An Interview with Judge Noonan

Noonan was appointed by President Reagan in 1985 to the United States Court of Appeals for the Ninth Circuit, a position he still holds. His career has been prolific in both legal and theological analysis, treating themes from contraception and abortion to the history of religious liberty in U.S. law.

Sign of Peace: What are some memories you have of this case?

Noonan: Negre’s lawyer, Richard Harrington, knew that I was a Catholic and asked me to writew the brief. I went with him to Washington for the oral arguments. Arguing for the government was Erwin Griswold, my old Dean in law school—actually, I had done some for work for him as a student. So, I saw him in the corridor during a break, and in his brusque manner he said, ‘I wish I could cross examine you!’ Now, he was a good man, a very decent Protestant. And I think he really didn’t believe the Catholic claim. He was so skeptical of my brief, I think he didn’t feel that Catholics really attached that kind importance to conscience.

SoP: At that time, people felt Catholics cannot be conscientious objectors…

Noonan: Right. In the majority opinion of the Negre case, Thurgood Marshall gives very little weight to the Catholic conscience. The Court in some ways has really stretched the law for secular bases of conscientious objection.

SoP: But not for Catholics…

Noonan: My analysis of this case always has been that they didn’t want a very large group of people out, that giving Catholics an out could be used by too many people. It was a very pragmatic, even insensitive approach to the Catholic conscience.

SoP: Is exercising selective conscientious objection part of…

Noonan: It’s part of what religious liberty means. Yes, I would say that. But I don’t think the issue is closed forever. As a historian of religious liberty, I think it is something that could be brought up again to the Supreme Court.

SoP: Some say this case shows again that Catholics cannot be at home in America. Do you agree?

Noonan: No. In my book, Luster of Our Country, I quote James Madison that the obligations of conscience trump everything else. That’s certainly Madison’s view, and he after all wrote the First Amendment. And it’s unfortunate that his suggested clause to the Second Amendment was defeated. [The clause read: “no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”] But still, the sense of the First Amendment is there.

SoP: We’re getting calls everyday from soldiers in a dilemma of going to war against their conscience or going to jail. What would you say to them?

Noonan: Well, I don’t want to give advice as a judge, but I do think, in terms of Catholic theology, they should follow their conscience.