Which Law?

Should a Roman Catholic judge uphold a law of his land which his church considers unjust? This delicate question was posed by the Pope himself last week before the central committee of the Union of Catholic Italian Lawyers in Rome. The Pope's answer: when a state law conflicts with the church's teaching, a Catholic jurist need not enforce it.

The Pope was obviously speaking past his listeners to the Catholic judges of the Iron Curtain countries, hoping to strengthen their resistance to anti-church laws. But the Pope was heard by the rest of the world, and his words landed full force in the U.S.

Responsibility. Said the Pope: "In particular, the Catholic judge cannot pronounce, unless for motives of great import, a decision of civil divorce (where it does exist) in a marriage valid before God and the Church.* He cannot forget that such a decision practically touches not only on civil effects, but rather in reality leads to the erroneous consideration that the ties are broken and new ties are valid and binding . . ." In this respect, he added, "your duty is noticeably lighter in Italy, where divorce (the cause of so many interior conflicts for the judge who must enforce the law) does not exist."

The Pope listed four principles for a Catholic judge to follow: 1) He "cannot shirk responsibility for his decisions and place the blame on the law and its authors. When he delivers a sentence in accordance with the law, the judge becomes an accessory to the fact and therefore is equally responsible for its results." 2) The judge "can never pass a sentence which would oblige those affected by it to perform an intrinsically immoral act . . ."3) "Under no circumstances can a judge acknowledge and approve an unjust law . . . Therefore he cannot pass a sentence that would be tantamount to approval of it." 4) "However . . . the judge may--sometimes even must--allow the unjust law to run its course, if this is the only way to avoid a greater evil."

Reaction. In the U.S. the repercussions came fast. The National Catholic Welfare Conference in Washington, D.C. explained that the Pope's speech was not "a newly arrived at position . . . The common view of theologians holds that the act of the judge in pronouncing a divorce is merely an official declaration that the state regards the civil effects of the marriage as no longer existing. Since this declaration is in itself a morally indifferent action, it can be permitted, at least in certain circumstances."

But Executive Secretary Glenn L. Archer of Protestants & Other Americans United for the Separation of Church & State was not reassured. Archer flatly called for the resignation of all Roman Catholic judges who cannot affirm that they will put their oath of office before the guidance of the

Pope. And in heavily Roman Catholic Las Vegas, N.M., District Judge Luis Armijo put himself on record as having no intention of being bound by the ruling of the Pontiff. "I may be a Catholic," he announced, "but I'm a citizen of the United States first."

*Such unions, by Roman Catholic law, include those marriages of non-Catholics which the church recognizes as valid.

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