More on Kalscheur and the Relationship Between Civil and Moral Law

Having had a chance to mull over Greg Kalscheur's paper -- which relies heavily on the work of my Notre Dame colleagues, Cathy Kaveny and Tom Shaffer, and also our fellow blogger, Michael Perry -- I'd like to renew my recommendation that Mirror of Justice readers take a look. The paper provides, among other things, an enlightening review of the Holy Father's jurisprudential claims in Evangelium vitae , and also of Fr. John Courtney Murray's work on religious freedom, pluralism, and civil law.

I either agreed with, or was convinced by, much of what Kalscheur had to say about the expression and aspirations of Catholics -- who, as such, believe in the objective reality of moral truth -- living in a pluralistic society and in a constitutional democracy. That said, I remain uneasy on (at least) two points:

First, I cannot help wondering if there is a tension between Fr. Murray's insistence -- which Kalscheur appears to endorse -- on the law's "minimal" "moral aspirations", on the one hand, and the claims of Kaveny and others (which Kalsheur also endorses) about the "pedagogical" and expressive functions of law, on the other. (Kalscheur addresses this tension, and my view is not that there is a "contradiction" here.)

Now, with respect to the question of abortion, I am confident that even one who is resigned to a law of "minimal moral aspirations" ought to work to in every way possible protect unborn life from destruction via abortion. Abortion is not, in my judgment -- unlike contraception -- a matter of what Murray called "private morality." But put abortion aside for a moment -- what about anti-discrimination laws? These laws are (or, at least, they were) controversial; their premises are (at least in some cases) contestible (it is not obvious that, say, the Boy Scouts are morally required to admit girls and women, non-discrimination norms notwithstanding); and, these laws are intended to push us in a "more moral" direction. That is, our non-discrimination laws would seem to reflect more than "minimal" moral aspirations. Are they, for that reason, suspect? What about "living wage" proposals? Like non-discrimination laws, "living wage" laws are coercive, they restrain the choices of those who disagree with their premises. Are these proposals therefore suspect? Should bishops and their various advocacy organs consider themselves chastised by Kalsheur for failing to respect our country's moral pluralism? What I'm getting at, I think, is a concern that the "Catholics need to be careful about imposing their views on disputed questions in a pluralistic society" argument -- if it is persuasive -- should not be employed only in the abortion and, say, same-sex-marriage contexts. (All that said, I think the argument is, generally, not persuasive. There are no situations, in my view, where there is any likelihood that a position that is supported by Catholics, but cannot be justified in non-sectarian terms, is remotely likely to be adopted into law).

A second concern -- it is not clear to me, from Kalscheur's paper, whether or not he subscribes to the (in my view) quite mistaken view that there is such a thing as non-religious, liberal "public reason" that, as a matter of political morality and rationality, must govern our political conversations. It was not completely clear to me whether or not Kalsheur endorses the (in my view) unconvincing position that it is illegitimate to employ "religious" arguments in support of "coercive" laws in a pluralistic society. (At times, Kalsheur seems to reject this position, with Michael Perry; at other times, I was not so sure . . . ). As I see it, Steve Smith (and many others) have demonstrated that liberal "public reason" is merely code for "reasons that yield the substantive positions to which those advocating 'public reason' subscribe" and that there really is no "neutral" position from which (a) public debate could be "neutrally" policed or (b) from which "religious" arguments could really be separated from "religious" ones. (In any event, as Michael Perry has shown, some of what is held out as "secular" argument -- e.g., arguments grounded in human rights -- are, in fact, only plausible as "religious" arguments).

Well, Kalsheur's a great paper, that gives us a lot to think about. I welcome others' "takes."

Rick