Reader Comments on Catholic Judges and Communion: Part 1

My colleague Elizabeth Brown's question about Catholic judges and communion has prompted several comments from readers, which I'll post separately.

Billy Junker writes:

Cannot one make a distinction between interpreting the constitution the best one is able, no matter whether one likes what one finds, and crafting legislation?  A Catholic judge who upholds Roe could merely be saying that he believes the Constitution allows for the right, without saying he believes that the document is correct in allowing for the right.  Indeed, he might say that the Constitution allows for the right, and so must presently be followed, but that the Constitution should be changed-- not, of course, from the bench, but according to the provisions in the Constitution which allow for such change.  It is not his job to enact
legislation but to interpret a given document.  Different from him is the politician who, in the service of the common good, seeks to create laws. 

So I fail to see the problem.

[Tom B. writes,]  If I may put in two cents worth here:  I don't think this disposes of the problem.  Set aside the initial question whether Roe and Casey are even correct readings of the Constitution; assume for present purposes that they are.  At some point, wouldn't we all agree, an existing constitutional provision (or correct interpretation of it) becomes so unjust that the judge must refuse to follow it.  Not by purposeful misinterpretation of the document -- I agree with Mr. Junker on that -- but rather by recusal or resignation, which are options he doesn't consider.  A judge doesn't have any more license than a soldier to participate in an atrocity by saying "I was just following orders (in this case, the orders of the Constitution)."  Elizabeth's reference to Nazis brings up the example of the judges enforcing the worst Nazi laws.

And if the Church's pronouncements on the depth and scope of the abortion wrong lead to denial of communion for pro-choice Catholic politicians, isn't there a pretty good argument that a devout Catholic judge -- including a lower court judge -- must view enforcing Roe and Casey as so great a wrong that s/he must choose recusal or resignation instead?  Of course there are the arguments that this would deprive the nation of the service of Catholics who would make good contributions on other issues -- but one could say that of politicians as well, and the position denying communion to them seems to rest on a rejection of such a balancing calculus.  If one offers reasons why the judge could stay on the case or bench and follow Roe, is one thereby implicitly assigning the wrong of abortion a little bit lower seriousness than the arguments for the denial of communion to politicians suggested?

Tom B.

UPDATE:  David Opderbeck, business law prof at Baruch College-CUNY who operates the interesting blog Through a Glass Darkly, makes a comment that I take to be similar to Mr. Junker's:

Wouldn't there be some distinction based on the respective roles of elected officials and judges?  Patrick Brennan's previous post on "The judge's 'office'" might be relevant here.  An elected official's office in a republican democracy is, in part, to provide moral leadership.  If an elected official fails to provide positive moral leadership on an issue as central to the Church as abortion, the sanction of denying Communion may make sense.  In contrast, one prominent view of the judge's office in a republican democracy is that the judge should interpret and apply the law, not provide moral leadership about what the law should be.  On that understanding of the judicial office, I could see a principled difference in the Church's treatment of politicians and judges regarding abortion law.  I suppose if one is more of a legal positivist or legal realist, though, there might be reason to hold judges to the same standard as politicians.

I still wonder, though, whether this deals with the problem that the judge who enforces Roe is not just not "providing moral leadership," but is directly blocking a legislative effort to protect the unborn from a very great evil.  Is that much different than a legislator voting against such efforts?  Again, the critic of such a judge need not demand that the judge rule and subvert the established law, only that she recuse herself or (more extreme) resign.

Tom B.