Two blog contributions have recently discussed the nomination of Judge Neil Gorsuch to the US Supreme Court and what should be made of his conservative and theologically-derived views supported by a specific strand of natural law jurisprudence. Like Nick Bamforth, I am deeply troubled by the views that Judge Gorsuch appears to hold on gender issues, which are likely to compromise women’s as well as LGBTQI rights. I further agree that the religious origin of these views, and the fact that they are given jurisprudential credentials through the works of John Finnis and Robert George, are highly relevant. I do, however, also take Nick Barber’s point that the link – religious origin, to substantive moral beliefs, through to judicial decision – is not in and of itself bad, or rather that it should not exclude people from public office. My concern, discussed in the following contribution, is that the religious basis of certain legal positions and reasoning might lead to lesser openness and reduced willingness to question and change said positions and reasoning.
The religious beliefs of a candidate are thus not the starting point of my critique. I start from a position of substantive disagreement with conservative views on abortion, same-sex partnership, etc. When the religious origin of these views becomes important is when they start to clash with (a) social science evidence; (b) domestic public opinion; (c) emerging consensus in liberal democracies; or (d) the guarantees contained in international human rights law, as interpreted by international human rights bodies. The risk is that views based on religious beliefs might be less likely to be interrogated on the basis of any of these.
At some level, the disagreement between conservatives and progressives about human rights and constitutional interpretation is a game of ‘my values are better than your values’. And seemingly, there is no guidance. But the above-mentioned four elements are surely not irrelevant for such an assessment, in political contestation as well as judicial reasoning.
It might be useful to elaborate that all four often support the progressive position. (a) Social science evidence can be useful to provide empirical information about harm. Thus, in deciding about abortion, the fact that illegal abortions lead to higher death-rate and injury among women, while the actual number of abortions remains relatively constant, is surely not irrelevant. If we know that there is no such thing as ‘no abortion’ but merely ‘no safe abortion’, should our religiously based objection to legality of abortion not change?
Public opinion (b) is perhaps the most difficult element, since status quo – and thus typically gender conservative – legal regulation often has the benefit of having the support of the population who can find it hard to imagine other set-up. But once rights are guaranteed, and the sky does not collapse, the support for progressive legal regime often grows. For example, in the US, support for gay marriage rose from 35 % in 2001 to 55 % in 2016. It is true that public opinion is not nor should it be the ultimate guide to human rights interpretation and adjudication – courts’ decisions occasionally need to be counter-majoritarian and thus not guided merely by the polls. But when even the public agrees with rights already guaranteed, regress through judicial decision-making becomes considerably less legitimate.
As for (c) the use of comparative law, and (d) the use of international law, it is no accident that conservative judges in the US tend to be very sceptical of the use of both. Justice Scalia in his dissent to the majority decision in Lawrence v Texas which decriminalized same-sex sexual activity, spoke disparagingly of the possible relevance of the development in ‘foreign nations’. And yet, it is especially the development of international consensus which ought to be considered an anchor for the ‘my values are better than your values’ debate, in law and beyond.
It is in reaction to the evolution in knowledge, opinion, or legal standards where I suspect the religious foundation of moral beliefs might tend towards the inflexible. I personally doubt that moral commitments based so centrally and exclusively on religion, as those of Judge Gorsuch and his teachers appear to be, are as capable of change in the face of developments, as moral beliefs not rooted in religion are. Thus, what we should be asking Judge Gorsuch, is perhaps about his willingness to reflect some of these developments rather than about his religion per se.