Reader Comments on Catholic Judges and Communion: Part 2

Thanks again to those who have written in comments on our latest thread -- we're glad to hear from you!

Reader Abe Delnore writes:

Brown asks, "does [Roberts] and every other Catholic judge have a duty to subvert the law--Roe--which certainly could be argued is as irredeemably corrupt as the Nazi genocide since it allows 1.3 million abortions to be performed annually in the US?"  Rob Vischer and others raised the specter of conscientious Catholic public servants practicing civil disobedience in
office.

Brown, I think, knows that the law in question is not Rowe or Casey; it is the US Constitution as interpreted in those cases.  Roberts and others have stated some variation of "Rowe is a matter of settled law."  This can only mean that they accept that abortion rights more or less as they exist now in this country are guaranteed by the US Constitution.  Whether they are a good thing or not is another matter.  Brown [Roberts -- ed.] serves on the federal bench and has taken an oath to uphold the US Constitution.  One must conclude that he does not see that venerable document as irredeemably corrupt.

If one believes that the US Constitution is irredemably corrupt, then one certainly must not take an oath to uphold it--particularly not an oath to serve in a voluntary, resignable position with an honorific character such as that of a federal judge.  Forced induction into an army fighting an unjust war that would be a different matter, but no one is coerced into the
ranks of the judiciary.

Vischer's ideas about judges and other officials practicing civil disobedience thus strikes me as absurd.  An official by definition cannot practice civil disobedience as it is normally understood: refusing to obey an unjust law and accepting the consequences.  Surely the most predictable consequence is removal from office, and in a judge's case reversal on appeal.  Wouldn't remaining in office constitute a material cooperation in evil, as well?  The only proper course I can see for a person convicted that the Constitution is irredeemaably corrupt is resignation and withdrawal from office.

[TB writes:]  My reaction to this is that it again overlooks the option of recusal rather than resignation.  I don't know of anyone who thinks that the entire Constitution is corrupted by the reading of abortion rights into the Fourteenth Amendment.  So far as I am aware, the opponents of Roe all think that this is a terrible distortion wreaked upon a document that is otherwise legitimate (if not admirable).  I suppose there are a few ultra-Montanists in America who think that, for example, the prohibition on establishing (pick your preferred faith) or the guarantee of freedom even for erroneous statements or beliefs make the Constitution illegitimate -- but there aren't many of those.  Contrast, for example, slavery, whose repeated protection and countenancing in the original Constitution could lead William Lloyd Garrison to colorably call the document "a covenant with death and an agreement with Hell."

But even having to enforce an isolated (as opposed to pervasive) bad doctrine could -- if the doctrine is bad enough -- require the judge to recuse, even if not to resign.  And although recusal wouldn't cause as much of a furor as would staying in the case and subverting the result through willful misinterpretation, nevertheless the sight of Catholic judges recusing themselves frequently would cause a lot of the turmoil that Elizabeth suggests -- including assertions that Catholics can't be trusted to do their jobs, etc.  So I think we're still back to Elizabeth's question about whether a Catholic judge enforcing Roe can receive communion when a pro-choice politician can't.

Tom B.