God on the Bench
Some Judges Look to a Higher Authority
illustration by A.J. Garces
Devine flaunted his religious beliefs long before he assumed the trial-court bench in 1994. He made his name as an anti-abortion demonstrator; he was arrested several times and ran against a judge after she issued rulings in favor of Planned Parenthood in an abortion-protest dispute. Last month, just halfway into his four-year term, he sought an even higher calling -- a Houston-area congressional seat -- but finished well behind the runoff candidates.
Devine's inspired artwork, his courting of powerful religious right operatives in Houston, his history of street-fightin' activism -- it all adds up to an ugly mix of faith and law. The nexus of faith and law, however, is rarely as stark as it is with Devine. Indeed, the legal world is having a more open, and certainly a more intelligent, debate on faith than other sectors of public life. There's always been a skepticism about the search for meaning in a life's work. "As for the Business of an Attorney, I think it unlawful for a Christian, or at least exceedingly dangerous," warned a 19th-century preacher. "Avoid it therefore, and glorify God in some other station."
Chronicle editor Louis Black argued the other side of that coin in an editorial last spring when he criticized attacks on city council candidate, and lawyer, Jeff Hart. Black, who did not support Hart's candidacy, still came to his defense when Hart's opponent, former Chronicle columnist Daryl Slusher, ran attack ads ripping Hart for representing a plant in Bastrop County accused of polluting the environment. In Black's view, Hart was a good man despite his client roster. But, lawyers are not -- as Black would have it -- hired guns who litigate bloodlessly, without conscience or soul. A lawyer's clients can tell you something about that lawyer. If Hart has spent his career representing corporate interests, then that says something about him -- not everything, but something. Certainly he is different than a career legal-aid lawyer.
To extend Black's reasoning, a lawyer would hardly be able to integrate his or her faith with legal work. Yet, this summer, the Texas Tech University law review published a remarkable collection of essays in which 44 practitioners, academics and judges wrote about just that struggle. The law review issue was the basis for a three-week online symposium I moderated in August on Counsel Connect, a national legal online service affiliated with Texas Lawyer. What I found so challenging about the law review was that the authors wrote very personal narratives -- story-telling -- rather than jargon-laden essays on the state of First Amendment law.
Texas Tech law professor Timothy Floyd, a faculty advisor for the issue and a panelist in the Faith and the Law online symposium, wrote that he had "a nagging worry that I am fooling myself when I assert that law practice can be a calling from God." The law review issue flowed from that doubt, and the "story-telling format," Floyd says, seemed the best way to do it. "Stories are how we learn to live as we should," he wrote.
One law review author was Texas Supreme Court Justice Raul Gonzalez, whose speech to a Christian Coalition meeting in San Antonio a year ago solidified his position as the most openly religious judge in the state. To those of us who had written about Gonzalez's 12-year tenure on the high court, the speech was no big surprise -- a pretty standard Bible-thumper spiced with a few observations on who and what is causing Western Civilization's decline and pending fall (among other atrocities: MTV, gangs, and Harvard Law School's rejection of theology-based legal teachings in the 1800s, in case you're wondering).
In my office file marked "Gonzalez/ Born Again/Opinions" -- to which I'd added every time I felt the justice suffused his opinions with fundamentalist dogma -- there was plenty of evidence to back a claim that Gonzalez's judicial writings could resemble religious jeremiads. From his very first Supreme Court opinion in 1984 to a case just last year, Gonzalez has been a strident voice on abortion. The 1984 opinion -- in a case where abortion was not even the core issue -- complained about abortion's contribution to a "disposable society;" 11 years later, the justice cited a 1965 Life magazine photo essay, of all things, to bolster his belief that "it is beyond dispute that human life begins at conception."
Yet despite his strong words on abortion, his apparent naïvete about the crass political motives of the Religious Right, and his belief that Christians are a "disfavored class," Gonzalez is not an automatic vote for positions backed by religious interests. And I agree with him when he says that all judges are "more influenced than they care to admit" by their faith. "I am transparent," Gonzalez says. "I acknowledge that this, my faith, is part of the mix."
And how different, really, is the born-again Gonzalez, a Roman Catholic, from Catholics in the liberal activist tradition? At St. Mary's University School of Law in San Antonio, the dean, former UT law professor Barbara Bader Aldave, has based her school's mission on the life of Mary, mother of Jesus. "After all, for whom is our school named?," Aldave said in a 1994 speech, "The Reality of a Catholic Law School."
Aldave said that whenever she hears complaints about the school's focus on clinical education -- on immigration, capital punishment, human rights, economic justice -- "I have a ready answer.
"Once we strip away the heavily romanticized tradition that surrounds her, what does Mary mean to us Catholics? In the early part of the New Testament, Mary is introduced to us as an unmarried, pregnant teenager. When we last hear of her, she is an old woman, at least by the standards of her time -- a widow who looks to friends for sustenance and support. Between her major appearances, she has searched for shelter, fled from persecution, and watched the execution of her son." Seen in that light, Mary's life is a liberal activist's call to arms.
A very different kind of Catholicism has been advocated -- brandished, his critics say -- by U.S. Supreme Court Justice Antonin Scalia. In his speeches outside the court, Scalia takes the same tone that marks his opinions: He displays a certitude that's more than strident; it's scary. "We are fools for Christ's sake," Scalia told a Christian Legal Society meeting in Jackson, Mississippi, in April. "We must pray for the courage to endure the scorn of the sophisticated world." (One Washington columnist spoke of his temptation to rework Scalia's comment with a comma after "fools;" another said Scalia is apparently under the impression that the godless Senate would have confirmed him even faster than they did had he been an atheist.)
Scalia also played a role in a milestone event in the court's religious makeup this summer when his ideological soulmate, Clarence Thomas, returned to the Catholic Church after a 28-year absence. When Thomas took Communion in a Massachusetts church, the high court for the first time no longer had a Protestant majority. (Thomas, Scalia, and Anthony Kennedy are Catholic; Ruth Bader Ginsburg and Stephen Breyer are Jewish). In June, Thomas attended the first mass celebrated by Scalia's son Paul, a newly ordained priest, an event that reportedly helped move him to a final decision to rejoin the church.
Our Judge Devine, meanwhile, has another two years on the bench. In the online Faith and Law Symposium, a lawyer who is a former seminarian noted that the Ten Commandments painting in Devine's courtroom may not be quite the Religious Right billboard it appears to be. "The practitioners of all major religions believe these directives to be the divinely inspired Word of God," he wrote. "The problems arise when those in authority force their views of how these commandments are to be interpreted or enforced upon those whose interpretations are different," he said. "In such an event, the courts of America may resemble those of Iran, where religious dissent is vigorously prosecuted."
Bob Elder is news editor of Texas Lawyer, the legal affairs weekly, and an online editor for Counsel Connect.