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.
"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.
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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