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.
By analogy to these principles, we see that there are cases--albeit only in those limited class of cases in which a judge's decision constitutes formal cooperation with evil--in which a Catholic jurist is religiously obligated to put his faith-based beliefs ahead of, say, his views of precedent. Conversely, however, it seems clear that judicial decisionmaking--even with respect to issues, like abortion, that raise very profound questions--under Church teaching does not per se constitute formal cooperation with evil. The article Catholic Judges in Capital Cases (1998) offers an excellent analysis of this question in the context of the death penalty. Catholic legal scholars John Garvey and Amy Coney say:
"Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving. There are parts of capital cases in which we think orthodox Catholic judges may participate - these include trial on the issue of guilt and collateral review of capital convictions. The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. But mere identification of a judge as Catholic is not a sufficient reason. Indeed, it is constitutionally insufficient."
Much the same analysis would apply to hot-button issues like abortion and euthanasia.

Accordingly, where a Catholic judge believes his participation in a particular case would constitute formal cooperation with evil, the judge should recuse himself--as often happens. The possibility that a judge (or justice) might have to recuse himself in occasional cases, however, does not strike me as a legitimate reason to deny the judge a seat on the bench.

_Catholic Justices & Religious Duty
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