Kalscheur and the Ramifications of Pluralism

I've read Fr. Greg Kalscheur's paper (see Rick's link to the paper below) and highly recommend it to anyone interested in the sort of conversations occurring on this weblog. Since Fr. Kalscheur is tackling the fundamental stance of Catholicism toward the governing legal order, he is by necessity proceeding at a fairly high level of generality. Readers of his analysis of John Courtney Murray, for example, could find support for any range of positions on the hot-button "culture war" issues of the day, depending on their ideological inclinations coming in. That said, Fr. Kalscheur ably makes the case that these issues should be engaged primarily by persuading our neighbors of the truth of our moral claims, rather than convincing legislators to impose our moral claims on the neighbors as if they were undeniably true; he notes that "for law to be effective as a moral guide, some level of consent as to the goodness of the law must be obtained."

I am largely sympathetic with this approach, but I'm wondering if it feeds into the positivist line of legal reasoning more than Fr. Kalscheur admits. If the moral law is to be incorporated into the civil law only where there is sufficient consent as to the law's morality, what non-pedagogical role is the moral law really playing? In other words, if a law has been enacted in a democracy, we can presume that there is a certain level of consent as to the law's morality. If a law is enacted based on an erroneous understanding of the moral law, but the law cannot be corrected until there is sufficient consent that the correction accurately reflects the moral law, it seems that the function of the moral law is only pedagogical.

Further, Fr. Kalscheur takes for granted that the faith community will adhere to the moral law; the only question is whether they subject the surrounding society to the moral law. I'm not sure if the premise can be taken for granted any longer -- that is, it seems to me that much of the faith community's engagement with the legal order will by necessity be focused on ensuring its autonomy to abide by the moral law. In this sense, appealing to the hearts and minds of our fellow citizens will not always be sufficient. Witness what happened in California, where the legislature rejected the Church's reasoned, publicly accessible argument as to why Catholic Charities should not be forced to provide contraceptives to its employees. We are now left not with the question of whether the Church can or should enforce the moral law on the rest of society, but how it came to pass that the Church is no longer permitted to obey the moral law itself. As individualism and consumerism increasingly become enforced collectively in American law, I believe there will be less hand-wringing over whether the Church is prudent to seek to impose moral truth claims through the law, and more focus on making claims to autonomy through the law. Pessimistic as it sounds, we may be seeing more defense, less offense.

Finally, in response to Rick's comment (below) that Fr. Kalscheur's approach seems to contemplate at least some hesitation before advocating anti-discrimination laws, for example, I agree that pluralism cuts a broad, bipartisan swath. Morally laden visions of the good can never be jettisoned from the collective articulation of binding norms of conduct; we just tend to think of certain background moral claims as amoral because they are so widely accepted and unquestioned. Anti-discrimination laws are based on the moral claim that individuals should not be excluded from participating in society based on characteristics like race, gender, etc. This is a fairly uncontroversial proposition in modern American society, and so it meets Fr. Murray's (and presumably Fr. Kalscheur's) consent-based criterion of melding the moral law with the civil law. At the time the initial anti-discrimination laws were passed, though, I'm not sure if the requisite consent was there, in which case, I'd be interested in Fr. Kalscheur's answer. The answer is undoubtedly wrapped up with the level of consent that is needed, and on that I'm unclear: Is it a bare majority (which would seem to suggest that if we democractically can get a provision of the moral law enacted into the civil law, that's enough) something more (which may mean that the criminalization of abortion is off-limits), or something less (which would basically open up all of the "culture war" issues to legislative or judicial action)? Or is it a sliding scale of consent based on other prudential considerations?

In any event, Fr. Kalscheur's paper gives us a lot to wrestle with and discuss -- I welcome others' views.

Rob