As SCOTUSBlog noted yesterday, Gonzales v. Oregon was the first time
Chief Justice John Roberts has dissented to a Court decision. The Chief
joined the dissenting opinion of Justice Scalia, and did not write separately.
The case upheld an Oregon law that permits doctors to prescribe medica-
tions in certain assisted suicide situations. [See NYT, “Fraught Issue, but
Narrow Ruling in Oregon Suicide Case,” Jan. 18, 2006]
We can’t know what was on Justice Roberts’ mind, other than the issues
discussed by Justice Scalia. Nonetheless, it’s impossible not to wonder
whether the following 2004 statement by then-Cardinal Joseph Ratzinger,
who is now Pope Benedict XVI, played an important role:
The Church teaches that abortion or euthanasia is a grave sin.
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.”We have opined at this website that John Roberts appears to be a “serious
Catholic” who would feel a moral obligation to act on the above statement,
which is directed at Catholics in public life. [see our prior post here]
The Chief Justice joined the dissent of Justice Scalia (with concludes that the
term “legitimate medical purpose . . . surely excludes the prescription of drugs
to produce death”), rather than Justice Thomas’ dissent (with its focus on the
inconsistency with the Raich v. Gonzales precedent, which struck down
California’s medical marijuana laws). That at least suggests that John Roberts
had moral issues on his mind more than statutory construction and stare
decisis. (Those same priorities might also be on Steve Bainbridge’s mind,
as well as the gang at Mirror of Justice.)
update (Jan. 19, 2006): Robert Tsai offers his take on the Roberts’
DIssentat Concurring Opinions (Jan. 18, 2006), including that
“He, like Scalia, is willing to read Congress’ enumerated
powers broadly (and the core of state’s rights narrowly in
advance of national interests)–even when the strongest
interest appears to be in cultivating moral standards. This
is bad news forproponents of interstitial federalism.” [“Hail
to the (New) Chief: Death With Dignity — Part III”]
Reid Report suggests we “Recall that during his hearings, Roberts
demurred on the ‘right to die’ issue.” Also, TalkLeft gathers editorial
responses from the press (“Pro-Life Groups to Urge ‘John Ashcroft,
MD Law’,” Jan. 18, 2006). And, Prof. Bainbridge frets that “Scalia
Scuttles Federalism” — and it “no longer seems possible, however,
to believe that he is developing a coherent conservative jurisprudence.”
That suggests that (a) Steve may not be particularly in sync with
Scalia’s “public morality” position, and (b) Steve has the untenable
notion that there can be a monolithic “conservative jurisprudence”
and that it will hold all the anwers to every judicial decision.
processional
cold wind lifts one corner
of the pall
cathedral garden
cardinals in the birdbath
scatter drops of light
into the night
we talk of human cloning
snowflakes
witnessing his will
the frost-hatched
pane
Peggy Lyles from To Hear the Rain (Brooks Books, 2002)
Full moon by her bedmy daughter asks
the meaning of death
The stone church quiet
after the funeral bell —
deepening snowfall
autumn evening–
yellow leaves cover
the plot reserved for m
Rebecca Lilly – Shadwell Hills (Birch Brook Press, 2002)“Autumn evening” — A New Resonance 2; Modern Haiku XXX:2
January 18, 2006
Roberts: a “Serious Catholic” dissent against euthanasia?
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I think you mischaracterize the Catholic understanding of the moral obligations of public officials. Judges, as I understand it, are charged with saying what the law is. That does not make them moral agents in the same way a legislator would be. See, for example, the “Summa Theologica”, Part II-II, Q. 64, Art. VI, ad 3, in which St. Thomas says that a judge incurs no personal guilt even if he sentences an innocent man to death if his “guilt” has been proven according to the law (which the judge, by definition, is bound to apply). In his statement of 2004, it appears that then-Cardinal Ratzinger was simply saying that Catholics have an obligation to oppose dubious judicial pronouncements which falsely declare a “right to die” to be a civil or human right. But if that is what the actual law really required, when properly understood, a Catholic judge making such a pronouncement would incur no guilt. Catholics would then be obliged to work for a (legislative) change in such law.
Comment by hyphen — January 20, 2006 @ 3:07 am
I think you mischaracterize the Catholic understanding of the moral obligations of public officials. Judges, as I understand it, are charged with saying what the law is. That does not make them moral agents in the same way a legislator would be. See, for example, the “Summa Theologica”, Part II-II, Q. 64, Art. VI, ad 3, in which St. Thomas says that a judge incurs no personal guilt even if he sentences an innocent man to death if his “guilt” has been proven according to the law (which the judge, by definition, is bound to apply). In his statement of 2004, it appears that then-Cardinal Ratzinger was simply saying that Catholics have an obligation to oppose dubious judicial pronouncements which falsely declare a “right to die” to be a civil or human right. But if that is what the actual law really required, when properly understood, a Catholic judge making such a pronouncement would incur no guilt. Catholics would then be obliged to work for a (legislative) change in such law.
Comment by hyphen — January 20, 2006 @ 3:07 am
Thankyou for taking the time to offer your perspective, Hyphen. My quick response: (1) if what the law is were always clear, there would not be such a fuss over who gets on the bench; (2) the Church pronouncements that I have cited in my prior post make it clear that the mere fact that something “is the law” is not an excuse for going along with it — that explicitly includes judicial opinions. (3) many who see themselves as “Serious Catholics” may feel the personal mission/obligation to go beyond avoiding grave sin in fulfilling their roles as public officials, and may thus be moved by their own consciences to always choose Life.
Comment by David Giacalone — January 20, 2006 @ 11:37 am
Thankyou for taking the time to offer your perspective, Hyphen. My quick response: (1) if what the law is were always clear, there would not be such a fuss over who gets on the bench; (2) the Church pronouncements that I have cited in my prior post make it clear that the mere fact that something “is the law” is not an excuse for going along with it — that explicitly includes judicial opinions. (3) many who see themselves as “Serious Catholics” may feel the personal mission/obligation to go beyond avoiding grave sin in fulfilling their roles as public officials, and may thus be moved by their own consciences to always choose Life.
Comment by David Giacalone — January 20, 2006 @ 11:37 am
Banning “Blawg”? Heck, they’ll be coming for “agita” next…
Comment by matt — January 20, 2006 @ 2:24 pm
Banning “Blawg”? Heck, they’ll be coming for “agita” next…
Comment by matt — January 20, 2006 @ 2:24 pm