Ramesh Ponnuru and Stephen Bainbridge respond to Amy Sullivan’s worry that pro-life Catholic judges might be refused communion if they dOn’t vote to overturn Roe or be less than categorical in abortion cases. Amy responds again. Ramesh says there’s an obvious distinction between legislating a substantive issue, and making a legal judgment on constitutional law. I see his point. But if such a judgment effectively allows abortion to continue, isn’t the judge de facto informally “cooperating with evil” and thereby liable to Church sanction with respect to the sacraments? Bainbridge argues:

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.

That’s a revealing per se qualification. Then he goes on to say:

[W]here a Catholic judge believes his participation in a particular case would constitute formal cooperation with evil, the judge should recuse himself–as often happens. The possibility that a judge (or justice) might have to recuse himself in occasional cases, however, does not strike me as a legitimate reason to deny the judge a seat on the bench.

I agree with the latter point. But what we are seeing are 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.


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