The Legal Times reports on a noteworthy inauguration that took place last month. Justice Thomas, in a private ceremony, gave the oath of office to newly elected Alabama Supreme Court Justice Tom Parker, a protege of former Chief Justice Roy Moore. Then things really got interesting:
The following day, Parker was back in Montgomery for a second, less official swearing-in by none other than Moore himself. "I have been doubly blessed to have been sworn into office by two heroes of the judiciary," Parker said in a statement.
In remarks he gave after his second swearing-in, Parker reported that the day before, Thomas "admonished us to remember that the work of a justice should be evaluated by one thing and one thing only -- whether or not he is faithful to uphold his oath, an oath which, as Justice Thomas pointed out, is not to the people, not to the state, and not to the constitution, but an oath which is to God Himself."
Parker continued, "I stand here today, humbled by this charge, but a grateful man who aspires to adhere to that tradition embodied in the sentiments spoken to me yesterday by Justice Clarence Thomas, and the commitment to our Founders' vision of authority and the rule of law personified by Chief Justice Roy Moore."
Parker concluded, "May we boldly proclaim that it is God, Jesus Christ, who gives us life and liberty. May we, as justices who have taken oaths to our God, never fear to acknowledge Him. And may the Alabama Supreme Court lead this nation in our gratitude, humility, and deference, to the only true source of law, our Creator."
Perhaps the entire episode can be written off as evidence that Justice Thomas wanted to send a clear signal that he is not interested in becoming Chief Justice. Putting that aside, though (and assuming that Parker's quote was accurate), was Justice Thomas suggesting that a judge's accountability is not to the people, or the Constitution, but to God? If Justice Thomas is claiming that a judge's performance of his official duties should be evaluated based only on his adherence to "God's law," that strikes me as highly problematic. Certainly a judge, like everyone else, is accountable to God, but a judge is also accountable to the temporal law. When there is a conflict between the two, the judge may have to recuse himself or resign, but that it not the same as suggesting that a judge's performance as a judge is to be evaluated without regard for the laws of this world. In other words, a judge can't use his vision of God's law as a trump over the positive law; the positive law does not excuse the judge's disregard of God's law, but it might mean that the judge can't be a judge.
As for Justice Parker, can anyone defend the assertion that judges, when acting as judges, should "boldly proclaim" that our life and liberty flow from Jesus Christ?
Former Chief Justice Moore, with the Ten Commandments debacle, dealt a significant blow to those of us who advocate for a religious presence in the public square. His arguments and actions painted a threatening and simplistic caricature of church-state relations. I'm a bit troubled that Justice Thomas seems to be aligning himself with Moore's themes.
UPDATES:
Southern Appeal is way ahead of the Legal Times, having covered the episode here and here.
Perhaps it can best be explained as an Opus Dei conspiracy? (I offer that link more for entertainment than for insight.)
In an email, Stuart Buck suggests that "what Thomas intended to say was not 'judges should follow God rather than the Constitution,' but something more like this: 'When you swear to uphold the Constitution, you are swearing that oath before God; hence, make sure that you take that oath seriously and do uphold the Constitution.' That doesn't strike me as problematic, although I'm a bit nervous by the very fact that Thomas was swearing in Parker in the first place."
Rob
Tuesday, February 15, 2005
As hinted at by Rick's post, there is a strong case to be made for getting government out of the marriage business (and into the civil union business). Arguments grounded in the common good do not persuade me that the longstanding conflation of religious and civil marriage is worth maintaining. Those who see the conflation as having beneficial effects on the public's approach to family commitments must recognize that the effects run both ways, and in recent decades it seems clear that the public's approach to family commitments is having more impact on religious conceptions of marriage than vice versa. I see very little evidence that religious communities are likely to impact marriage as a public institution anytime soon. Today's New York Times, for example, recounts the stalled efforts to introduce "covenant" marriage as an alternative to today's at-will contract approach to the institution. Covenant marriages require pre-marital counseling and drastically limit the available grounds for divorce (to infidelity, abuse, etc.). The article reports that, in the three states to adopt covenant marriage (Arkansas, Louisiana, and Arizona), only one to two percent of couples have opted for it. That statistic alone speaks volumes of the extent to which our vision of marriage has been compromised by its operation as a government entitlement, rather than as a sacred undertaking.
Rob
Monday, February 14, 2005
If you're interested in the conversations taking place at Mirror of Justice, you'll want to spend some time in Minneapolis in the coming weeks. The University of St. Thomas Law School is hosting two can't-miss conferences.
The first, to be held March 11, echoes our ongoing discussions on the viability of a Seamless Garment Party. Titled "Can the Seamless Garment Be Sewn? The Future of Pro-Life Progressivism," participants include Jim Wallis, Congressman Jim Oberstar, Helen Alvare, Sidney Callahan, Susan Appelton, Ted Jelen, and MoJ's own Mark Sargent.
The second, to be held April 7-9, is titled "The Catholic Intellectual Tradition and the Good Society." Panels will be devoted to topics such as "Sacrifice and the Common Good" and "Disagreement and Dissent in a Good Society." Participants include John Finnis, James Gordley, John Coughlin, Paul Griffiths, Elizabeth Schiltz, the omnipresent Mark Sargent, and Christopher Wolfe, among many others.
Rob
Friday, February 11, 2005
Last week I posted on Marquette's decision to ban the College Republicans from promoting an "Adopt a Sniper" program on campus. Now Town Hall columnist Mike Adams criticizes the school for adhering more to the Democratic Party platform than to its Catholic identity. Portraying the school's stance as forbidding "pro-war" speech, he fails to mention that the group was distributing bracelets reading "One Shot One Kill No Remorse I Decide." The episode does provide an opportunity for valuable conversations on free speech, institutional identity, and the Catholic university.
Rob
Thursday, February 10, 2005
The latest confirmation that empirical analysis is taking over the world comes in the form of this new paper by Florida State law prof Jonathan Klick titled "Salvation as a Selective Incentive." Here's the abstract:
As club goods, religions face the problem of free riding. Smaller religious clubs, such as cults or sects, can often surmount this problem through communal pressures or by requiring their members to provide easily monitored signals. Generally, however, such tactics will be unavailable or too costly for large denominations, and, as such, these denominations must look for other techniques to avoid free riding. This paper argues that the Roman Catholic doctrine of justification by faith and works serves as an Olsonian selective incentive, and presents empirical evidence in support of this claim. Specifically, I show that Catholics contribute significantly more to their churches as they approach death than do members of Protestant denominations. More generally, this paper suggests that church doctrines influence behavioral incentives and religious leaders may be able to capitalize on these behavioral effects for the benefit of their church.
Rob
