Patterico's Pontifications

4/25/2007

Why Prof. Stone Is Wrong to Blame the Gonzales Decision on the Catholic Beliefs of the Justices in the Majority

Filed under: General — Patterico @ 12:00 am

I took too long to address Chicago Law Professor Geoffrey Stone’s contention that the partial-birth abortion decision was driven by the fact that the Justices in the majority are Catholics. Jan Crawford Greenburg has already weighed in with an excellent post on the matter, as have Ed Whelan and Hugh Hewitt. Nevertheless, I’m going to toss in my two cents. My opinion may be useful because it is based in part on an e-mail exchange I had with the professor himself.

Prof. Stone says:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is immoral and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman to determine her lifes course is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of ones personal religious faith.

Such serious accusations should be backed by solid evidence. For example, if someone were to accuse Federal Reserve Chairman Ben Bernanke of making decisions about interest rates because he is a Jew, I would hope that person would be dismissed as a crank and a bigot, unless he had smoking-gun type evidence to back such a wild allegation. Accusations directed at Catholics should be no different.

Such accusations are especially serious when levelled at judges, who have sworn an oath to uphold the Constitution. Prof. Stone is accusing the Justices of violating their oath.

So what does Prof. Stone offer as his evidence of this grave accusation? Virtually nothing.

Prof. Stone points to no public statements or writings by these Justices in which they indicate that they might elevate their religious beliefs over their oaths.

Nor does he provide evidence that the Justices in the majority have ruled according to their Catholic religious beliefs in other contexts. If their religious beliefs were so critical as to cause them to violate their oaths, you would expect to find evidence of this in cases dealing with other subjects. For example, the Catholic church teaches against the death penalty. But all the Justices in the majority have voted to uphold death sentences.

Justice Kennedy, the author of the decision, is the last person who can be accused of consistently ruling according to Catholic doctrine. He has voted to strike down a criminal law against homosexual sodomy — not thought to be a traditional Catholic position. Justice Kennedy voted in the majority in a major school prayer case. And Justice Kennedy was the decisive vote in the 1992 Casey decision that reaffirmed Roe.

How does the above square with Prof. Stone’s position? He doesn’t say.

Nor does Prof. Stone explain how there is a material difference in the teachings of the Catholic church on partial-birth abortion (or even abortion generally), as campared to the teachings of the Jewish religion, or the teachings of Protestant Christians. One would think that someone making such a serious accusation would provide such evidence.

Prof. Stone’s argument appears to be an argument that, in his view, the opinion is weak — and he can’t see anything else to explain its weakness other than the Catholicism of the majority judges.

Of course, there are plenty of good reasons to rule the way the majority did.

Justices Scalia and Thomas ultimately based their decision to join the opinion on their strong and principled argument for the position that abortion is not a subject covered by the Bill of Rights. It’s beyond the scope of this post to make the case fully, but Justice Scalia has done so in a number of persuasive dissents throughout the years. I outlined the basic argument here, in a post which quotes and links to Scalia’s arguments. The main point is that whether partial-birth abortion is an “undue burden” is a

conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it.

Prof. Stone might not agree with this argument, but to declare it so unprincipled that the only other explanation for the Justices’ vote is their religion strikes me as wholly unsupported.

Justices Roberts and Alito may agree with Justices Scalia and Thomas on that issue, and they may not. I suspect that they do, but that — consistent with their theory of reaching only those issues that are necessary to resolve a case — they felt it unnecessary to declare this position at this point in their tenure on the Court.

As for Kennedy’s reasoning, Stone attacks it through a strawman argument. He points to the Congressional findings supporting the ban, and claims that the Court relied on those findings as “the critical difference” between this case and Stenberg, the previous partial-birth abortion case. Stone then decries the findings as flawed, citing one specific finding regarding whether the procedure is taught in medical schools.

But in an e-mail exchange with me, Stone admitted that the Court didn’t rely on the one finding Stone provided as an example of a provably flawed finding. Further, despite my repeated challenges, Stone was unable to provide any language from the majority opinion to support his contention that the Court relied on the Congressional findings regarding the safety of the procedure.

To the contrary, the Court explicitly disclaimed any notion that those findings were dispositive, and indeed did not indicate that those findings were even relevant to its decision. Rather, the Court held that it had an independent duty to examine the evidence, and ruled that the evidence presented in the lower courts (like the evidence presented to Congress) went both ways.

In summary, Stone’s only criticism of the decision is a strawman that misrepresents the Court’s language.

With no valid criticism of the decision, and no evidence that religion played any role in the decision, Stone never should have made this accusation.

UPDATE: Stone backtracks.

73 Responses to “Why Prof. Stone Is Wrong to Blame the Gonzales Decision on the Catholic Beliefs of the Justices in the Majority”

  1. Professor Stone wrote: “[W]hen the fundamental right of a woman to determine her lifes course is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question….”

    I take it that Professor Stone is not a lawyer.

    nk (49aa3f)

  2. And the other justices, do they rule based on their secular humanistic beliefs? I would think that a lot more evidence could be gathered for that assertion, what with Ginsberg’s prejudice (admitted in her dissent) against ancient values.

    Seems like obvious projection to me.

    Amphipolis (fdbc48)

  3. I am opposed to partial etc., but Stone has a point. The Catholics voted as a block to support a ruling that conforms with Catholic dogma. Isn’t there a right to question this? Only the Catholics voted. Yet, only the secularists and a Jew voted the other way. Wouldn’t it be correct to say that they also voted to conform with current secular progressive anti Christian religion sentiment? I’d just point out that Jews rarely agree with anything that acknowledges the existance of a Christian God and usually vote to stop all Christian education and thinking.

    Howard Veit (4ba8d4)

  4. sorry
    GinsbUrg – duh

    Amphipolis (fdbc48)

  5. Professor Stone doesn’t need to provide any evidence. It’s common knowledge that all Catholics oppose abortion while all Protestants and Jews support abortion. Right?

    BTW, this is the same type of straw man as Walt & Mearsheimer claiming that a Jewish lobby influenced the U.S. into attacking Iraq — because we all know that Jews overwhelmingly supported the war.

    /sarc

    aunursa (454c9d)

  6. For example, if someone were to accuse Federal Reserve Chairman Ben Bernanke of making decisions about interest rates because he is a Jew, I would hope that person would be dismissed as a crank and a bigot, unless he had smoking-gun type evidence to back such a wild allegation.

    Wow, Pat. So Jews what is it about Jews and money that it’s possible to have “smoking-gun type evidence” of a decision based on Jewish attitude?
    The Catholic Church has opposed all abortion on principle for the last hundred years, so there’s a standing if recent doctrine.
    What’s the Jewish doctrine of money?
    Amazing.

    AF (d700ef)

  7. Sorry, Patterico, I disagree.

    What is wrong in pointing out that the five justices that voted to uphold the PBA were Catholics and then wondering if that affected their decision? And what is wrong in asking and wondering whether some of the more conservative Jewish neo-cons in the Bush administration (some of whom, by the way, previously lived in Israel) might have pushed for the war in Iraq because of their support for Israel?

    Sorry, but I think you and Hugh are too PC for my taste if you think it’s bigoted or prejudiced to point out facts (such as a person’s religion). And that’s especially because conservatives by and large want to elect/appoint people with conservative religous beliefs because those people, when in office, are expected to act in accordance with those beliefs.

    Jim (6d4ad1)

  8. There actually is ample evidence of how Justice Scalia views voting according to his religion: he has published articles in the religious journal First Things, which is primarily, but not exclusively, Catholic, and run by Fr Richard John Neuhaus.

    In it, Justice Scalia has said that the elimination of capital punishment is a matter for the legislatures, not the judiciary, and has even argued that it would be difficult to find legal grounds for the courts to find an unborn child to be a legal person. (I’m at work, and working from memory on this.)

    If Professor Stone had read those articles, he’d have seen an attorney arguing as an attorney.

    Dana (3e4784)

  9. He would have to admit that if the Lutheran Rehnquist was still there and Roberts or Alito wasn’t, the vote would have been the same.

    J Curtis (acf311)

  10. Jim wrote:

    What is wrong in pointing out that the five justices that voted to uphold the PBA were Catholics and then wondering if that affected their decision? And what is wrong in asking and wondering whether some of the more conservative Jewish neo-cons in the Bush administration (some of whom, by the way, previously lived in Israel) might have pushed for the war in Iraq because of their support for Israel?

    But Professor Stone didn’t just “wonder” if the five justices being Catholic “affected their decision.” He wrote:

    By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman to determine her lifes course is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of ones personal religious faith.

    Is that “wondering aloud,” or is that a deliberately implying that the five Catholic justices chose to impose their particular religious faith?

    Dana (3e4784)

  11. Dana and Patterico, isn’t it quite unlikely that any judge would admit that he ruled the way he did because of his/her religion? And without that, how would you ever have the “smoking gun” that Patterico demands before you can ask any questions about motivation?

    Doesn’t Patterico’s standard in effect almost require that there be no discussion about the effects of religion on judges and other public officials? And is that the right result, especially given that the religious right wanted some of these judges and politicians elected/apppointed because they were Orthodox Catholics and Evangelical Christians who were expected, once in office, to act and rule in accordance with their religious beliefs?

    Jim (6d4ad1)

  12. “And independent duty to examine the evidence” seems to be to be overstating what the supreme court defined its role to be. It didn’t go on to examine the evidence in any detail for purposes of making its decision. It certainly didn’t weigh the evidence.

    I’d characterize the Court’s duty under Gonzales as one to “check to see if the government has some evidence supporting the law.” Even if a bunch of that evidence is clearly manufactured or misstated, if the Court buys any of it the law is upheld. It seems similar to the abuse of discretion standard used to review trial court decisions.

    As for the comment about the majority all being Catholics, I agree with you that it’s unsupported. I think it’s really just a cry of frustration because he disagrees with the decision, and can’t find a way to articulate his assumptions in a way that would actually convince the majority to reverse their decision.

    Of course, 99 percent of the debate about abortion policy, from what I’ve seen, is the same thing — just cries of frustration stereotyping the other side as being driven by irrational motivations. Attempts to reconcile differing points of view on abortion, in my experience, are less successful than virtually any other issue I can think of.

    Phil (427875)

  13. A U. Chicago Law student left this comment on the faculty blog:

    “I am in Professor Stone’s Con Law III class and am a Catholic.

    His bigotry against Catholics is not limited to this board. I and two other Catholic students have filed complaints (really, one complaint with all of us signing) with Dean of Students Michele Baker Richardson.

    We do not really expect to see any response or vindication, but we do have audio tape of comments he has made in class to the effect that Catholics are incapable of rendering decisions unless the Pope directs and specifically names the 5 Justices mentioned above. He specifically mentioned his clerkship to Justice Brennan, who he described as “the only thinking Catholic I ever knew”, the implication being most or all Catholics do not think and, in keeping with his other comments, simply do what the Pope directs.

    Please do not let the media bury our story.

    NYC 2L (e16c0b)

  14. corret me if I’m wrong – I’m not a lawywer – but I thought that the court only upheld a law passed by Congress which is not dominated by a majority of Catholics who voted as a block.

    If you have anything in your life that might lead to a decision different from the outcome approved by the majority disqualifies you. Is that what we want?

    Ginsburg would not even be a justice under that criteria.

    quasimodo (edc74e)

  15. NYC2L,

    I saw that and invited the alleged student to contact me with the proof. So far I have heard nothing. Please bear in mind that anyone can say anything on the Internet anonymously; that doesn’t make it true.

    Patterico (946ae7)

  16. Pat: certainly. I just thought it was interesting and arguably relevant to the discussion.

    NYC 2L (e16c0b)

  17. Dana: I think the characterization of “First Things” as mostly Catholic are inaccurate. A more accurate description would be the term “evangelical”. That is what Neuhaus uses. First Things has been edited by Catholics and Prostestants.

    Phil: You said, “Attempts to reconcile differing points of view on abortion, in my experience, are less successful than virtually any other issue I can think of.”

    Attempts to reconcile differing points of view on abortion are nearly impossible because the issue was removed from the Democratic process via Roe v. Wade. This case took the issue of abortion on demand and made it a constitutional right.

    It is almost impossible to have a debate about abortion as whatever regulation is pursued the matter either ends up before the SCOTUS or the regulation dies in district court. Roe took the issue of abortion out of the hands of the people and made the SCOTUS the supreme medical regulating authority.

    You also said, “Even if a bunch of that evidence is clearly manufactured or misstated, if the Court buys any of it the law is upheld.”

    In Roe, the plaintiffs used false data, false history, and false testimony, in addition to manipulating the plaintiff, Norma McCorvey, to make their argument before the SCOTUS. A rationale person might assume that if the plaintiffs falsified their data, their history, and their testimony, that perhaps the court might reconsider it’s decision. Yet, this is a black hole in the legal circles.

    Heck, even Planned Parenthood, a unique organization that profits from abortion, is permitted to provide legal assistance to plaintiffs defending their civil rights to abortion. Apparently a conflict of interest is granted an incredible exception by the United States Justice System in abortion cases.

    I’d like to remind Professor Stone that is was a Jew that argued the case before the Supreme Court in Harris v McRae that the state cannot be compelled to provide public funds for abortion. Not just any Jew, but the former Dean of the conservative evangelical factory known as Reed College. Rest in peace Professor Victor Rosenblum.

    Gabriel Sutherland (90b3a1)

  18. Just to add, Roe did not make abortion on demand available all by itself. It was actually Roe and Doe v Bolton, both written by Justice Blackmun for the ’73 term, created the constitutional right to abortion on demand.

    Gabriel Sutherland (90b3a1)

  19. What part of “suck brains out thru skull while head in vagina” don’t you people understand. Stone is the epitome of a “tinfoil hatted leftist loon” of the first order if he has to use the “Catholic religion made me do it” canard. What is his position vis a vis the terrorists? That would be a interesting question to pose of the Stone. It would answer in full what everybody here is arguing!

    Sue (661707)

  20. Sue, a “canard” is a deliberately false accusation. What evidence do you have to support your accusation against Stone, or do you expect to be held to a lower standard for your accusations than Patterico is trying to hold Stone to?

    Jim (6d4ad1)

  21. Gabriel said: “Attempts to reconcile differing points of view on abortion are nearly impossible because the issue was removed from the Democratic process via Roe v. Wade. This case took the issue of abortion on demand and made it a constitutional right.” (emphasis added)

    Huh? The fact that the law is (rightly or wrongly) one way or another doesn’t necessarily prevent or even obstruct reconcilliation of points of view. It doesn’t explain the vast divide in opinons about the morality or value of legality of the act of abortion.

    Further, reversing the situation, and putting abortion back into the democratic process won’t suddenly cause a bunch of people to change their minds on the issue.

    I’m not disagreeing with any of the facts you state regarding the means by which abortion became a “right.” I just have no idea where you draw this causational relationship between the polarization of opinion on the issue and the fact that abortion is a “right.”

    Phil (427875)

  22. Correct me if I’m wrong – I’m not a lawyer, but didn’t Justice Kennedy vote with the majority in Planned Parenthood v. Casey?

    Has he converted to Catholicism since then? Simply become more Catholic?

    How would Stone reconcile those two votes if all Kennedy was doing was acting based on his religion?

    Drew (07634c)

  23. Stone is now back-tracking back-tracking a bit. His (somewhat hollow-sounding) defense of his earlier post is that he was merely raising the issue of the Justice’s Catholicism as a topic for discussion and reflection, not as an explanation for why they reached the conclusions they did in Carhart.

    NYC 2L (e16c0b)

  24. Phil said, “Further, reversing the situation, and putting abortion back into the democratic process won’t suddenly cause a bunch of people to change their minds on the issue.”

    Of course it will. Political winds play a huge role in the individual views of voters. Politicians pay close attention to these winds. It is my belief, and I say that because this proposition is difficult to prove, that many people go out of their way to avoid the abortion debate because they view the matter as settled law as a result of Roe, Doe, and Casey. With pledges from Justice Alito and Chief Justice Roberts to adhere to Stare Decisis, it’s unlikely that that settled law would completely reverse itself through an overturning of Roe.

    Gabriel Sutherland (90b3a1)

  25. I’m curious whether anyone has detected the obvious logical fault with the reasoning process used by Prof Stone:

    There are a number of catholics on the court;

    They all generally agree in this particular case;

    Prof Stone disagrees with their legal reasoning;

    Therefore, their “personal religious faith” must clearly be responsible for their decision.

    If this is the level of logical analysis that Prof Stone brings to his law students then I have to wonder at the quality of their education.

    If we should ever reach a unanimous decision with which Prof Stone disagrees, I suppose his reason then will be that wearing black robes caused the decision.

    Harry Arthur (b318a5)

  26. So, why don’t all the Catholics oppose all capital punishment? Seems they split 1 against (sometimes) 4 in favor (always).

    But anyway, what does the Professor suggest? A moratorium on appointing Catholics to the Court? Isn’t that expressly forbidden by the “no religious test” clause of Article IV? Not to mention the 1st Amendment. Or does he suggest that we need to have affirmative action for Protestants?

    Would he be making this claim if the court had 5 black members? Five Jewish members? Etc. For once the court has a lot of Catholics on it. So what? It should be considered healthy that an American minority can occasionally produce such exlemplary individuals, rather than be seen as a cryptic threat.

    And besides, I want to see them get a Blaine Amendment case. 😉

    Kevin Murphy (0b2493)

  27. Gabriel said “It is my belief, and I say that because this proposition is difficult to prove, that many people go out of their way to avoid the abortion debate because they view the matter as settled law as a result of Roe, Doe, and Casey.”

    From what I’ve seen, changing people’s minds on anythign to do with abortion is virtually impossible. “But it’s legal,” is the last thing I would think would change anyone’s mind. Further, “but it doesn’t have to be legal” seems like it wouldn’t do much to change anyone’s mind either.

    However I do agree that history will soon have an opportunity to test your theory to some degree, as the law evolves on this issue.

    Phil (427875)

  28. “What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent.”

    What explains the decision of Justices Stevens, Souter, Ginsburg, and Breyer — “the four justices who are either Protestant or Jewish” — to vote against the settled precedent of Bowers v. Hardwick, in Lawrence v. Texas?

    In Bowers, the court upheld the constitutionality of a statute prohibiting sodomy. In Lawrence, the court reversed itself, with Justice Kennedy voting with the Protestants and Jews.

    By Stone’s bizarre logic, Justices Stevens, Souter, Ginsburg, and Breyer must be allowing their religion to dictate their votes, while Justice Kennedy obviously is not.

    Troopship Berlin (de5a83)

  29. Jim asked:

    Dana and Patterico, isn’t it quite unlikely that any judge would admit that he ruled the way he did because of his/her religion? And without that, how would you ever have the “smoking gun” that Patterico demands before you can ask any questions about motivation?

    Well, Jim, by that “standard,” you can “prove” that anyone thought anything. After all, if you believe that someone would do something for reason X, but only admit to a more palatable reason Y, why we can all just assume what we wish about their thought processes.

    Just today the Supreme Court, by a 5-4 vote, threw out three death sentences from Texas; the four justices in the minority, the ones who wished to uphold those death sentences, were all Catholic — and the Catholic Church opposes capital punishment.

    Perhaps, using the Stome model, we’d have to reverse, because Justice Kennedy, a Catholic, voted to throw out those sentences; clearly, he was taking orders from Rome!

    Dana (3e4784)

  30. At this point, I doubt Professor Stone is sufficiently courageous and principled to withdraw his allegation that 5 Justices of the Supreme Court violated their oath of office by deciding a case based on their religious beliefs, but he should at least be smart enough to quit digging.

    DRJ (50237c)

  31. Dana, my question was not about “proof”. It was about when you can ask questions about the motivation involved.

    So what’s your answer?

    Jim (6d4ad1)

  32. Jim,

    Prof. Stone didn’t ask a question. Instead, I submit he made a blanket statement that 5 Supreme Court Justices decided a case for personal reasons:

    As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman to determine her lifes course is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of ones personal religious faith.

    I assume Prof. Stone will argue he was writing rhetorically because he wanted to spark a debate on the role of personal religious beliefs in Supreme Court decisions, but that doesn’t pass my smell test and it shouldn’t pass yours. Further, as a lawyer, Prof. Stone has a higher duty to refrain from questionable or unsubstantiated public comments about any judge, let alone Supreme Court Justices. His comments undermine public faith in the judicial system.

    DRJ (50237c)

  33. By the way, Patterico, the Catholic church doesn’t teach against the death penalty. Last time I cracked open a catechism, it clearly stated official church position in favor of capital punishment.

    DubiousD (d5fb28)

  34. DubiousD,

    No kidding? I’ll admit I didn’t research that statement before I made it. It’s one of those things I thought I “knew.”

    I’ll research it tonight and issue a correction if appropriate.

    This is why I love having readers. I always learn something from yiu folks.

    Patterico (23d227)

  35. DRJ, Dana and Patterico, do you think that Richard John Neuhaus (who writes First Things that was linked to in an earlier post) is a bigot or engaging in impermissible public comments in the article I’ve exerpted below? He apparently hopes those five justices voted the way they did because they were respecting their Catholic morality.

    “I expect it is in the minds of many, but so far there has been only marginal public comment on the fact that all five in the Carhart majority are Catholics. What can one say? Know-Nothings of the world unite? It is not a peculiarly Catholic perception, but it is an emphatically Catholic perception, that legitimate law cannot be divorced from morality. And in this constitutional order of representative democracy, the relationship between moral judgment and law is best expressed by the legislature. Almost a century ago, Oliver Wendell Holmes Jr. declared that the realm of law should be entirely purged of moral judgment or vocabulary.

    That, of course, is itself a moral dictate. But over the past fifty years, the Court has followed that dictate on numerous issues, thus reinforcing what has been called the naked public square. The Ginsburg dissent is right: In previous decisions, especially those dealing with abortion, the Court said there was no place in law for the “imposing” of moral judgments. Carhart, by way of contrast, evidences a respect for moral discernment, especially as expressed by the legislature. Every law of consequence reflects a moral judgment.”

    Jim (6d4ad1)

  36. DubiousD,

    I will say, however, that I am a bit dubious about your assertion.

    But I will check it out.

    Patterico (91963a)

  37. DubiousD,

    Are you sure about that? There may be support among American Catholics for capital punishment but I think the Vatican’s position is clear:

    ROME. As noted in the linked article, the Vatican even opposed Saddam’s execution: A top Vatican official condemned the death sentence against Saddam Hussein in a newspaper interview published Thursday, saying capital punishment goes against the teachings of the Roman Catholic Church.

    In addition, it’s also been reported that Pope John-Paul II opposed the death penalty.

    DRJ (50237c)

  38. Here’s a 2001 Vatican statement opposing the death penalty.

    DRJ (50237c)

  39. I take it the Pope isn’t a lawyer…

    carlitos (b38ae1)

  40. Even though the last two popes have spoken against the death penalty, I don’t believe there is an “official” church prohibition against Catholics supporting the death penalty, like there is with birth control and abortion. There is no “Humanae Vitae”-like document about the death penalty.

    I could be wrong, and I don’t have time to research right now. But that is the information I received the last time I asked (years ago).

    Are there any priests out there who are Patterico fans?

    lc (1b1e61)

  41. Jim,

    I realize there is a moral issue involved in decisions we make as human beings and that, if you are a religious person, religion may impact your view of morality. That is vastly different from leaping to the conclusion that a judge’s decision was rendered based on personal bias or motive.

    I’m not sure why you used the term “bigot” and I don’t think Prof. Stone’s comments were based on bigotry – presumably against Catholics. I think Prof. Stone was disgusted at the Supreme Court’s latest abortion ruling and he wrote an article he should have thought more about before publishing.

    As for Mr. Neuhaus, I don’t recall reading much, if anything, he has written. Offhand, it seems like a material difference to wish that the Justices ruled based on their religious beliefs rather than to affirmatively assert that they have done so. However, if Mr. Neuhaus is a lawyer who comments about judges and judicial decisions, I would also hold his comments to a higher standard as an officer of the court.

    The First Amendment gives us all the right to speak freely (subject to some constraints) but I think lawyers have an ethical obligation to refrain from unsubstantiated speculation that undermines public faith in the judicial system.

    DRJ (50237c)

  42. From the Compendium of the Catechism at the Vatican’s website:

    469. What kind of punishment may be imposed?

    The punishment imposed must be proportionate to the gravity of the offense. Given the possibilities which the State now has for effectively preventing crime by rendering one who has committed an offense incapable of doing harm, the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent.” (Evangelium Vitae). When non-lethal means are sufficient, authority should limit itself to such means because they better correspond to the concrete conditions of the common good, are more in conformity with the dignity of the human person, and do not remove definitively from the guilty party the possibility of reforming himself.

    [If you want to find this in the Compendium, scroll down about 3/4 of the page to entry 469.]

    DRJ (50237c)

  43. DRJ, I used the word “bigot” because Hugh Hewitt (who is a lawyer and a law professor) wrote the following about Stone: “Stone is, in short, an inciter of religious bigotry. And an intellectually dishonest one at that.” and “Geoffrey Stone is a bigot, and a vicious one at that.”

    And, reading Neuhaus again (who is not a lawyer), I don’t think it’s a stretch to say that he thought they made their decision because of their (Catholic) morality.

    Jim (6d4ad1)

  44. I disagree with Hugh Hewitt’s characterization if he wrote that Prof. Stone is a bigot. Beyond that, Stone, Hewitt and Neuhaus were speaking out about subjects that concern them – just as we are here – and I’m glad we’re all free to opine, agree, and disagree as we see fit. However, judges aren’t free to defend themselves or their opinions in the media or on the internet, and a lawyer should have more than a passionate belief that he’s right before he criticizes judges or their decisions.

    DRJ (50237c)

  45. Although the Compendium is a great resource, a more complete answer can be found in the Catechism of the Catholic Church, Paragraph 2267, the first sentence of which reads: “Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” Source: http://www.scborromeo.org/ccc/p3s2c2a5.htm#III

    Although Popes John Paul II and Benedict XVI have spoken of their opposition to the death penalty, the official teaching of the Church permits capital punishment. The Holy Fathers have stated their wish to discourage the use of capital punishment but they have not forbidden it.

    The last sentence of this paragraph reads: “Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm – without definitely taking away from him the possibility of redeeming himself – the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent.'”

    We would ordinarily think of Life Without The Possibility Of Parole as satisfying this principle, to incapacitate the offender without resort to the ultimate punishment. I have been a Catholic my whole life and a prosecutor for nearly 20 years. If I thought for two seconds that Life Without Parole could really mean that, that there was absolutely no way the offender would ever walk the streets a free man, then I could sign on to the elimination of capital punishment. Unfortunately, Life Without Parole doesn’t preclude the possibility of a pardon by a bleeding heart governor or president, a prospect that is all too real. Further, there must be a mechanism to deal with the offender who has killed other inmates and/or corrections officers and gives every indication that he will do so again. The only way to render someone like that “incapable of doing harm” is to have them pay the ultimate price and yes, there are people out there who are that plain evil.

    P.S. – DRJ, it’s Father Neuhaus, not Mr.. He’s a former Lutheran minister who is now a Catholic priest.

    Lammo (dc6a32)

  46. The question is this:
    The decision is sloppily argued and based on assumption. Given this and the outcome does it make sense to condider that Catholic ideology [or sensibility: your choice] might have a direct relation to the result?

    But even if this is thew case the problem nonetheless isn’t religion or catholicism as such but the sloppiness that results from homogeneity among the discussants. Everyone cuts corners in talking with friends about the ideas they share. That’s called a shared “faith” and liberals and conservatives both indulge.

    But did the majority of the court indulge here?
    You’re damn right they did.

    AF (d700ef)

  47. Lammo,

    Excellent comment. Thanks for the information and the correction.

    DRJ (8b9d41)

  48. LC – Thanks for raising an interesting point.

    DRJ (8b9d41)

  49. Whether catholic or protestant, the people most extreme on the issue of NO ABORTIONS, not just PBA’s, happen to support the DEATH penalty. They simply want to define morality for us all and make
    the decisions on WHO SHOULD LIVE AND WHO SHOULD DIE.

    Sorry if the topic is JUST PBA’s, but I thought the context of the war on sex was indicated.

    semanticleo (2f60f4)

  50. I should also add DubiousD to the list of those who have helped clarify the tenets of Catholicism. Thanks.

    DRJ (8b9d41)

  51. BTW, Patterico;

    Glenn Greenwald has an excellent take on the Pat Tillman/Jessica Lynch travesty. Mayhaps you could find some lies therein. Any thoughts on the issue itself?

    semanticleo (2f60f4)

  52. “Whether catholic or protestant, the people most extreme on the issue of NO ABORTIONS, not just PBA’s, happen to support the DEATH penalty. They simply want to define morality for us all and make
    the decisions on WHO SHOULD LIVE AND WHO SHOULD DIE.”

    Duhh, yeah! We want to stop murder whether of babies or adults, punishing murderers with the death penalty when called for. Abortion supporters largely also oppose the death penalty for murderers as best as I can see.

    nk (49aa3f)

  53. “Duhh, yeah!”

    Bet you long for the nostalgic Dark Ages when the Papacy was supreme.

    semanticleo (2f60f4)

  54. “The Catholics voted as a block to support a ruling that conforms with Catholic dogma.”

    That’s simply not correct. In order to conform to Catholic dogma, the opinion would have to expressly reject a constitutional right to an abortion. Kennedy’s majority is so filled with equivocation — first noting all the abortions that the Act does not cover, then assuming without deciding that Casey is still good law, then openly inviting people to present an as-applied challenge — as to wonder whether one fo the other justices was holding a gun to his back to get him on the majority at all.

    If Kennedy wanted to, he had the votes to overturn Roe and Casey then and there. It might be argued, correctly, that the lawsuit didn’t specifically challenge Roe and Casey, so such a holding would be over-inclusive, but that’s no explanation for Kennedy’s going out of his way to limit the scope of the decision.

    Sobek (fb8bec)

  55. TAPPED: WHAT IT MEANS TO BE A “PRO-LIFE” REPUBLICAN. The federal GOP’s social and economic model Mississippi, as some of you know, is one of the more than 20 states with latent abortion bans that would come into effect if Roe v. Wade was overturned”…

    In 2004, Gov. Haley Barbour came to office promising not to raise taxes and to cut Medicaid. Face-to-face meetings were required for annual re-enrollment in Medicaid and CHIP, the children’s health insurance program; locations and hours for enrollment changed, and documentation requirements became more stringent.
    As a result, the number of non-elderly people, mainly children, covered by the Medicaid and CHIP programs declined by 54,000 in the 2005 and 2006 fiscal years. According to the Mississippi Health Advocacy Program in Jackson, some eligible pregnant women were deterred by the new procedures from enrolling.

    One former Medicaid official, Maria Morris, who resigned last year as head of an office that informed the public about eligibility, said that under the Barbour administration, her program was severely curtailed.

    “The philosophy was to reduce the rolls and our activities were contrary to that policy,” she said.

    Mississippi’s Medicaid director, Dr. Robert L. Robinson, said in a written response that suggesting any correlation between the decline in Medicaid enrollment and infant mortality was “pure conjecture.”

    Dr. Robinson said that the new procedures eliminated unqualified recipients. With 95 enrollment sites available, he said, no one should have had difficulty signing up.

    As to Ms. Morris’s charge that information efforts had been curbed, Dr. Robinson said that because of the frequent turnover of Medicaid directors — he is the sixth since 2000 — “our unified outreach program was interrupted.” He said it has now resumed.

    The state Health Department has cut back its system of clinics, in part because of budget shortfalls and a shortage of nurses. Some clinics that used to be open several days a week are now open once a week and some offer no prenatal care.

    The department has also suffered management turmoil and reductions in field staff, problems so severe that the state Legislature recently voted to replace the director.

    Oleta Fitzgerald, southern regional director for the Children’s Defense Fund, said: “When you see drops in the welfare rolls, when you see drops in Medicaid and children’s insurance, you see a recipe for disaster. Somebody’s not eating, somebody’s not going to the doctor and unborn children suffer.”

    AF (d700ef)

  56. 45. Lammo:

    Thank you, that was precisely the section of the catechism I was referring to.

    DubiousD (2ea87b)

  57. That being said, Patterico and DRJ are correct in stating that the Vatican past and present has taken very public positions against the death penalty.

    Does this mean… yegads… that the Pope isn’t Catholic enough?

    DubiousD (2ea87b)

  58. “Bet you long for the nostalgic Dark Ages when the Papacy was supreme.”

    As opposed to? The “Progressive Age” which enshrines the murder of babies?

    nk (49aa3f)

  59. Thanks, DRJ. I appreciate it.

    I hope you’re feeling better.

    lc (1401be)

  60. The Catholic doctrine that life begins at conception dates to 1869.
    Just thought I’d toss that in.

    AF (d700ef)

  61. What does Stone make of the fact that the Jewish justices voted in contradiction to what has been settled Jewish law recorded in the Mishnah (that if necessary to save the mother’s life, and therefore by implication not otherwise, the baby may be killed at any point before its head emerged from the birth canal)? That the Catholics are better trained than the Jews?

    kishnevi (a117ab)

  62. The American doctrine that slavery is illegal dates to 1865. Just thought I’d toss that in.

    nk (49aa3f)

  63. i’m not mortified at all to tell you that five catholics on the court is too many catholics. i don’t know if the pope emailed them before they decided or not, when a majority of our highest court believes that a former hitler youth character is infallible, that raises an appearness of fairness question, and this appears to be unfair. one or two catholics – no problem – five – tooooo many!

    oh, and patterico’s comparison of the catholic court to the jewish ben bernanke is dumb – bernanke is just one man and he has to be something, even if it’s atheist, so it isn’t anywhere near as noteworthy as five out of nine catholics.

    assistant devil's advocate (81d111)

  64. There are certainly some eye-opening comments in this thread. It’s ironic that the concern about Catholics seems to come predominantly from liberal commenters … but I can’t believe that’s really the problem. I doubt those same liberal commenters view the history of President John Kennedy’s administration with a jaundiced eye. Instead, Catholicism is simply a convenient way to attack the Justices who made this Supreme Court decision.

    On a related note, this discussion has convinced me Mitt Romney doesn’t have a chance.

    DRJ (50237c)

  65. Comment: “The Catholic doctrine that life begins at conception dates to 1869.
    Just thought I’d toss that in.”

    These types of uninformed comments would just be amusing if they weren’t so misleading. First of all, the teaching refers to the Catholic belief on ENSOULMENT happening at conception, not LIFE, which is a biological question.

    Second, it’s true the actual reference to the moment of conception (regarding ensoulment) in the Catholic teachings about abortion appears very late, though that year sounds a bit too late to me (will have to look it up). But why was that, do you think?

    The answer: the Church’s teaching on abortion and has always matched what science knew at the time of when life begins. For example: Thomas Aquinas taught (and the Church based its teaching at the time on his theology) that abortion was wrong when committed on male unborn children at 40 days’ gestation and female unborn children at 80 days’ gestation. That was because science “knew” at that time that the life of a fetus began at 40 days for boys and 80 days for girls. When it was known for sure that human life begins at conception (whenever that was), the Catholic teaching remained, as the Church has always taught, that abortion is wrong when human life begins; that is, at conception. (Look it up for yourself.) Catholicism has always been consistent in its principles about abortion; science just hasn’t always known as much about unborn life as today.

    no one you know (a04795)

  66. Above should read: “When it was known for sure that human life begins at conception (whatever year that was)… Sorry.

    no one you know (a04795)

  67. ada,

    I hope you were being sarcastic. If you were not, do you think you could find one in a hundred Catholics that understands, let alone believes, the Pope’s ex cathedra infallibility on “matters of faith”? For that matter, do you understand it? Just like law professors like Mr. Stone who have never practiced law, priests who do not entirely live in the world God gave us have to be taken with a grain of salt. And most of us “god-bags” do take them with a grain (or more) of salt.

    nk (49aa3f)

  68. “The Catholic doctrine refers to the moment of “ensoulment” from which time abortion becomes grounds for excommunication.

    “That was because science “knew” at that time that the life of a fetus began at 40 days for boys and 80 days for girls.”
    No that was because the Church “knew.” And the Church changed its mind.
    Pope Innocent III referred to “quickening” when the mother felt the baby move.
    Pope Gregory XIV in his scientific knowedge and infinite wisdom placed the quickening at 116 days.
    Pope Pius IX changed the moment to that of conception.

    AF (d700ef)

  69. nk, that makes you a “cafeteria catholic” picking out the bits of doctrine you support and rejecting the rest. perhaps i’m a cafeteria catholic too; i acknowledge that a man named jesus existed who offered some challenging ideas, i just take the whole divinity thing with a grain of salt. your statement about “priests who do not entirely live in the world god gave us” exhibits confusion: the bible specifically instructs its adherents to be “not of this world” and all catholic priests are sworn to celibacy, poverty and obedience. perhaps you’d be more comfortable as an episcopalian “all the pageantry, half the guilt”, some other protestant denomination, or a pagan like me.

    see, when somebody like a supreme court justice identifies himself as a catholic, we’re entitled to assume belief in the whole ball of wax, not reading in the exceptions before they’re articulated (and the five catholic supremes have never parsed the extent of their catholicism). comparisons to single-person offices are inapposite, whether it’s president kennedy’s catholicism or ben bernanke’s judaism, because a single person has to be something, and we can deem that something coincidental to the person’s election/appointment. the supreme court is a nine-person office, and five out of nine being anything suggests a design. it’s up to those five justices to repudiate the pope if they don’t want the association; i can only repudiate him for myself.

    assistant devil's advocate (0b72be)

  70. I hate to break it to AF, but scientists have not always known about how conception works, nor how and when the life of a zygote, later embryo, later fetus, begins. I’m sorry but your history is simply inaccurate (the Church didn’t just “make up out of the air” when life began for some completely nonsensical purpose; the teachings are based on something: that something was the science known at the time, and I stand by my comments.

    no one you know (e5bd2b)

  71. ada, …i acknowledge that a man named jesus existed who offered some challenging ideas, i just take the whole divinity thing with a grain of salt.

    I must respectfully disagree with your observations on the man Jesus. One of his “challenging ideas” was his assertion that he is God. It’s just not possible to square your two thoughts in any meaningful way. Either Jesus is who he said he was or he was a lunatic or worse and we should relegate his ideas to the tin foil hat crowd. There is no middle ground. Jesus gave us no option of there being any.

    On another point relevant to the broader discussion at hand, Michael Gorman, M.Div., Princeton Theological Seminary, has written an excellent book, Abortion and the Early Church, Christian, Jewish & Pagan Attitudes in the Greco-Roman World in which he details the fact that the Christian church’s current stand on abortion is remarkably consistent with that held throughout the church’s first four hundred years at the very least.

    Harry Arthur (b318a5)

  72. Dose this liberal wacko have a SAVE THE REDWOODS,SAVE THE RAINFORESTS,SAVE THE WHALES,SAVE THE DOLPHINS,SAVE THE SPOTTED OWLS,SAVE THE SALMON,SVAE THE RED LEGGED FROGS,SAVE THE FLOWER LOVING FLIES,SAVE THE PREBBLES MEADOW JUMPMG MOUSE bumper stickers on their cars?

    krazy kagu (e7029d)

  73. […] to good folks like Professor Rick Garnett, Jan Crawford Greenburg, Ed Whelan, Hugh Hewitt, and Patterico. What concerns me is that the MSM has completely ignored this story. And we all know why that is, […]

    THE UNIVERSITY OF CHICAGO LAW SCHOOL SHOULD REVOKE GEOFFREY STONE’S TENURE…..READ WHY | RUTHFULLY YOURS (316491)


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