Faith v. Constitution

Michael Thomson has written critically on the implications of a Catholic Supreme Court majority, focusing on issues where the church and court decisions might come into conflict:

... I am a proponent of diversity. I thought George Bush was as well. In his recent court appointee decisions, he has packed the court with adherents of a religion that controls and manipulates politicians, not just in the United States, but also all over the world.

This issue's being played mostly for laughs so far, and I do like the idea of letting a weeping statue of St. Thomas More settle close cases.

In time, I think the mass of Catholics on the court will become a problem, both for the justices whose views are anticipated to reflect church values and the fundamentalists who will be especially bitter when they don't. Evangelical Christians lost a chance to have one of their own on the Supreme Court with the withdrawal of Harriet Miers. If Samuel Alito is voted in and becomes a moderate like David Souter (Lord hear my prayer), I can't imagine they'll take that very well.

Another blogger, a practicing Catholic, wonders if the church might ever deny communion to justices:

If the Court were to decide a case in favor of birth control, homosexual civil rights, or abortion rights, will the justices be denied communion or even excommunicated? What about religious freedom? Separation of church and state? Prayer in the schools? In the face of such serious punishment, can a Catholic justice fairly and impartially decide the issues?

Holy Mary, Mother of God, pray for us sinners now and at the hour of Scalito's confirmation.


Speaking as a conservative, Catholic lawyer who fully supports the denial of Holy Communion to pro-abortion politicians, I think it's abundantly clear that the situation of Catholic politicians and Catholic judges are quite distinct.

While legislators, governors and presidents are responsible for creating law, the judicial role (properly understood)is merely to interpret the law and say what it is.

Someone like John Kerry, who votes against a ban on partial-birth abortion, is actually facilitating the taking of innocent human lives and is contradicting Church teaching that the abortion should generally be outlawed.

On the other hand, when a judge rules on an abortion case, for example, he is not taking a stand on whether or not abortion should be legal. That has already been done by those whose role it is to decide such things.

Conservative judges, like Scalia, Thomas, Roberts and Alito, understand this well.

A good judge's public policy preferences should play absolutely no role in deciding cases. Thus, whether a judge is pro-life or pro-abortion is entirely irrelevant.

A Catholic judge should feel no religious obligation to pretend the law is something that it is not. Thus, if the Constitution contained an unrestricted right to abortion in all cases, the judge's job would not be to come up with some convuluted interpretation in order to reach a pro-life result. He need not pretend that the law says something that it does not, no matter how much he would like it to be otherwise.

As it happens, of course, the Constitution plainly does not include such a right and any judge worth his salt will not find one there. To faithfully interpret the Constitution is to disapprove of Roe v. Wade.

Things get a bit more problematic, I suppose, if one accepts the notion of a "living Constitution," which judges get to make up as they go along. A judge who does that is essentially no different from a legislature.

Yet, one imagines that such a judge would pretend, as they ordinarily do, that his (e.g., pro-abortion) decision was mandated by the Constitution.

Thus, even in that case the Church would be very unlikely to discipline the judge, inasmuch as they would then be in a position of disputing what the Constitution says, rather than what the Church teaches. And misinterpreting the Constitution, last I checked, is not an excommunicable offense.

I hate the "living Constitution" term. Of course it is living. The Constitution does not call for the poor to get a public defender. However, a public defender is now considered a right that is granted by the Constitution (Article V). There are a number of examples of how the Constitution lives.

Oh, Article VII is another example of the Good ol' LC. In this case by being ignored.

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