number of human rights issues. To allow this generic consideration under the guise of “universal Catholicism” is to ignore the personal responsibility that comes from living in a racially unjust society, and to scorn the memories of the many people whose racially-induced enslavement created the founding infrastructure of our country.
Looking to the Bishops
To begin with, the American Catholic Bishops, would strongly disagree with the opinions of the five majority justices when it comes to race. In a landmark pastoral letter in 1979, entitled “Brothers and Sisters to Us,” the bishops describe a drastically different understanding of race than preferred by the majority opinions from Tuesday:
Because the Courts have eliminated statutory racial discrimination and Congress has enacted civil rights legislation, and because some minority people have achieved some measure of success, many people believe that racism is no longer a problem in American life. The continuing existence of racism becomes apparent, however, when we look beneath the surface of our national life: as, for example, in the case of unemployment figures….
They go on to cite, as examples of national racism, racial disparities in employment, wage earnings, incarceration rates, poverty, education.
Quite simply, this means that an alarming proportion of tomorrow’s adults are cut off from gainful employment-an essential prerequisite of responsible adulthood. These same youths presently suffer the crippling effects of a segregated educational system which in many cases fails to enlighten the mind and free the spirit, which too often inculcates a conviction of inferiority and which frequently graduates persons who are ill prepared and inadequately trained.
In addition, racism raises its ugly head in the violence that frequently surrounds attempts to achieve racial balance in education and housing….Racism is apparent when we note that the population is our prisons consists disproportionately of minorities; that violent crime is the daily companion of a life of poverty and deprivation; and that the victims of such crimes are also disproportionately nonwhite and poor. Racism is also apparent in the attitudes and behavior of some law enforcement officials and in the unequal availability of legal assistance…..
But this is not all that defines racism, say the bishops. Quite relevant to the justices’ decisions this week, the next paragraph states:
Finally, racism is sometimes apparent in the growing sentiment that too much is being given to racial minorities by way of affirmative action programs or allocations to redress long-standing imbalances in minority representation and government-funded programs for the disadvantaged. At times, protestations claiming that all persons should be treated equally reflect the desire to maintain a status quo that favors one race and social group at the expense of the poor and the nonwhite.
Racism obscures the evils of the past and denies the burdens that history has placed upon the shoulders of our black, Hispanic, Native American, and Asian brothers and sisters. An honest look at the past makes plain the need for restitution wherever possible – makes evident the justice of restoration and redistribution.
In the light of these two paragraphs, the Supreme Court’s decision this week, especially coming from Roman Catholics, is no less than horrifying. And, in case you’re worried about the “1979” label on the pastoral letter, let me assure you that not much has changed in terms of racial equality since 1979. Education has actually been leaning towards being re-segregated as we reach the 40th anniversary of Brown v. Board of Education. Theologian Christopher Pramuk, of HopeSingsSoBeautiful.org, writes:
Just as integration “gave black children for the first time resources that usually followed white children,” and further served “to unite the community around a single high school,” so the reverse dynamic is painfully true: the gradual re-segregation of our public school system is “not just something that happens naturally.” It is a willful process abetted by the courts, with predictably devastating results for children of color. By the time students get to Tuscaloosa’s Central High School, for example, “most have spent nine years in low-performing, virtually all black schools.” Even for top-performing students at Central High the prospects for higher education are dim.
The prison system in the United States is still as racially biased as it was in 1979, with black males being incarcerated at around 7 times the amount of white males, and 3 times the amount of hispanic males, based on the size of the respective population. The segregation of major cities remains an enormous problem, and contributes to the alarmingly high rates of violent crime in impoverished neighborhoods, which are often populated by historically marginalized groups.
The bishops’ letter is not stuck in the past. Their letter remains a prophetic call towards the future–and one that was clearly ignored this week.
Another Dissenting Opinion
Now, finally, if for some reason this letter does not affect our consciousness, and we are more convinced by the Bishops’ lack of response to this tragic court decision, let me bring another Catholic voice into the fold: Shawn Copeland, theologian and professor at Boston College. Perhaps her reflections will help us to understand why Scalia’s argument that we should be “colorblind” or Kennedy’s argument that racial lines “are becoming blurred” have no place in Catholic theological thought.
Simply put, while someone’s skin color does not make them a different species (as was previously thought by centuries of scientists), this does not mean that race does not exist. “Race” as a social construct holds considerable power in our comprehension of person-hood and value. “Racism,” writes Copeland, “goes beyond prejudice…or even bigotry…by joining these feelings or attitudes to the putative exercise of legitimate power in a society; in this way, racism never relies on the choices or actions of a few individuals, but is institutionalized.” (p. 23) Racism is not just a feeling, it’s not just a hatred that someone holds. This is certainly a part of racism, but it does not constitute its whole.
Because of the difficulty of defining racism, Copeland attempts to move beyond the binary qualifier of “racist,” which limits arguments to the unhelpful “you are a racist!” followed by “no, I’m not a racist!” Instead, she uses the much more helpful notion of “racialized subject” to describe persons affected by a cultural transmission of concepts of race. “Racialized subjects,” she writes, “sustain and transmit racism as an ideology through their uncritical acceptance of standards, symbols, habits, assumptions, reactions, and practices rooted in racial differentiation and racially assigned privilege.” Through these people, often ignorant of their own complicity, “racism envelops the ‘normal’ and ‘ordinary’ social set-up and spawns a negatively charged context in which flesh and blood human beings live out their daily lives and struggle to constitute themselves as persons.” (p. 24)
Echoing the Bishops’ letter, but in more precise terms, Copeland writes:
“Racism is no mere problem to be solved, but a construal of reality, a distorted way of being human in the world.” (p. 24)
Of the six Catholic supreme court justices, only Justice Sotomayor made an argument in line with the US Catholic Bishops. Only Justice Sotomayor placed herself on the side of the oppressed and the poor, understanding race and racism as not something that will hopefully go away soon, but as an overwhelming evil that is embedded in the very structures of society. Only she seemed to agree that racism is far more than personal feeling, but a cultural condition that affects the very way we interact with the world.
Who failed the five Catholic justices who held terrible opinions concerning race? Priests who never preach on race from the pulpit? Their Catholic education that is only now beginning to understand the importance of discussing race (and only then few and far between)? The US Bishops who have not redoubled their efforts to counteract 21st century racism in recent years? American Catholicism, in general, which seems to allow national labels of “conservative” and “liberal” to far more influence our perception of social issues than actual Catholic theology? We, the theologians, who are still struggling to catch up to figures like Shawn Copeland in the battle against racism?
While these are questions that must be asked, answered, and acted upon, they are not the questions that dwelt in people’s minds this week. For the millions and millions of people who heard about or discussed the court’s decision, it doesn’t matter who failed the Catholic supreme court justices. What matters is the result, and the precedent, and the future, because the deed is now done and “Catholic” is forever attached to the very anti-Catholic majority opinion expressed this week.
Some resources to help you continue the discussion:
“What We Have Seen and Heard,“ A Pastoral Letter on Evangelization from the Black Bishops of the United States, 1984.
“Brothers and Sisters to Us,” US Catholic Bishops Pastoral Letter on Racism, 1979.
USCCB’s Office of Cultural Diversity, with resources for different minority communities in the United States.