Mier's religious views
mae.kuykendall at law.msu.edu
Wed Oct 5 13:14:09 PDT 2005
A judicial bypass permits a minor to take a step regarded by many parents as morally problematic without consulting their views or respecting their authority. I should think, therefore, that a judge
could, on religious grounds, refuse to participate in a process intended to deflect parental authority over children.
In fact, I experienced a sense of moral (not religious) unease when asked to serve in the mid 80s in providing pro bono assistance to minors seeking a judicial bypass, and I declined. Of course, I merely declined to volunteer. Presumably, I would do my duty if I were a judge, although I see no harm in allowing some judges to step aside if a sufficient number remain available to provide a service mandated by law.
On a somewhat unrelated point, I can imagine preferring a system in which minors have unobstructed access to reproductive services without the extra step of having the judicial system, one by one, confirm the breach in the parental relationship. There is some irreducible quality of the judge's affirmatively blessing the plan. Perhaps I prefer the liberal solution of avoiding state involvement with the private decision entirely. There are emerging hints that this is where the future lies in any event, since the ability to perform abortions unassisted and without undue risk may become part of the common knowledge of those who are able to become pregnant, and peer assistance will moot issues of judicial conscience.
>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 10/5/2005 3:40:43 PM >>>
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.
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.
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana 47405
fax (812) 855-0555
e-mail conkle at indiana.edu
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.
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