Mier's religious views

[Sanford Levinson]

I believe (though I am not certain) that the circumstances fit (a).  The
only case I am familiar with fitting (b) is a Florida case dealing with
a mentally-retarded youngster (as I recall).  I do not believe that any
of the Tennessee cases are at all similar.
 
sandy

________________________________

From: Conkle, Daniel O. [mailto:conkle at indiana.edu] 
Sent: Wednesday, October 05, 2005 2:38 PM
To: Sanford Levinson; Edward A Hartnett; CONLAWPROF at lists.ucla.edu
Subject: RE: Mier's religious views


In the setting of a judicial bypass, it might matter whether the judge
authorizes the abortion for a minor (a) on the ground that the girl or
young woman is mature enough to make the decision for herself or (b) on
the ground that, despite her immaturity and inability to decide for
herself, the abortion is nonetheless in her best interest.  Alternative
(a) might absolve the judge of direct responsibility in a way that
alternative (b) might not.
 
Dan Conkle 
************************************** 
Daniel O. Conkle 
Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail conkle at indiana.edu 
************************************** 

	-----Original Message-----
	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
	Sent: Wednesday, October 05, 2005 2:20 PM
	To: Edward A Hartnett; CONLAWPROF at lists.ucla.edu
	Subject: RE: Mier's religious views
	
	
	Ed Hartnett writes:
	 
	 I think -- again, I am still trying to learn more about it --
that this distinction would similarly permit a Catholic judge to
conclude that the law permits a woman to have an abortion, but not
permit a Catholic judge to order an abortion.  I don't know to what
extent other moral theologies draw a similar distinction.  Are the
Tennessee judges "refusing to hear abortion cases," or are they recusing
themselves from deciding cases asking them to order that  a particular
abortion take place?  
	 
	I don't think that any judges, save for perhaps exotic
situations, have been put in a position to "order that a particular
abortion take place."  The Tennessee situation concerns the
administration of judicial bypasses by minor women (or "girls"), where
the court would authorize an abortion (rather than order it) as an
alternative to securing parental consent.  One problem is that Tennessee
has elected judges, so one of the inevitable factors is that judges who
participate in the process become identified as "pro-abortion" or, in
the alternative, morally insensitive louts.  
	
	The point is simply that religious commitments might well play
out very differently in different "abortion cases" (or "death penalty
cases"), may produce relatively few recusals and therefore -- unless
those recusals are such a significant part of the caseload that the
judge is not carrying her weight on the court -- scant reason to call
for resignation rather than recusal.   
	
	 I agree that it is problematic if Scalia should feel forced to
resign if the only cases he would have to recsue himself from would be
death penalty cases.   The important thing, from my perspective, is that
Scalia has forthrightly addressed the possibility of a tension between
his religious and secular commitments and indicated that his religious
commitments would have to take priority (which, I think, is proper for
anyone who seriously believes in a divine sovereign and who does not
become an idolator vis-a-vis the state).  Shameless self-promotion:  I
discuss Scalia's article in Wrestling With Diversity, pp. 251-255.
	 
	sandy

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