Scholars discuss faith and the law

Of the nine justices that preside over the Supreme Court, five of them are Catholic. Along with judges throughout the country, they face the delicate task of balancing their religious beliefs with legal policy. When it comes time to make morally challenging decisions on subjects such as abortion, euthanasia, and capital punishment - issues that typically come in conflict with the Catholic faith - they are obligated to privilege the public good over their personal beliefs.

In recognition of this dilemma, Boston College Law School and the Church in the 21st Century Center sponsored a panel titled "Catholic Faith and Cooperation in a Pluralistic Society: Navigating Conflicts Between Conscience and the Law." Panelists included Edward Hartnett, professor of law at Seton Hall Law School; M. Cathleen Kaveny, professor of law and theology at the Notre Dame Law School; James Keenan, S.J, professor of theology at Boston College; and the Rev. Russell Smith, the senior director of ethics for the Catholic Health Association.

Keenan began the discussion by defining the principle of "cooperation in wrongdoing." This principle suggests that a person who is complicit in the act of a wrongdoer can be a "formal" or "material" participant.

Keenan defined formal cooperation as an instance in which the cooperator is conscious of the wrongdoer's malicious activity and approves of it. To illustrate this concept, he spoke of a Catholic hospital's practice of therapeutic sterilization. The hospital, not wanting to openly condone the practice, created a wing outside of the "Catholic" realm of the facility so the procedure could still be performed. "This allowed the hospital to be competitive in the market," said Keenan, "and it was still cooperating formally in evil."

Material cooperation, Kennan said, is a morally sound cooperation with evil. In order for cooperation to be classified as material, a person must not intend to participate or assist in a morally wrong act.

Smith then applied these concepts to the challenge of keeping the faith in a Catholic hospital. If a practice is considered morally wrong, he said, it cannot be performed on a Catholic hospital's campus.

If Catholic hospitals wish to remain viable in the competitive world of health care, they can't shut out these procedures completely, Smith said. To remain competitive, then, Catholic hospitals must form alliances with non-Catholic partners. For these partnerships to mesh with Catholicism, "morally illicit procedures cannot be provided on Catholic campuses" Smith said. "They're provided on the other campus and are carved out through separate billing mechanisms, administration, and governance."

Smith also stressed the need to adhere to what each hospital deems appropriate. Even though the alliance is not necessarily Catholic, he said the associates must "respect the corporate conscience of the Catholic partner."

Hartnett then brought Catholic morality into the realm of judicial decision-making.

"There are a host of areas where Catholic teachings are at odds with American law," Hartnett said, citing divorce and the use of contraceptives as an example. On the other hand, he said, "Catholic tradition has never insisted that all things that are wrong be made illegal." Catholic judges should recognize that a conflict does indeed exist and that they should not see public law as the ultimate measure of morality.

Hartnett also addressed the fear of scandal in situations of material cooperation. Though the perpetrator is committing a morally permissible act by his standards, he faces the risk of leading someone else to think that the wrongful act is acceptable.

Tying Keenan's dissection of cooperation in wrongdoing into his speech, Hartnett said, "the doctrine of cooperation is not a doctrine designed to keep one's hands clean. The daily grist of a judge's decisions involves material cooperation. There will be ways in which what they do will help people do wrong."

Hartnett illustrated his point by addressing the issues of capital punishment and abortion, both of which are potential grounds for formal cooperation by Catholic judges.

"In the case of abortion bypass, it's very hard for me to see how any judge can decide that abortion is in the minor's best interest without deciding that an abortion is what should occur. In that limited context, formal cooperation is involved and the judge shouldn't be participating in those" Hartnett said.

When situations like this arise, what is a judge to do? Hartnett suggested that a judge in such a situation refuse to decide the case.

"When a judge can only decide a case in one way, his impartiality is in question and therefore refusal is appropriate," Hartnett said.

In an attempt to apply the abstract concepts described by Keenan to life, Kaveny compared cooperation in wrongdoing to a "moral turbo-tax problem."

"How can you get to any moral judgment when all these subsets are applied to the complexity of real life?" Kaveny asked. "This isn't a tax code. The principle of cooperation and all its moving parts are tools for moral discernment, they can't replace moral wisdom."

Kaveny elaborated on the principles introduced by Keenan, saying that giving a gun to a man who wants to commit murder is still cooperation in a wrongful act. Material cooperation, however, is permissible because it involves "cooperating with someone who thinks they're doing the right thing," Kaveny said. "Sin requires a sense you're doing wrong, not an invincible ignorance of the wrongfulness of your act."