Posted by Eugene Volokh:
"Anti-Catholic in Effect":
[1]Juan writes:
I think it is fair to say that at least some Democratic Senators --
and some outside interest groups -- have taken the position that an
individual who accepts the Catholic Church's teaching on abortion,
and who therefore believes that abortion is murder, is unfit for
the federal bench. While I would not call this anti-Catholic
bigotry, it is quite anti-Catholic in effect.
If a group specifically said that it opposed nominees who accept the
Catholic Church's teaching on abortion -- but not people who are
equally anti-abortion but not Catholic -- then it would indeed be
anti-Catholic bigotry. But I take it that Juan's point is broader
still: Any group that opposes nominees who believe abortion is murder,
even if they do that without regard to the nominee's religion (or lack
of religion), is setting up a test that's "anti-Catholic in effect."
I'm not sure that "anti-Catholic in effect" is a helpful term here,
partly because "anti-X" generally suggests hostility to Xs, or at
least a deliberate desire to exclude Xs as Xs, and not just the
adoption of a neutral rule that ends up burdening X. I wouldn't, for
instance, call a university's decision to admit students based on high
school GPA and SAT scores "anti-black in effect," even if it has the
effect of excluding many black applicants (and a higher fraction of
those applicants than of Asian or white applicants). Likewise, I don't
think that we'd call professional sports teams "anti-woman in effect"
simply because their selection criteria lead them to be all-male,
unless we thought that the criteria were deliberately stacked against
women.
More to the point here, say that President Bush decides that he's
tired of anti-death-penalty judges who either vote to strike down the
death penalty generally, or undermine it in lots of ways short of
striking it down altogether. He says that he will not nominate any
appellate or Supreme Court judges who are on the record as being
strongly morally opposed to the death penalty. Would we call this
"anti-Catholic in effect"?
I don't think so; again, "anti-Catholic" suggests opposition to
someone because of his Catholicism. We should reserve the term, which
has the connotation of hostility, to situations that do exhibit such
hostility. "Has the effect of excluding Catholics / blacks / women" is
much more accurate, both in its denotation and its connotation.
References
1. http://volokh.com/archives/archive_2005_04_24-2005_04_30.shtml#1114551703
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