Should Catholics who vote for pro-choice candidates be denied communion? That's the conclusion reached by the bishop of Colorado Springs. His reasoning is as follows:
"Any Catholic politicians who advocate for abortion, for illicit stem cell research or for any form of euthanasia ipso facto place themselves outside full communion with the church and so jeopardize their salvation . . . . Any Catholics who vote for candidates who stand for abortion, illicit stem cell research or euthanasia suffer the same fateful consequences."
I'm interested in what others think, but my initial reaction is that it's a bit over the top. A lay Catholic's vote for a pro-choice candidate does not cause scandal in the same way that a Catholic politician does through his or her own trumpeting of pro-choice policies. Further, as we've continually underscored in our discussions on this weblog, American Catholics are faced with less than ideal choices whenever they participate politically. Particular bishops might eventually draw lines in the sand on a range of issues. If the laity is not given space to carve out their own compromises with the offerings of an unmistakably fallen political culture, the only sure way to continue receiving communion might be to stay home on election day altogether.
Returning to Steve’s question on cooperation with evil, Roe, and the Constitution, I find Randy Barnett (Originalist Sacrifices, Volokh Conspiracy) helpful as a preface to my post:
“A commitment to a written Constitution, however, requires either that one put the law represented by the Constitution ahead of one's even deep-seated desires, or that one candidly reject the Constitution as so morally deficient as to lose its status as binding authority. What is improper is both to jettison the written Constitution AND to wrap oneself in its mantle.”
In Steve’s hypothetical, does the constitutional theory justify Roe’s outcome as a reasonable (but not required) interpretation of the Constitution or does it require or compel the result in Roe?
In either case, I would not think that developing the theory and/or showing how it can be used to justify Roe is in itself cooperating with evil. If I conclude that the Constitution, as written, allows for or requires the result in Roe, then I am merely stating the conclusion derived from my interpretative theory. I go down a dangerous path (as Robert Bork has pointed out on more than one occasion) if I mangle the Constitution to achieve what I think is a good result.
The relevant inquiry for me is how do I respond to the Constitution, which I have hypothetically concluded must be interpreted to allow or require Roe’s result?
If my constitutional theory merely validates but does not compel Roe’s outcome, then I do not think I cooperate with evil in promoting my theory. From my limited understanding of moral theology and philosophy, I am not engaged in formal cooperation or immediate material cooperation with those who promote the pro-Roe reading of the Constitution using a similar interpretative theory. The moral object of my act (promoting a constitutional theory that has the effect of preserving a sphere of authentic freedom for the individual) is distinguishable from the moral object of the other's act (promoting a constitutional theory that has the effect of creating a sphere for the disordered use of freedom, i.e., killing one’s offspring). Lest there be any confusion about my position, I could disentangle myself from any association with those who intend the evil end (Roe’s result) by developing and promoting arguments as to why Roe’s result should not be adopted under my theory, even if it is a permissible but not necessary result under my theory.
If, however, my constitutional theory compels the result in Roe, then while I may develop it, and argue its logical conclusions (the validation and requirement of Roe’s result), I do not think that I can promote such a constitutional regime without illicitly cooperating with evil. It is at this point that I would be required to take Professor Barnett’s second path and “candidly reject the Constitution [or that part of the Constitution that requires Roe’s result] as so morally deficient as to lose its status as binding authority.”
If I cooperated in and promoted a constitutional regime that required Roe but also allowed (maybe even required) other freedoms, i.e., parental choice in education, I would be, if I understand the terms correctly, engaged in cooperating illicitly with the evil of abortion. Depending on my intent, this cooperation may be implicit formal cooperation or immediate material cooperation. Either way it remains morally wrong.
My cooperation would be implicit formal cooperation if I made a bargain with the devil: “I’ll promote this constitutional regime even though it requires Roe’s result because it also protects my interest (i.e, parental educational choice) in return for you (the abortion advocate) promoting this constitutional regime, which protects the freedoms that I care about.” This is formal cooperation with evil because I am joining the abortion advocate in his intention to promote a constitutional regime that requires protection for abortion. In other words, by my compromise, I intend the evil consequence, albeit for my own good reasons.
My cooperation would constitute immediate material cooperation with evil if I continued to promote this constitutional regime despite the fact that it requires Roe’s result. Although I do not intend the evil consequence (an abortion regime), my actions in promoting a constitutional regime consistent with my constitutional theory for good reasons (protection of authentic freedom) has the direct and immediate effect of aiding those who desire the evil object (protection of a disordered freedom that will allow for the killing of one’s offspring).
Now that I have hazarded an answer, I welcome comments, criticisms, and corrections from readers and co-bloggers.
A contribution from Gregory Kalscheuer, SJ at Boston College Law School:
After reading Amy's recent posting raising the crucial issue of how to move beyond culture war paralysis, I wanted to call people's attention to an interesting piece by Bryan Hehir in the most recent issue of the National Center for Pastoral Life's journal, Church (Spring 2004). Hehir raises the question: can the Church convincingly engage American culture? His answer focuses on the need for the Church's voice to be both dialogic and prophetic, with a clear emphasis on the primary role of dialogue if the Church's witness to its moral vision is to be effective.
Hehir sees Guadiem et Spes as the crucial text that ought to guide our reflection on this issue. This central Vatican II document recognizes both that the Church stands in a dialectical relationship with the world and that this dialectical relationship is most fruitfully sustained by an ongoing dialogue with the world. Operating in this dialogic mode, the Church has to demonstrate that it is open to learning from the world,as well as witnessing to it. There may be times when a more prophetic stance is called for, but the culture will more constructively be engaged through a pedagogical dialogue, where the Church both teaches and learns. Paragraphs 40 and 44 of Gaudiem et Spes are particularly important in this regard.
The Church's credibility as a moral voice in contemporary culture depends on its ability to find a voice that can humbly learn as well as confidently teach. Hehir points to John XXIII's encyclical Pacem in Terris and the US bishops' 1983 pastoral letter, the Challenge of Peace, as manifesting the sort of dialogical mode of speaking to the world that is required if the Church is to engage in effective conscience formation of well-educated, highly skilled adult people of faith. Cardinal Bernardin spoke eloquently of the dialogical, pedagogical, persuasive style of engagement with the world that Gaudiem et Spes models: "We should be convinced that we have much to learn from the world and much to teach it. We should be confident but collegial with others who seek similar goals but may differ on means and methods. A confident Church will speak its mind, seek as a community to live its convictions, but leave space for others to speak to us, help us to grow from their perspective, and to collaborate with them." See the very useful collection of Bernardin's speeches edited by John Langan, A Moral Vision for America. Also helpful in this regard is David Hollenbach's notion of "intellectual solidarity," which he spells out in chapter six, of The Common Good and Christian Ethics (e.g., at 137: the intellectual work of bringing religious values into public discourse in a religiously pluralistic community "is a form of solidarity, because it can only occur in an active dialogue of mutual listening and speaking across the boundaries of religion and culture. Indeed, dialogue that seeks to understand those with different visions of the good life is already a form of solidarity even when disagreement continues to exist.").
I'm confident that CST can provide us with an effective set of tools and principles to engage in the project of presenting what Amy called "the unique and profound beauty of the Catholic Church's vision of the human person and social life," while respecting dialogue partners with diverse approaches and differing prudential judgments about what the common good demands. I fear that the beauty of that vision can be obscured when the vision is presented more by means of public condemndations than through a humble, confident, and hope-filled dialogue of learning and teaching.
I came across two very interesting reflections on capital punishment today: Here, at "The Evangelical Outpost" and here, by Joshua Davey, at "Letters from Babylon." Both reflections were prompted, it appears, by Justice Stevens's recent remarks on the matter. For some thoughts of mine, see "Christian Witness, Moral Anthropology, and the Death Penalty," here.
The caption for this post does not, I admit, sound much like "Catholic legal theory." Nonetheless -- and particularly in light of Steve's provocative question about the moral responsibility of those who engage in constitutional theory -- I cannot resist urging Mirror of Justice readers to surf over to Larry Solum's Legal Theory Blog, and spend a few minutes with this wonderfully detailed and helpful summary of the Lash / Barnett debate concerning the Ninth Amendment, popular sovereignty, and individual rights. I also recommend Larry's discussion in the spirit of Amy's post below. Legal scholars and law teachers looking for examples of respectful dialogue, and of efforts to find bridges between those working from different premises, will find many such examples in Larry's work.
I am currently musing over the finals essays from my Catholic Social Thought & the Law seminar. Asked to identify the “hardest question” that emerged from the course, many students focused on the role of religious values in public / political life, and saw the chief reason for excluding “personal” perspectives is that they tend to heighten tensions and divisions.
There would be much to discuss on this point – but my specific question, as we gear up for a long, hot, pre-election summer, is what your thoughts are on sources within Catholic Social Thought for moving beyond culture war paralysis. As Catholics who care deeply about our legal and political system, what resources do we have that will help us get to the point of both appreciating the need for diverse approaches and the possibility of different prudential judgments in political life, and at the same, offering to public discourse the unique and profound beauty of the Catholic Church’s vision of the human person and social life?
Take, for example, the cultural divide over Gibson’s Passion – what struck me was that both sides (those who see the film as anti-Semitic, and those who just can’t see it) could say – with complete sincerity – “it’s so clear – how can they not see it?” It seems like the hardest part of that debate was getting folks to acknowledge that people really did see the film in very different ways. In case you’re interested, I have just added to my papers “A Passion for Dialogue” – a short essay recently published in Living City (the Focolare’s monthly magazine of religion, culture and inter-faith dialogue) which sets out a few ideas for moving beyond the divide.
I think some of our cooperation with evil discussion reflects the need for a less abstract more context-driven inquiry. Concretely – and to get some text on the table – the following passages from Evangelium Vitae indicate it would be important to consider 1) what's the alternative (is it more or less restrictive); and 2) what's the personal "scandal" component (eg, how much influence does the person have, and are they on the record as doing all they can against abortion).
From paragraph 73: A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. Such cases are not infrequent. It is a fact that while in some parts of the world there continue to be campaigns to introduce laws favouring abortion, often supported by powerful international organizations, in other nations-particularly those which have already experienced the bitter fruits of such permissive legislation-there are growing signs of a rethinking in this matter. In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.
From paragraph 74: The passing of unjust laws often raises difficult problems of conscience for morally upright people with regard to the issue of cooperation, since they have a right to demand not to be forced to take part in morally evil actions. Sometimes the choices which have to be made are difficult; they may require the sacrifice of prestigious professional positions or the relinquishing of reasonable hopes of career advancement. In other cases, it can happen that carrying out certain actions, which are provided for by legislation that overall is unjust, but which in themselves are indifferent, or even positive, can serve to protect human lives under threat. There may be reason to fear, however, that willingness to carry out such actions will not only cause scandal and weaken the necessary opposition to attacks on life, but will gradually lead to further capitulation to a mentality of permissiveness.
In order to shed light on this difficult question, it is necessary to recall the general principles concerning cooperation in evil actions. Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God's law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. Such cooperation occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act against innocent human life or a sharing in the immoral intention of the person committing it. This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it. Each individual in fact has moral responsibility for the acts which he personally performs; no one can be exempted from this responsibility, and on the basis of it everyone will be judged by God himself (cf. Rom 2:6; 14:12).
To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself, the authentic meaning and purpose of which are found in its orientation to the true and the good, would be radically compromised. What is at stake therefore is an essential right which, precisely as such, should be acknowledged and protected by civil law. In this sense, the opportunity to refuse to take part in the phases of consultation, preparation and execution of these acts against life should be guaranteed to physicians, health-care personnel, and directors of hospitals, clinics and convalescent facilities. Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane.
Given my woeful lack of expertise in matters of moral theology, I am reluctant to offer a direct answer to Steve's question. I will, however, offer two rather straightforward points as to why I'm inclined to hope that articulating a certain theory of constitutional interpretation would not amount to material cooperation with evil simply because its application could support abortion rights.
First, constitutional theorizing tends to cut a very broad swath. I don't know of any widely held theory of constitutional interpretation that inherently defies the worldview grounded in the Church's moral anthropology. Certainly the advocacy of particular theories in particular contexts toward particular ends can be problematic. But in the abstract, things are not so clear. If we jettison a theory because it potentially lends support to abortion rights, we very well may be foreclosing a potentially powerful defense of parents' rights. (As Rick's work on school choice reflects.) Absent advocacy by the constitutional law scholar in a particular troublesome context, I would be reluctant to hold her morally culpable for crafting the theory in the first place.
Second, I believe that Catholics (along with other faiths that purport to make truth claims) should be especially cautious about turning their backs on theories that facilitate spheres of autonomy from state intervention. This does not require us to embrace the outcome of every case that claims to further individual autonomy, but we should weigh carefully what is gained and what is lost before we write off entire interpretive theories. As we can see from the Catholic Charities case (discussed in Rick's posts below), the ability of Catholics to appeal to the common good in the political forum as a means by which to defend their institutional autonomy is rapidly being overtaken by the expanding and non-negotiable individualist norms of the liberal project, and the electorate seems increasingly unsympathetic. I'm not suggesting that an unfettered rights-based discourse is to be sought, or that every libertarian theory of constitutional interpretation must be embraced, but I would at least hazard a glance toward the oncoming freight train of American individualism before we confidently entrust the fates of our mediating communities to the political sphere.
My first response would be (I think) to do an intellectual examination of conscience as to how I developed my theory of constitutional interpretation. Was it driven by ideological presuppositions (i.e., libertarianism) giving rise to wishful thinking that the 9th Am. and the P & I clause of the 14th Am. incorporate a strong libertarian form of the harm principle? Or, can I truly say that I have come to believe that the 9th Am. and the P & I clause of the 14th Am. actually incorporate judicially enforceable protection along a strong libertarian form of the harm principle?
If the former, then Roe serves as a reality check, encouraging me to admit my bias and adjust my constitutional theory. If the latter, then Steve's question remains open - and I'll try to hazard my own answer to that question later.
I welcome any comments on or criticisms of this first response.
Because I'm not sure how I'd answer Steve's question, I am going to pull the old law professor's trick of re-stating the questioner's question in a longer-winded and high-falutin' way, and then tossing the question back to the questioner:
Is Steve asking about the act of developing a "theory of constitutional interpretation that validates Roe v. Wade"? About endorsing such a theory? Or (and) are we talking about employing such a theory (perhaps in a context that is apparently unrelated to abortion, as in "parents' rights" litigation)?
Are we considering only whether the act in question falls into the category of "material cooperation with evil" (that is, performing an action that itself is not evil, but that helps another perform another evil action)? Or, are we also considering whether the cooperation, if it exists, is licit? (If I remember correctly, the morality of material cooperation with evil depends upon, among other things, the "proximity" of the cooperator's act to the evil action, and whether there is a "proportionate" reason for performing the action.)
Steve's question is, of course, of a piece with the fascinating debate that he, Larry Solum, Randy Barnett and others are waging about Barnett's new book, "Restoring the Lost Constitution: The Presumption of Liberty." (For a taste of this debate, go here, here, and here.
The question is important. After all, there appear to be, in my (still tentative) judgment, good reasons to believe that the Fourteenth Amendment's "privileges or immunities" Clause protects some "unenumerated" rights from state interference. To propose, embrace, or defend this view is, in some sense, to cooperate materially -- if very remotely -- with abortion, in the sense that, because the right to abortion is "unenumerated," a theory or account that authorizes judicial protection of such rights will likely be of use to those asking courts to invalidate anti-abortion laws. Arguably, the embrace or defense of such a theory by law professors might make it more likely (or might not) that courts will be willing to deploy it.
If it is true -- and I still hope that claims like this can be "true" -- that the "P or I" Clause really has this meaning -- i.e., really protects some unenumerated rights -- then it must also be true that whatever cooperation embracing this meaning supplies to the evil of abortion is not illicit. Otherwise, it would be immoral to embrace the notions that legal provisions mean what they were understood to mean when enacted, and that judges should try to locate and enforce that meaning. And that can't be right. Right?
