The article is really about whether judges can recuse themselves from capital cases more than about defending or advocating ending the death penalty from a Catholic perspective.
Here are some quotes:
Saying that essentially picking and choosing isn’t really consistent with Catholic doctrine and being a Catholic in good standing.
Thus far we have been talking about the behavior of orthodox
Catholics in capital cases. But when people make sociological claims
about who is a Catholic, or what Catholics think and do, they do not
confine their attention to the orthodox. One often reads in the popular
press about how many Catholics dissent from the Church’s teaching
about contraception, abortion, divorce, homosexuality, or the ordination
of women." Some Catholics draw a more general conclusion from
these particulars-that the Church’s teaching is advisory rather than
authoritative. Members are well-advised to consider it, but in the end
they are free to accept or reject it. This attitude about teaching is linked
to another about membership-that it is a matter of voluntary association. An individual is a Catholic in good standing if he says so. These
attitudes about teaching and membership conflict with the Church’s traditional understanding of itself, but they fit well with the American way
of thinking about religion as a free and democratic kind of enterprise.
Envisioning Catholicism in this way severs the link between Church
membership and belief about the death penalty. If the reasonable ob164. We rejected this assertion earlier in the text. See supra notes 20-35 and accompanying text. But we left open the possibility of showing that the death penalty is an effective
deterrent in these cases, and that there are no equally effective alternatives.
165. Kenneth Woodward, Mixed Blessings, NEWSWEEK, Aug. 16, 1993, at 38; Andrew
M. Greeley, The Abortion Debate and the Catholic Subculture, 167 AMERICA 13 (July 4-11,
1992). On the death penalty in particular, see Robert F. Drinan, Catholics and the Death
Penalty, 170 AMERICA 13 (June 18-25, 1994).
1998]
MARQUETTE LAW REVIEW
server of § 455(a) holds this picture of the Catholic judge, it is hard to
say why he should think that being Catholic affects his impartiality.
Our final observation about the first point is that many judges-even
some who would regard themselves as orthodox Catholics-when faced
with a conflict between moral and legal duties, see themselves as bound
to enforce the law. Part of the explanation for this is that the morallegal distinction is not as clear as we might wish. As Robert Cover put
it, “the moral-[legal] decision [is actually] a moral-moral decision-a decision between the substantive moral propositions relating to [life and
the death penalty] and the moral ends served by the [legal] structure as
a whole, by fidelity to it.”’ 68 There is a significant moral dimension to
the legal structure created by our constitution. That system empowers
Congress to define our corporate objectives, directs judges to enforce
them, and sets limits on the power of judges to change our course. It
would betray a public trust and undermine this system if judges who
flatly opposed capital punishment were to cheat-to take charge of sentencing hearings and manipulate the law and evidence in order to save
166. 527 F. Supp. 632 (N.D. Ill. 1981).
167. Id. at 633.
168. COVER, supra note 158, at 199.
[Vol. 81:303
CATHOLIC JUDGES IN CAPITAL CASES
lives. Some judges see a positive as well as a negative side to this role
responsibility-a duty to do one’s job, not just to refrain from undercutting it. This is the position Governor Mario Cuomo took in defending
his decision to allow abortion in the state of New York.
[T]he Catholic who holds political office in a pluralistic democracy… bears special responsibility. He or she undertakes to
help create conditions under which all can live with a maximum
of dignity and with a reasonable degree of freedom; where everyone who chooses may hold beliefs different from specifically
Catholic ones, sometimes contradictory to them[.]
In fact, Catholic public officials take an oath to preserve the
Constitution that guarantees this freedom… [T]o assure our
freedom we must allow others the same freedom, even if occasionally it produces conduct… which we would hold to be sinful.
16 9
Justice Brennan took a similar position during his confirmation hearings
in 1957, when he was asked whether he could abide by his oath in cases
where “matters of faith and morals” got mixed with “matters of law and
justice.” He said:
Senator, [I took my] oath just as unreservedly as I know you
did… And… there isn’t any obligation of our faith superior to
that. [In my service on the Court] what shall control me is the
oath that I took to support the Constitution and laws of the
United States and [I shall] so act upon the cases that come before
me for decision that it is that oath and that alone which govems. 17
0
We do not defend this position as the proper response for a Catholic
judge to take with respect to abortion or the death penalty. We mention
it here for a different reason. The question in a disqualification motion
under § 455(a) is whether a reasonable observer would expect a Catholic judge, simply by virtue of membership in the Catholic Church, to be
unalterably opposed to capital punishment. It is a sociological observation, not a moral conclusion. And as a sociological observation about
judges who are Catholics it is, for the reasons we have noted, unfortunately inaccurate.
III. CONCLUSION
Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as
with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge,
these are questions that responsible Catholics must consider seriously.
Judges cannot-nor should they try to-align our legal system with the
Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps
their good example will have some effect
Basically she says, in a not particularly forceful way, that it is possible to conceive of capital cases that align with Catholic doctrine, though they are few and require inner knowledge of the “will” of the criminal. Abortion she elides as being against “innocent” life, and therefore prohibited in all cases and is against Church doctrine in all circumstances; criminal behavior must be circumscribed to circumstances that require killing the assailant in order to save life.
If you’re sifting through the tea leaves, her perspective seems to be that her rulings need to conform to Church doctrines as far as possible, but not be required to do so when the secular law’s requirements are outside of the purview of Catholic teaching. More strictly, she seems to say that secularizing judges that are Catholic, ie, pro-choice judges, would by her standard not be considered Catholic in good standing but by self identification only.
