On Thursday, August 26, 2004, U.S. District Court Judge Richard C. Casey issued a ruling striking down the federal Partial-Birth Abortion Ban Act of 2003. Legally speaking, it was an unremarkable and entirely expected result. Four years earlier, the Supreme Court had ruled in Stenberg v. Carhart that a similar Nebraska state ban was unconstitutional. But Judge Casey’s opinion attracted attention for different reasons – not least of which is that he is a devout Catholic.
In fact, Judge Casey is not only Catholic, he is also blind, and he spent the entire trial grilling witnesses on the possibility that the unborn feel pain during abortion. Testimony from abortionists was so graphic that the U.S. Conference of Catholic Bishops posted the trial transcripts on its website to raise awareness of the violence of abortion.1 In his ruling, Judge Casey described partial-birth abortion as a “gruesome, brutal, barbaric, and uncivilized” procedure, but ultimately deferred to Supreme Court precedent and struck down the ban.2
In the wake of the decision, observers were taken aback by the dissonance between the judge’s ruling and his clear moral conviction. The general sense of the Catholic reaction was something along the lines of, “Shouldn’t we be mad about this?” Even Prof. Robert Vischer, posting on “Mirror of Justice”, the well-regarded blog devoted to Catholic jurisprudence, expressed wonder3:
[O]n what basis is Judge Casey morally culpable for this ruling? … Should he have sought to create the impression of indeterminacy in the law even if he did not believe it to be indeterminate? Should he have sought to twist the factual record to suggest a medical consensus [against partial-birth abortion] even if he did not believe that that consensus exists? Should he have openly defied Stenberg? Should he have recused himself? Resigned from the bench…?
Reasonable questions all. In light of the 2004 debate over whether pro-abortion politicians could receive Holy Communion, and whether ordinary Catholics could vote for such politicians in good conscience, confusion about the moral obligations of Catholic judges is understandable.
The Church has by no means offered definitive answers to these questions. Indeed, there has been precious little discussion of this problem even among lay Catholic intellectuals. Thankfully, though, the Church does offer some principles by which we can begin to outline possible answers.
Generally speaking, a Catholic judge’s moral obligation is no more, and no less, than to apply the civil law as he understands it, regardless of the outcome of particular cases. I maintain that a Catholic judge need not recuse himself, or resign, or stretch the law to achieve a morally acceptable outcome. With rare exceptions, he may simply decide the case as he believes the appropriate civil laws require.4
There are at least four assumptions implicit in this assertion that are important enough to expound here. The first is that the moral law and the civil law are distinct. It is true that St. Paul says, “Let every person be subject to the governing authorities. For there is no authority except from God”.5 But it is also true that Christ said, “Render therefore to Caesar the things that are Caesar’s, and to God the things that are Gods.”6 Although all human authority derives from Divine authority, the laws of each are distinct and we owe them different things.
The second assumption implicit in my claim is that law is a discipline distinct from that of politics. As anyone who has ever read a judicial opinion knows, legal thinking is highly technical, process-oriented, and, well, boring. Politics is less technical, generally speaking, and definitely sexier, because it is almost entirely moral and results-oriented: what ought to be done? Or: what steps must we take in order to achieve what ought to be done? Now, I realize that, among many “progressive” legal and political science types, it’s currently the fashion to hold that law, at bottom, is politics. Excuse me if, in the interest of space, I dismiss this for now by quoting Cicero: “There is nothing so absurd that some philosopher has not already said it.”
The third assumption, a corollary of the second, is that the judiciary is the proper domain of law and the legislature the proper domain of lawmaking (politics). I cannot speak to other forms of government, but the United States Constitution explicitly provides for such a separation of powers. Since the practice of law is necessarily process-oriented, and the making of law is necessarily results-oriented, it is the legislature’s duty to consider the morality of civil laws, not the judiciary’s.
Now, at first glance, this assumption may seem problematic because much of Catholic moral and political theology was developed in the context of societies without American-style separation of powers. But, on further investigation, we find that, in fact, the distinction between lawmaking and the practice of law has a long history in Catholic political thought. In the Summa Theologica, St. Thomas Aquinas answers the question, “Whether it is lawful to kill a just man?” His response is, of course, “no”, but in reply to one of the objections he says7:
If the judge knows that man who has been convicted by false witnesses, is innocent he must, like Daniel, examine the witnesses with great care, so as to find a motive for acquitting the innocent: but if he cannot do this he should remit him for judgment by a higher tribunal. If even this is impossible, he does not sin if he pronounce sentence in accordance with the evidence, for it is not he that puts the innocent man to death, but they who stated him to be guilty.
Notice that St. Thomas does not admit of results-based jurisprudence, even in order to achieve a good end. Implicit in St. Thomas’ exposition here is a recognition that law and lawmaking are distinct. Not even saving an innocent life, St. Thomas seems to say, can justify the deceitful violation of this separation.
The final assumption, perhaps a corollary of the first, is that a judge plays two roles: that of judge, and that of citizen. As judge, of course, he is bound by his oath of office and by the nature of his office to decide cases by applying the civil laws as written, not as he would have liked them to have been written, and not even as they objectively should have been written. The prerogative of a judge qua judge is only to say what the law is, and to apply that understanding to the cases before him.
As a private citizen, however, the judge does have a grave moral obligation, insofar as possible, to oppose the passage and implementation of unjust laws. He is always able to satisfy this obligation through petitions, editorials, voting, and the like. In the particular context of the voting booth, every citizen in some way acts as a legislator. That is the idea of representative democracy: legislating by proxy. To vote is a political (and hence a moral) act: it expresses a citizen’s will regarding what the laws ought to be. We are implicated in the injustices of the laws that we, by our votes, ask our representatives to make. That is why some bishops (including then-Cardinal Joseph Ratzinger) have said that voting for candidates that support the culture of death can be sinful.8
But none of our bishops have claimed that judges must “vote Catholic” from the bench, and rightly so. The courtroom is simply the wrong place for legislation. To expect judges to bring political and moral considerations to bear on their interpretations of the law is to undermine the whole purpose of judging. Why even have judges, rather than just elected legislators, if legal decisions are essentially political anyway? Or why bother with legislators if judges can just make the laws for us?
At the same time, while judges may not consider morality in their interpretation of law, they must consider it when deciding whether to hear a case. Cases that involve unjust laws present unusual challenges for judges. The encyclical Evangelium Vitae and other doctrinal statements are unambiguous about the obligation to oppose unjust laws.9 This is where things get murky. To what extent does this obligation affect one’s service as a judge?
The Church has long acknowledged that it may occasionally be permissible for an individual to offer limited participation in an evil enterprise. For example, it is more than likely that you have recently patronized a business that donates to Planned Parenthood or other morally suspect organizations. This is known as “cooperation in evil”, and moral theology distinguishes several degrees thereof.
“Formal cooperation” occurs when the cooperator shares in the evil intention of the immoral act. If you deliberately shop only at stores that support Planned Parenthood, you are guilty of formal cooperation in evil. Such cooperation is always gravely sinful.
“Material cooperation” occurs when one does not share in the evil intention of the immoral act, but nonetheless participates in it. Material cooperation is said to be “mediate” when the cooperator merely creates the conditions that allow for the immoral act, but “immediate” when he participates directly in the act itself. For example, the janitor at a hospital that performs abortions cooperates mediately, but the nurse who assists in those abortions (though she disapproves of them) cooperates immediately. Immediate material cooperation (at least in actions that are intrinsically evil) is not morally permissible, while mediate material cooperation can be permissible if there are proportionate reasons for it.10
The question before us, then, is under what circumstances do a judge’s legal obligations require him to improperly cooperate in evil?
Let us suppose that there were a law requiring judges to order women to have abortions. In this case, the law requires an intrinsically evil act on the part of the judge. A judge, even by administering such a law honestly, would necessarily implicate himself in that act. Note that this situation is distinct from St. Thomas’s aforementioned hypothetical, because the latter concerns a judge who administers a presumably just law and arrives at an unjust outcome, whereas the former involves the application of an unjust law that requires an inherently immoral action on the part of the judge. The judge’s order would at least constitute immediate material cooperation in evil, which is itself sinful. Since dishonesty about the law is out of the question, the judge’s only morally acceptable options would be recusal or resignation.
Now contrast Judge Casey’s ruling, in which he invalidated a law prohibiting some abortions because he understood himself to be so bound by the Supreme Court. This case required the application of an unjust law (the Stenberg precedent), but such application did not necessitate the commission of an intrinsically evil act by the judge himself. The judge’s actions (striking down the ban) were far removed from the principal sinful act (the actual abortion), whereas in the previous hypothetical case the judge’s order would have caused that act. Judge Casey did not command the commission of any intrinsically evil acts; at worst, he refused to prevent others from committing those acts.
It seems to me that Judge Casey, and other judges who apply similarly unjust laws and precedents, can only be accused of mediate material cooperation in evil. In light of the oath of office and the duty to respect higher courts’ precedents, it is clear that there are proportionate reasons to make such cooperation licit.
As a rule, all judges—Catholic or otherwise—must dispassionately and impartially apply the civil laws as they honestly understand them. When they are charged with administering unjust laws, they may do so insofar as they avoid formal and immediate material cooperation in evil.
In short, what Judge Casey did was exactly right. He was able, by his unique position, to expose the injustice of the very law (in this case, Supreme Court precedent) that obliged him to rule as he did. At a time when there has been no clear guidance on this issue—either from the Church or from leading Catholic lawyers—Judge Casey’s example is a model of Catholic jurisprudence.
2. [Nat’l Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436 (S.D.N.Y. 2004). Available at http://files.findlaw.com/news.findlaw.com/nytimes/docs/abortion/nafash82604opn.pdf.]↩
3. [Vischer, Rob. “Partial-Birth Abortion and the Catholic Judge.” Mirror of Justice. 27 Aug 2004 http://www.mirrorofjustice.com/mirrorofjustice/2004/08/partialbirth_ab.html.]↩
4. [I use “civil laws” here in a broad sense, to encompass superior court precedents, administrative regulations, and enacted legislation.]↩
5. [Romans 13:1.]↩
6. [Matthew 22:21.]↩
7. [Summa Theologica, II-II, q. 64, a. 6]↩
8. [See Ratzinger, Joseph. “Worthiness to Receive Holy Communion: General Principles.” Memo to Theodore Cardinal McCarrick. Available at http://www.archden.org/dcr/news.php?e=89&s=1&a=2134.]↩
9. [John Paul II. Evangelium Vitae 3, 74. Available at http://www.vatican.va/edocs/ENG0141/__PS.HTM.]↩
10. [Pontifical Academy for Life. “Moral Reflections on Vaccines Prepared from Cells Derived from Aborted Human Foetuses.” Available at http://www.catholicculture.org/docs/doc_view.cfm?recnum=6539.]↩