{"id":3991,"date":"2005-08-03T17:03:41","date_gmt":"2005-08-03T21:03:41","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/reply-to-bainbridge-on-roberts-catholici"},"modified":"2005-08-03T17:03:41","modified_gmt":"2005-08-03T21:03:41","slug":"reply-to-bainbridge-on-roberts-catholicism","status":"publish","type":"page","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/reply-to-bainbridge-on-roberts-catholicism\/","title":{"rendered":"Reply to Bainbridge on Roberts’ Catholicism"},"content":{"rendered":"

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                                                                                        – originally posted <\/FONT><\/EM>here<\/FONT><\/EM><\/A><\/FONT> (Aug. 3, 2005)<\/EM><\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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In “<\/FONT>Roberts’ Catholicism<\/FONT><\/A>”  (Aug. 2, 2005) Professor Bainbridge has offered a thoughtful piece <\/FONT><\/DIV>
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responding <\/FONT>to many of the issues raised in our <\/FONT>prior post<\/FONT><\/A> “What if John Roberts is a ‘Serious’ <\/FONT><\/DIV>
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Catholic.”  <\/FONT> Here I will deal with Steve’s <\/FONT>main points. <\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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“BainbridgePix”  Prof. B notes that <\/FONT><\/DIV>
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[T]he Roman Catholic Church does instruct its members on their role in the public <\/FONT><\/DIV>
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square. The relevant document is not the Voter’s Guide to which David relies, of <\/FONT><\/FONT><\/DIV>
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course, but rather the Vatican’s Doctrinal Note<\/EM><\/A> on Some Questions Regarding the <\/EM><\/SPAN><\/FONT><\/FONT><\/DIV>
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Participation of Catholics in Political Life<\/EM><\/SPAN>, which is the<\/FONT> most recent authoritative <\/FONT><\/FONT><\/DIV>
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Church statement on these issues. It states in pertinent part:<\/FONT><\/DIV>
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“When political activity<\/EM> comes up against moral principles that do not <\/FONT><\/DIV>
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admit of exception, compromise or derogation, the Catholic commitment <\/FONT><\/DIV>
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becomes more evident and laden with responsibility. In the face of fundamental <\/FONT><\/DIV>
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and inalienable ethical demands, Christians must recognize that what is at stake <\/FONT><\/DIV>
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is the essence of the moral law, which concerns the integral good of the human <\/FONT><\/DIV>
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person.”<\/FONT><\/DIV><\/BLOCKQUOTE><\/BLOCKQUOTE>
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Steve italicized the phrase “political activity”, saying “This is a significant qualification, because the <\/FONT><\/DIV>
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Church <\/FONT>distinguishes between formal and material cooperation with evil.”  He explains that “the <\/FONT><\/DIV>
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difference between <\/FONT>formal and material cooperation with evil can lead to differing results. A Catholic <\/FONT><\/DIV>
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who has good reason to <\/FONT>support a pro-‘choice’ candidate despite the candidate’s views on abortion <\/FONT><\/DIV>
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thus does not commit formal <\/FONT>cooperation with evil and, accordingly, is free to do so without violating <\/FONT><\/DIV>
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any moral precept of the Church.”<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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Prof. Bainbridge then offers this analysis:<\/FONT><\/DIV>
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” . .  I wish David and others to understand that judicial decision making with respect to <\/FONT><\/FONT><\/DIV>
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issues <\/FONT><\/FONT>raising moral questions under Church teaching does not per se<\/EM> constitute formal <\/FONT><\/FONT><\/DIV>
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cooperation with <\/FONT><\/FONT>evil. This is important because it is only in those limited class of cases <\/FONT><\/FONT><\/DIV>
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in which one’s activity <\/FONT><\/FONT>constitutes formal cooperation with evil that a judge who is a serious <\/FONT><\/FONT><\/DIV>
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Catholic, to use David’s <\/FONT><\/FONT>phrase, is per se<\/EM> religiously obligated to put one’s faith-based beliefs <\/FONT><\/FONT><\/DIV>
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ahead of, say, one’s views <\/FONT><\/FONT>of precedent or socially accepted moral norms. . . .<\/FONT> Even in the <\/FONT><\/FONT><\/DIV>
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“worst” case scenario, Judge <\/FONT><\/FONT>Roberts’s decisions would be driven by his faith only in a small <\/FONT><\/FONT><\/DIV>
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number of cases. And, in at least <\/FONT><\/FONT>some of those, the teachings of the Church may well coincide <\/FONT><\/FONT><\/DIV>
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with moral norms sufficiently widely <\/FONT><\/FONT>shared throughout the community and\/or nation to satsfy the <\/FONT><\/FONT><\/DIV>
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social support criterion required of <\/FONT><\/FONT>moral norms proposed to be drawn upon in adjudiciation . . <\/FONT><\/FONT>. <\/FONT><\/FONT><\/DIV>
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In the remaining cases where the <\/FONT><\/FONT>teachings of the faith cannot be reconciled with the prevailing <\/FONT><\/FONT><\/DIV>
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moral norms of society, which I <\/FONT><\/FONT>believe will be few in number, the problem can be managed on <\/FONT><\/FONT><\/DIV>
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a case-by-case basis.”<\/FONT><\/FONT><\/DIV><\/BLOCKQUOTE>
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Next, he writes, “I said earlier that David’s question was not the right one but was in the neighborhood <\/FONT><\/DIV>
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of the right question. It should no[w] be apparent what are the right questions. If I were a Senator, I <\/FONT><\/DIV>
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would ask Judge Roberts the following questions: <\/FONT><\/DIV>
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1.   Do you believe that a judge should recuse himself if his participation in a particular <\/FONT><\/DIV>
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case would constitute formal cooperation with evil? <\/FONT><\/DIV>
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2.   Would you recuse yourself under such circumstances?<\/FONT><\/DIV><\/BLOCKQUOTE>
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\"boy  I agree with Steve that judges may consider “moral norms having substantial support <\/FONT><\/DIV>
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in the <\/FONT>relevant community” and that “the Senate’s advise and consent function goes beyond a <\/FONT><\/DIV>
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nominee’s <\/FONT>bare qualifications to include evaluation of the nominee’s judicial philosophy.”  I do not <\/FONT><\/DIV>
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believe, <\/FONT>however, that his distinction between “the formal and material cooperation with evil” is <\/FONT><\/FONT><\/FONT><\/DIV>
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important <\/FONT><\/FONT><\/FONT>in cases dealing with any of the Five Non-Negotiable Issues addressed in the Voter’s <\/EM><\/FONT><\/FONT><\/FONT><\/DIV>
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Guide for <\/EM><\/FONT><\/FONT><\/FONT>Serious Catholics <\/EM>— abortion, euthanasia, human cloning, embryonic research and gay <\/FONT><\/FONT><\/FONT><\/DIV>
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marriage. <\/FONT><\/FONT><\/FONT><\/DIV>
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<\/FONT><\/FONT> <\/DIV>
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First, I don’t think the type of “serious” Catholic judge who felt obligated to follow <\/FONT><\/FONT>the Voter’s <\/EM><\/FONT><\/FONT><\/DIV>
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Guide<\/EM> <\/FONT><\/FONT>would be looking for loopholes or legal distinctions <\/FONT><\/FONT>that would allow him or her to “cooperate <\/FONT><\/FONT><\/DIV>
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with evil” with regard to the <\/FONT><\/FONT>Five Non-Negotiables.  The spirit would take the Serious Catholic past <\/FONT><\/FONT><\/DIV>
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the letter of the Church law. <\/FONT><\/FONT><\/DIV>
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 <\/DIV>
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More important, the authoritative sources quoted by Prof. Bainbridge <\/FONT><\/FONT>seem to place any and all <\/FONT><\/FONT><\/DIV>
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cooperation with evil by those in government <\/FONT><\/FONT>(as <\/FONT><\/FONT>opposed to the citizen voting in an election) in <\/FONT><\/FONT><\/DIV>
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the category of a <\/FONT><\/FONT>grave sin that appears to be equivalent morally to an act of  “formal” <\/FONT><\/FONT>cooperation.   <\/FONT><\/FONT><\/DIV>
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<\/FONT><\/FONT> <\/DIV>
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The Vatican’s “Doctrinal Note on . . . Political Life<\/EM><\/A>” would never have slipped by me back in the <\/FONT><\/FONT><\/FONT><\/DIV>
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days when I reviewed proposed Advisory Opinions and Advice Letters at the FTC.  There is simply <\/FONT><\/FONT><\/FONT><\/DIV>
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far too little practical advice.  The exception is a passage that is highly relevant to this discussion:  <\/FONT><\/FONT><\/FONT> <\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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[L]egislative proposals are put forward which . . . attack the very inviolability of human life.  \"bishop\"<\/FONT><\/SPAN><\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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Catholics, in this difficult situation, have the right and the duty to recall society to a deeper <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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understanding of human life and to the responsibility of everyone in this regard. John Paul II <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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 . .  has reiterated many times that those who are directly involved in lawmaking bodies <\/STRONG><\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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have <\/STRONG><\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT>a “grave and clear obligation to oppose”<\/I> any law that attacks human life. For <\/STRONG><\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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them, as for <\/STRONG><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT>every Catholic, it is impossible to promote such laws or to vote for them.<\/STRONG> <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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As John Paul II <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT>has taught in his Encyclical<\/FONT> Letter <\/FONT>Evangelium vitae<\/FONT><\/EM><\/A> regarding the situation in <\/FONT><\/FONT><\/SPAN><\/FONT><\/FONT><\/DIV>
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which it is <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT>not possible to overturn or completely repeal a law allowing abortion which is already <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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in <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT>force or coming up for a vote, “<\/FONT>an elected official, whose absolute personal opposition to <\/FONT><\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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procured abortion was well known, could licitly support proposals aimed at limiting the harm<\/EM> <\/FONT><\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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done by such a law and at lessening its negative consequences at the level of general <\/FONT><\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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opinion and public morality”.<\/FONT><\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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<\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT> <\/DIV>
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[added Aug, 4, 2005]<\/FONT> “By its interventions in this area, the Church’s Magisterium does not wish <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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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 <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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consciences of the faithful, particularly those involved in political life, so that their actions may <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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always serve the integral promotion of the human person and the common good.”  <\/FONT><\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV><\/BLOCKQUOTE>
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<\/SPAN><\/FONT><\/FONT><\/FONT><\/FONT>That discussion was overseen by Cardinal Ratzinger, who is now Pope Benedict XVI.  The other <\/FONT><\/FONT><\/DIV>
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item <\/FONT><\/FONT>quoted as authoritative by Prof. B. was also penned by Cardinal Ratzinger (The Memo<\/EM><\/A> on <\/EM><\/FONT><\/FONT><\/DIV>
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the <\/EM><\/FONT><\/FONT>Worthiness to Receive Holy Communion<\/EM>). It has the following discussion of the grave sins of <\/FONT><\/FONT><\/DIV>
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abortion <\/FONT><\/FONT>and euthanasia (emphases added):<\/FONT><\/DIV>
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The Encyclical Letter Evangelium vitae<\/EM>, with reference to judicial decisions<\/EM> <\/STRONG><\/FONT><\/DIV>
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or civil laws<\/EM> that authorise or promote abortion or euthanasia<\/STRONG>, states that <\/FONT><\/DIV>
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there <\/FONT>is a “grave and clear obligation to<\/STRONG> oppose them<\/STRONG><\/EM> by conscientious objection. <\/FONT><\/DIV>
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. . . In the case of an intrinsically unjust law<\/EM>, such as a law permitting abortion or <\/FONT><\/DIV>
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euthanasia, it is therefore never licit to obey it<\/EM>,<\/STRONG> or to ‘take part in a propoganda <\/FONT><\/DIV>
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campaign in favour of such a law or vote for it’<\/STRONG><\/EM>.”  Christians have a “grave <\/FONT><\/DIV>
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obligation of conscience not to cooperate formally in practices which, even if <\/FONT><\/DIV>
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permitted by civil legislation, are contrary to God’s law. Indeed, from the moral <\/FONT><\/DIV>
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standpoint, it is never licit to cooperate formally in evil. […] This cooperation can <\/STRONG><\/EM><\/FONT><\/DIV>
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never be justified<\/STRONG><\/EM> either by invoking respect for the freedom of others or by <\/FONT><\/DIV>
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appealing to the fact that civil law permits it or requires it.<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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\"Benedict16\" “. . . When political activity comes up against moral principles that do <\/FONT><\/DIV>
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not admit <\/FONT>of <\/FONT>exception, compromise or derogation, the Catholic commitment becomes <\/FONT><\/DIV>
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more <\/FONT>evident and laden with responsibility.”<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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[Ed. Note:<\/EM> Even the footnote quoted by Steve, which deals with voting in <\/FONT><\/FONT>an <\/FONT><\/FONT><\/DIV>
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election — <\/FONT><\/FONT>rather <\/FONT><\/FONT>than with the far more directly responsible vote of a  legislator <\/FONT><\/FONT><\/DIV>
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or judge — requires “proportionate <\/EM>reasons<\/EM>” to vote for a candidate who happens <\/FONT><\/DIV>
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to support abortion rights but also has other good qualities or positions.  Beyond <\/FONT><\/DIV>
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coercion, such reasons usually entail balancing overall good and evil that might <\/FONT><\/DIV>
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be produced by an action.  In the Voter’s Guide<\/EM>, “serious” Catholics are told they <\/FONT><\/DIV>
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may only vote for a pro-choice candidate (or one with the in<\/EM>correct stance on any <\/FONT><\/DIV>
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of the Non-Negotiable) when there is<\/FONT> no<\/EM> candidate in the race who holds the <\/FONT><\/DIV>
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correct views — and<\/EM> when not voting would lead to greater evil than voting. In the<\/FONT><\/DIV>
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article quoted by Prof. Bainbridge, “Cooperation with Evil<\/A>,” the author says that <\/FONT><\/DIV>
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a good question to ask in determining the “moral quality of material coopera-<\/FONT><\/DIV>
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tion” is “Would this action be done without my help?” ]<\/FONT><\/DIV><\/BLOCKQUOTE>
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Such strong admonitions never to cooperate with judicial decisions or legislation that <\/FONT><\/DIV>
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promote abortion or euthanasia are clearly applicable to the other Non-Negotiables — to <\/FONT><\/DIV>
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all laws that are “intrinsically evil.” <\/FONT><\/DIV>
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