Mier's religious views

Edward A Hartnett hartneed at shu.edu
Wed Oct 5 13:47:21 PDT 2005

Thanks to Dan Conkle for drawing this distinction.  (I was in the midst of 
drafting a response to Sandy along those lines, but was too long-winded to 
finish before Dan's pithy post came through.)

The Supreme Court requires the state to make both (a) and (b) available. 
While it may well be that most judges decide most cases at step (a) by 
finding the petitioner sufficiently mature, I would be quite surprised if 
a typical petition did not make allegations to support both (a) and (b). 
Why would anyone present the case in a way that simply asked the judge to 
determine maturity, so that if the judge found immaturity bypass would be 
denied without reaching the question of best interest? 

The forms used in Arizona, for example, plainly expect litigants to allege 
both maturity and best interests, and expect judges to decide best 
interests if they find a lack of maturity.  See 
http://www.supreme.state.az.us/selfserv/abortion_forms.htm  I haven't 
located similar forms in Tennessee, but is there any reason to think that 
lawyers affiliated with Planned Parenthood in Tennessee wouldn't similarly 
present allegation to support both (a) and (b)?

How would a judge know upon the receipt of such a pleading that the case 
would be decided at step (a) rather than at step (b)?  Doesn't it make 
more sense for a judge who cannot, for moral reasons, grant relief at step 
(b) to decline to hear the case at all, rather than to hear step (a) and 
then, if he or she finds the applicant immature at step (a), recuse at 
that point, necessitating presentation of the case to a second judge?

Thanks to Sandy for the reference to his discussion of Scalia.  I agree 
that a religious commitment can ultimately trump a secular one -- which is 
why I think it is important to be as precise as possible about exactly 
what the competing obligations are.

Ed Hartnett
Seton Hall 


"Sanford Levinson" <SLevinson at law.utexas.edu> 
10/05/2005 03:40 PM

"Conkle, Daniel O." <conkle at indiana.edu>, "Edward A Hartnett" 
<hartneed at shu.edu>, <CONLAWPROF at lists.ucla.edu>

RE: Mier's religious views

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.
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.
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