Being the day after the Fourth of July, it would seem to be a good thing to think about the relationship between religion and politics. This is, needless to say, an enormously complicated (and delicate) topic, so I would like to look closely at a concrete case. At a 2004 conference on Christianity and human rights, Kathryn Lee presented a paper on the relationship of Catholicism and the judicial practice of John T. Noonan, a well-known intellectual who is Senior Judge of the Ninth Circuit Court of Appeals. (I’ll be indebted to Dr Lee throughout this post.)
Judge Noonan has himself invited such reflection, since his 1976 work Persons and Masks of the Law suggested, in Dr Lee’s words, “A judge is no mere agent of law, but a person who shapes the law.” Here Noonan approvingly quoted Judge Benjamin Cardozo, a renowned member of the New York Court of Appeals, about judges, “All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook of life … which, when reasons are nicely balanced, must determine where choice shall fall.” Noonan counsels that judges must consequently develop self-awareness and a sense of responsibility for their actions.
What, then, has shaped Judge Noonan? Dr Lee directs our attention to the contentious issue of immigration and suggests that Noonan’s judicial practice has been decisively shaped by the biblical narrative. Thus, he is able to listen to identify with “the other.” A central theme in the biblical narrative concerns exile and wandering, beginning with God’s command to Abraham, “Go from your country and your kindred and your father’s house to the land that I will show you” (Gen 12:1). The Israelites suffer as an alien people in Egypt and then wander in the desert for forty years. This experience means that they are called to care and protection of the alien. “When an alien resides with you in your land, you shall not oppress the alien. The alien who resides with you shall be to you as the citizen among you; you shall love the alien as yourself, for you were aliens in the land of Egypt: I am the Lord your God” (Lev 19:33-34).
This theme is hardly marginalized in the New Testament. The Christian sees the Good Samaritan in the migrant. As John Paul II said, “For her part, the Church, like the Good Samaritan, feels it her duty to be close to the illegal immigrant and refugee, contemporary icon of the despoiled traveler, beaten and abandoned on side of the road to Jericho (cf. Lk 10:30).” Furthermore, the Christian sees Christ himself in the migrant. “And when was it that we saw you a stranger and welcomed you …? (Mt 25:44). For, as Pius XII wrote in 1952, in the aftermath of the Second World War:
The émigré Holy Family of Nazareth, fleeing into Egypt, is the archetype of every of every refugee family. Jesus, Mary and Joseph, living in exile in Egypt to escape the fury of an evil king, are, for all times and places, the models and protectors of every migrant, alien and refugee of whatever kind, who, whether compelled by fear of persecution or want, is forced to leave his native land, his beloved parents and relatives, his close friends and to seek a foreign soil (Exsul Familia).
Drawing from this theme, although the Church has recognized the need of countries to secure their borders, John Paul has implicitly challenged our existing immigration law – “In cases where the competent government authorities decide not to accept asylum seekers, arguing that they are not true refugees, these authorities are duty-bound to make sure that such people will be guaranteed a secure and free existence elsewhere.” Dr Lee says that Judge Noonan, also drawing from this theme, has been able to “imaginatively enter into the experience of the other,” even if the other happens to be an illegal immigrant.
Noonan told a law school audience that “Kindness must animate all true service to the law.” In the specific case of a Cuban illegal alien who had been permitted by Castro to escape to the US because of a criminal background, then committed crimes in the US and served jail time, only to subsequently spend eight years without trial in detention awaiting deportation to a Cuba that did not want him, Noonan affirmed a decision to free the man on a writ of habeas corpus. He asserted that the case illustrated how the bureaucratic mind “concentrates on getting the job done efficiently, quietly, without discomfort and without imagination and without the empathy that kindness requires.” In this case it was, alas easy: the Cuban in question was “among the miserable of the earth, the kind of people that only the kindness of Mother Teresa could embrace.”
A 1987 case involved a Salvadoran woman who had been abused, beaten, and threatened by a sergeant in the Salvadoran army. An immigration judge had denied her political asylum in the US because her persecution was personal, not based on any political opinion. Judge Noonan suggested that political opinion must mean “the political opinion of the victim as seen by the persecutor.” Her tormentor had the political opinion that “a man has a right to dominate” a woman and attributed to her the diametrically opposite political belief. In writing this, Noonan described the woman’s – Olympia’s – horrific experience in detail and used her own name. The dissent claimed that Noonan had “outdone Lewis Carroll” in suggesting that “male domination in a personal relationship” could amount to political persecution.
In one of his own dissents, Judge Noonan supported the asylum claim of an Iranian woman who said that, if she were deported, she would be persecuted on the basis of political opinions. She detailed three incidents as evidence, including an arrest for attending a social gathering where the male host had worn a swimsuit and a subsequent detention for having her hair outside of a chador. Noonan again took care to refer to the petitioner by her name. He suggested that she did run the risk of being persecuted for her political beliefs because “the regime perceived her as a religious nonconformist.” He then asked a rhetorical question, “If we had the beliefs and the experience and the gender of Saideh Hassib-Tehrani, would we reasonably fear that we had a one-in-ten chance of suffering seriously on account of our beliefs if we returned to Iran?”
In a 1995 case, in which the Ninth Circuit denied a Lithuanian man asylum and refused to postpone his deportation, Noonan, in a dissent, showed once more the capacity to contextualize and enter into the experience of an alien. Kazlauska, the man in question, had suffered from alcoholism and had burglary convictions, but “we have long recognized that chronic addiction to alcohol in an illness not a crime.” And Kazlauska had even subsequently volunteered for a significant amount of time at a recovery house. His deportation, Noonan considered, would cause hardship for his mother “who is now lawfully admitted to the United States and who depends heavily upon him for financial support, companionship and family affections.”
Dr Lee writes that in Judge Noonan’s judicial practice, “Biblical narrative has spoken to the alien’s narrative, and, has allowed for the imaginative entry into that narrative.” The law professor Milner S. Ball, echoing Noonan, has written that objective law can serve to mask the humanity of real individuals standing before judges who increasingly see themselves only as the “channels of impersonal standards of society.” When can life come into law? Ball does not seem religious at all, but he interestingly describes those moments when, in the midst of legal deliberations, the other can be heard as “the Word” breaking in. This tends to occur in such distinctive legal practices as serving in the capacity of a poverty lawyer or, perhaps, tribal attorney. “The Word,” Dr Lee concludes, truly has broken into Judge Noonan’s judicial practice as his Catholicism has let him see the marginalized other and enter into her experience. Perhaps that gives us something to think about on the 5th of July.
I might note here that I am not a lawyer. That, of course, might already be evident. Let me know what you think …