Gerard Bradley: Defending Marriage Is an Opportunity

Notre Dame Professor on the Trials of Being Catholic and a Lawyer

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SOUTH BEND, Indiana, NOV. 3, 2003 ( Gerard Bradley readily concedes that most Americans generally don’t hunger for the truth about marriage.

But the Notre Dame Law School professor recognizes that these times of overturned sodomy laws and recognition of same-sex unions give Christians a privileged moment in which to relay the true meaning of marriage in and out of court.

Bradley, who is a scholar in the fields of constitutional law as well as law and religion, shared with ZENIT his thoughts about the challenges that confront Catholic lawyers who want to engage in evangelical activity in an increasingly secularized world.

Q: In a secularized age like ours — an era of legal abortion and the overturning of sodomy laws, for instance — what is the biggest problem a Catholic attorney faces in trying to live his faith and still be an effective lawyer?

Bradley: The challenges of lawyering in a secular age are distinctive and great, but they are best understood as complications of two perennial challenges.

First, the Catholic attorney faces the same challenge to integrate his vocational commitments that everyone faces all of the time. Each one of us has a personal vocation, a unique way of cooperating with Jesus in building his Kingdom.

One’s personal vocation is comprised of several major responsibilities: career, family and lay apostolate of some sort. In any age, integrating these commitments can be daunting, and good people will always wonder whether they are doing justice to each responsibility.

Integrating these responsibilities today is especially difficult for the Catholic attorney. The successful practice of law is more demanding than ever, less forgiving of other responsibilities and often scarcely compatible with decent rest and recreation.

This particular complication owes something to secularization; in a Christian culture the professions would not be such jealous masters. But secularization does not necessarily lead to such conflicts, as the more relaxed lifestyles of so many European professionals suggest.

It seems to me that in many areas today the successful practice of law is incompatible with family responsibilities. Young attorneys may face a stark choice between career and marriage, unable to do justice to both. This choice between «success» and family is starker for women than men, just because the responsibilities of mothers are typically more consuming than those of fathers.

The second complication grows right out of secularization. The perennial part of this challenge is the task of all the laity, attorneys included, to engage in evangelical activity in the temporal realm; to bring the Gospel to the world, to be leaven.

But, as the Second Vatican Council fathers told us in «Apostolicam Actuositatem,» the lay apostolate «becomes more imperative in view of the fact that many areas of human life have become increasingly autonomous.»

This «autonomy» of science, culture, the market and the positive law from Gospel values is secularization. We — that is, the Church — have been trying to cope with secularization at least since the Council and nothing has clearly worked.

Q: What specific contributions or changes can Christians realistically introduce to law in the West?

Bradley: If by «realistically» one means wholesome proposals about morally important matters such as marriage that are likely to be enacted, the news is not good.

With regard to almost all such matters the positive law of developed societies is so deeply enmeshed in lies, rationalizations and false ideologies that a «realistic» view is not an encouraging one.

Although fighting against legal recognition of «same-sex marriage,» for example, may seem quixotic, we live in a privileged moment: Never before in our lifetimes has our society been so focused on the true meaning of marriage — why marriage is possible only between a man and a woman, and what is the relation of culture and law to the effective maintenance and support of marriage.

I am not saying that the American people hunger for the truth about marriage. By and large, they do not. But many of them are prepared to give serious consideration to the truth because the question of why marriage is just for a man and a woman perplexes them.

Many Protestant evangelicals, for example, have come to see the truth of «Humanae Vitae» during the debate over same-sex unions. They see it because they see that contraception reduces the sexual acts of spouses to an exchange of affection, intimacy and pleasure which is not necessarily unavailable to two men, or to two women, in a long-term relationship.

Q: Given the U.S. Supreme Court decisions striking down laws on sodomy, as well as fears about judicial activism, could the legal system in general lose legitimacy? Are there remedies?

Bradley: Our Supreme Court is surely guilty of judicial activism, meaning that it has in some important cases usurped the decision-making power that our Constitution assigns to other branches of government — either to Congress or to state authorities.

This usurpation is itself a grave wrong. It is unfair to other public authorities, effectively robs those who made the fundamental law of their rightful authority to set up a system of government, and often requires judges and those who defend their actions to speak untruthfully about what has the court has done in those cases.

This usurpation is, in other words, «illegitimate,» but not in the stronger and wider sense in which you use the word in your question.

I doubt that this kind of institutional aggrandizement could harm the common good so greatly as to jeopardize the whole system’s legitimacy. That could only occur, I think, if the usurped power is used for unjust ends — as often it has been.

I am thinking especially of Roe v. Wade, in which the Supreme Court invented an unprecedented liberty to have an abortion, overturning the laws of all 50 states. Roe v. Wade is indeed a case of judicial usurpation, but it threatens our government’s legitimacy because the substance of the ruling was so grievously unjust.

Q: How can a Christian best prepare for law school? What is the biggest danger facing students in the early years?

Bradley: Besides proper vocational discernment there is rather little that a Christian, or anyone else for that matter, needs to do to prepare for law school.

A Christian nevertheless faces some serious challenges in law school. Except at the handful of institutions which take their religious mission seriously — a group that includes a few of the nominally Catholic law schools — almost all of the faculty and most of the students in America’s law schools are quite hostile to moral traditionalists. They are much less hostile to religion as such, so long as it is private.

The situation at the best law schools is truly alarming; committed Catholics and evangelicals are almost an endangered species on those faculties. Fortunately, Christian students at almost all law schools have effective ways of finding each other and banding together to supplement their deficient classroom education.

Such groups include the Christian Legal Society, the Thomas More Society or even the Federalist Society — not a religious group but a movement of conservative lawyers that has attracted many traditionalist students and faculty as members.

Some Catholic students organize under another name or establish a pro-life group. Students should seek all sympathetic faculty as mentors and friends, challenging those who would hide their light under a bushel to stand up for moral truth, even at the cost of some professional prestige.

Q: How can Catholics maintain their principles once they are practicing law?
What should they do if a client is guilty? Or a client asks them to do something illegal or morally wrong?

Bradley: I never practiced as a criminal defense lawyer — I served as a prosecutor in New York City — but I have taught legal ethics for many years and can answer the question about guilty clients straightforwardly: There is nothing wrong with defending a guilty person.

An accused individual who tells you — his lawyer — that he is guilty may honestly plead «not guilty.» That plea does not mean that your client is truly innocent; it means that your client and you demand that the state prove guilt beyond a reasonable doubt.

Some defendants who are guilty and who have no real defense may be morally obliged to plead guilty; at least, they, like everyone else, have moral responsibilities to the community. Those responsibilities include being fair in one’s use of scarce community resources — including the criminal justice system.

But the law provides that your client makes the call on which plea to enter, and I think that, so far considered, there is no real moral problem defending the guilty.

Guilty defendants can nevertheless present moral difficulties just because they are, in truth — but not yet in law — guilty. Often enough they exercise their right to testify, and would do so — as far as you can see — by testifying falsely. When this happens the question is one of the lawyer’s moral culpability for the client’s lies.

The norms governing your moral duties in this case are those generally governing moral responsibility for the immoral acts of others: the norms about formal and material cooperation, the norm against giving scandal, and the norm requiring one to give clear and faithful witness to the truth.

In no case may one perform an immoral act, and one must also avoid all immoral cooperation with others.

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