Ron Lindsay, CEO of the Center for Inquiry and also an attorney, has a blog post at the CFI website asking “Should Catholic Judges Recuse Themselves from the Contraceptive Mandate Cases?” The answer is no. And frankly, he doesn’t make much of an attempt to argue for a negative answer. He seems mostly concerned with whether the RCC will consider them “good Catholics” if they don’t vote a certain way in such cases.
I believe Catholics can be good citizens. I also think Catholic judges and justices can fulfill their obligation to respect and enforce the Constitution and laws of the United States. However, I’m not sure the Catholic Church considers a judge’s oath of office to take precedence over the judge’s obligation to avoid being complicit in evil. This is troubling—because the Church has a very broad understanding of what it means to be complicit in evil…
In the past, Catholics in the U.S. have suffered from prejudice and bigotry. One of the traditional knocks against Catholics had been they did not and could not support the separation of church and state. John Kennedy, along with many other progressive Catholic politicians, did much to lay those fears to rest. They showed that support for a secular state is not incompatible with being a good Catholic.
Unfortunately, the Catholic Church may now be resurrecting concerns about the compatibility between being a Catholic and being a good citizen, or at least between being a good Catholic and an impartial judge. In arguing for an extremely expansive understanding of a Catholic’s moral obligation, the Church is effectively undermining confidence in Catholic judges.
There are six Catholic justices on the Supreme Court. Can they possibly vote to uphold the contraceptive mandate? If they share their Church’s understanding of what it means to facilitate evil, I don’t see how they can.
But there is nothing unique about the contraception cases that make them of any more concern than any other case where the law conflicts with Catholic doctrine. The Catholic Church has an official position in opposition to the death penalty, but 5 of the 6 Catholic justices on the Supreme Court are pro-death penalty. The church has an official position against abortion, but that has not prevented Catholic judges from upholding reproductive rights. There is no reason to think that Catholic judges will be any more or less capable of voting on the legal merits of the contraception mandate cases than they have long been in any other case that intersects with church doctrine.