Do Catholic Judges and Catholic Lawmakers Have the Same Moral Obligations?

Anonymous:

OK, I'll respond point-by-point:

1. I never said Mr. Waldman "should know Catholic 'law,' for any reason, let alone "due to the size of the Catholic Church."

What I actually said was, "many people--including, I suspect, the host of this blog and author of the original post--may not realize that the Catholic Church is hardly a stranger to questions of law." How is that an expectation that he should know Catholic law?

Also, what I said was, that he should be, and I quote, "reasonably familiar" with the Catholic Church, and he should "learn about the subjects he writes about." When I was a reporter many years ago, I did research about the topics I wrote about. Why am I wrong to expect Mr. Waldman to do the same, particularly about the biggest Christian body in the world, since he is editor of a religious web site?

2. No, bigger is not more important, but it's...bigger. When you cover a subject as a journalist, you might reasonably be expected to be familiar with the bigger subjects, and be more readily forgiven for being less familiar with the obscure. The Catholic Church should not be obscure to anyone writing about religion--that's my position.

3. "I'm sorry to say, that's weak."

To me that is the same as saying, "Steven you are stupid."

Well, I guess we disagree. I was commenting on Mr. Waldman's argument which I maintain was "weak." I do not consider Mr. Waldman "stupid," and I did not say that. That it's the same to you does not mean it's the same.

4. "Chided" -- yep, I chided him. I don't back down from that. I may have misunderstood, but I thought this was a site dedicated to serious reporting and discussion about these subjects. I gave my comments on another thread, and I wasn't the only one who found fault with that post. Mr. Waldman, to his credit, came back with a further development of his thought. And I came back and said, sorry that's weak. Iron sharpens iron. Frankly, if people don't want to enter into debate and discussion, and face criticism, posting articles on blogs is an odd way to avoid that sort of thing.

5. "Rudeness" -- are you kidding me? How was I rude? This is a blog, in which the author invites comments. I'm commenting. You mean criticism is considered "rude"?

6. I did not "attack" Professor (not Father) Kmiec. That is a false charge, sorry. I said his comments deserved greater "scrutiny"(that's an "attack"?) and I did explain why. Didn't you read what I wrote? Yes, providing links is always helpful, but I don't accept it's "arrogant" if I choose not to. That's a bit much.

7. Yes, Professor Kmiec posed it in the form of a question. But I read his Time article--it was a polemical question, and--I'm sorry to say, a ridiculous one. Something Professor Kmiec should know very well to be ridiculous, because he knows full well that if the Catholic Church was altering its approach in this area, it would not do so via such a statement by the pope. It is ridiculous to suggest otherwise, as he does in that Time article. That's why I said the Catholic Church has a long tradition in the law. My point was, that's just not how the Catholic Church works things, and Mr. Kmiec knows that very well -- or else, he shouldn't be commenting on the subject in articles in Time, as if he had expertise in this area.

8. To my knowledge, the Church has not spoken out about the justices who upheld Roe, as it has -- via bishops -- about legislators and how they exercise their responsibility. The issues involved are very different. A legislator has freedom to act in a way a judge may not.

That said, I am not suggesting that the Church wouldn't potentially have basis for finding fault with a judge -- Catholic or not! (note well: the Catholic Church does NOT claim that it's only her own members who have a grave duty to uphold human dignity, but everyone) -- issuing a faulty decision; it's just that it's a far more complex issue; it's a more prudential issue.

I think, because it's a prudential issue, the Catholic Church has chosen not to weigh in on that. I.e., I may have missed it, but I don't believe bishops have called for Justice Kennedy to be denied communion, because of his vote to uphold Roe in 1992 or 1993. He can argue (unpersuasively in my personal opinion) that the law demanded him to vote that way, and that is a defensible argument where it is not defensible for a Catholic legislator to argue, he can't vote for legislation to restrict abortions--or, even more tendentiously, to argue they must vote for laws expanding abortion access or for tax funding.

It's not a question of whether the Catholic Church "agree[s] the judges made the correct decision? Would the Catholic Church agree with a Catholic judge that upheld Roe v. Wade?" -- it's a question, rather, of whether the judge was properly exercising his or her power properly in that situation. I'm utterly unaware that "the Catholic Church" has said one word about the right interpretation of the U.S. Constitution, and its amendments, and its unenumerated rights, and penumbrae emanating therefrom, etc.

Rev. Fox,

I have a few comments on your statements about Kmiec supporting Obama:

"I found fault with your argument, which rested so heavily on Professor Kmiec, who I think a reporter with your experience in politics, and now in religion reporting, should know should be viewed with some "scrutiny" as I said, given his political allegiance."

"And Mr. Kmiec has to be viewed with a bit of scrutiny since he jumped on the Obama bandwagon and now has to justify that very controversial decision--and he has spent a lot of ink doing so for the past few months."

It has been several months since I read Kmiec's reasons for supporting Obama, but I think he saw the same things other Christians saw. As a Christian, there were many reasons I supported Obama. He has walked the walk of Matthew 25, which is something I do not see in the Republican platform.

Abortion:

Fool me once

Reagan flip-flopped from his position on abortion as a governor and campaigned on a promised of a Constitutional Amendment to make abortion illegal. Nothing happened.

Fool me twice

Bush 2 made the same promised of a Constitutional Amendment to make abortion illegal. Nothing happened.

Not Fooling me a third time

McCain/Palin did not intend to do anything at a federal level to end abortion. After learning from his 2000 primary lose to Bush, McCain flip-flopped on Roe v. Wade to obtain the religious vote that went to Bush.

Steven had the only article I saw that noted the careful wording of both McCain and Palin about abortion

"Oh Dear. Who Will Tell Dobson That McCain/Palin Are Violating the Abortion Platform?" October 22, 2008

Palin promised not to change Alaska's abortion laws when she campaigned for governor.

Alaska was one of the first states to allow abortion, which occurred prior to Roe v Wade [1970]. By the end of 1972 and before Roe v Wade:

4 states allow abortion on demand, Hawaii, New York, Alaska, and Washington;

13 states legalized abortion for reasons including the mental or physical health of the mother, pregnancy due to rape and incest, and fetal deformity;

Mississippi allowed abortion for rape and incest [1966];

Alabama allowed abortion for the mother's physical health [1954]; and 31 states allow abortion to save the mother's life.

Even if Roe v Wade is overturned, many states still have laws allowing abortion.

It is my opinion and the opinion of many in the religious community that Obama has a far more Christian basis in his political agenda than McCain/Palin or most Republicans. The man that introduced Obama at Notre Dame stressed how Obama turned down a high paying job to do Community Organizing. He and the others at Notre Dame are probably dealing with the same reality about abortion.

It was reported that the Pope broke previous protocol by sending Obama a congratulations note after his election and before he was President.

Maybe the Pope saw what many people see in Obama. One example is foreign policy. He has the potential to improve relationships with the Muslim and Arabic world. There are many other examples that would take pages to write.

OK, I decided to ask someone who might know regarding this. I asked this question at the canon law forum over at the website for Eternal Word Television Network (EWTN). As many here might know, EWTN is Mother Angelica's satellite network which emphasizes Catholic content. It is conservative and hews strictly to Church teaching. One of its excellent features is the Questions Forum, where anyone can email questions on different areas of Catholic belief, faith, practice, etc. I posted a question about the issue under discussion here, and it was answered here.

Here is my question, editing for length (go to the link to read the full thing):

"I have been following a discussion elsewhere about the nominee to the Supreme Court, Sonia Sotomayor. In this context, there has been some debate about the responsibilities of Catholic jurists regarding abortion cases. I excerpt this quote, with names removed: 'I think Mr. W's post misunderstands...the distinctions the Catholic Church carefully makes between the moral responsibilities of a legislator...and the moral responsibilities of a judge.... A Catholic judge is in no way obliged by the Church to uphold or strike down laws based on desired outcomes, but is expected to uphold ones oath and act in accordance with the law.' Is this, in your view, correct?"

Here is the answer given, by Fr. Mark J. Gantley (edited slightly for length):

"I do not personally agree with the distinction that you are describing. In my opinion, the founding documents of the United States of American are clearly based on principles of the natural law -- that all men are created equal; that we have a right to life, liberty, and the pursuit of happiness; many of the rights of the Bill of Rights, etc.

I view the rights to 'life, liberty, and the pursuit of happiness' as hierachical -- the right to life coming first, then liberty, then the pursuit of happiness. One's pursuit of happiness cannot violate another person's liberty, and one's right to liberty cannot violate another person's right to life, including the unborn. I don't see how this would be different for a person in the legislative vs. executive vs. judicial branch of government.

All authority comes from God. He is the supreme judge, president, and legislator. He formulated and signed the natural law, and he interprets its application.

We must be careful to avoid being legal positivists -- those who think that there is nothing beyond the law other than the letter of the law....In the olden days in England, when someone brought a case to a judge, his searched for the law not just in legal texts issued by legislators and in the texts of past cases but among universal principles of justice, truth, fairness, etc..... Legal positivism on the other hand approaches law from a narrow perspective that it must be written down and promulgated or the law doesn't exist.

The goal of modern legislators and judges should not be merely to see the letter of the law but strive to pass and interpret laws based on principles of justice and fairness."

It would therefore seem that there are knowledgeable and orthodox Catholics who would disagree with Fr. Fox and Justice Scalia. Make of the implications of this what you will.