LAW & MORALITY : Divorce, the death penalty & the pope - in the Spirit

I like Justice Antonin Scalia and I love John Paul II, so I hesitate to disagree with both of them in the same essay. Each recently addressed an issue of special concern to me--how Catholic lawyers and judges should reconcile the conflicting demands of the law and their faith.

Speaking to the annual meeting of the Roman Rota (the court of appeal in canon law), the pope said that "professionals in the field of civil law should avoid being personally involved in anything that might imply a cooperation with divorce....Lawyers, as independent professionals, should always decline to use their profession for an end that is contrary to justice, as is divorce." This was interpreted in the popular press to mean that they should stay away from that part of the legal system.

Justice Scalia, speaking at Georgetown University, offered precisely that advice to Catholic judges who share the church's concern about the death penalty: they should resign, if they are unable to uphold the laws they are sworn to enforce. (Scalia himself rejects the church's teaching about the death penalty, so he has no conflict.) I agree with the church's teaching on both subjects. But it doesn't follow that I must resign or withdraw from all cases concerning divorce and the death penalty. It's more complicated than that. As a moral matter I can deal with some of these cases and not others.

Even good legal systems are far from perfect. Lawyers, judges, politicians, and government officials inevitably brush up against bad laws, and when they do, they have to decide how far they are willing to cooperate with the evil parts of the legal system. In this they are not alone. Consider the bus driver whose route takes him past the penitentiary, and who drives the executioner to work. Or the manufacturer of medical supplies whose needles are used for lethal injection. Each of them plays a minor role in the operation of the system of capital punishment. Neither is as culpable as the judge who imposes the sentence or the doctor who administers the injection. In cases like these the morality of our actions varies by degrees. It depends on how intimately we are involved in cooperation with evil. The pope had this point in mind when he said that lawyers should avoid "being personally involved in...cooperation with divorce."

In Catholic moral theology there are fairly sophisticated treatments of this issue--where one person (the cooperator) gives physical or moral assistance to another person (the wrongdoer) who is doing some immoral action. Cooperation ranges from innocent to guilty. At the bad end of the spectrum is what the theologians call formal cooperation. This occurs when the cooperator shares the immoral intention of the wrongdoer. Imagine a tenant who, coveting the apartment of his Jewish neighbor, denounces that person to the Nazis. Formal cooperation is always immoral. On the other hand, there are cases where the cooperator acts with innocent intentions, but his act has the predictable effect of facilitating the wrongdoer's bad ends. In these cases the question of right and wrong is a matter of degree--or more accurately, it is one that we answer by a kind of moral balancing test: How important is the cooperator's help? How certain is the wrong that follows, and how grave? What is the moral value of the end the cooperator intends to bring about? What scandal will the cooperator cause to third parties by contributing, knowingly or negligently, to an evil result?

It is helpful to make such distinctions because judges and lawyers play a variety of roles in the resolution of cases about divorce and capital punishment. Take first the example of death-penalty litigation. In the ordinary trial there are two phases: the trial on the issue of guilt or innocence, and the sentencing proceeding. Imagine a defendant tried before a judge, without a jury. And suppose that the judge convicts the defendant and sentences him to death. This is a decision he could make either way (the trier of fact is never required to impose a death sentence). In ordering capital punishment, the judge intends to cause the prisoner's execution. This is a simple case of formal cooperation. It is, according to the church's teaching, plainly wrong

Suppose, though, that the judge presides over the trial of guilt or innocence and then recuses himself. This is not bad in itself. Indeed it is good for the legal system to acquit the innocent and convict the guilty. Conviction is an essential step on the road to capital punishent. But the judge who takes it need not intend to bring about that result. Here is a legal analogy: The law of equal protection provides that it is wrong to discriminate intentionally against a job applicant on account of her sex. Massachusetts adopted a hiring preference for military veterans because it wanted to reward them for service to their country and give them some help for the time they were out of the job market. It is well known that an overwhelming majority of veterans are men, so this law has the inevitable effect of discriminating against women. It is nevertheless not a violation of equal protection, because Massachusetts adopted the law with good intentions. It passed it in spite of, not because of, its discriminatory effect. If this is a case of cooperation with evil it is a case of material, not formal, cooperation.