Do Catholic judges have specific moral and legal obligations because they are Catholic? Frank-Paul Sampino argues they do not:
In light of the 2004 debate over whether pro-abortion politicians could receive Holy Communion, and whether ordinary Catholics could vote for such politicians in good conscience, confusion about the moral obligations of Catholic judges is understandable.
The Church has by no means offered definitive answers to these questions. Indeed, there has been precious little discussion of this problem even among lay Catholic intellectuals. Thankfully, though, the Church does offer some principles by which we can begin to outline possible answers.
Generally speaking, a Catholic judge’s moral obligation is no more, and no less, than to apply the civil law as he understands it, regardless of the outcome of particular cases. I maintain that a Catholic judge need not recuse himself, or resign, or stretch the law to achieve a morally acceptable outcome. With rare exceptions, he may simply decide the case as he believes the appropriate civil laws require.
The reasons Sampino gives seem moderately persuasive. What do you think?
February 2nd, 2011 | 10:16 am
The early Church thought that serving as a magistrate was incompatible with Christianity, and forbade Christians from holding any public office. Partly this was due to the requirement of the magistrate to participate in pagan civic rites, but also because many of the decisions a magistrate had to make could not be reconciled with Christian life as it was then understood.
By the third century, this rule had been relaxed, because the Church was attracting more upper class converts, and public service was a legal obligation of the upper class. Rather than forbidding Christians to serve outright, the Church then ruled Christians had to abstain from the Eucharist for the duration of their term of office (which was only one year), after which they could be readmitted to communion.
All that passed away with the Constantinian settlement, and by 394, only Christians could hold public office. Now, the settlement is broken, and we live in the era of post-Christian government–government that does not even make a pretense of upholding Judaeo-Christian ethics and morality. It therefore seems time for the Church to draw a line in the sand by recognizing the incompatibility of government service and Christian faith, by reinstating the rule requiring Christian magistrates (and other office holders) to abstain from the Eucharist for their tenure of office–after which they could apply for readmission, which a bishop could grant immediately, after fulfilling certain conditions (e.g., a period of prayer and fasting), or deny outright (for those who, during their term of office, egregiously offended against the teachings of the Church).
It would seem to answer the question neatly, put the onus squarely on the back of the person holding or seeking office, and relieve bishops of an embarrassing public relations hassle while still allowing them to exercise pastoral care over his sheep who do enter public service.
February 2nd, 2011 | 10:35 am
Well, I don’t know if he’s saying they have no moral obligations due to their Catholicism. I guess you mean that they have no specific obligations qua Catholic, but certainly the author is saying that their Catholicism does urge them to a commitment to honesty and forthrightness in their jurisprudence. Also, there’s the matter of immediate material cooperation in evil that he brings up. The Church’s moral theology and philosophy informs how a judge should act in those difficult cases, and serves therefore as a guide.
February 2nd, 2011 | 10:49 am
I find Justice Scalia’s position in the May 2002 First Things to be a better statement of the issues, but I cannot do him justice. His is a short article, too – go read at http://www.firstthings.com/article/2007/01/gods-justice-and-ours-32
February 2nd, 2011 | 10:50 am
A good deal depends on the kind of Court the judge presides over. In a criminal Court, there is likely to be more of a convergence of the laws being enforced with Judeo-Christian moral concepts. Family Court is a bit more dicey: the majority of litigants seem to be unmarried parents with children. The idea there,however, is to decide what is better for the children, and not to admonish the parents for their immorality. I expect things to get much more difficult as more jurisdictions recognize same sex marriage.
February 2nd, 2011 | 11:41 am
“I maintain that a Catholic judge need not recuse himself, or resign, or stretch the law to achieve a morally acceptable outcome. ”
If I understand this correctly -Judge Casey’s ruling upheld the practice of partial birth abortion. So, that must mean that inducing birth of child just prior to full gestation – translation- probably able to survive outside the womb without much medical assistance – then shoving scissors in the back of its head of its head and sucking out its brains until the skull collapses is a moral practice?
Right.
February 2nd, 2011 | 12:52 pm
Mrs. Jackson, CLEARLY that is not what Sampino contends. He is obviously pro-life himself, and horrified by partial birth abortion, as is clear if you had just read the article. Just read the last paragraph of his essay:
“In short, what Judge Casey did was exactly right. He was able, by his unique position, to expose the injustice of the very law (in this case, Supreme Court precedent) that obliged him to rule as he did. At a time when there has been no clear guidance on this issue—either from the Church or from leading Catholic lawyers—Judge Casey’s example is a model of Catholic jurisprudence.”
The explanation for why he says that is below:
“The question before us, then, is under what circumstances do a judge’s legal obligations require him to improperly cooperate in evil?
Let us suppose that there were a law requiring judges to order women to have abortions. In this case, the law requires an intrinsically evil act on the part of the judge. A judge, even by administering such a law honestly, would necessarily implicate himself in that act. Note that this situation is distinct from St. Thomas’s aforementioned hypothetical, because the latter concerns a judge who administers a presumably just law and arrives at an unjust outcome, whereas the former involves the application of an unjust law that requires an inherently immoral action on the part of the judge. The judge’s order would at least constitute immediate material cooperation in evil, which is itself sinful. Since dishonesty about the law is out of the question, the judge’s only morally acceptable options would be recusal or resignation.
Now contrast Judge Casey’s ruling, in which he invalidated a law prohibiting some abortions because he understood himself to be so bound by the Supreme Court. This case required the application of an unjust law (the Stenberg precedent), but such application did not necessitate the commission of an intrinsically evil act by the judge himself. The judge’s actions (striking down the ban) were far removed from the principal sinful act (the actual abortion), whereas in the previous hypothetical case the judge’s order would have caused that act. Judge Casey did not command the commission of any intrinsically evil acts; at worst, he refused to prevent others from committing those acts.
It seems to me that Judge Casey, and other judges who apply similarly unjust laws and precedents, can only be accused of mediate material cooperation in evil. In light of the oath of office and the duty to respect higher courts’ precedents, it is clear that there are proportionate reasons to make such cooperation licit.”
I think that makes it quite clear that the author was not in any way, shape, or form saying partial birth abortion (or any form of abortion) is morally OK. Entirely the opposite, in fact!
February 2nd, 2011 | 1:24 pm
“In his ruling, Casey called partial-birth abortion a “gruesome procedure” but claimed the ban conflicts with a 5-4 Supreme Court ruling in 2000 upholding the practice. That decision in the Steinberg v. Carhart case said a “health of the mother” exception must be a part of any abortion ban.
The “health of the mother” and “the right to privacy” are the whole enchilada when it comes to us being in possession of the most liberal abortion laws on the planet. No one is asking for Casey as a Catholic to twist the laws to favor his conscience. A more than convincing case has been made successfully and repeatedly that the health of the mother does not comes into play with the procedure of partial birth abortion. This was why it was not written into the law in the first place.
Partial birth abortion takes (much) longer and causes more stress on the woman’s body. Partial birth abortion evolved by the abortion industry as a cost-saving procedure.
February 2nd, 2011 | 1:32 pm
Right, I agree. But Casey was abiding by what he understood to be the Supreme Court’s precedent on the matter. In that sense he was constrained.
February 2nd, 2011 | 3:12 pm
Was Casey really constrained? I’m not a lawyer so I don’t really know the answer. I just know the right to an abortion at any point of the pregnancy was not involved in the ban on partial-birth. It was a ban on one particular form of late term abortion. That’s it.
Surely Casey had to know by the year 2004 that to include the health of a mother in the ban for partial birth abortion would have rendered the ban useless. I just can’t help but think that Casey in his ruling was a bit too close to the narrow thinking espoused by pro-life Rep. Bart Stupak in his acceptance of an EO to prevent tax-payer abortions in Obamacare.
February 2nd, 2011 | 5:37 pm
I agree that a judge has the obligation to apply civil law even if that law is repugnant to his own conscience.
However, I disagree about whether a Catholic judge might need to recuse himself.
For instance, the law might be established that forces a judge to consider something as fact that he knows should not be treated as fact – like being expected to treat a fetus as a thing rather than a person. The judge, knowing this in advance, knowing that it is not within his rights to change this aspect of the law, and yet knowing that he is right to recognize that the fetus is not merely a thing, should recuse himself – and say why.
It seems to me that anything else would be unethical.
February 3rd, 2011 | 7:30 am
Blake, it is one thing to say that a foetus is a thing and quite another to say that the law “deems” it to be a thing.
The law, especially taxing statutes, make a lot of counter-factual assumptions, in this way
Although I do rather sympathize with the Scottish Lord Justice-Clerk, who once interjected, “There’s too much of this d-ded deeming!”
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