LAW & MORALITY : Divorce, the death penalty & the pope.

I like Justice Antonin Scalia and I love John Paul II, so I hesitate to disagree with both of them in the same essay. Each recently addressed an issue of special concern to me--how Catholic lawyers and judges should reconcile the conflicting demands of the law and their faith.

Speaking to the annual meeting of the Roman Rota (the court of appeal in canon law), the pope said that "professionals in the field of civil law should avoid being personally involved in anything that might imply a cooperation with divorce....Lawyers, as independent professionals, should always decline to use their profession for an end that is contrary to justice, as is divorce." This was interpreted in the popular press to mean that they should stay away from that part of the legal system.

Justice Scalia, speaking at Georgetown University, offered precisely that advice to Catholic judges who share the church's concern about the death penalty: they should resign, if they are unable to uphold the laws they are sworn to enforce. (Scalia himself rejects the church's teaching about the death penalty, so he has no conflict.) I agree with the church's teaching on both subjects. But it doesn't follow that I must resign or withdraw from all cases concerning divorce and the death penalty. It's more complicated than that. As a moral matter I can deal with some of these cases and not others.

Even good legal systems are far from perfect. Lawyers, judges, politicians, and government officials inevitably brush up against bad laws, and when they do, they have to decide how far they are willing to cooperate with the evil parts of the legal system. In this they are not alone. Consider the bus driver whose route takes him past the penitentiary, and who drives the executioner to work. Or the manufacturer of medical supplies whose needles are used for lethal injection. Each of them plays a minor role in the operation of the system of capital punishment. Neither is as culpable as the judge who imposes the sentence or the doctor who administers the injection. In cases like these the morality of our actions varies by degrees. It depends on how intimately we are involved in cooperation with evil. The pope had this point in mind when he said that lawyers should avoid "being personally involved in...cooperation with divorce."

In Catholic moral theology there are fairly sophisticated treatments of this issue--where one person (the cooperator) gives physical or moral assistance to another person (the wrongdoer) who is doing some immoral action. Cooperation ranges from innocent to guilty. At the bad end of the spectrum is what the theologians call formal cooperation. This occurs when the cooperator shares the immoral intention of the wrongdoer. Imagine a tenant who, coveting the apartment of his Jewish neighbor, denounces that person to the Nazis. Formal cooperation is always immoral. On the other hand, there are cases where the cooperator acts with innocent intentions, but his act has the predictable effect of facilitating the wrongdoer's bad ends. In these cases the question of right and wrong is a matter of degree--or more accurately, it is one that we answer by a kind of moral balancing test: How important is the cooperator's help? How certain is the wrong that follows, and how grave? What is the moral value of the end the cooperator intends to bring about? What scandal will the cooperator cause to third parties by contributing, knowingly or negligently, to an evil result?

It is helpful to make such distinctions because judges and lawyers play a variety of roles in the resolution of cases about divorce and capital punishment. Take first the example of death-penalty litigation. In the ordinary trial there are two phases: the trial on the issue of guilt or innocence, and the sentencing proceeding. Imagine a defendant tried before a judge, without a jury. And suppose that the judge convicts the defendant and sentences him to death. This is a decision he could make either way (the trier of fact is never required to impose a death sentence). In ordering capital punishment, the judge intends to cause the prisoner's execution. This is a simple case of formal cooperation. It is, according to the church's teaching, plainly wrong

Suppose, though, that the judge presides over the trial of guilt or innocence and then recuses himself. This is not bad in itself. Indeed it is good for the legal system to acquit the innocent and convict the guilty. Conviction is an essential step on the road to capital punishent. But the judge who takes it need not intend to bring about that result. Here is a legal analogy: The law of equal protection provides that it is wrong to discriminate intentionally against a job applicant on account of her sex. Massachusetts adopted a hiring preference for military veterans because it wanted to reward them for service to their country and give them some help for the time they were out of the job market. It is well known that an overwhelming majority of veterans are men, so this law has the inevitable effect of discriminating against women. It is nevertheless not a violation of equal protection, because Massachusetts adopted the law with good intentions. It passed it in spite of, not because of, its discriminatory effect. If this is a case of cooperation with evil it is a case of material, not formal, cooperation.

The judge who sits at the trial of guilt or innocence is actually in a better position. He does not know, at the end of that phase, whether the defendant will be sentenced to death. And if he refused to take part in the first phase someone else--perhaps someone less scrupulous about the final outcome--would take his place. So recusing himself would do nothing to change the result. Moreover, as a judge sworn to uphold the law, he has an obligation, I think, to do as much of his job as his conscience will allow.

Consider now a third case--the situation in which Justice Scalia most often finds himself. After a defendant has been tried, convicted, and sentenced, and after he exhausts his appeals, he may attempt to attack his conviction by filing a petition for a writ of habeas corpus in the federal district court. In this proceeding he might assert that his conviction was unconstitutional because it rested in part on evidence seized without a warrant, in violation of the Fourth Amendment. Suppose the case eventually makes it way to the Supreme Court. Under the Court's internal rules, it will hear the case if four justices vote to do so. Imagine that you are Justice Scalia, voting whether to hear the case or not. The petition is the defendant's last hope. If you deny it, the sentence of execution will be carried out.

This is certainly not a case of formal cooperation. The question before you is whether the police acted improperly in seizing the defendant's gun (let us say). You may fairly conclude that they did not. It is lamentable that the Constitution does not also authorize you to do something about the fact that the impending punishment is morally unjust. But you do not act wrongly in refusing to correct this (and every other) injustice. Some are not within your jurisdiction.

Justice Scalia is mistaken, then, in saying that a judge who has conscientious scruples about enforcing the death penalty should resign from office. In many, perhaps most, cases his scruples will not prevent him from doing his job.

Let us consider now the case of divorce raised by the pope. This too is a proceeding in which lawyers play many different roles. The church teaches that divorce is a grave offense against the natural law because it introduces disorder into the family and society. For Catholics it is also a breach of a sacramental covenant. This means that a lawyer who helps to cause a divorce cooperates in an evil act. If it is her intention to make this happen, she is guilty of formal cooperation. But this would not be true where the lawyer's Catholic client had already procured an annulment--in that case there is no valid marriage for the divorce to terminate. It would also not be true where a lawyer assisted her client in resisting her spouse's efforts to terminate the marriage.

There may even be cases where a Catholic lawyer can act rightly in moving to bring about a divorce. Canon law sometimes allows spouses to separate, in cases of abuse or adultery. In these cases, though the church's marital bond endures, it may be wise to treat the civil contract differently. Divorce may be the only way, under civil law, to resolve issues like custody of the children, division of assets, alimony, and so on. It would be imprudent for a lawyer to abandon the representation of her client in the resolution of these questions. The Catechism of the Catholic Church #2383 actually addresses this point: "If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense."

The pope appreciated this refinement, though most of the media accounts of his remarks did not. He did not say that lawyers should have nothing to do with divorce. He said instead that "they can only cooperate in this kind of activity when, in the intention of the client, it is not directed to the breakup of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process in the established legal order."

We should all be alert to the demands our faith makes on us. Sometimes it requires real sacrifice. But we should not be too hasty to assume that our legal system is corrupt, and that the best way to defend our virtue is to steer clear of it. The moral life is more complicated than that.

John Garvey is the dean of Boston College Law School.