In the most recent issue of First Things, one paragraph in Grant Kaplan’s essay “Celibacy as Political Resistance” really caught my attention. He’s writing about the USCCB’s opposition to the contraception mandate, but I think his point is well-taken regardless of your position on that policy question:
In response to the government’s decision to force Catholic institutions to comply with the new health care law, for example, one might have hoped for a strong, prophetic, and theologically serious response from a Catholic leadership that feels especially besieged by the Affordable Care Act. Instead, the United States Conference of Catholic Bishops gave us the feeble “Fortnight for Freedom.” In name (“Freedom”), time (concluding on Independence Day), and icon (the Statue of Liberty), the USCCB merged American mythology with Christian history. The bishops’ rhetoric suggested no inherent incompatibility between being American and following the gospel. If the new health care law were only more American, there would be no need to protest.
Not everything wrong is illegal. And not everything wrong is unamerican. So if you keep choosing to frame your fights as constitutional questions or as questions of identity and patriotism, you’ll end up in a bind. For one thing, “American values” (or, more narrowly, the Constitution) are not specific enough to rule out contradiction. Math theorems aren’t allowed to prove both A and not A, but a legal test can certainly find Policy A and mutually contradictory Policy B are both kosher. And both may fit into some strain of American cultural traditions.
Framing too many arguments legally doesn’t just do violence to the Christian cause, but to the plausibility of our legal system. There’s a lot of tortured, convoluted jurisprudence in order to make some hot-button issue appear tangentially relevant to the Constitution. (I appreciated, during the Obamacare case, the justice who pointed out that a broccoli-eating mandate would be stupid but legal). Bad cases make bad law.
Catholics, and everyone else, should be comfortable picking their fights outside the courtroom, and outside specifically American claims. It may be easier to fight a legal case, but culture war is better. You’re fighting for hearts and minds, not laws on the books. The ultimate goal is to help shape people informed by phronesis — practical wisdom, who refrain from cruelty because it is wrong, not because of legal repercussions. Nudges and legal pressures are all right as a stop-gap (and as a concession to our fallen nature), but when the President signs a bill into law, the fight has assuredly not come to an end.