Judges once more

I am sorry that my being away from Rome whilst I attend language instruction has prevented me from contributing to the ongoing discussion about Catholic judges in a more expeditious manner. I would like to take this opportunity to address some views that may have suggested that the role of judges may have been omitted from recent Church texts regarding the judicial role in democracy and public life. I believe that the CDF’s Doctrinal Note on the Participation of Catholics in Political Life does provide insight on the role of all Catholic citizens regardless of their role in political processes.

While the note does not specifically mention judges by name, it does address all members of a democratic society and their respective roles in civil affairs. This inclusive statement would apply to judges in their dual capacity of citizens and government officials. The text of the CDF does not restrict its concerns to legislators only. Without mentioning particulars, the note states that there are "other ways" besides being a legislator in which the members of society contribute to the development of political solutions and legislative choices that will benefit the common good. The note makes reference to Christifideles Laici and its exhortation that the life of a democratic society cannot be productive without the active and responsible involvement of all its members "albeit in a diversity and complementarity of forms, levels, tasks, and responsibilities." Judges surely have a role in bringing their particular competence and expertise when they embrace this charge. In accordance with the Pastoral Constitution of the Second Vatican Council, the faithful which includes Catholic judges have a duty not to relinquish their important role in promoting the common good. The CDF note specified that the common good includes addressing public order and peace, freedom and equality, respect for human life and the environment, justice and solidarity. Again, judges, including those who are Catholic, have a definite role in this enterprise.

While the note discusses democratic societies, it does not mention any particular political system. But as Americans, we must not forget the role that judges have on the work of the law making process at the national, state, and local levels. A judge can declare a statute or ordinance unconstitutional. A judge can provide a juridical definition or interpretation to a public legal text promulgated by the legislature or other body that serves legislative functions. There is no doubt that the role of the American and Catholic judge is addressed in this text. When the note speaks of "cultural relativism" that sanctions "the decadence and disintegration of reason and the principles of the natural moral law," judges cannot be considered excused from this instruction. In our American legal system, judges do have a role in the making of law through their role in judicial review and legal interpretation. If these obligations mentioned in the note belong to the legislator and the executive, they are also those of the judge.

If a Catholic judge, legislator, or executive cannot rely on his or her understanding of this natural moral law and what constitutes the human good, then whose understanding is being relied upon when public officials make decisions that are or appear to be within their competence? This is the concern I have with the claims for "tolerance" and "pluralism" today about how laws are to be made and interpreted. Our American society and its legal institutions have been gravely affected by these claims that camouflage decision making (be it legislative, executive, or judicial) with some particular interest group’s perspective but in the name of "pluralism" or "tolerance." When a legislature enacts a law regulating abortion that is challenged in the courts by NARAL, the ACLU, or the Center for Reproductive Rights, whose view prevails? Is it the view that protects the interests of all (the common good) or is the view that reflects only the interests of some (and therefore not the common good)? Advocates of pluralism and tolerance often make claims that the views of some cannot be imposed on the views of all, but this is precisely what happens when these special interests defeat the legislature that has regulated abortion as one example. More often than not in recent times it is the view of special interests that is given deference and the views of the rest are subject to forfeit.

As citizens and as officials, Catholic judges like their fellow citizens and disciples need to assess their role in public life "so as to be sure that it is marked by a coherent responsibility for temporal reality." Crucial to this vocation is a proper understanding of the nature of the human person and the dignity that is inalienably due to each member of the human family. After all, that is what authentic human rights is about. And again, judges, including those who are Catholic, have a role and obligations in this pursuit. To do otherwise negates the person’s genuine freedom to both country and Church.

To provide grounding for what all citizens who consider themselves Catholic should do in public life, the note provides instruction:

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. This is the case with laws concerning abortion and euthanasia (not to be confused with the decision to forgo extraordinary treatments, which is morally legitimate). Such laws must defend the basic right to life from conception to natural death. In the same way, it is necessary to recall the duty to respect and protect the rights of the human embryo. Analogously, the family needs to be safeguarded and promoted, based on monogamous marriage between a man and a woman, and protected in its unity and stability in the face of modern laws on divorce: in no way can other forms of cohabitation be placed on the same level as marriage, nor can they receive legal recognition as such. The same is true for the freedom of parents regarding the education of their children; it is an inalienable right recognized also by the Universal Declaration on Human Rights. In the same way, one must consider society’s protection of minors and freedom from modern forms of slavery (drug abuse and prostitution, for example). In addition, there is the right to religious freedom and the development of an economy that is at the service of the human person and of the common good, with respect for social justice, the principles of human solidarity and subsidiarity, according to which "the rights of all individuals, families, and organizations and their practical implementation must be acknowledged." Finally, the question of peace must be mentioned. Certain pacifistic and ideological visions tend at times to secularize the value of peace, while, in other cases, there is the problem of summary ethical judgments which forget the complexity of the issues involved. Peace is always "the work of justice and the effect of charity." It demands the absolute and radical rejection of violence and terrorism and requires a constant and vigilant commitment on the part of all political leaders.

Finally, for those who might argue or suggest that there may be a conflict with the Establishment Clause, the note is sympathetic. The note acknowledges the difference between the spheres of politics and civil affairs and that of religion and the Church. But the note also hastens to add correctly that morality infuses both spheres. But for those who might argue otherwise, they ought to reflect on the civil laws that protect members of society from those who commit or attempt crimes, for example. Why do we have these laws? We have them because they are proper instruments of civil governance. While they provide moral direction, they also promote a society in which morality is at the root of how we ought to conduct our affairs with one another.

All Catholics have the right and duty to seek the truth about human existence and to promote and to defend this truth by using the appropriate political and legal mechanisms that we have developed. This is at the core of justice which the law presumably exists to protect and maintain. Otherwise, there will always be someone weaker who is controlled or oppressed by someone who is stronger, and this the Church teaches is wrong even though some advocates for pluralism, diversity, and tolerance make different but erroneous claims.

No one who claims to be a Catholic is excused. To argue that judges fall through a crack in the Church’s teachings would be a flawed position to take and to maintain. The CDF’s note and what the Church teaches it members do not command particular outcomes. They do indicate how a Catholic is to be well informed and exercise sound and right reason as he or she engages his or her proper role in political life. These are teachings compatible with American democracy, and they apply to the role of the Catholic judge and every other Catholic citizen. RJA sj