IN NOVEMBER, the ecumenical journal First Things published a symposium entitled “The End of Democracy?” The editor, Father Richard John Neuhaus, with five contributors (Robert Bork, Hadley Arkes, Robert George, Charles Colson, and I), raised the problem of whether the federal courts have usurped democracy. On such crucial moral issues as abortion, euthanasia and the nature of marriage, the courts have not only imposed laws that are contrary to the objective moral order, but have also imposed these laws—usually in direct opposition to democratically passed laws and referenda—without any constitutional authority.
Within the past eight months, courts struck down:
√ a referendum in the state of Washington upholding the ban on doctors killing patients;
√ an amendment in Colorado, denying special rights to gays;
√ a referendum in California, forbidding all racial and sexual discrimination by the state in employment, education and public contracting;
√ the effort by the Hawaiian legislature to retain the traditional legal definition of marriage against gay activists.
If it is a controversial issue of morality affecting the common good, the courts seem to think that this is reason enough to take decision-making power out of the hands of the people. The First Things symposium asked: “Where should citizens draw the line in giving obedience and loyalty to these judicial decrees?”
Not only in the conservative press, but also in The New York Times and The New Republic the symposium ignited intense reaction and debate. The Weekly Standard, edited by television commentator William Kristol, expressed surprise and disappointment that religious conservatives would raise the question of civic loyalty. The Standard characterized such questions as “anti-American.” For its part, The New Republic dubbed the contributors to the symposium “theocons”—at variance with “neocons”—who wish to impose a Catholic concept of “theocracy” on the United States.
As one of only two Catholic contributors to the symposium (along with Robert George, of Princeton University), perhaps I should explain why the First Things manifesto and the reactions to it are of great importance to Catholics.
Legal battle over abortion
In 1992, three Republican nominees to the Supreme Court decided to end, conclusively, the legal battle over abortion. Justices Kennedy, Souter, and O'Connor wrote a joint opinion in Planned Parenthood v. Casey upholding Roe v. Wade. What was so unusual about this opinion, however, was that the court staked both its own “legitimacy” and the American “covenant” itself on the judge made abortion law. Even while expressing personal doubts about the constitutionality of Roe v. Wade, the justices begged the people to accept their resolution of the problem out of respect for “the rule of law.”
Thus, it was the Supreme Court, not religious conservatives or Catholics, who raised the issues of legitimacy and obedience. Belatedly, the First Things symposium took the court at its word, and investigated the question of obedience raised by the court itself.
Do citizens have either a legal or moral obligation to obey laws that are unjust and are made with no constitutional authority? Are we so eager to be rid of the abortion debate that we are willing to give assent to “laws” that deform the very structure of constitutional authority? This is by no means a novel question. In the infamous Dred Scott opinion (1857), the court also tried to settle the slavery issue through a ruling that had little or no basis in the U.S. Constitution. In effect, the court said, if you want peace on this issue, shut up and obey our ruling. But President Lincoln, in his first inaugural, rejected the idea that the people have “practically resigned their government into the hands of that eminent tribunal.”
So, the first important point is that the questions raised by the First Things symposium do not reflect a “Catholic” fixation on abortion any more than Lincoln's resistance to Dred Scott exemplified a mere “sectional” fixation on slavery. By the court's own admission, abortion is not just about abortion. The issue reaches to the foundations of how we conceive of individual liberty, the common good and political authority.
In our society there are many opinions about how to deal with the problem of abortion. But the court suppressed debate, and took it out of the hands of the democratic process. What was once prohibited by the criminal law of the states was turned into a fundamental individual right. In the Casey decision, the court defined the right in this way: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life.” The court's own case law shows that in order to maintain the abortion right at the level of fundamental law, many other sectors of the states' legal order, at both statutory and common law, must be changed: family law, law of marriage, laws regulating the medical profession, and—as we now see with the recent circuit court decisions on physician-assisted suicide—criminal laws prohibiting private use of lethal force.
Once the court discovered an individual right “to define one's own concept of existence,” the power of the people to be politically self-governing is held hostage to a right that has no limit. Unless the right is rejected, every effort to limit it will be arbitrary and temporary. Indeed, the principle of Casey has not left the other institutions of the polity unaffected. In 1994, the court not only allowed the Racketeer Influenced and Corrupt Organizations (RICO) statutes to be applied against pro-life demonstrators, putting them in the same category with mobsters, but also allowed to stand a Florida law restricting the speech of pro-life, but not pro-abortion, demonstrators in the vicinity of abortion clinics.
Perhaps even more ominous are the court's actions that overturn legislation or referenda that allegedly have religious “motives.” Recently, Justice Kennedy has gone so far as to maintain that the belief that “there is an ethic and a morality that transcend human invention” is itself religious. Thus, almost any effort by citizens to pass laws on the basis of an objective morality are to be struck down. Indeed, in the Romer decision last spring, the Supreme Court asserted that the Colorado amendment prohibiting special rights for homosexuals had no rational basis whatsoever. Again, it was Justice Kennedy who ruled that the people of Colorado were motivated by “animus,” or hatred of gay people.
The five essays in the First Things symposium analyze this deeply troubling judicial pattern: the courts are making morally-suspect laws, ruling out debates and actions in democratic legislatures, closing the doors by which the people might peacefully use the political process to remediate the problem, and ultimately to govern themselves. Citizens whose consciences are formed by objective principles of morality, and by convictions about a transcendent ground of moral truth, are quickly becoming second-class citizens.
So, the final result of this logic should be clear to everyone. Only those citizens who adopt an agnostic relativism can enjoy the prerogatives of citizenship: namely, the privilege and right of passing laws, making policies, and generally conducting public business. Everyone else is asked, in the name of the constitution, to get out of the public square.
People will have to read the First Things symposium, and judge for themselves whether the analysis is unnecessarily alarmist or whether it accurately presents an urgent problem. One thing, however, is clear. The issues being discussed in the symposium are not exclusively “Catholic.” And the fact that media have chosen to represent the debate as an un-American or even anti-American “Catholic” response to the abortion problem only reinforces one of the main points made by the symposium.
Neocon v. Theocon
In The New Republic article, entitled “Neocon v. Theocon” (Dec. 30), Jacob Heilbrunn contends that Catholic “Thomists” embrace explicitly “the notion of a Christian nation: a nation that accepts the idea of a transcendent divine law that carries universal obligations even for nonbelievers.” They are not “theocons” so much as “theocrats.” Never mind the fact that one could count the number of “Thomists” in this country on two hands; never mind the fact that the most prominent “Thomists” of this century (Maritain, Simon, John Courtney Murray) were partisans of constitutional democracy; never mind that virtually all Catholic intellectuals, as well as the Church documents and decrees, distinguish carefully between the natural law and divine positive law. But for Heilbrunn, the conviction that human law is founded on a transcendent moral ground is reason enough for alarmist cries of “theocracy.”
Heilbrunn's piece is an elaborately woven fantasy, reminiscent of the old “Maria Monk” stories. Heilbrunn mentions the fact that Judge Bork's wife is a devout Catholic, and that William F. Buckley's brother-in-law is a Spanish Carlist; even Jerry Falwell gets assigned a cameo role in this “gunpowder” plot, simply because he has made laudatory remarks about the Pope. But the message is clear: To the extent that Catholics really think and act like Catholics, they will try to impose a theocracy.
Heilbrunn's article is really a journalistic footnote to Justice Kennedy's opinion, that the effort by citizens to guide legislation or public business on the basis of an “ethic and a morality which transcend human invention” is the imposition of religious belief. This brings us back to the serious issues raised by the First Things symposium. Will Catholics and other citizens of rightly-formed conscience allow themselves to be exiled from the public square?
Vatican II called for a renewal of the lay apostolate. The council emphasized that the truly unique mission of lay people, “their own special obligation,” is the “renewal of the temporal order.” The task of social justice in the earthly city is not the job of ecclesiastical authority. For that very reason, political justice, and the virtues of citizenship, are to be undertaken in freedom through the rule of law. The council most emphatically rejected theocracy, and the temporal role of the laity is part and parcel of that rejection.
The wisdom of the council's emphasis upon the temporal mission of the laity perhaps was not seen so clearly at first. Thirty years ago, the “temporal order” of the Western countries seemed to be sound, indeed flourishing. The Western European nations had overcome the devastation of World War II. Germany adopted a wise constitution. Organizations like NATO effectively countered totalitarianism. The oldest constitutional democracy, the United States, pledged itself to eradicating racial injustice and poverty.
In the Western democracies, anyway, Catholics had every reason to believe that problems of social injustice were being corrected by the democratic process. Even that old cancer, anti-Catholicism, appeared to be in retreat. By the 1960s, no American Catholic could have reasonably claimed that his or her economic, social, or political life was thwarted by anti-Catholicism.
So, the council's emphasis upon the role of the laity in renewing the temporal order seemed merely to ratify what was already taking place. Especially in the United States, many lay Catholics took the attitude that the political order can take care of itself. Thus, they turned their energies to assuming more prominent positions within the Church and the liturgy.
Yet, in hindsight, we can see that the temporal order does not “take care of itself.” Even the most precious of civil rights—religious liberty—is not guaranteed without the vigilance of citizens. The First Things symposium is a wake-up call to all citizens; the at times bigoted reactions to it in the elite media should be a special wake-up call to Catholics.
Russell Hittinger is a Warren Professor of Catholic Studies and research professor of law at the University of Tulsa in Oklahoma.