Bainbridge on Catholic judges

Here is an essay by MOJ-er Steve Bainbridge, "Judges' Faith Does Matter," that is must-reading.  Discussing the obligations of Catholics in public life, and our obligation to avoid culpable cooperation with evil, Bainbridge notes:

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.

Steve goes on to discuss a really good article by my friends John Garvey (of Boston College) and Amy Barrett (Notre Dame) on Catholic judges and death-penalty cases.

Steve also has a great post up in which he smacks down the latest by Amy and Andrew Sullivan, who are both unclear on the distinction between legislating and judging and on the relevance of that distinction to questions of culpable cooperation with evil.  Andrew Sullivan, I'm sorry to say, concludes his own intervention with this nonsense-laden paragraph:

[W]e are seeing . . . the political consequences of the Catholic hierarchy's slow collapse into fundamentalism. Once a Catholic is denied the moral capacity to separate her public duties from her private faith - or risk exclusion from the sacraments - then she is in an acute conflict between public duty and private conscience. Recusal may be her only option. But we now have five Catholics on the court. In Benedict's church, on critical Constitutional questions, we might face five recusals in abortion cases, which would make any ruling largely meaningless. This is the consequence of the Vatican's retreat from the Second Council's acceptance of religious freedom and conscience, and Benedict's deep qualms about a clear separation of church and state. The theocons want to reverse the Kennedy compromise. And in doing so, they may be forcing Catholics in public life to withdraw altogether or face the charge of a religious conflict of interest. In their zeal, the theocons are unwittingly breathing new life into anti-Catholic prejudice, and new force behind the exclusion of Catholics from public life in a pluralist democracy.

As regular Sullivan readers know, he has lost the ability in recent months to resist any opportunity to whack Pope Benedict with the "fundamentalism" club.  But, as he should know:  (1) There has been no "retreat" from the Council's "acceptance of religious freedom and conscience"; (2) that "acceptance" was never the same thing as the "Kennedy compromise"; and (3) Pope Benedict has no "qualms" about the "separation of church and state."  Sullivan is simply confused about what "separation", properly understood, is.