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August 3, 2005

Reply to Bainbridge on Roberts’ Catholicism

Filed under: — David Giacalone @ 5:03 pm


                                                                                        – originally posted here (Aug. 3, 2005)


In “Roberts’ Catholicism”  (Aug. 2, 2005) Professor Bainbridge has offered a thoughtful piece

responding to many of the issues raised in our prior post “What if John Roberts is a ‘Serious’

Catholic.”   Here I will deal with Steve’s main points.


“BainbridgePix”  Prof. B notes that

[T]he Roman Catholic Church does instruct its members on their role in the public

square. The relevant document is not the Voter’s Guide to which David relies, of

course, but rather the Vatican’s Doctrinal Note on Some Questions Regarding the

Participation of Catholics in Political Life, which is the most recent authoritative

Church statement on these issues. It states in pertinent part:

“When political activity comes up against moral principles that do not

admit of exception, compromise or derogation, the Catholic commitment

becomes more evident and laden with responsibility. In the face of fundamental

and inalienable ethical demands, Christians must recognize that what is at stake

is the essence of the moral law, which concerns the integral good of the human


Steve italicized the phrase “political activity”, saying “This is a significant qualification, because the

Church distinguishes between formal and material cooperation with evil.”  He explains that “the

difference between formal and material cooperation with evil can lead to differing results. A Catholic

who has good reason to support a pro-‘choice’ candidate despite the candidate’s views on abortion

thus does not commit formal cooperation with evil and, accordingly, is free to do so without violating

any moral precept of the Church.”


Prof. Bainbridge then offers this analysis:

” . .  I wish David and others to understand that judicial decision making with respect to

issues raising moral questions under Church teaching does not per se constitute formal

cooperation with evil. This is important because it is only in those limited class of cases

in which one’s activity constitutes formal cooperation with evil that a judge who is a serious

Catholic, to use David’s phrase, is per se religiously obligated to put one’s faith-based beliefs

ahead of, say, one’s views of precedent or socially accepted moral norms. . . . Even in the

“worst” case scenario, Judge Roberts’s decisions would be driven by his faith only in a small

number of cases. And, in at least some of those, the teachings of the Church may well coincide

with moral norms sufficiently widely shared throughout the community and/or nation to satsfy the

social support criterion required of moral norms proposed to be drawn upon in adjudiciation . . .

In the remaining cases where the teachings of the faith cannot be reconciled with the prevailing

moral norms of society, which I believe will be few in number, the problem can be managed on

a case-by-case basis.”

Next, he writes, “I said earlier that David’s question was not the right one but was in the neighborhood

of the right question. It should no[w] be apparent what are the right questions. If I were a Senator, I

would ask Judge Roberts the following questions:

1.   Do you believe that a judge should recuse himself if his participation in a particular

case would constitute formal cooperation with evil?

2.   Would you recuse yourself under such circumstances?

boy writing  I agree with Steve that judges may consider “moral norms having substantial support

in the relevant community” and that “the Senate’s advise and consent function goes beyond a

nominee’s bare qualifications to include evaluation of the nominee’s judicial philosophy.”  I do not

believe, however, that his distinction between “the formal and material cooperation with evil” is

important in cases dealing with any of the Five Non-Negotiable Issues addressed in the Voter’s

Guide for Serious Catholics — abortion, euthanasia, human cloning, embryonic research and gay



First, I don’t think the type of “serious” Catholic judge who felt obligated to follow the Voter’s

Guide would be looking for loopholes or legal distinctions that would allow him or her to “cooperate

with evil” with regard to the Five Non-Negotiables.  The spirit would take the Serious Catholic past

the letter of the Church law.


More important, the authoritative sources quoted by Prof. Bainbridge seem to place any and all

cooperation with evil by those in government (as opposed to the citizen voting in an election) in

the category of a grave sin that appears to be equivalent morally to an act of  “formal” cooperation.  


The Vatican’s “Doctrinal Note on . . . Political Life” would never have slipped by me back in the

days when I reviewed proposed Advisory Opinions and Advice Letters at the FTC.  There is simply

far too little practical advice.  The exception is a passage that is highly relevant to this discussion:   

[L]egislative proposals are put forward which . . . attack the very inviolability of human life.  bishop

Catholics, in this difficult situation, have the right and the duty to recall society to a deeper

understanding of human life and to the responsibility of everyone in this regard. John Paul II

 . .  has reiterated many times that those who are directly involved in lawmaking bodies

have a “grave and clear obligation to oppose” any law that attacks human life. For

them, as for every Catholic, it is impossible to promote such laws or to vote for them. 

As John Paul II has taught in his Encyclical Letter Evangelium vitae regarding the situation in

which it is not possible to overturn or completely repeal a law allowing abortion which is already

in force or coming up for a vote, “an elected official, whose absolute personal opposition to

procured abortion was well known, could licitly support proposals aimed at limiting the harm

done by such a law and at lessening its negative consequences at the level of general

opinion and public morality”.


[added Aug, 4, 2005]By its interventions in this area, the Church’s Magisterium does not wish

to exercise political power or eliminate the freedom of opinion of Catholics regarding contingent questions. Instead, it intends – as is its proper function – to instruct and illuminate the

consciences of the faithful, particularly those involved in political life, so that their actions may

always serve the integral promotion of the human person and the common good.” 

That discussion was overseen by Cardinal Ratzinger, who is now Pope Benedict XVI.  The other

item quoted as authoritative by Prof. B. was also penned by Cardinal Ratzinger (The Memo on

the Worthiness to Receive Holy Communion). It has the following discussion of the grave sins of

abortion and euthanasia (emphases added):

The Encyclical Letter Evangelium vitae, with reference to judicial decisions

or civil laws that authorise or promote abortion or euthanasia, states that

there is a “grave and clear obligation to oppose them by conscientious objection.

. . . In the case of an intrinsically unjust law, such as a law permitting abortion or

euthanasia, it is therefore never licit to obey it, or to ‘take part in a propoganda

campaign in favour of such a law or vote for it’.”  Christians have a “grave

obligation of conscience not to cooperate formally in practices which, even if

permitted by civil legislation, are contrary to God’s law. Indeed, from the moral

standpoint, it is never licit to cooperate formally in evil. […] This cooperation can

never be justified either by invoking respect for the freedom of others or by

appealing to the fact that civil law permits it or requires it.


Benedict16 “. . . When political activity comes up against moral principles that do

not admit of exception, compromise or derogation, the Catholic commitment becomes

more evident and laden with responsibility.”


[Ed. Note: Even the footnote quoted by Steve, which deals with voting in an

election — rather than with the far more directly responsible vote of a  legislator

or judge — requires “proportionate reasons” to vote for a candidate who happens

to support abortion rights but also has other good qualities or positions.  Beyond

coercion, such reasons usually entail balancing overall good and evil that might

be produced by an action.  In the Voter’s Guide, “serious” Catholics are told they

may only vote for a pro-choice candidate (or one with the incorrect stance on any 

of the Non-Negotiable) when there is no candidate in the race who holds the

correct views — and when not voting would lead to greater evil than voting. In the

article quoted by Prof. Bainbridge, “Cooperation with Evil,” the author says that

a good question to ask in determining the “moral quality of material coopera-

tion” is “Would this action be done without my help?” ]

Such strong admonitions never to cooperate with judicial decisions or legislation that

promote abortion or euthanasia are clearly applicable to the other Non-Negotiables — to

all laws that are “intrinsically evil.”

  • The death penalty, which Steve also discusses, is in a different category,

    because the Church has not categorically condemned it. 

Morally, then, a Supreme Court justice seems to have the same obligations as a legislative

“lawmaker” when voting on current Non-Negotiable matters (and any others as they are

declared by the Church).  When dealing with “intrinsically unjust” laws that permit or promote

conduct the Church considers as always evil, a Supreme Court justice who wants to comply

with teachings in the Doctrinal Note on Political Participation seems to have no choice but to

avoid “voting for,” “obeying,” or otherwise cooperating with such a law.  To do so would be a

grave sin.  Likewise, when presented with a law or decision that cuts back on such evils, the

justice — like the legislator — would be expected to support the new limitations. 

commandmentsN Participation, not recusal, seems to be the appropriate option for a “serious

Catholic” justice in such “absolute evil” cases.   The spirit of Church teachings on public

participation in civic life suggests that the Catholic justice should welcome the opportunity

to act on behalf of the “non-negotiable ethical principles” upon which the Church teaches

democracy must be built — by voting against the evil law.  Recusal would be especially

inappropriate, if it would result in the Court upholding such a law.  With so much flexibility

given a Justice in justifying and explaining a vote, recusal would only seem to be a viable

choice if it is required under some formal rule of judicial ethics.

Prof. Bainbridge is clearly right that there will be some cases in which “Judge Roberts’s

decisions would be driven by his faith.”   I’m not sure Steve is correct that “Even in the ‘worst’

case scenario” they would only be “a small number of cases.”   And, if relatively small in 

number, cases involving the topics of abortion, euthanasia, human cloning, embryonic research

and gay marriage would not be small in impact or importance. Note, though, that the Doctrinal

Note on Political Participation (written by the present Pope) includes other issues in a

paragraph that starts “When political activity comes up against moral principles that do not

admit of exception, compromise or derogation, the Catholic commitment becomes more

evident and laden with responsibility.”   After mentioning abortion and euthanasia, the Note

lists “analogously”:  

(1) safeguarding the family by not placing any “form of cohabitation”

on the same level as monogamous marriage of a man and woman;


(2) freedom of parents regarding the education of their children; 


(3) protection of minors and freedom from modern forms of slavery

(drug abuse and prostitution, for example);  


(4) the development of an economy that is at the service of the human

person and of the common good, with respect for social justice, the

principles of human solidarity and subsidiarity, according to which

“the rights of all individuals, families, and organizations and their

practical implementation must be acknowledged; and


(5) peace.

Many Americans might be surprised to find out some day that the Church has turned

one or more aspects of the above list into a “non-negotiable” moral position.


For all of the above reasons, I can’t endorse Prof. Bainbridge’s two questions for  commandments

Senators to ask Judge Roberts.   They are incomplete — focusing on whether “formal

cooperation with evil” would require recusal, but not asking how John Roberts defines

the terms or how he would decide what constitutes absolute or intrinsic “evil.”  Crucially,

Prof. Bainbridge doesn’t ask what Roberts thinks his obligations as a Catholic

justice would be if recusal were not required in a case involving such evil. 


I believe a “serious Catholic” would feel obligated to actively oppose laws and decisions

that his Church declares to be “intrinsically unjust.”   Sitting on the Supreme court would 

increase the duty.   That would mean participating in the case and voting in a manner that

would support eliminating or greatly limiting such evil.  So, I ask again,”is John Roberts a

Serious Catholic,” and what are the ramifications if he is?



 – originally posted here (Aug. 3, 2005) –


update (Aug. 30, 2005): Steve Bainbridge and I continue this conversation

at length in the comments to this post at Prof.


update: At Pro Ecclesia, Jay Anderson says Prof. B’s approach seems

reasonable; Eugene Volokh points to it as “thoughtful.”


update (11 PM, Aug. 3): Paul at Power Line is concerned that people such
as your Editor are suggesting a Loyalty-to-the Constitution Test.  I can’t speak

for others, but that was not my intent.  What I’m looking for is an honest discussion.

I broached this topic yesterday because so many supporters of John Roberts have

so strongly stated that there is nothing about Roberts’ Catholicism that would require

him to take stands based on his faith, as opposed to his legal philosophy and analysis.  

I think they’re wrong (and most know it).   I spent two decades as a Catholic and have

heard often over the past few decades from people who consider themselves to be “true”

traditional Catholics like John Roberts (many are beloved family members of mine). 

Their Church is different from many other religions, in that it explicitly speaks of

excommunicating members for actions taken in the civic and political spheres that

violate Catholic teaching — which is declared to be the only True religion and to be

definitively interpreted only by the Vatican.    If Roberts is such a Catholic, his Catholcism

will trump the Constitution on numerous important issues.  That will be good news

to some and bad news to others.  The American public and the members of the Senate

deserve to know. 


update (Aug. 4, 2005):  See our post Serious Catholics and “role differentiation” .

The Doctrinal Note on Catholic Participation in Political Life appears to prohibit

separating one’s spiritual life from one’s worklife or civic actions:

“By its interventions in this area, the Church’s Magisterium does not wish to

exercise political power or eliminate the freedom of opinion of Catholics regarding

contingent questions. Instead, it intends – as is its proper function – to instruct

and illuminate the consciences of the faithful, particularly those involved in political

life, so that their actions may always serve the integral promotion of the human person

and the common good.  . .  “There cannot be two parallel lives in their existence: on

the one hand, the so-called ‘spiritual life’, with its values and demands; and on the other,

the so-called ‘secular’ life, that is, life in a family, at work, in social responsibilities,

in the responsibilities of public life and in culture. The branch, engrafted to the vine

which is Christ, bears its fruit in every sphere of existence and activity. In fact, every

area of the lay faithful’s lives, as different as they are, enters into the plan of God, who

desires that these very areas be the ‘places in time’ where the love of Christ is revealed

and realized for both the glory of the Father and service of others. Every activity, every

situation, every precise responsibility – as, for example, skill and solidarity in work, love

and dedication in the family and the education of children, service to society and public

life and the promotion of truth in the area of culture – are the occasions ordained by

providence for a ‘continuous exercise of faith, hope and charity’

(Apostolicam actuositatem)”.  [emphases added]



from Prof. George Swede



during discussion

on the meaning of life       the crunch

of a student’s apple







the son who

argues everything

I study his face in a puddle





score tied

both team jerseys look the same

in the August twilight







stepping on

sidewalk ants     the boy

everyone bullies




George Swede from Almost Unseen (Brooks Books, 2000) 



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