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A Catholic Judge's Response to a Motion To Recuse Himself

John Noonan, the U.S. Circuit Judge who delivered the Laetare Address at the2009 Notre Dame Commencement, is a well-known Catholic with a well-known record against abortion. Here is his response to a motion to recuse himself from an abortion case.

69 F3d 399 Feminist Women's Health Cetner v. Codispoti

69 F.3d 399

United States Court of Appeals,Ninth Circuit.

Nov. 7, 1995.

NOONAN, Circuit Judge.

1

The Constitution of the United States, Article VI, provides: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The plaintiffs in this petition for rehearing renew their motion that I recuse myself because my "fervently-held religious beliefs would compromise [my] ability to apply the law." This contention stands in conflict with the principle embedded in Article VI.

2

It is a matter of public knowledge that the Catholic Church, of which I am a member, holds that the deliberate termination of a normal pregnancy is a sin, that is, an offense against God and against neighbor. Orthodox Judaism also holds that in most instances abortion is a grave offense against God. The Church of Jesus Christ of Latter-Day Saints proscribes abortion as normally sinful. These are only three of many religious bodies whose teaching on the usual incompatibility of abortion with the requirements of religious morality would imply that the plaintiffs' business is disfavored by their adherents. See Theresa V. Gorski, Kendrick and Beyond: Re-establishing Establishment Clause Limits on Government Aid to Religious Social Welfare Organizations, 23 Colum.J.L. & Soc.Probs. 171 (1990). If religious beliefs are the criterion of judicial capacity in abortion-related cases, many persons with religious convictions must be disqualified from hearing them. In particular, I should have disqualified myself from hearing or writing Johnston v. Koppes, 850 F.2d 594 (9th Cir.1988), upholding the constitutional rights of an advocate of abortion.

3

True, the plaintiffs qualify my beliefs as "fervently-held" as if to distinguish my beliefs from those that might be lukewarmly maintained. A moment's consideration shows that the distinction is not workable. The question is whether incapacitating prejudice flows from religious belief. The question is to be judged objectively as a reasonable person with knowledge of all the facts would judge. Moideen v. Gillespie, 55 F.3d 1478, 1482 (9th Cir.1995). As long as a person holds the creed of one of the religious bodies condemning abortion as sinful he must be accounted unfit to judge a case involving abortion; the application of an objective, reasonable-person standard leads inexorably to this conclusion if the plaintiffs' contention is supportable. No thermometer exists for measuring the heatedness of a religious belief objectively. Either religious belief disqualifies or it does not. Under Article VI it does not.

4

The plaintiffs may object that the disqualification applies only to cases involving abortion; they are not disqualifying Catholics, Jews, Mormons and others from all judicial office. This distinction, too, is unworkable. The plaintiffs are contending that judges of these denominations cannot function in a broad class of cases that have arisen frequently in the last quarter of a century. The plaintiffs seek to qualify the office of federal judge with a proviso: no judge with religious beliefs condemning abortion may function in abortion cases. The sphere of action of these judges is limited and reduced. The proviso effectively imposes a religious test on the federal judiciary.

5

The plaintiffs' motion of recusal is denied.

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

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Mr Nickol,I doubt that even other Commonweal readers would subscribe to your peculiar interpretation of Forming Consciences for Faithful Citizenship.

Good response, although he could have cut to the chase in the beginning of his argument by mentioning the fact that our Nation was founded under the Universal God, a.k.a., "The Creator". Following the logic of the "Motion to Recuse", our Founding Fathers would have had to recuse themselves from securing the Right to Life, Liberty, and the Pursuit of Happiness by instituting our Government to begin with.

I'm very happy that Judge Noonan is up to your standards.

oops, I forgot to add this :-) at the end of my statement.

It seems to me that he avoids the issue. What the bishops have been sating is that government officials cannot be neutral in their approach to abortion, but must always oppose it. Cardinal George has even said JFK renounced Catholicism when he said he would not be bound by episcopal/papal teaching in decisions he made as president. I do not see why this same standard would not mean Judge Noonan has renounced his Catholicism by saying he will be neutral in abortion cases.Personally, I completely trust the judge to apply the law fairly, and that Cardinal George was way out of line in his remark. But that is just my opinion, and I have been known to be wrong in the past.

I am going to need more convincing than Noonan offers. Based on his august reputation, I expected more from him. The American bishops have declared, "A legal system that violates the basic right to life onthe grounds of choice is fundamentally flawed." What does it mean to Catholic judges to be making decisions on something they are told is murder in a "fundamentally flawed" legal system? Are they just supposed to ignore the fundamental flaws and rule in favor of murder? I am inclined to think Catholic judges (at least the highly visible ones) do follow the law without letting their religion influence them. But I am not sure why they should, based on what the Church teaches and what the American bishops have been saying.

There would seem to be a remarkable (and possibly offensive) set of assumptions regarding Catholic judges and abortion underlying the the motion to which Judge Noonan is responding -seemingly the same set of assumptions that drove the critical comments about the Catholic majority in the wake of the Gonzalez v Carhart decision.I wonder how widespread those assumptions are among pro-choice advocates? If they are widespread, then in my opinion, the President's nomination of Judge Sotomayor is rather remarkable.

Jim McK and David N.: there are absolutely folks here who know far more about the role of an appellate judge than I do, but don't appellate judges usually confine themselves to rather narrow and technical issues that arise out of the lower court's case or decision? My admittedly vague understanding is that an appellate judge would be way out of bounds to say, in effect, "I'm overturning this decision because abortion is morally wrong".Happy to be corrected on this.

Regarding Johnston v. Koppes, how do we know whether Koppes did not want Johnston to take a vacation day because she only gave him one day's notice and she was needed at the office?

There would seem to be a remarkable (and possibly offensive) set of assumptions regarding Catholic judges and abortion underlying the the motion to which Judge Noonan is responding . . . Jim,Why is it offensive to question whether a Catholic judge can and will make an objective judgment -- in conflict with his or her own religious beliefs on matters of life and death -- when the American bishops have said that the American justice system is fundamentally flawed?Does the mere fact of being a judge absolve you from making legal decisions that violate your own conscience? Why is there such a big fuss over conscience protection for medical workers if Catholics are permitted to do their job when it is at odds with their conscience and what their religion teaches? There are certain situations in which a judge must stand in for parents to decide whether a minor may have an abortion. If a Catholic judge can okay an abortion for a minor, relying solely on law and precedent, then why can't a Catholic doctor who gets assigned to perform that abortion go ahead and perform it, claiming it is his duty to do what his supervisors in the hospital tell him to do, not make decisions of conscience in each case that is assigned to him?Scalia seems very proud that his Catholicism has no influence on the way he does his job. If it's good enough for Scalia, why isn't it good enough for a doctor or a pharmacist?It seems to me that being a judge doesn't get you off the hook on moral issues. Nazi judges were held accountable for administering Nazi justice in war-crimes trials after Word War II. It seems to me that in order for a judge not to be culpable for decisions he or she makes, the legal system must be a good and legitimate one. The American bishops say our system is "fundamentally flawed." How can a Catholic judge justify making a ruling in favor of abortion in a system that is fundamentally flawed? How can he justify following what the law prescribes when his religion tells him it is murder, and the system he is using to justify murder is fundamentally flawed?

Judge Noonan is responding to a legal motion--he's outlining a legal response, not a moral one. The constitutional prohibition against religious tests seems to me decisive, combined with the workability of a "fervency" test, seems compelling to me. In persons and masks of the law, Noonan does explore how background, commitment, and life experience can influence judges' decisions. No judge is supra-human. But religious commitment does not make a judge biased.

After further consideration, I have decided to disagee with myself. Although I agree that Judge Noonan's conclusion is correct, the case he refers to in his argument, Johnston v. Koppes, seems somewhat muddled. Perhaps it is not even a case for "upholding the constitutional rights of an advocate for abortion" because it was based on a false premise. (like Roe in Roe v. Wade)How do we know that "Koppes was angry that she came to the hearing because he knew that staff members might be called upon from the audience and testify and he knew Johnston's views did not agree with the policies of the office." How do we know that Koppes was "embarrassed by her presence"? If these statements were part of Koppes testimony it seems to me that it would be an open and shut case, so to speak. I would be just as concern that it appears that some judgements may be made without including all the facts. Which begs the question, why did Koppes not want Johnson to take a vacation day to begin with?

No judge is supra-human. But religious commitment does not make a judge biased.Cathy,Looking at it from the other side, would it be wrong of Catholic a judge to recuse himself or herself on a case involving abortion, same-sex marriage, or some other "nonnegotiable" issue? Would it be an admission that he or she couldn't be objective in certain areas? Judge Scalia has said he was deeply distressed to rule that flag burning was constitutionally protected speech. Suppose a case came up in which a Catholic justice felt the constitution permitted or dictated something he personally disapproved of, and he resigned rather than make a ruling that he felt would bring about deplorable (but perfectly constitutional) results. Would such a judge be considered a bad judge, or a judge to weak to set aside his own personal feelings? Or would his actions be regarded as displaying great moral courage?

Provided he or she is fully committed to doing the work of a judge and not letting personal opinions of biases intrude upon interpreting the law, is it necessary for a judge to have a conscience? Do judges ever have to make moral decisions?

"Do Judges ever have to make moral decisions?"If you consider the fact that in order to judge, one must form a moral opinion based on carefully weighing all of the evidence while testing the premises for comformity to the Law, then every judgement that a Judge makes regarding conformity to the Law would be a moral decision although that decision would still be based on the Judge's view of conformity to the Law to begin with.

Mr Nickol, you continue to quote a particular sentence from Forming Consciences for Faithful Citizenship as if it is some kind of smoking gun. I don't think that document draws the same conclusion that you do, based on that sentence. So I wonder why you insist on acting as if it does.

I dont think that document draws the same conclusion that you do, based on that sentence. So I wonder why you insist on acting as if it does.Adeodats,About all I can tell from what you have said is that you aren't pleased with what I have written. I don't know how to respond to your vague statement. In any case, I am more asking questions than I am reaching conclusions. The document states the following:

It is a mistake with grave moral consequences to treat the destruction of innocent human life merely as a matter of individual choice. A legal system that violates the basic right to life on the grounds of choice is fundamentally flawed.

Those are very strong words, and they clearly say our legal system is fundamentally flawed. The bishops don't say Roe v Wade was a bad ruling, or abortion laws are bad laws. They say the legal system is fundamentally flawed. Maybe they didn't mean to say that, although according to those I don't find any guidance in there for judges dealing with the issue of abortion in our fundamentally flawed system, but I don't see any statement that judges are exempt from dealing with the problem because they only interpret the law.

No doubt, a legal system that is based on the fundamental, unalienable, Right to Life of innocent Human Life but then allows for the destruction of innocent Human Life based on choice, would be fundamentally flawed from the beginning.

David Nickol --It seems to me that you are assuming that the Constitution is not flawed, that is, that it never leads to contradictory conclusions. But the Constitution does not claim that that will never happen. Nothing in our legla system implies that justice 8can always* be done, much less that it will be. For instance, the proposed SOL law being debated by the New York legislature right now would, if passed, undoubtedly put an innocent priest at a disadvantage because so much evidence would no longer be available. But if the law is not passed, a real victim of abuse will not be able to take his case to court.It might be that a Catholic -- or MOrmon or Jewish, etc. -- judge will be biased about some matters due to their religious beliefs. But what is actually *stated* in the Constituion trumps what might occur later -- that a biased opinion might be made. Lawyers, correct me if I"m wrong.

I doubt that even other Commonweal readers would subscribe to your peculiar interpretation of Forming Consciences for Faithful Citizenship.Adeodatus,Not even other Commonweal readers??? It's really that bad? You are still registering disapproval without making an argument, so I don't know how to answer.

It seems to me that you are assuming that the Constitution is not flawed . . .Ann,Saying something is flawed and saying it is fundamentally flawed are two quite different things. And the bishops weren't talking about the Constitution, they were talking about the legal system. To say that the legal system is flawed -- or even to say it is seriously flawed -- would not imply anything close to saying it is fundamentally flawed. Adeodatus seems to think I am making too much of one sentence in Forming Consciences for Faithful Citizenship, but didn't we just find out as a result of the Obama speech at Notre Dame that a document of similar origin and weight, Catholics in Political Life, has the force of law in the United States?

"Not even other Commonweal readers??? Its really that bad? "By that I mean people who are generally inclined to give an uncharitable spin to things the bishops produce (excluding Cardinal Bernardin, peace be unto him). I'll try to break it down for you.1. You took one sentence out of the document. 2. You interpret it to be a blanket condemnation of the legal system.3. You apply this to the present discussion of Catholic judges, trying to argue that according the position of the bishops, which you've misrepresented, Catholic judges ought to become Catholic activists.As I have said, the flaw in your argument lies in that you offer an interpretation of that sentence that is at best uncharitable. From what little I've read, no one other than David Nickol has interpreted Forming Consciences for Faithful Citizenship as a call to arms for Catholic judges to start legislating according to the Baltimore Catechism. And I would once again challenge you to find any other reader on this site who gives the same uncharitable reading of the document as you do.

"Adeodatus seems to think I am making too much of one sentence in Forming Consciences for Faithful Citizenship, but didnt we just find out as a result of the Obama speech at Notre Dame that a document of similar origin and weight, Catholics in Political Life, has the force of law in the United States?"The difference, once again, is that people who cited that document in opposition to giving an honor to Obama, were interpreting it in a plain sense. You, on the other hand, are misrepresenting what the document actually says. Again, if you have any sources that share your reading of the document, I would love to see it.

Mr. Nichol: No, we didn't just find that out about "Catholics in Political Life". The Notre Dame affair produced a flare-up that involved about one quarter of the US Bishops. Three quarters of them were not involved in it. I don't know how this results in "force of law" being assigned to "Catholics in Political Life." I think you're stretching to make a point. In any case, I don't know anyone who maintains the infallibility of statements of episcopal conferences.

By ["Commonweal readers"] I mean people who are generally inclined to give an uncharitable spin to things the bishops produce (excluding Cardinal Bernardin, peace be unto him).Adeodatus, I think you may be experiencing your own issues with uncharitable spin.

I'm sure, that if Cardinal Bernardin was here, (peace be unto him) he would agree with the Bishops: http://www.ncregister.com/daily/bernardin_put_life_first/?utm_source=NCR...

I do apologize MWO. I was a bit excessive there. I was just trying to emphasize that Mr. N's interpretation was so distorted that even people who are often critical of the US bishops (sometimes excessively critical in my opinion) wouldn't be that uncharitable.

I would say that David Nickol's interpretation was close, just no cigar.

David Nickol --It seems to me that your assumption that the Constitution is not *basically* flawed cannot possibly be true. Sometimes a case presents *competing claims* such that if the court finds for one, the other will suffer an injustice. Such is the problem with many abortion cases: For an innocent mother to be required to die because an abortion is not available condemns the mother to an unjust death. True, it is nature that condemns her, but she has a right to life. On the other hand, to do an abortion is to kill an innocent child, also a great injustice. In other words, sometimes the courts can do no more than find for the lesser of two evils, whatever that might be in any given case. Arguments about abortion are ultimately about what is the lesser of two evils, and to find for one is to injure the other. This necessity to choose between evils is a fundamental, inherent flaw of all legal systems. I think that many people have a very Romantic notion about what law can and cannot do.

I would say that David Nickols interpretation was close, just no cigar.Nancy,As a nonsmoker, that's good enough for me!

"People who cited that document in opposition to giving an honor to Obama, were interpreting it in a plain sense."Adeodatus, by plain sense, are you refering to "common sense"?

I think youre stretching to make a point. In any case, I dont know anyone who maintains the infallibility of statements of episcopal conferences.Fr. Komonchak,My remark was intended to fall somewhere in between facetious and sardonic.It does seem to me, though, that when a quarter of the bishops speak, and three quarters remain silent, what was said is a lot more influential than what wasn't.

FWIW, I don't think David N. is wrong to highlight or question that sentence. Church docs frequently are written in a compressed style such that every sentence bears weight. I think Ann Olivier is on the right track. Assuming that the bishops said what they meant to say (and that doc is supposedly an interim doc produced by a committee, so who knows), then we should confront the possibility that they are right.What would it mean to say that the legal system is fundamentally flawed? Well, the key thing seems to be that the emphasis is on *fundamentally*. This isn't a superficial abrasion, it's a flaw that cuts deeply. At the same time, they didn't say "fatally flawed" or "irredeemably flawed".The distorted cultural norms that JPII summarized as "the culture of death" have leeched into our legal system. It is a deep flaw. The protection of human rights are fundamental to the purpose of the law. That an entire class of human beings is not afforded the most basic of human rights, such that an unimaginable number have been killed in a way that is legally sanctioned, is a fundamental flaw.Yes, it's a strong statement. I submit that it is true.What we need to explore, I think, is what the fact of a flawed legal system implies for the responsibilities of an appellate judge. Cathleen Kaveny is probably growing tired of recommending Judge Noonan's book. I'm going to see if it's in our local library.

And I would once again challenge you to find any other reader on this site who gives the same uncharitable reading of the document as you do.Adeodatus,First of all, I am quoting the document verbatim. Second, I don't see how it would be "uncharitable" to interpret the Bishops as saying that Catholic judges were not bound to respect those aspects of the legal system that pertain to abortion, when those aspects make the legal system fundamentally flawed. But in any case, I am not urging Catholic judges to become activists. I am asking for an explanations as to why they should not be. It is quite a big difference. Perhaps you could answer in some way the basic question involved here. How far can a judge go in interpreting and applying flawed law before he becomes culpable for the outcome? Surely no one is maintaining that being a judge in a legal system relieves someone of all responsibility for his or her actions. Clearly the legal system must meet some standard decency and justice for a judge who makes decisions within it to consider himself decent and just. It is very firmly established in the Catholic tradition that one is not required to obey bad laws. Let me pose one very plausible case, which I have mentioned before. Sometimes a judge is called upon to decide if a minor (who does not want to reveal her pregnancy to her parents for some reason) may obtain an abortion. May a Catholic judge take on such a case and, in good conscience, based on current legal precedent, decide the minor may obtain the abortion? I would be interested to hear your response as well as what anyone else thinks about such a situation.

"Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God's law." Evangelium Vitae 74I am in no way an expert in this area; I am really just trying to understand the issue. But I do not see how a judge can claim to be impartial in interpreting what civil legislation permits while he is "under grave obligation of conscience not to cooperate formally in practices which... are contrary to God's law."My preference would be that Catholics bring their faith and experience to the bench, and draw upon the gifts of the Holy Spirit to guide our interpretation of civil law. Knowledge, understanding, wisdom, counsel, strength -- these are attributes I would like to see in every judge. But I do not see how a promise to uphold the Constitution in all cases can always be compatible with the standard JP2 sets in EV.

Alongside the moral argument, an even more troubling religious question exists: Can a bishop or pope tell a layperson what to do? That seems to be the stance of at least some bishops, eg Cardinal George on JFK's renunciation of his Catholicism.In my own diocese there was another example recently. Bishop Martino objected to Sen Casey's appearance at a local Catholic college because he had voted in support of K Sebelius as HHS secretary. Without deciding whether that was good or bad, I am concerned about bishops pressuring legislators. Will we get the judgment of legislators and judges, or are we in effect electing or appointing bishops who will rule through their adherents? I do not have an answer for this. I just think Prof. Noonan has not addressed this issue here. (which does not mean he has not addressed it elsewhere) He appears to be obligated to both his bishop's judgment and to the law. Usually that is fine, but in some instances, he will have to choose. I am not sure that recusal is not the best choice.

The middle is a muddle.Center can be perfectly defined geometrically.But center is a moving target intellectually. Often scorned for its wishy-washy weakness. But what if You are the permanent center? And what if our striving to understand the permanent center is the reason were here?Left or right?Up or down?Christ or Allah?Could the bulls-eye be You?

Is a Catholic judge who grants a minor's request to have an abortion guilty of formal cooparation with evil? I suppose it could be argued that such a judge is not granting the girl the right to an abortion, but the right to bypass her parents and decide for herself. But even then, is it permissible to give the girl a choice? Isn't it the position of the Catholic Church that this is a choice no one has the right to make?

In an interview with the Beacon Journal, a juvenile court judge from the Akron area, Summit County Judge Linda Tucci Teodosio, said she feels "guilty" about approving bypass requests, but then added, "I guess I feel kind of sad. Thats a better word than guilt."The newspaper describes the judge as a "devout Catholic." The Catholic Church, however, condemns abortion as the taking of an innocent human life."Its really tough. Im as Roman Catholic as you can get, and I follow the Churchs teaching," Teodosio told the newspaper. "But when these cases come before the court, I must follow the law. Whether I agree with (a girls decision) is another issue."However, some would argue that judges like Teodosio are not exercising proper judicial discretion in granting parental bypass requests. If a judge grants such a request, chances are the girl will end up getting an abortion--and may even feel compelled to do so."Id hate to think they believe that now the judge ordered it, they have to do it," Teodosio told the Beacon Journal.

The middle is a muddle.I thought that I would never seeA combox filled with poetry.Although I guess one could supposeIt can't be worse then prose.

[Judge Linda Tucci Teodosio]: "But when these cases come before the court, I must follow the law."At first blush, this seems disconcertingly similar to, "Just following orders".But doesn't it work this way? (And I'm speculating, I really don't know). Presumably Ohio has a parental consent provision. So if a pregnant minor wants to obtain an abortion, she must get a parent's (both parents'?) consent. If she believes that she has a compelling reason why the parents shouldn't have a say in the decision (e.g. she fears she will be beaten, or the father of her baby will be beaten), she can go before a judge and ask the judge to waive the provision.So, in a sense, the judge isn't "standing in" for the parent, such that the judge is saying, "Yes, you may get the abortion", or "No, you may not get the abortion"; rather, the judge is saying, "Yes, you still need to ask your parents" or "in this case, we'll waive the requirement that you need to ask your parents".The judge isn't deciding whether abortion is right or wrong. The judge is looking at the law, which presumably provides guidelines - perhaps a list of circumstances that would justify waiving the parental-notification requirement; looking at the girl's circumstances; and deciding if her circumstances meet the law's requirements.Judges seem to have quite a bit of leeway to make remarks and give minors advice. Maybe, in issuing these rulings, the judge could urge the minor to think carefully and to look into alternatives, e.g. talk to a counselor at a pregnancy counseling center.

My comment is not meant to be a remark about the document "Forming Consciences for Faithful Citizenship." Rather it is about what the phrase "fundamentally flawed" could possibly mean when one is talking about a legal system. By what standard does one judge whether a legal system is "fundamentally flawed?" In the light of that standard, pick whatever one you wish, has there ever been a legal system that we know of that has not been "fundamentally flawed?" If so, which one or ones?For my money, I'd say that our U. S. system is "fundamentally flawed" inasmuch as health care law is a mess, taxation law is a mess, immigration law is a mess, abortion law is a mess, stem cell law is a mess, etc. (You might notice a "seamless garment" of messes here).By what standard do I speak of fundamental flaws? I'd appeal to widely acknowledged principles of distributive justice, among others. But notice, no single explicit doctrine of distributive justice tells us just how to avoid "fundamental flaws."One might say that any pluralistic democratic society is doomed to have legal system that is "fundamentally flawed" when judged by any particular version of the principle of distributive justice. But that might mean no more than that we all have to learn to work with, always trying to improve, a "fundamentally flawed" legal system, since, practically speaking, there is no real alternative to doing so.

For my money, Id say that our U. S. system is fundamentally flawedI assume the Bishops are saying that the juridical process itself is flawed, irrespective of issues bearing on the framework of laws.In any event, what's to prevent the prelates from deciding to apply communion rail politics of some other form of religious coercion to a Catholic judiciary as they have to elected politicians? (Where's does one go to appeal that decision?) Given the absolutist nature of the hierarchy and its charism claims, it's no wonder there's such suspicion.

One might say that any pluralistic democratic society is doomed to have legal system that is fundamentally flawed when judged by any particular version of the principle of distributive justice. But that might mean no more than that we all have to learn to work with, always trying to improve, a fundamentally flawed legal system, since, practically speaking, there is no real alternative to doing so.Bernard Dauenhauer,The bishops said, "It is a mistake with grave moral consequences to treat the destruction of innocent human life merely as a matter of individual choice. A legal system that violates the basic right to life on the grounds of choice is fundamentally flawed." If treating the destruction of innocent human life merely as a matter of individual choice is just one of many reasons why the American legal system is fundamentally flawed, or if all legal systems are of necessity fundamentally flawed, then the bishops have made a trivial -- indeed, almost silly -- statement. I believe the bishops were making what they believed to be an extraordinarily serious criticism of the American legal system, and I am surprised so many people here want to explain it away.

In any event, whats to prevent the prelates from deciding to apply communion rail politics of some other form of religious coercion to a Catholic judiciary as they have to elected politicians? Antonio,Here are a few paragraphs from Abortion and the Supreme Court: Advancing the Culture of Death,National Conference of Catholic Bishops, November 15, 2000:

In 1973, the U.S. Supreme Court decisions Roe v. Wade and Doe v. Bolton ushered in legalized abortion on request nationwide. By denying protection to unborn children throughout pregnancy, these rulings dealt a devastating blow to the most fundamental human right -- the right to life. . . .This decision has brought our legal system to the brink of endorsing infanticide. Already the National Abortion and Reproductive Rights Action League has used this decision's expansion of the logic of Roe to attack congressional efforts to reaffirm that a child completely born alive is a legal person. Such a policy, said this group, is "in direct conflict with Roe," which "clearly states that women have the right to choose prior to fetal viability." The euphemism of "the right to choose," routinely used to avoid mentioning abortion, is now being used to justify killing outside the womb.As religious leaders, we know that human life is our first gift from a loving Father and the condition for all other earthly goods. We know that no human government can legitimately deny the right to life or restrict it to certain classes of human beings. Therefore the Court's abortion decisions deserve only to be condemned, repudiated and ultimately reversed.

Can you condemn the decision of the Supreme Court without implying anything about the Justices who made it? Can the bishops really take a position this strong against a Supreme Court decision and then, if Roe is somehow revisited, say, "Of course, Catholic Justices must make decisions based not on their Catholic religion or anything that we bishops say, but must make objective legal decisions based on their own understanding of the Constitution, precedent, stare decisis, and so on."

David Nickol, I'm not trying to explain anything away. But I repeat: What criterion determines whether a legal system is "fundamentally flawed?" Unless one states a criterion for saying such a thing, one has not yet said what standard a legal system would have to meet to be "unflawed." In direct response to you, David, may I ask whether anything other than permitting abortion and/or embryonic stem cell research, would make a legal system deserve to be classified as fundamentally flawed. If nothing else would, how do you or anyone else know that? If there are other things that would make a system "fundamentally flawed," what are they and why would they make it so?Simply put, how does one judge x fundamentally flawed without having some standard, norm, etc, by which to make that judgment?Again, I'm not talking here about what some bishops may or may not have had in mind. I'm talking about what I find unclear about your own remarks about "fundamentally flawed" legal systems.

Respect for the Sanctity of every Human Life from the beginning until the end is the standard that God has set.

David NYour approach to the judge issue is, as always, a red herring.Following your logic - Should a Catholic policeman arrest every woman he sees entering an abortion clinic? If not, why not?

A legal system is fundamentally flawed if it is unjust. What other standard could there be?

But I repeat: What criterion determines whether a legal system is fundamentally flawed? Bernard Dauenhauer,I can only say what "fundamentally flawed" would mean to me, since I am not an American bishop. It seems to me one could only call a legal system fundamentally flawed if -- in principle -- it deprives some of its citizens of their legitimate rights such as life, liberty, equality before the law, health care, education, and so on. I would not say it is fundamentally flawed if it fails in practice to provide or guarantee all those basic rights, although it may be ineffective or ever worthless. So I would say a legal system that directly subjugates women is fundamentally flawed. A legal system that supports "ethnic cleansing" or slavery would be fundamentally flawed. A legal system that officially supported some kind of rigid caste system that prevented certain groups from participating in whatever the society had to offer would be fundamentally flawed.I would say that a legal system that is "fundamentally flawed" would not have legitimate authority over citizens, at least in matters directly pertaining to its flawed aspects. For example, in a society that denied education to women, it would be morally acceptable (if not morally required) to establish secret, illegal networks or schools to educate women. Citizens within a legal system that engaged in ethnic cleansing or genocide could act to save those targeted by hiding them, lying to the government, and if necessary, engaging in violence to prevent innocent people from being seized and killed. Civil disobedience would be justified. If the flaws were serious enough, rebellion could be justified. Briefly put, I would say that if a legal system is fundamentally flawed, citizens are justified in taking the law into their own hands to whatever extent is necessary to remedy the injustices, as long as they address themselves directly to the flawed area as best they can.

Following your logic - Should a Catholic policeman arrest every woman he sees entering an abortion clinic? If not, why not?Sean,Please answer my question: In a state where parental consent or permission of a judge is required for a minor to obtain an abortion, may a Catholic judge in good conscience grant the minor permission to have the abortion if, under the law as it is currently understood, her reasons are sufficient? Yes or no?If a Catholic judge declines to handle such cases, is he being unnecessarily scrupulous, in your opinion? Yes or no?Here's another question: May a Catholic lawyer, in good conscience, represent the minor who is seeking the abortion?In answer to your question, policemen should not arrest women who are entering abortion clinics, because those women (even if they are going there to have abortions) are not violating the law.Your argument, as I recall, is that a judge may not do something that is not within his authority to effect a good outcome. However, a judge has the power to recuse himself or to resign if he feels he is in a position where, if he acts purely within his legal authority, his legal decision will bring about an evil result. Do you think the bishops' statement I quoted above is meant to say Roe was wrongly decided and abortion should be left to the states? Or does it go farther than that?

The Bishops are saying that the fundamental Right to Life, as referred to by our Founding Fathers, is a Universal Truth. If it is true that the Right to Life is an unalienable Right that is endowed to each of us by our Creator, then in order for Justice to prevail, the Right to Life of every Human Being must be protected from the beginning. Roe was wrongly decided because it does not protect the fundamental Right to Life of every Human Being. The Bishops are not saying that abortion should be left to the states but rather there does not exist a right to abortion to begin with.

"In any event, whats to prevent the prelates from deciding to apply communion rail politics of some other form of religious coercion to a Catholic judiciary as they have to elected politicians? (Wheres does one go to appeal that decision?) Bernard D. --To a fundamentally flawed system of canon law?

"How far can a judge go in interpreting and applying flawed law before he becomes culpable for the outcome?"David Nickol -\Your question hits the nail on the head. But I fear that my inexpert answer has to be a lot more complex than the question.. As I see it, you are assuming that the judge is *required* to draw an unjust conclusion. But I think that is not true. Why? My answer involves the principle of two-fold effect: what he is choosing to do is to draw a legal conclusion, it is NOT to choose that conclusion because it is unjust. You might say this is material cooperation, but I say it is justified because a worse outcome would happen if judges decided cases according to their own private connsciences. It would be the destruction of Law, with, ultimately, anarchy the consequence. This is a fine line but a necessary one if legal systems are to persist. As I see it, a the system of laws is the conscience of a community, ideally at any rate. The system of laws is only the best *possible* system we can get out of our multicultural cizenry. As I see it, a judge has three options:1) persist and attempt to change the laws by persuasion, a la Noonan2) resign and attempt to change the laws by persuasion3) armed revolutionThe third would be justified only if the system did not provide a legal means of changing the system. But our system does provide such an option. Which would be better -- 1) or 2? I think 1), because if the judge resigns he can always be replaced by a less wise, activist judge, which would only make matters worse.

David N wrote:How far can a judge go in interpreting and applying flawed law before he becomes culpable for the outcome?Flawed in whose eyes and culpable before what tribunal? Under what judicial system? Divine justice as proclaimed by the Pope or the Bishops?

3) armed revolutionShades of the late Fr. Neuman.

DavidAnswering your questions -In a state where parental consent or permission of a judge is required for a minor to obtain an abortion, may a Catholic judge in good conscience grant the minor permission to have the abortion if, under the law as it is currently understood, her reasons are sufficient? Yes or no?The question is flawed. Judges don't "give permission" to have an abortion. That's not what parental notification exceptions entail - and by the way, these are bad laws, there are other ways to address the exceptional case, and in my opinion parental notification ought to be an absolute. What judges are supposed to do is decide whether the facts are present that allow the exception to apply. It is about who makes the decision.May a Catholic lawyer, in good conscience, represent the minor who is seeking the abortion?No - I certainly wouldn'tYour answer to my question indicates the flaw in your logic and why Justice Scalia is right. The policeman has the power to arrest, but not the authority. The difficulty with judges is that they must, and ought to but frequently don't, limit the actions within their power to their legitimate authority in the first place. The USCCB statement Catholics in Public Life says - "Those who formulate law therefore have an obligation in conscience to work toward correcting morally defective laws, lest they be guilty of cooperating in evil and in sinning against the common good." According to Scalia, and I think he is clearly correct in this, judges don't, and in fact are prohibited from "formulating law" in this way. They certainly formulate it to a certain extent in interpretation, but they don't have legitimate authority to make up laws or ignore them. Obviously there is a point at which Catholic judges, and Catholics generally have an obligation to stop participating and cooperating with a legal system. But saying a system has fundamental flaws is not the same as equating it with Nazi Germany.

What Catholic Judges and Catholics in general have is an obligation to work to change an unjust law. In the case of abortion, they are obligated to do this."The Church has always condemned abortion. In the Didache, (The Teaching of the Apostles), 2,2, written toward the end of the first century and revered as an honored guide for Christian Life, we read,'You shall not kill the embryo by abortion.' This teaching has never changed and it will not change."-CCC"Human Life is Sacred because from its beginning it involves the creative action of God and it remains for ever in a special relationship with the Creator, who is its sole end. God alone is the Lord of Life from its beginning until its end: no one can under any circumstance claim for himself the right directly to destroy an innocent Human Being."-CCCThis statement is consistent with the unalienable Right to Life that is endowed to all Mankind by the Creator. When Saint Paul encouraged us to, " always be ready to give an explanation for our Hope", he was referring to our need to always bear Witness to The Truth. Notre Dame and Judge Noonan failed to give an explanation for this Hope at the Comencement and as a result was not a strong Witness to the Truth regarding God's desire for Respect for the Sanctity of Life from the beginning of His Creation and Respect for Marriage and The Family."

Judges dont give permission to have an abortion.Sean,If I understand your clarification of the situation, the judge does not give permission for the abortion, he or she gives permission not to notify the parents, in effect leaving the pregnant minor to make the decision herself. May a Catholic judge do this in good conscience? It does sound to me, as you describe it, that the judge gives the minor the permission to make the choice on her own, and the Catholic Church has said there may be no choice when it comes to abortion.

should read, and as a result, they were not a strong Witness to The Truth. ( as in, not very convincing) That being said, the call to bear Witness to The Truth remains and maybe they will decide to be more convincing. They certainly have all the evidence and facts they need to make a strong case in defense of the need to protect Human Life from the beginning.

David, the question should be, can any Judge make a decision not to notify the Parents of a minor that their Child is Pregnant and seeking an abortion in good conscience?

Sean,Judge Noonan describes a judge's obligation: " The question is to be judged objectively as a reasonable person with knowledge of all the facts would judge. Moideen v. Gillespie, 55 F.3d 1478, 1482 (9th Cir.1995)."John Paul II described the Catholic's obligation:Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to Gods law. Evangelium Vitae 74I do not see how you can reconcile these two obligations. The Judge is to judge "objectively", which I assume means in accordance with the law; the Catholic is under grave obligation of conscience to rule in accordance with his beliefs rather than in accordance with the law.This situation is not new. Jehovah's witnesses exclude themselves from a number of activities because they will not swear an oath. (Does the oath of office mean there is a religious test for president?) I believe opponents of capital punishment are routinely excluded from juries in capital crimes. Isn't that a religious test analogous to the one Judge Noonan rejects here?Ann has the only reasonable answer that I have seen, and it is pretty questionable. One's conscience has to tell you that the social effects of recusal are worse than allowing the death of a fetus. That is a pretty tough burden.I do not like the consequences of JPII's position, but perhaps it is what we need. What happens if all 6 Catholics on the Supreme Court recuse themselves for religious reasons from a particular case?

P.S., Please add an m, as in Mary, to the word comencement in my statement. Thank you.

Jurgen Habermas has an important but demanding essay on the fundamental issues that are at stake in this thread. Its title is "Religion in the Public Sphere: Presuppositions for the "Use of Public Reason' by Religious and Secular Citizens." It's in his book "Between Naturalism and Religion."This closely argued piece is a hard read, but is well worth the effort by those who have the requisite background. I myself am not ready to sign off on his reasons, but his conclusions ring true.Without some decent sense of what is at stake, it's hard to avoid the kind of facile talk about "fundamentally flawed legal systems" that would foolishly impugn the hard work of serving in a governmental office and corrupt the kind of discourse needed to reflect seriously upon what good citizens can and ought to contribute to making their legal systems as good as they can be under the prevailing circumstances.

Obviously there is a point at which Catholic judges, and Catholics generally have an obligation to stop participating and cooperating with a legal system. But saying a system has fundamental flaws is not the same as equating it with Nazi Germany.Sean,It wasn't my intention to equate our "fundamentally flawed" legal system with Nazi Germany. It was to point out that there are limits to how far judges can go in claiming they are only interpreting the law and should not be held accountable for what that results in. Scalia says that when the Fourteenth Amendment refers to persons (" . . . . nor shall any State deprive any person of life, liberty, or property, without due process of law. . . ."), those who wrote were not thinking of the unborn, but rather "walking around persons." It seems to me he is almost certainly correct. But doesn't his judicial philosophy keep him from saying (along with the Catholic Church) the unborn are persons, and therefore the unborn should not be deprived of life? There are others, including Doug Kmiec, who do interpret the constitution that way. So in a sense, the appointment of conservatives who believe what Scalia believes is less "pro-life" than the appointment of conservatives who believe that the constitution actually protects the right to life of the unborn, rather than merely being silent on the matter.In any case, I believe we are in agreement on the point I was trying to get at, which is that in a flawed legal system, a judge may not always claim that he has no moral responsibility for the consequences of his decisions on the grounds that he is only interpreting the law. If the judge bases his opinion on a fundamentally flawed area of the law, which he believes to be fundamentally flawed, he may be morally culpable for the effects of his decisions.

David, the question should be, can any Judge make a decision not to notify the Parents of a minor that their Child is Pregnant and seeking an abortion in good conscience?Nancy,My answer would be that he can, in certain circumstances. Suppose the minor child is pregnant because of sexual abuse by her own father, and her mother knows this and has been "looking the other way." In this case, it is the obligation of the judge (or any other sane individual) to find a way to get the girl out of that family and into a safe place. Parents who grossly mistreat a minor child have forfeited parental rights.

That may be true ,David, regarding those Parents who have forfeited Parental Rights but most Parents have not forfeited their Parental Rights. Does the Law consider this fact?

The Bishops statement, although it may appear simple is actually profound. Respect for the Sanctity of every Human Life by protecting the Right to Life of every Human Being is the fundamental Right upon which all other Rights depend. If the Right to Life is not the fundamental Right upon which all other Rights depend, then exactly what is that fundamental Right?

DavidYou seem to operate on the principle that judges operate in a zone of absolute discretion, giving "permission" here and there. Laws permit or prohibit things, judges are supposed to make decisions about when and whether those laws apply in given situations. In a parental notification situation, for example, the law might say (often does) that the exception to parental notification applies if the minor petitioner can show a reasonable expectation o abuse from a parent. If the petitioner produces medical records and affidavits or reliable testimony showing a record of recent past abuse, the judge shouldn't impose a different set of rules any more than a policeman could set up his own law against entering an abortion clinic. If the judge fails to follow the laws and rules of evidence and evidentiary burdens to arrive at a solution he prefers, that's no different that a policeman using a loitering charge with no evidence to stop a woman from getting an abortion. They may have the power, but not the legitimate authority to do so.

Sean,I am probably not asking the question well, but it strikes me that you are trying to avoid answering. I think you know the point I am getting at.Let me put it another way. May a Catholic judge -- knowing that following the law may very well require him to rule in favor of bypassing parental notification -- accept such a case and, with a clear conscience, grant bypass of the parents and thereby grant the minor the freedom to choose abortion on her own? In other words, should the judge do whatever it is that judges do to avoid dealing with these kinds of cases? Or would avoidance of such cases be unnecessary, since a judge following the law, even when it permits something he is adamantly opposed to, is not morally accountable for the outcome?Or should Catholic judges take on cases like the Terri Schiavo case, where the correct legal decision may be to permit those acting on behalf of someone in a persistent vegetative state to withdraw life support?Does acting in the "role" of a judge absolve people of moral responsibility for the results of their (purely proper, by prevailing standards) legal activities? And if so, what other "roles" provide similar protection?

They may have the power, but not the legitimate authority to do so.If a person has both the power and the legitimate authority to perform an action that is professionally the obvious appropriate action to take, by prevailing standards of the profession, yet the action would seriously violate the person's conscience were he to be involved in it apart from his professional role, may he proceed with the action without moral culpability on the grounds that he is not acting personally, but acting in a defined role?

"If I understand your clarification of the situation, the judge does not give permission for the abortion, he or she gives permission not to notify the parents, in effect leaving the pregnant minor to make the decision herself. May a Catholic judge do this in good conscience? "Your first sentence is my understanding, too.Your question is not simple to answer. I see a parallel between this situation and a situation in Germany a number of years ago. My recollection is that, in order to obtain an abortion in Germany, a woman needs to be informed of alternatives, and there are counseling sites around the country where women can be given this information. When she presents herself at the clinic for the abortion, she must be able to demonstrate that she has had the counseling session, and so the counseling centers would issue certificates to the women, certifying that they had attended. The Catholic church operated a number of these counseling centers. But John Paul II ordered the church in Germany to stop providing the counseling service because, in his opinion, it amounted to active cooperation in the process of obtaining an abortion. And this despite the fact that the women were assuredly told about abortion alternative at these counseling sites!

"If the petitioner produces medical records and affidavits or reliable testimony showing a record of recent past abuse, the judge shouldnt impose a different set of rules any more than a policeman could set up his own law against entering an abortion clinic."Sean,That is the judicial responsibility.The responsibility of the Catholic IS to impose a different set of rules, eg the natural law as interpreted by the Church, if I read JP2 correctly.That aspect of Catholic teaching is not addressed in Noonan's refusal to recuse himself. Nor is it acknowledged in your responses. The Church is asking, "under grave obligation of conscience" that the judge not do his job as you have described it.In the particular instance, the arguments in the motion to recuse may not have touched on this. But Judge Noonan should recognize this in his response. He should recuse himself because the Catholic Church asks him to apply a law different from the civil law. As a faithful Catholic, he is under pressure not to apply the civil law as passed.Why is this such a hard concept to grasp?

Hi, Jim McK,Istm that a judge must serve both God and Caesar. Thus a judge can not escape her responsibility to the law and the polity, and must indeed observe the rules that pertain to earthly judges. I don't see how a judge can simply set aside applicable law, precedent, courtroom procedure and the other guidelines and constraints of judging.I suggested earlier that a judge who is opposed to abortion could speak from the bench to the petitioner, expressing his grave concern about what the minor is setting herself up for, and urging her to seek counsel from a grandparent, a trusted teacher, a person in ministry - someone who can fill the parental vacuum. Istm this would be a way to give to God what is God's.

jim,You cited the relevant example, the German counseling centers. IIRC, they were set up largely by the initiative of the Catholic Church, and gained notoriety because the Vatican pressured Catholics not to participate. In any event, if those counselors could not "formally cooperate with evil" by counseling women not to have an abortion, I do not see how anything a judge says from the bench could square with his moral obligation not to allow abortion.JP2 is saying that the judge cannot do what the civil law says he should do. Alternatives like lecturing from the bench do not mitigate that grave obligation. Even recusing himself may still be cooperation with evil, but it seems like the only viable option.I do not like this, but I like the alternatives even less. I am searching for alternatives, but I have not heard many. 'Judges have to do what the law says' seems like the weakest rationale. Ann's suggestion that social order is more important than the lives of children is little better. And I cannot think of anything else that justifies staying on the case.

"I do not like this"Nor do I.

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