PERSPECTIVES ON THE SUPREME COURT : It’s Religion in Sheep’s Clothing : Thomas’ notions of natural law would lead him to side with religious groups and against the right to abortion.

The fact that Clarence Thomas is an African-American and the ensuing media focus on racial issues has obscured the most radical aspects of his judicial philosophy: The Supreme Court nominee’s concept of a “natural law” that supersedes the Constitution, the Bill of Rights and the precedents that an evolving American judiciary has created to define and establish the rights of individuals in modern times.

Thoughtful analysts of the court, on both the left and right, have long resisted the notion that any single issue should determine the appointment or confirmation of a justice.

However, the issue of abortion is not only of vital interest to the vast majority of Americans, who do not want to see Roe vs. Wade overturned or eviscerated. It also is the best contemporary indicator of a nominee’s attitudes about the separation of church and state and fundamental Americans traditions of pluralism.

The idea of a “natural law” that supersedes human law is not a judicial concept but is fundamentally a theological concept. It directly contradicts many of the deepest concerns about religious intolerance that led to the formation of this country and to the Bill of Rights in the first place. Every religion includes articles of faith about human behavior that are attributed to God.

The genius of the American idea is that it allows total freedom for individuals and families to practice their own religion, but prohibits them from coercing the government into imposing religious views on society at large.

The abortion issue is particularly relevant as an indicator of judicial philosophy, because opposition to choice is based on subjective religious beliefs. There is no medical or scientific consensus about when a fetus becomes a person. There are only widely differing religious and metaphysical beliefs, precisely the kind of diversity that the First Amendment was written to protect.

Like the abolition of slavery and legal segregation, the right to an abortion was developed by an evolving democratic and judicial process, a process that an impassioned religious minority seeks to overturn. The idea of a Supreme Court justice who would seriously consider siding with one religious view in a divisive national debate rather than with the traditions of pluralism, is frightening.

Many senators, perhaps recalling a time, long gone, when Presidents nominated Supreme Court justices based on their overall judicial temperament and competence, have not pressed recent nominees on their views on a woman’s right to an abortion. It is rightly considered inappropriate to ask justices to prejudge specific cases on which they might rule.

However, the idea that the only way to get a sense of a nominee’s position on abortion is through vague platitudes about the right to privacy is absurd. Abortion is an issue on which any conscious adult has had to think about for many years.

The notion, for example, that Judge David Souter had not come to a conclusion about this basic debate was not credible during his confirmation hearings and the failure of senators to press him on his disingenuous evasions was an abdication of their responsibility, which White House Chief of Staff John Sununu gleefully described to anti-abortion conservatives as a “home run.”

Perhaps the most cynical reason given for supporting Thomas is that he will be no worse than anyone else Bush appoints. This attitude is based on the belief that Roe vs. Wade has been doomed by Senate confirmation of previous nominees and the belief that the abortion issue has effectively been “settled” at the Supreme Court level.

As the confirmation process of Robert Bork demonstrated, Supreme Court appointments focus public interest on constitutional issues in a unique way and the very process of a full and spirited debate becomes the equivalent of a public referendum that takes on a political reality of its own.

It has been a mistake to allow justices who vote as Bork would have to be confirmed simply because they are not as obnoxious in their presentation. The Thomas nomination is an opportunity to re-involve the American public in the church-state debate.

The Thomas nomination takes place in the context of a religious movement in America that Bork called a “cultural war” to overturn the diversity of expression that social movements of the 1950s, ‘60s and ‘70s achieved. This “war” does not threaten only women of child-bearing age. As Robert Lifton of the American Jewish Congress recently pointed out in a statement opposing Thomas, “Natural rights theory (is) a problem of particular concern to the Jewish community.” Likewise, Muslims, Buddhists, members of “new age” religions, atheists, agnostics, gays and lesbians, and the entire entertainment business have come under attack for “immorality” by many of the same religious groups that enthusiastically support Thomas.

If Thomas’ notion of natural law would lead him to side with religious groups that would deny a woman the right to an abortion, what other “natural” intuitions might he try to implement from the highest court in the land?