Judges' Faith Does Matter

At times, a Catholic Supreme Court judge may be religiously obligated to put his beliefs first--and recuse himself.

BY: Stephen Bainbridge


In September 1960, John F. Kennedy famously told the Greater Houston Ministerial Association:

"I believe in an America where the separation of church and state is absolute; where no Catholic prelate would tell the President--should he be Catholic--how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference, and where no man is denied public office merely because his religion differs from the President who might appoint him, or the people who might elect him.

During his recent confirmation hearings, new Chief Justice John Roberts addressed questions about the role his Catholic faith might play in his judicial decision making by embracing the Kennedy formulation.

The nomination of Samuel Alito to be a Justice of the United States Supreme Court makes the question especially pertinent. If Alito is confirmed, it will be the first time in history that a majority of the justices are Roman Catholics. Are there cases in which such justices might feel religiously obligated to put their faith first?

While the Kennedy formulation may be good politics, it's theologically unsound. The Vatican's 2003

Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life

is the most recent authoritative Church statement on these issues. It states in pertinent part:

"When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person."

In 2004, then-Cardinal Ratzinger (now Pope Benedict XVI) elaborated on the Note in his statement

Worthiness to Receive Holy Communion: General Principles


"Regarding the grave sin of abortion or euthanasia, when a person's formal cooperation becomes manifest (understood, in the case of a Catholic politician, as his consistently campaigning and voting for permissive abortion and euthanasia laws), his Pastor should meet with him, instructing him about the Church's teaching, informing him that he is not to present himself for Holy Communion until he brings to an end the objective situation of sin, and warning him that he will otherwise be denied the Eucharist. ...

"A Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of the candidate's permissive stand on abortion and/or euthanasia. When a Catholic does not share a candidate's stand in favour of abortion and/or euthanasia, but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons."

As a result, even in the sphere of political activity, the difference between formal and material cooperation with evil can lead to differing results. A Catholic who has good reason to support a pro-"choice" candidate despite the candidate's views on abortion thus does not commit formal cooperation with evil and, accordingly, is free to do so without violating any moral precept of the Church.

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