American Catholics and the State

By Gregory A. Kalscheur, SJ


AUGUST 2, 2004 -- IN DECEMBER 1960, shortly after a Catholic Democrat had been elected president of the United States, Time magazine devoted a lengthy cover story to the topic "U.S. Catholics and the State." The story focused on the work of John Courtney Murray, S.J., and his then-recently published book, We Hold These Truths: Catholic Reflections on the American Proposition.

Forty years later, in the midst of another presidential election campaign involving a Catholic Democrat, we are in urgent need of renewed reflection on what it means to be an American Catholic engaged in public life. Much of the current controversy regarding the exclusion from Communion of Catholic politicians who espouse prochoice political positions displays a lack of the careful moral reasoning that ought to characterize serious Catholic reflection on important issues of public policy.

Fortunately, the resources for more nuanced thinking are available to us in the insights developed by John Courtney Murray, who died of a heart attack in 1967 at the age of 62. David Hollenbach, S.J., has aptly described Murray as "the pre-eminent practitioner of public theology and public moral discourse in the whole history of American Catholicism." We need to draw again on Murray's insights if we are to do justice to the critical question of what it means to be an American Catholic engaged in public life in our pluralistic democratic society.

The intellectual roots of the current Communion controversy lie in a document issued in November 2002 by the Vatican's Congregation for the Doctrine of the Faith. The C.D.E's Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life reminds Catholics involved in public life "that a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals.

Because respect for the inviolable dignity of the human person gives rise to a fundamental moral duty to defend the basic right to life from conception to natural death, the doctrinal note clearly states that "those who are directly involved in lawmaking bodies have a 'grave and clear obligation to oppose' any law that attacks human life. For them, as for every Catholic, it is impossible to promote such laws or to vote for them."

Both those few bishops whose public statements have given rise to the Communion controversy and the C.D.F.'s doctrinal note attempt to respond to public officials who draw a line between their personal moral beliefs as faithful Catholics and their public policy positions. In the face of the threat to moral integrity presented by this sort of compartmentalization, the doctrinal note provides a timely reminder that law and politics cannot be separated from morality.

CATHOLIC PARTICIPATION in public life is to be guided by, not separated from, fundamental moral concerns-the promotion and defense of public order and peace, freedom and equality, respect for human life and the environment, justice and solidarity. And in making their distinctive contribution to society and political life through the democratic process, Catholics, like all conscientious moral actors, will base their political views "on their particular understanding of the human person and the common good."

This insistence that moral beliefs inform policy choices is, in the end, a matter of integrity. It is, as the doctrinal note explains, a question of our "duty to be morally coherent," a duty that is "found within one's conscience, which is one and indivisible." We do not lead parallel moral lives that can be compartmentalized into separate spheres, one spiritual and one secular: "Living and acting in conformity with one's own conscience on questions of politics is...the way in which Christians offer their concrete contributions so that, through political life, society will become more just and more consistent with the dignity of the human person."

This understanding of the unity of conscience makes inescapable the doctrinal note's teaching on the public official's grave and clear obligation to oppose any law that attacks human life. Once a public official has reached the conscientious conclusion that abortion is an attack on the inviolable dignity of human life and that it undermines justice and the common good by violating the fundamental right to life, then that official's commitment to moral integrity demands that his or her participation in politics should conform to that judgment of conscience. These officials should work to promote justice and the common good by striving to reduce the incidence of abortion and opposing laws that attack human life.

How a public official ought to go about doing that, however, is a more complicated question, especially given the state of American constitutional law regarding the abortion issue. The legislator must oppose laws that promote abortion, but in the United States abortion is a matter of constitutional right, not an action authorized by legislation.

To a large extent, the Supreme Court's interpretation of the Constitution in the cases of Roe v. Wade, which legalized abortion in 1973, and Planned Parenthood v. Casey, which in 1992 upheld a Pennsylvania law that put a few restrictions on abortion, means that there is no need for legislation authorizing procured abortion; and any legislative efforts to reduce the incidence of abortion through statutory prohibition will face significant constitutional hurdles. Even the recently enacted federal ban on partial-birth abortion, which attempts to operate within the narrow space for legislative prohibitions left open by Supreme Court doctrine, faces a steep uphill battle in the courts.

So in the absence of opportunities to oppose legislative efforts to authorize abortion, how should lawmakers bring their moral beliefs regarding fundamental life issues into the public arena? Answering this question requires us to keep in mind another element of Catholic teaching reaffirmed in the doctrinal note: While Catholics must not support policies that compromise or undermine a fundamental ethical value, there are "a variety of strategies available for accomplishing or guaranteeing the same fundamental value." Indeed, the note specifically states that the church's efforts to educate the consciences of the faithful do not reflect a desire on the part of the church "to exercise political power or eliminate freedom of opinion of Catholics regarding contingent questions" (No. 6, emphasis added).

This question of how to promote fundamental moral values through law and policy so as most effectively to benefit die common good is always a contingent question dependent upon the practical wisdom of the legislator. In other words, we cannot move direcdy from moral principles to legal sanctions without considering whether legal sanctions will truly serve the common good in light of existing social conditions.

Yet, as John Courtney Murray recognized in 1960, the American mind "has never been clear about the relation between morals and law." Murray's critical contribution to our current need for more nuanced thinking lies in his efforts to bring clarity to our understanding of that essential relationship. He explained that our confusion about the relation between law and morality often stems from our failure to understand that legal prohibitions are not capable of dealing with every sort of moral evil.

Invoking traditional rules of jurisprudence, Murray explained that the lawmaker must engage in a "subtle discipline, at once a science and an art, that mediates between the imperatives of the moral order and the commands or prohibitions of the civil law." The "subtle discipline" of jurisprudence reminds us that there is a difference between sin and crime.

Morality (which governs all of human conduct) and law (which governs the public order of society) are not coextensive in their functions. Legal prohibitions can have only a limited effect on shaping moral character. Accordingly, Murray argued that people can "be coerced only to a minimal amount of moral action." Indeed, "the moral aspirations of the law are minimal."

If society wishes to elevate and maintain moral standards above the minimal level required for the healthy functioning of the social order, it must look to institutions other than the law. The state and law, therefore, have a necessary-but a necessarily limited-role to play in society's work of establishing and maintaining the common good.

Murray insisted that law and morality are essentially related, but necessarily differentiated. Because the coercive force of the state ultimately lies behind the law, the law must not moralize excessively. If it does so, "it tends to defeat even its own modest aims, by bringing itself into contempt."

The law, therefore, should not be used to prohibit a given moral evil unless that prohibition can be shown to be something that the law is capable of addressing prudently. John Courtney Murray, following St. Thomas Aquinas, argued that human law must be framed with a view to the level of virtue that it is actually possible to expect from the people required to comply with the law. Accordingly, Murray suggested a series of questions that the legislator must consider in assessing the prudence of a proposed law: Will the prohibition be obeyed, at least by most people? Is it enforceable against the disobedient? Is it prudent to enforce this ban, given the possibility of harmful effects in other areas of social life? Is the instrumentality of a coercive law a good means for the eradication of the targeted social evil? And since a law that usually fails is not a good means, what are the lessons of experience with this sort of legal prohibition? If legislation is to be properly crafted-from a moral point of view and with the goal of promoting the common good of society-"these are the questions that jurisprudence must answer."

IN LIGHT OF ALL THESE CONSIDERATIONS, Society should not expect a great deal of moral improvement from legal prohibitions. Instead, the limited effectiveness of legal coercion compelling obedience through fear of punishment as a vehicle toward genuine moral reform means that the legal prohibitions must be used with caution in a free society. As Murray explained:

[A] human society is inhumanly ruled when it is ruled only, or mostly by fear. Good laws are obeyed by the generality because they are good laws; they merit and receive the consent of the community, as valid legal expressions of the community's own convictions as to what is just or unjust, good or evil. In the absence of this consent, law either withers away or becomes tyrannical.

Accordingly, for the law truly to serve the common good, some level of consensus as to the goodness of the law is essential. And, in the face of widespread moral disagreement on an issue, the public conscience may need to be clarified through nonlegal educative efforts in an atmosphere of reasoned dialogue and factual argument before the law can effectively promote the common good. In the absence of a basic moral consensus, any attempt to change the law will be unenforceable, ineffective and resented as unduly restrictive of freedom.

Murray's thought helps us to recognize that efforts to translate moral principles directly into legal prohibitions may sometimes damage the common good. An official who fully accepts the church's teaching on abortion as a grave moral evil still must make a judgment in conscience as to how the law can most effectively deal with that particular evil within the wider context of concern for the common good. What sort of political-legal response will actually reduce the numbers of abortions in the United States in the face of current constitutional and social realities?

In evaluating whether or not a public official's policy positions are consistent with a desire to protect life, we need to pursue an inquiry that considers abortion within the context of a wider range of legal-political questions. Other areas of the law can and must contribute to nurturing the virtues necessary to supporting a culture of life.

What sort of a society are we becoming through the entire range of legal policies we advocate and enact? Who are we becoming as a society when we regularly invoke the death penalty? What sort of a society do we become if we overzealously restrict civil liberties in response to terrorism, or if our immigration law and border control policies undervalue the dignity of the lives of immigrants? Have we listened to the voices of women who have felt compelled to make the choice for abortion, and are we working to establish a set of social policies that might provide women with the support needed to make the decision to carry their baby to term? In short, are we working to build a legal system that as a whole supports and promotes the virtues necessary to protect human dignity and sustain a culture of life?

John Courtney Murray's work reflected his deep concern to promote genuine dialogue at the heart of common life in a pluralistic society-a genuine dialogue often sadly lacking in contemporary public life. If the public discourse leading to the enactment of a law fails to include genuine attempts to help people understand why the moral vision underlying the law promotes the common good, a disjunction will continue to exist between law and morality.

As a result, the style of public discourse about law is crucial. A proposed law's moral rationale must be communicated in ways that people can accept and understand. One's partners in dialogue must be treated with respect. In order to promote greater clarity in the public conscience, the church must engage Catholic public officials and American society more generally in a genuine conversation about how best to promote the common good. For that conversation to be effective, the participants cannot be locked in positions of immovable dogmatic certitude. Instead, the conversation must go forward in a spirit of shared pursuit of the truth, fostering a genuine dialogue of mutual listening and speaking, where all sides are willing to learn as well as teach.

WHAT DOES IT MEAN to be an American Catholic in public life in today's pluralistic, democratic society? It means one is called to moral integrity and undivided conscience; to be a person striving to base his or her political views "on his or her particular understanding of the human person and die common good." It is to be a person engaged in the "subtle discipline" of trying to build a social, political and legal order that reflects the imperatives of the moral order, without confusing law and morality. And in the midst of pluralism and deep moral disagreement, it is to be a member of a church willing to engage in the nuanced reflection and genuine dialogue that are essential if we are to form hearts and minds committed to a culture of life.

GREGORY A. KALSCHEUR, S.J., is an assistant professor at the Boston College Law School, Newton, Mass.