Al Smith, JFK, Amy Coney Barrett and the politics of conscience

“You are controversial,” said Diane Feinstein, “because you have a long history of believing your religious beliefs should prevail.” With this prologue, the California Senator began her questioning of Notre Dame Professor Amy Coney Barrett at the nominee’s September 2017 Judiciary Committee hearing for a seat on the Seventh Circuit Court of Appeals.

Contrast that commentary with July, 1993 when then-Sen. Joe Biden (D-Del.) chaired Ruth Bader Ginsburg’s Supreme Court confirmation hearings. No questions were raised regarding the nominee’s adherence to her Jewish faith — beyond her dissent in a Court of Appeals decision upholding the Army’s prohibition of a soldier wearing his yarmulke when in uniform. 

In the third century of the American republic, there is still something about Catholic faith and government service that animates a discussion regarding divided loyalties. Recalling how this issue played out in the last century illustrates some precedents for the challenges Judge Barrett will no doubt encounter in her Supreme Court hearings.

Following an unsuccessful attempt in 1924, New York’s Irish Catholic Governor Alfred E. Smith was the odds-on favorite to secure the 1928 Democratic nomination for president. Crude anti-Catholicism was in play with the Ku Klux Klan’s conspicuous role at the 1924 convention. But as 1928 approached, Smith faced a pre-emptive strike from an entirely different direction.

In the April 1927 issue of The Atlantic, New York attorney Charles Marshall published “An Open Letter to the Honorable Alfred E. Smith,” suggesting that Smith, “as a loyal and conscientious Roman Catholic” could not faithfully execute the office of President of the United States.

As detailed by Fordham historian Thomas J. Shelley, the Episcopalian Marshall cited 19th century papal encyclicals authored by Leo XIII and Pius IX to argue that Smith would be obliged to follow church teaching rather than the law of the United States when the two might be in conflict. Marshall demanded that Smith acknowledge whether or not, when church and state were in conflict, “the jurisdiction of the church should prevail?”  

And in phrasing reminiscent of Feinstein’s questioning of Barrett, he wrote that Americans were asking “whether, as statesman, you accept the teaching of the Supreme Court of the United States that, in matters of religious practices which in the opinion of the State are inconsistent with its peace and safety, the jurisdiction of the State shall prevail.” 

In his initial reaction to the letter, Smith, the earthy product of an eight-grade education, is alleged to have blurted out “What the hell is an encyclical?” He later claimed that while a lifelong Catholic “I never heard of these encyclicals and bulls and books that he (Marshall) writes about.”

To draft his reply, he was aided by an extraordinary duo: the legendary theologian and chaplain of New York’s “Fighting  69th,” Father Francis Duffy, and the Jewish, Alabama- born New York State Supreme Court judge Joseph Proskauer. 

The much-anticipated response was published in the May 1927 Atlantic. Smith declared that in his years of service to New York “I have never known any conflict between my official duties and my religious belief” and that “conscience is the supreme law which under no circumstances can we lawfully disobey.” He asserted that “these encyclicals are not articles of our faith.” He concluded “I believe in the absolute separation of Church and State.” 

“Throughout the country, editorial opinion was overwhelmingly favorable to Smith,” notes Thomas Shelley. The Smith-Duffy-Proskauer response won the battle for educated public opinion.

Smith went on to win the nomination in 1928 and went down to a crushing defeat. It’s not at all clear that even a Protestant Al Smith could have beaten Herbert Hoover in at a time when incumbent Republicans were presiding over the Roaring Twenties economic boom. But victory in the Atlantic exchange notwithstanding, a still-powerful anti-Catholic sentiment in America turned a likely defeat into a landslide.

In an era when issues of abortion and gay rights were not even on the horizon, what, apart from visceral nativism, was Protestant America afraid of? According to Church historian Anthony Andreassi, the Anglo-Saxon world had long been hostile to the dual loyalties demanded of faithful Catholics. In 20th century America, “Catholic institutions, particularly schools, were seen as inculcating in their subjects values that were anti-republican and anti-democratic.” 

By 1959, change was in the offing. President Dwight Eisenhower said he saw no reason why a Catholic could not be elected president. In a March Look magazine interview, Democratic front-runner John F. Kennedy attempted to dispose of the Catholic issue before he even declared his candidacy. 

Kennedy stated his opposition to government aid to parochial schools and to the appointment of a U.S. ambassador to the Vatican. On the issue of dual loyalty, he went one better than Al Smith, maintaining that “Whatever one’s religion in private life may be, for the office holder, nothing takes precedence over his oath to uphold the Constitution and all its parts.” Timothy Sarbaugh notes that there was negative reaction to JFK’s interview — but it came from Catholics who saw him attempting to appease Protestant bigots by forsaking any recourse by a statesman to his personal conscience.

Kennedy’s famous September 1960 speech in Houston was an attempt to thread the needle. He pledged to govern “in accordance with what my conscience tells me to be the national interest.” And as his knockout punch, he promised that in the unlikely event “my office would require me to either violate my conscience or violate the national interest, then I would resign the office.” This was a pledge designed to placate skeptical Catholics and Protestants alike.

In a different era, Al Smith could confidently say that “I have never known any conflict between my official duties and my religious belief.” With the 1960 election, the debate over dual institutional loyalty and a Catholic’s fitness to be president effectively ended. But in the era of non-stop culture wars, the deeper issue Kennedy unintentionally raised of faith driven conscience, versus the Constitution, has not. 

Judge Barrett will no doubt be delicately asked how the Church’s teaching on the sanctity of life informs her conscience and will impact her decisions regarding abortion. It’s unlikely she will respond, like JFK, baldly stating that the Constitution trumps conscience. But it should make for a fascinating exchange.

Charles Marshall went to his grave believing that Al Smith’s 1927 denial of the primacy of Church authority was in fact at variance with official Church teaching. Were he around today, what theological briefs he might prepare in opposition to Judge Barrett we can only imagine.

Paul C. Atkinson, a former executive at the Wall Street Journal, is a contributing editor of the New York Sun.