Is there an American Consensus?

For some time now the level of political conversation possible in the public square of this country has been laughable. We seem to be incapable of actually discussing the issues at a rational level. Political elections are no longer won by argument and truth but by spending the most money in the right ways. This fact may indeed be a harbinger of the coming downfall of  American civil society, at least according to the logic of thinkers like John Courtney Murray and Joseph Ratzinger.

According to Murray the American project is different and better than its European counterparts because of its system of checks and balances and because of the Bill of Rights. These are evidence of a commitment to limit government so that pluralism might flourish. Murray makes distinctions between the sacred and secular, civil society and the state, and the common good and public order. According to this the state is merely one actor in the larger society, having the responsibility to maintain public order through the use of coercion. The maintenance of public order assures the relative peace necessary for the flourishing of the common good within civil society. He sees the First Amendment as an “article of peace”, allowing for civil society to be a sphere of neutrality with regard to religion.

Murray admits that there is an inherent instability in the relationship between the state and civil society because the maintenance of the state and of public order demand unity, but civil society is intended to be the free space in which a pluralism grows, where the conversations among Protestants, Catholics, Jews, Muslims, atheists, and secularists are held. Thus there is a constant tension between unity and plurality. This should could as no surprise. We see the same tension at work in the Church.

For Murray, the solution to this tension is, or perhaps more accurately was, the “American Consensus,” which is embodied in the Bill of Rights as an expression of the Natural Law. This serves as the shared set of presuppositions, the common ground, necessary for true conversation and for the possibility of rational argument. Murray admits that the American Consensus no longer exists and rests his hope on the Church in America to bring Natural Law back into the conversations of civil society, to restore the foundations necessary for ordered pluralistic conversation. Murray explains that without such a consensus and the possibility of argument, the democratic principle of consent looses its grounding and devolves into mere majority opinion, which is no sure guide to maintaining the common good. In fact, it is just as likely to lead to tyranny.

Ratzinger makes a similar argument, expressing his belief that in the political sense, freedom is freedom from tyranny and only exists through what he calls a system of constraints. He writes that “a fundamental question for the democratic system is whether the will of the majority can and should do anything it likes. Can it declare anything it likes to be law that then is binding for everyone, does reason stand above the majority so that something that is directed against reason cannot  really become the law?” Thus for Ratzinger democracy must rest upon an ethos, a shared set  of values, human rights, which are held in common and are above the authority of the majority. Any democratic society must address itself to the question of what must be protected for freedom to exist and to be maintained. For Ratzinger, the shared ethos must be protected, and the constraints of government ought to do the protecting.

Thus the question, do we still have an American Consensus? Can the First Amendment still function as an article of peace? Or is American civil society merely at the mercy of majority? If we have lost the consensus, what functions as the glue that holds together this society?
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  • http://renegadetrad.blogspot.com A Sinner

    An additional question is whether Reason can truly be posited without Faith. Can the State, or even civil society, actually inculcate Natural Law as fundamental without also institutionalizing the Church? And, even if it can, what’s the point of “stopping” at Natural Law? If you’re going to be throwing the power of institutions (including the State) behind favoring and doing coercive propaganda for a particular set of values, why limit those values? Why not continue the favoring right on into Christendom?

    The State will always favor SOME value system. Pluralism of the sort America had, I tend to think necessarily degenerates into hard secularism, because that is the value-system inherent in its alleged “value neutrality.” The question then becomes, theoretically, if someone has to get marginalized or burnt at the stake…would we rather have it be us, or would we rather be the ones favored?

    Some, now, with the luxury of not yet being at that point say “Better to be burnt than to burn” and look to the martyrs of old. But while we should certainly be ready to embrace that should it become the case, are we really supposed to, as Christians, in our political life, actively pursue disestablishment and a pluralism that ultimately leads to secularism and our own persecution? It does not seem the early Christians did this; indeed, Justin Martyr and such wrote their “apologetics” directly to Caesar, and when Constantine brought peace and then Theodosius establishment, the Christians were not scrambling to refuse it.

    And yet, I also have this nagging feeling that critics are also right about Christendom; that, ultimately, it was deceptive because it made it seem like His Kingdom WAS of This World, although it was never better than when the Church and State were at loggerheads and the Church was nevertheless powerful enough to WIN (it got worse the more and more they were in bed rather than uneasy with each other).

    It’s a very tough question.

  • Dante Aligheri

    Ironically, I am taking a college course right now in Catholic social justice, and we are covering this very topic. Thanks for addressing it. There is an article written by a Fr. David Hollenbach, S.J., which argues that one item holding the factions in the so-called “culture wars” from fighting is the middle-class commitment to tolerance as its only virtue. There is no actual concensus, but tolerance holds everything in stasis with everyone pursuing their own atomistic goals. Meanwhile, government is increasingly competing for the support of those extreme factions of the politically invested on either side of the political spectrum (cf. Abramowitz’s book, The Disappearing Center). In the words, the majority of Americans might be shuffling along and holding up an artificial “concensus” of mutual non-interference which has long not existed on the elite levels of political society. My fear is that increasingly partisan elites who are not influenced will lead to a nation ruled by a driven minority.

  • Mark Gordon

    No. The “American Consensus,” to the extent that it ever existed, is collapsing under the weight of it’s own contradictions and false claims. The liberal pretense (I use the term “liberal” in the classical, political sense) that the First Amendment and other such formal-juridical devices are strictly neutral regarding religion is coming undone under the stress of a nation that is increasingly secular and even hostile to the truth claims of Christianity. Far from being merely the content-free “article of peace” that Murray imagined it to be, the First Amendment in fact contains the seed of a serious “article of faith” about the nature of religious truths and, more importantly, about their application to the realm of public policy, as well as individual and group action in the public square.

    Two articles by David Schindler are instructive in this regard. The first, titled “Religious Freedom, Truth, and American Liberalism: Another Look at John Courtney Murray,” from Communio (Winter 1994), the summary first sentence of which reads, “Liberalism invites us to dialogue within the (putatively) open and pluralistic market of religions, all the while it has already, hiddenly, filled the terms of that dialogue with a liberal theory of religion.” The “money graphs” of Schindler’s critique of Murray’s position can be found on page 719.

    The second article is from earlier this year. It’s titled, “The Repressive Logic of Liberal Rights: Religious Freedom, Contraceptives, and the ‘Phony’ Argument of the New York Times.” One of the important points that Schindler makes in this piece is:

    The hallmark claim of liberalism—that its juridical order remains ex officio empty of any one metaphysical truth, in order that individuals and groups in civil society may be left free to seek and defend the truth on its own terms—thus harbors within itself a subtle, but truly massive, deception. On the one hand, the intention of such a formally-conceived juridical order remains just. On the other hand, this juridical order is already filled, hiddenly, with the metaphysical truth of a single group in society, that group which has been formed, largely unconsciously, by the tradition of liberalism. The problem is thus that the purely juridical state of liberalism, ,eo ipso, albeit in a way that is officially blind, conflates and so far eliminates the very distinction between state and civil society that it is the main intention of liberalism itself to defend, and that is indeed necessary for any civilization that would remain genuinely free.

    And later,

    My argument, in this light, is that the proposal of such freedom and rights thus involves of its inner logic a hidden “dictation” of just such a metaphysics. Precisely in the name of a formal nature that would be absent of such relations, the proposal makes present a fragmented and so far reductive form of the relations. The proposal of liberalism thus, in a word, involves what Ratzinger/ Benedict XVI has termed a “dictatorship of relativism.” In the name of the avoidance of any definite metaphysics of the person in relation to God and truth (hence relativism), liberalism eo ipso “imposes” a formalistic metaphysics of the person (hence dictator-ship).

    This, in a nutshell, is why so many of us were so exercised over the insistence of the bishops to defend the Church against the HHS mandate by invoking the very formal-juridical device, the First Amendment, that is the principle agent of the “dictatorship of relativism,” and which will only further the privatization of religion and its exclusion from the public square. The bishops thought they were doing the opposite of course. They thought they were making the case that the Catholic faith should extend to the public good works performed by Catholic institutions like hospitals, universities, etc. But in order to achieve this, they marginalized the universal applicability of Catholic teaching, going so far as to say that their opposition to the HHS Mandate had nothing to do with contraception. In so doing, they were conceding the “article of faith” that lies at the heart of the First Amendment.

    • http://agellius.wordpress.com Agellius

      “Far from being merely the content-free “article of peace” that Murray imagined it to be, the First Amendment in fact contains the seed of a serious “article of faith” about the nature of religious truths and, more importantly, about their application to the realm of public policy, as well as individual and group action in the public square.”

      Precisely.

  • Julia Smucker

    This is an interesting coincidence: I am taking a course entitled “Being Christian in America” (with a predominantly Catholic focus), and I was just reading Murray for tonight’s class. I’m not really sure what to think of him; I resonate with his warnings about the cost of privilege vs. the freedom of being unfettered by entanglements with the State, but then sometimes he seems naively pollyannish about the compatibility of American and Catholic ideals.

    One of the items I’ll be dealing with for next week is the USCCB document, “Our First, Most Cherished Liberty,” about which I have similarly mixed sentiments. So I almost feel as if Josh and Mark are doing my homework for me.

  • Pinky

    There are plenty of problems in our national conversation. But I’m not sure that their root is the loss of belief in natural law. They seem to me to be rooted primarily in a lack of humility.

    Is it possible that our lack of courtesy is rooted in a lack of respect for the natural law and the rights of others? I guess so. But I’m thinking of the English system, which famously doesn’t enumerate rights but counts on the gentlemanliness of tradition. It’s generally been sufficient to maintain unity. I know the American perspective is that our rights are our protection, and those are rooted in nature and nature’s God, but I wonder if it could be argued that it was our willingness to be civil that allowed us to function, and that was rooted in a sense of humility.

    I dunno. I could completely disagree with this tomorrow. That’s just what struck me reading this article.

  • Dante Aligheri

    A Sinner, I think you are right regarding this tension. As you said, the moment Christians could establish themselves within the state’s policies via Constantine they did so without much hesitation. They believed what all other ancient peoples also believed – namely, the state as state had an obligation to worship the powers that be corporately. I am not sure they were entirely incorrect about that, but it had some dangerous implications. Fortunately for them, societies were generally homogeneous culturally so that dissension could be criminalized more easily within the society’s consciousness. In a globalized world, this would be impossible and even more immoral than it was then. I think some well-meaning American Deists like John Adams and Washington (as opposed to radicals like Paine) tried to circumvent this issue by saying the state existed under the most generic label possible for God, i.e., Providence or “nature’s God.” This may be the vision which John Courtney Murray sought to reinvigorate – a public recognition of God the Creator but without reference to creeds. However, this certainly is not value-neutral. I sometimes think that if one accepts the logic of the ancient worldview the confessional state – albeit with a much stronger emphasis on human dignity than in the Holy Roman Empire – is the logical end. Then again, the European confessional state seems positively moribund today, and – like you said – the Kingdom is not of this world.

    Pinky, I agree that public civility goes a long way. I also believe it would help if citizens truly came to understand the obligations involved in being part of a republic in addition to rights – creating a public ethos similar to ancient Greece or early Rome. We have to, as a society, get past the whole idea of negative freedom and the current obsession with “rights” to positive freedom and responsibility. Building that Statue of Lady Responsibility proposed by Viktor Frankl wouldn’t hurt.

  • http://renegadetrad.blogspot.co A Sinner

    Well, I think if there is some notion of the confessional state, of giving positive favor to the Church, even of criminalizing dissent…it can’t be a theocracy. In otherwords, if dissent from the Church is considered (for Christians, at least) dissent from the State…dissent from the State could NOT be considered, in turn, dissent from the Church in any pure way. Otherwise you just have totalitarianism.

    As I said, I think Christendom was at its best when Church and State (though the State was still definitely “confessional”) were at political loggerheads. When the Church and State were NOT “hand in hand” as practically one institution, but rather two different institutions (still of the same Community) whose power and ability to demand “political” loyalty balanced each other and thus they acted as checks on each other, preventing any totalism.

    This is perhaps what the Church as a true “mediating institution” that can truly hold its own against the threat of State totality could look like: a Church that is not in bed with the State, but which can make demands and get into conflict with the State as an institution recognized as just as integral to constitution of the community as the State (very different than the two being in bed together, but also very different from a “separation of Church and State” which has effectively meant the privatization of religion).

    In other words, the model should not be Spain (of either Ferdinand and Isabella, or Franco). Rather, the model should be Catholic England (of Thomas Becket or Thomas More). Of course, the irony there, deliberately, is that both Thomas’s died martyr under their Henries for this very question.

    • Jordan

      A Sinner [October 3, 2012 9:24 pm]: This is perhaps what the Church as a true “mediating institution” that can truly hold its own against the threat of State totality could look like: a Church that is not in bed with the State, but which can make demands and get into conflict with the State as an institution recognized as just as integral to constitution of the community as the State […] (my ellipsis)

      I’d say this model is the delusion some of the American hierarchy, clergy, and laity have unwisely assumed about the American republic. “Fortnight for Freedom” campaign et. al. are not, in my view, designed to claim for the American Church a right to religious liberty which has already been enshrined in the Constitution or constitutional law. Rather, the American Church wishes an exemption for itself based solely on its doctrinal teachings and political influence. The exemption sought by the American Church does not pertain to the constitutional rights of assembly or expression strictly. While many American Catholics would like to think that the Church has a equal and reciprocal relationship with the state (i.e. the state must defer to every claimed liberty of the Church including and beyond assembly and expression), this relationship is not an intrinsic part of the American republic.

      The American republic denies the civil establishment of religious institutions but also rejects laicite. I would also argue that the freedoms of expression and assembly do not imply the absolute and unilateral discretion of a religious body to not participate in certain parts of the civil social contract as ratified by elected representatives and judged lawful by the supreme judiciary. Many in the American Church incorrectly believe that Catholicism has a right to absolute discretion over obedience to civil laws regardless of their legislative or legal status.

      • Thales

        Jordan,

        I haven’t heard anyone claim that the Church has the “absolute and unilateral discretion” to be above the civil laws or some such thing. There is always tension between a religious institution and the government in society — necessarily so. (Just like there is necessarily tension between the individual and the government). It’s always a balancing of tensions, requiring prudence in making decisions about what is proper and what isn’t. But no one thinks the Church can or should be able to operate completely outside the laws of society (being free to commit crimes with impunity, conduct honor killings, etc, for example.). The Church can be made to comply with some civil laws without offending justice (and in fact, justice requires it.)

        But on the other side of the spectrum, at some point, civil laws imposed on the Church can become so onerous as to violate justice and the freedom of the Church. Consider a hypothetical scenario where regulations are “lawfully ratified” and “judged lawful by the supreme judiciary” which require the Church to keep its buildings closed on Sundays, or force it to ordain women, or prohibit it to practice the faith completely.

        The point is that the HHS mandate is a situation that falls between the two extremes. You might think that it’s a situation that falls in the first category — a legitimate regulation that the Church should be expected to follow as a participant in civil society, that doesn’t offend justice. That’s fine. But others disagree with you and think that the HHS mandate pushes into the second category (or at least nears it). Regardless of who’s right or wrong on the HHS mandate, you’d have to agree with your debate opponent that at some point, a lawfully passed civil law might be so egregious that it DOES cross into the second category and become so onerous on the Church as to offend justice, right?

        • dominic1955

          At root this outlines the problem we got ourselves into with the Americanism of prelates like Archbishop Ireland. We went along to get along back in the day when one could reasonably claim we had a certain moral “consensus” with the non-Catholic majority. We wanted to just be one among many so as to make it easier on ourselves, but we sold out. The likes of Murray then spread their overly optimistic poison to the rest of the Church and here we are today.

          Granted, hind sight is 20/20 but we should have been actively trying to convert America into a Catholic country. While we could get along with the WASPy majority of old who could reasonably tolerate us (and vice versa) enough to keep peace, the secularist who now have gained ascendency are not so amiable.

          Now we reap what we have sown.

        • Jordan

          dominic1955 [October 5, 2012 11:35 am]: Granted, hind sight is 20/20 but we should have been actively trying to convert America into a Catholic country.

          Dominic, the post-Enlightenment secular democratic state is a great gift for humanity. Religious belief and faith are undoubtedly pathways to profound insight and great acts of charity and selflessness. However, when religious doctrine is used as a pretense to seize rule, religious belief and faith often turn into the most cruel weapons of human oppression and degradation.

          The secular state protects us from the human impulse to self-justify inhumanity as virtue. Is the secular state just? A Catholic would say no, given that abortion, same-sex-marriage, and abortifacient contraception are legal. And yet, the injustices of secularity clarify the Christian mission. We are called not to be the state, but witness to Christ because of and despite injustice within civil law and the public square. When Christianity becomes the state and its doctrines become the unyielding rules of law, inevitably human dignity must be crushed to maintain confessional fundamentalism.

          I cannot understand why any Catholic would pray for a confessional state. Humanity has seen this road before, and it is a living hell on earth — why tempt this fate? I am convinced that many Christians would trade every liberty for a state which would appear devoid of injustice. Yet, confessionalism merely magnifies injustice. Paradoxically, we must live within an unjust social contract in order to witness to Christ justly.

  • http://agellius.wordpress.com Agellius

    “Thus for Ratzinger democracy must rest upon an ethos, a shared set of values, human rights, which are held in common and are above the authority of the majority.”

    Of course the problem is that in reality, these things are *not* above the authority of the majority, rather they are decided by the majority. And the opinion of the majority, as you say, is largely shaped by “spending the most money in the right ways”.

    I agree with Ratzinger, as well as Pope Leo XIII, that certain things need to be above and beyond the power of the majority to decide. When you let “the people” decide morals you get birth control, abortion, no-fault divorce, the majority of babies being born outside marriage, etc.

    To answer your question, I would say no, there is no consensus. The premisses of our arguments are constantly shifting politically correct orthodoxies. There is no fixed standard by which to judge those orthodoxies, since the standard itself is decided by the majority of the moment.

    • Trellis Smith

      @Agellius I see little basis for much of your assertion other than hyberbole. There is a constitutional consensus of majority rule with minority rights which directly affects certain things above and beyond the power of the majority to decide.One might argue that Roe v Wade is a clear example of this Would you really want a moral minority to rule? Is it really the fault of the secular state for the apparent decline of morals in the society or is it the fault of the religious bodies that have failed to persuade anyone.to follow their moral strictures? None of your examples are the root causes of moral failings, The use of two of them might even be the elimination of one. I fail to see a true conservative position here while Jordan ennuciates a more sure classic conservative understanding, The greatest cause of the polarization of the society is the infection of the religious theocratic right which by over reach has led to a breakdown of consensus. Benedict fully understands the dialectical relation between the Church and the State and identifies the imbalances, You cannot have but an impaired dialectic or balance if one ignores the other but you certianly cannot have one at all if the Church becomes the State

      • http://renegadetrad.blogspot.com A Sinner

        I’m not sure why there is an assumption that a confessional state necessarily means a totalitarian theocracy. Were the Middle Ages hell on earth? Not really; or if so, it was more for lack of indoor plumbing and toilet paper than confessionalism. Then again, our political and ideological and ‘sexual’ situation (re: abortion, immorality, etc) are likely all just reflections of underlying structural economic realities. Trying to treat the symptoms of the debt-money system may indeed be a foolish stop-gap measure, and yet if the underlying economic structure were addressed, everything else might just take care of itself without much coercion at all.

        • trellis smith

          Lewis Mumford actually maintains the lack of indoor plumbing and toliet paper wasn’t so bad and that the demise of the confessioinal state was chiefly brought about by the venality of those who really had a greater interest in maintaining it.

      • Kurt

        I think Agellius is sincere. After all in Spain, 1936, democracy was not going the way the Spanish bishops liked. Their response was to join with the Nazis and support a fascist military coup.

  • http://giftofself.blogspot.com/ Joshua B

    Thanks you all for the replies. For the record, I agree that there is no “American Consensus” and that Murray was perhaps naively optimistic in the “article of peace” bit. Ultimately, my perspective is nearest to Mark’s although my critique of Murray’s is nearer to Cavanaugh’s than Schindler’s.

    For me though, the real pressing question, and probably the reason behind this post is, what now? What is presently holding American civil society together? According to Cavanaugh, it’s war. The nation-state uses war to drum emotions of patriotism/nationalism, any dissenters to the war are labeled as unpatriotic and unity is maintained, at least on the surface. War becomes the sacrament of unity, as it were. I am attracted to Cavanugh’s argument, but while it may have covered all the bases during the post 9-11 Bush regime, I don’t think it does so today.

    What is preventing American civil society from descending into utter plurality without any unity?

    • http://renegadetrad.blogspot.com A Sinner

      I think the answer there is pretty clear: McDonald’s, Walmart, Dancing with the Stars, and Honey Boo Boo. It’s bread and circuses, shared consumerism and entertainment media, that keeps a society “together” at this late stage. The endless wars and 24-hour election coverage that starts the day after the previous inauguration…are just part of the circus.

      • Trellis Smith

        Perhaps a bit flippant but more than a grain of truth in what you say. I have often heard that consumerism elevates all sectors to the same levels. So that same sex marriage licenses are valued for the additions to the city coffers and the retail trade loves the gays. Chick a fil nonwithstanding – you don’t want to offend.

        • Trellis Smith

          … and the noise of the circuses mingled with the cries of the dying defenders at the gates.

  • Kurt

    Let’s not take the recent “Fortnight for Freedom” campaign and elevate it into some deep, misguided ideology of the American Church. The Fortnight was something crafted and funded by Republican operatives, many of whom are also generous benefactors of the Church, and implemented by certain dioceses at the request of these benefactors. It will disappear as soon as its political utility to these operatives passes (which is happening now).

    Remember, the USCCB took a whole week after HHS announced the compromise to say they could not accept it; a time during which the bishops wre getting frantic telephone calls that they can’t take away this political issue against Obama that the Republicans had spend so much effort developing (and a compromise which they had been asked to look at a month before the announcement and did not rule unacceptable).

    • Jordan

      Kurt [October 4, 2012 3:57 pm]: The Fortnight was something crafted and funded by Republican operatives, many of whom are also generous benefactors of the Church, and implemented by certain dioceses at the request of these benefactors.

      I quite beg to differ. The response of some prelates to the HHS controversy profoundly changes American Church and American republic relations. If some prelates and dioceses wish to function as Republican party partisans, then they must accept incorporation. No religious body can participate as a political entity and claim the shelter of tax exemption. The American Church has platforms such as EWTN which are incorporated and free from political restrictions. EWTN in effect protects the politically conservative interests of the Church from the violation of tax statutes. The creation of incorporated media to disseminate conservative Catholic political viewpoints is constitutional. I do wonder why prelates would risk the proper place of American Catholicism by direct political action.

      Once prelates and dioceses attempt to influence politics directly, the subordination of religious bodies to the secular state is threatened. The only firewall between American secularity and confessionalism or theonomy is the prohibition of direct political action by religious groups, enforced through revenue laws. Any prelate or diocese who claims that they possess the freedom to break the civil contract blatantly disregards one of the fundamental safeguards of our supra-religious republic.

  • Jordan

    Thales [October 4, 2012 11:21 pm] [transferred]: Regardless of who’s right or wrong on the HHS mandate, you’d have to agree with your debate opponent that at some point, a lawfully passed civil law might be so egregious that it DOES cross into the second category and become so onerous on the Church as to offend justice, right?

    Certainly, legislation which severely restricts the free exercise of religion can offend civil justice. Judicial ruling, and not the judgment of the institutional Church, is the proper and necessary medium to redress legislative injustice. All civil justice must be subject to judicial ruling regardless of whether or not some of the clergy or laity consider a law ipso facto unjust. If the SCOTUS rules that a law is not unjust and not unduly burdensome per constitutional law, then the Church must obey civil law or pay any penalties which would result from civil disobedience. Certainly one might personally believe that the institutional Church’s understanding of constitutionality is superior to judicial ruling on constitutionality. If that is the case, then that person should seriously examine why he or she remains a citizen.

    Religious exemptions cut both ways. For example: a number of rabbis have opposed legislation to ban partial-birth abortion. In Judaism, the life of the mother always takes precedence over the life of the unborn child. In the view of some rabbis, a ban on partial birth abortion impedes the liberty of rabbis to decide on the licity of a late abortion from the perspective of Jewish law. Suppose that Roe were to be overturned and the abortion issue returned to the states. Suppose also that the SCOTUS ruled that rabbis have the absolute federal ability to aid in the procurement of late third-trimester abortions despite a number of state constitutional amendments severely restricting or abolishing all abortions. The institutional Catholic Church, as a participant in civil society, would be obliged to respect this judicial decision even though all abortion is anathema per Catholic doctrine. If a judiciary can rule that the HHS directive is an undue burden for the institutional Church, then a judiciary can also rule that an act which the Church considers to be murder is licit as an exemption for another religious group.

    I support the supremacy of the secular civil state and constitutional law only because the issuance of religious exceptions without thorough due process creates situations where no religious group is satisfied with their civil rights. I am convinced that many Catholics have not truly considered the many complicated and potentially deleterious ramifications of in/justice and secularity.

    • dominic1955

      However, coming from a Catholic perspective, is the secular state the arbiter of objective truth? No, the Church is. A law of the state might be constitutional according to what they have drawn up and thus legal and so therefore fine according to their own courts, etc. That is quite irrelevant to us.

      Legal positivism does not decide what is just or right. Give unto Caesar what is caesar’s, right? Our first loyalty is to God and His Church. The unfortunate part is that we decided to go along to get along when it seemed like we could co-exist. Now, that is coming back to bite us.

      Traditionally we had a much more coherent take on “religious liberty”. Liberty of religion is only the ability to practice the True Faith (Catholicism), all others are to be tolerated, at most, seeing as one cannot have a positive right to that which is objectively false. Now we have put ourself in the silly situation in which, legally, we would seem to have to acquiesce to the “rights” of false religions.

      • Jordan

        re: dominic1955 [October 5, 2012 1:53 pm]: Please read my comment at [October 5, 2012 3:28 pm] in this thread. Do you know the horrors which lie behind the society for which you ask and pray? Men and women are absolutely incapable to create a state based solely on Catholic moral precepts because humanity is bowed under by concupiscence. We are blind to our thirst for power precisely because of our fallen nature. Through a theonomic state, self-righteous “Catholics” subjectify persons who threaten their pelagian security. This subjectification profoundly perverts the very Gospel which culminates in the death of human subjectification on the Tree.

        The putrid self-righteousness of Catholic clergy and laity who ally themselves with the religious right has utterly alienated me from Catholicism. The social conservative refusal to cooperate with the demos in a charitable renewal of state and society is not pure worship of God but rather a profound worship of the wooden and mute idol Pride. ne auferas cum peccatoribus animam meam cum viris sanguinum vitam meam (Ps 25:9)

    • Thales

      Jordan,

      I’m a little puzzled about your post, because much of it doesn’t make sense to me. “Judicial ruling is the proper and necessary medium to redress legislative injustice.” Um, I guess, sometimes. But courts aren’t the final arbitrator of justice. The courts are the arbitrators of the law. And sometimes, the law is wrong and unjust. So shouldn’t we just change the law that happens to be unjust? In other words, the proper and necessary medium to redress legislative injustice should be, first and foremost, to redress (i.e., change) the law.

      “If the SCOTUS rules that a law is not unjust and not unduly burdensome per constitutional law, then the Church must obey civil law” Sure, the Church must obey the civil law — I don’t think too many people are arguing that the Church should revolt against the civil law. But the civil law could still be unjust, despite the SCOTUS’s decision. And there’s another option besides obeying the civil law and disobeying the civil law…. we can change the law. Why can’t we do that?

      I don’t understand your complete devotion to the Constitution and what SCOTUS says about the Constitution. The Constitution is not the final standard of what is just and right for our society and the common good. Remember slavery? That was constitutional. The Constitution is the mere skeleton of our legal system, a skeleton which is flawed and can and should be changed if it needs to be. That’s why there is an amendment process in the Constitution. And besides the flaws in the Constitution, the Constitution is silent on a host of issues. In other words, our society needs to create other laws at the federal, state, local levels in order to advance the common good. And if a law doesn’t support justice and common good, we should change the law, and most of the time, this has nothing to do with the Constitution (due to the fact that often both the unjust and just laws are both constitutional.)

      Finally, you are aware, aren’t you, that SCOTUS hasn’t made a decision about whether the HHS directive is constitutional or not? That is still going through the lower courts, and some lower courts are hinting that the HHS directive might actually be unconstitutional.

      • Jordan

        re: Thales [October 5, 2012 9:52 pm]: Thank you Thales for destroying my argument. Let me see if I can reconstruct my thoughts more clearly.

        First, you are certainly right that justice, legality, and morality are not synonymous. Often in American history courts has deemed lawful profound dehumanization and brutality. Slavery, as you quite righly note, is a prime example. Plessy v. Ferguson (1896; “separate but equal”) is an example of a SCOTUS ruling which enshrined as legal profound discrimination against African Americans. Slavery, however, was abolished by the thirteenth amendment. Plessy was later overturned by the SCOTUS in Brown v. Board of Education (1954). While the thirteenth amendment and Brown overturned grave injustice through different means, both actions entirely respected the legitimate processes of American government. Injustices were not ended by executive fiat or the intervention of clerics over the prerogative of the secular state, but rather by the proper execution of the American system of government.

        You are right to point out my misunderstanding about the HHS directive. You are also right that a number of Catholics’ opposition to the directive have been rightly channeled through lawsuits which have already been heard before lower courts. The correction of injustice must, however, proceed through the courts until the legal process renders judgment. The institutional and corporate Church, as participants in the civil contract, must obey judicial rulings even if Catholics consider judicial rulings to be unjust. Should perhaps a Catholic-led lawsuit against the HHS reach the SCOTUS, and should the SCOTUS rule that Catholic employers do not have the right to deny their employees access to insurer-paid contraceptives, then Catholic institutions and Catholic employers must either comply through the payment of penalties or commit civil disobedience until the injustice is remedied through a successful appeal or subsequent case. The institutional and corporate Church’s compliance with the civil contract is not inherently unjust, as the Church is a participant under and not a equal partner with government. Catholics who claim that the Church and its adherents are unfairly “punished” for mere participation in the civil contract are in effect denying that citizenship is a privilege granted by the law. Citizenship is not subordinate to religious conviction. All citizens must challenge unjust laws. Even so, challenges must take place under an necessarily flawed system unless the rights of all citizens to due process is critically damaged.

        Although law is, as you put it Thales, a “skeleton” for the creation of a just state, legitimate paths to justice per natural law or Catholic doctrine must at times pass through legalized injustice. As I have maintained, the judicial system is a necessary bulwark against theonomy. A number of Catholics, perhaps frustrated by the slow turns of the judicial cogs, have dismissed courts as “activist” or biased against Catholicism. The alternative to judicial process is the elevation of confessionalism as an ideal. The HHS directive might be unjust per Catholic morality, but even more injust is the abstract possibility of confessionalist dehumanization.

        • Thales

          Jordan,
          Maybe we’re talking past each other because I don’t understand a lot of your concerns. You talk about the judicial process on one side and the elevation of confessionalism on the other. I suppose you might be right, but my point is that those aren’t the only two options when seeking to create a just society. If we want to work for a just society, the alternatives aren’t only seeking judicial recourse and revolting against the judicial process and the rest of civil society. The most obvious to seek to correct injustice and to seek to create a just legal system that best furthers and protects the common good is by engaging in the legislative and political process — in short, by creating good laws (and electing good people who will create good laws.)

  • Jordan

    I apologize for my typos. Perhaps I should invest in a better copy editor.

    re: Thales [October 6, 2012 10:29 pm] [transferred]: I wholeheartedly agree that injustices should also be redressed through legislative and political processes. This includes the election of representatives who might rectify what the Church perceives as unduly burdensome. Candidate or party endorsement must also respect secularity. I do not criticize a priest or bishop who endorses a political party or candidate with the explicit disclaimer that he speaks only as an individual and as a citizen. A preacher who even implicitly advocates for a specific political party or candidate during Mass has clearly violated the separation of church and state. A house of worship is not a venue to issue anathemata against parties and candidates in order to influence the way in which the faithful vote.

    By all means Catholics should vote their consciences and encourage their co-religionists to act similarly. EWTN and other incorporated media venues are appropriately disseminate the political opinion of certain prelates, clergy, and laypersons without jeopardizing secularity.

    In closing: Thales, I respect you and any person who truly believes in a religion and is quite willing to charitably defend this belief through all licit avenues of the state. The political, legislative, and judicial fight for the redress of indignity can result in collateral human damage when placed in sanctimonious hands. Some Catholics (not you, Thales or any VN participant) have squashed human dignity in the course of the political and legislative quest to block same-sex-marriage, for example. As a gay person I know that not a few Catholics will continue to objectify and dehumanize me in order to reach a political end. I require a strong secular state to protect me from a number of Catholics who are certainly willing to persecute others politically when this is convenient. Hope in God, perhaps; but fear those under the delusion of works-righteousness who bludgeon others with malicious distortions of the Gospel.