Garnett's judgment in O'Neill v. George

Affirmed.

I wasn't at Princeton for the event, but I did, just the other day, read Aidan O'Neill's paper "Judging Catholics: Natural Law, The Catholic Church, and the Supreme Court."  First, there's the issue, mentioned by Rick, of the tendentious characterizations, such as  "conformist" vs. "non-conformist."  Predictably, they do the following sort of work that, well, speaks for itself:  "It might be thought that the Second Vatican Council marked the ascendancy of the non-conformist tendency within the Church in the 20th century bu the long Papacy of John Paul II and the election of Benedict XVI as Pope might seem to mark a renewed ascendancy of conformist Catholicism"  (47, n.1).   

But there's also the issue, likewise mentioned by Rick, that the argument is wrongheaded and, at times, ill-informed.  O'Neill's got a lot going on in the paper (divorce, gay marriage, and contraception come up frequently), but the thesis seems to be that judges in our constitutional democracy would violate their judicial oath by doing what the "conformist" tradition is said to demand of them, to wit, to use the judicial office to advance the Church's "agenda" (40).  According to O'Neill, "for a judge to decide not to apply or to re-interpret a law in a manner which is determined not by the intra-systemic rules and principles governing legal interpretation, but by extraneous considerations -- such as his own or his Church's moral values -- would a usurpation of his or her office" (34).  "The duty of public office holders is to uphold the Constitution under which they hold office, not to undermine that office by seeking to further the agenda of another body or to promote values which are not compatible with the civil society in which they hold office" (39-40).

Where to begin?  What I take to be the Church's actual understanding of what a faithful Catholic judge should do, if he or she is to be faithful, is altogether missing from O'Neill's account.  For an accurate statement of the Thomistic position which inspire and shape the contemporary statements of the magisterium (whether "conformist" or "non-conformist"), one can do no better, for my money, than chapters 3 and 4 of Russ Hittinger's The First Grace (2003), a work that O'Neill appears not to be familiar with. 

On the question of what the judicial office as intended under Article III of our Constitution requires, and what it rules out, in terms of (what we might call, in hope of avoiding a tendentious description) moral judgment, the book to read is H. Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008).

In a word, the Church doesn't expect the kind of judicial activism O'Neill describes (at length) and fears, and our Constitution does not rule out -- but indeed requires -- some (but by no means all) of the judicial moral judgment of the sort that O'Neill fears.  The premise that the Church's moral teaching amounts to an attempt to get simpletons to advance her "agenda" in the world is not the beginning of a promising argument or discussion.  But then again, as the reader of O'Neill's paper will see, the author seems to think that people in democratic civil society are, on moral matters, epistemically privileged/better off vis-a-vis the Church (see, e.g., 36).