BOSTON COLLEGE LAW BOSTON COLLEGE LAW SCHOOL PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER SERIES RESEARCH PAPER NO. 38 Aay21,2004 John Paul ll, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism Gregory A. Kalscheur Assistant Professor, Boston College Law School This paper can be downloaded without charge from the Social science Research Network http://ssrn.com/abstract=550201
BOSTON COLLEGE LAW BOSTON COLLEGE LAW SCHOOL PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER SERIES RESEARCH PAPER NO. 38 May 21, 2004 John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism Gregory A. Kalscheur Assistant Professor, Boston College Law School This paper can be downloaded without charge from the Social Science Research Network: http://ssrn.com/abstract=550201
John Paul ll, John Courtney murray, and the relationship between Civil Law and Moral Law: A Constructive Proposal for Contemporary American pluralism Gregory A. Kalscheur, SJ A September 2003 USA TODAY/CNN/Gallup Poll found that Americans are content to see "In God We Trust on coins and a bible on a teacher's desk - but they object to priests and rabbis advising politicians on abortion or the death penalty. Similar objections greeted the July 2003 Vatican statement opposing proposals to give legal recognition to same-sex unions. Senator John Kerry, for example, contended that the statement inappropriately"crossed the line separating church and state in American politics Reactions like these pose a significant challenge to a church whose social teaching includes a call for the recovery of the basic elements of a vision of the relationship between civil law and moral law. John Paul ll issued that call in his 1995 legal justification for contemporary attacks on human life like abortion and euthanasia 9 encyclical Evangelium Vitae, in response to what he characterized as a trend to demand a "as if they were rights which the state, at least under certain conditions, must acknowledge as belonging to citizens. In the face of this trend, the Pope advocates a jurisprudential vision which includes the"doctrine on the necessary conformity of civil law with moral law, a doctrine"which is in continuity with the whole tradition of the church. While this vision is"put forward by the church, the Pope notes that it is"also part of the patrimony of the great juridical traditions of humanity. Shortly after Evangelium Vitae appeared, moral theologian Richard McCormick, S J suggested that the encyclical's discussion of the relationship of the moral law to the civil law would remain the most controversial part of the encyclical"after the dust settles. In the U.S. context, the controversial aspect of this discussion stems, in large part, from the plurality of moral views that exist in American society regarding issues Assistant Professor of Law. Boston College Law School, LL. M. 2003. Columbia Law School J.D., 1988, Michigan Law School; S.T. L, 2002, M.Div, 2001, Weston Jesuit School of Theology, BA 1985, Georgetown University. See Larry Copeland, Church-and-State Standoffs Spread over USA, USA TODAY, Sept 30, 2003 at al5. 3 pavid R Guarino, Kerry Raps Pope: Senator Fuming Over Gay Marriage Order,BOSTON HERALD, Aug 2, 2003, at I. The document, Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons, was promulgated on July 31, 2003 by the Congregation for the Doctrine of the Faith. See 33 ORIGINS 177(Aug. 14, 2003) Pope John Paul Il, EVANGELIUM VITAE (71(1995)[hereinafter EVANGELIUM VITAE Id at68 ld at72 Id at 1 Richard A McCormick, S.J., The Gospel of Life, 172 AMERICA 12(April 29, 1995), quoted in Kevin P. Quinn, S.J., Whose Virtue? Which Morality? The Limits of Law as a Teacher of virtue-A Comment on Cathleen Kaveny, in CHOOSING LIFE: A DIALOGUE ON EVANGELIUM VITAE 150(K Wildes A Mitchell eds, 1997). hereinafter CHOOSING LIFE
1 John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism Gregory A. Kalscheur, S.J.1 A September 2003 USA TODAY/CNN/Gallup Poll found that Americans are content to see “In God We Trust” on coins and a Bible on a teacher’s desk – but they object to priests and rabbis advising politicians on abortion or the death penalty.2 Similar objections greeted the July 2003 Vatican statement opposing proposals to give legal recognition to same-sex unions. Senator John Kerry, for example, contended that the statement inappropriately “crossed the line” separating church and state in American politics.3 Reactions like these pose a significant challenge to a church whose social teaching includes a call for the recovery of “the basic elements of a vision of the relationship between civil law and moral law.”4 John Paul II issued that call in his 1995 encyclical Evangelium Vitae, in response to what he characterized as a trend to demand a legal justification for contemporary attacks on human life like abortion and euthanasia, “as if they were rights which the state, at least under certain conditions, must acknowledge as belonging to citizens.”5 In the face of this trend, the Pope advocates a jurisprudential vision which includes the “doctrine on the necessary conformity of civil law with moral law,” a doctrine “which is in continuity with the whole tradition of the church.”6 While this vision is “put forward by the church,” the Pope notes that it is “also part of the patrimony of the great juridical traditions of humanity.”7 Shortly after Evangelium Vitae appeared, moral theologian Richard McCormick, S.J. suggested that the encyclical’s discussion of the relationship of the moral law to the civil law would remain the most controversial part of the encyclical “after the dust settles.”8 In the U.S. context, the controversial aspect of this discussion stems, in large part, from the plurality of moral views that exist in American society regarding issues 1 Assistant Professor of Law, Boston College Law School, LL.M., 2003, Columbia Law School, J.D., 1988, Michigan Law School; S.T.L., 2002, M.Div., 2001, Weston Jesuit School of Theology; B.A., 1985, Georgetown University. 2 See Larry Copeland, Church-and-State Standoffs Spread over USA, USA TODAY, Sept. 30, 2003, at A15. 3 David R. Guarino, Kerry Raps Pope: Senator Fuming Over Gay Marriage Order, BOSTON HERALD, Aug. 2, 2003, at 1. The document, Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons, was promulgated on July 31, 2003 by the Congregation for the Doctrine of the Faith. See 33 ORIGINS 177 (Aug. 14, 2003). 4 Pope John Paul II, EVANGELIUM VITAE ¶ 71 (1995) [hereinafter EVANGELIUM VITAE]. 5 Id. at ¶ 68. 6 Id. at ¶ 72. 7 Id. at ¶ 71. 8 Richard A. McCormick, S.J., The Gospel of Life, 172 AMERICA 12 (April 29, 1995), quoted in Kevin P. Quinn, S.J., Whose Virtue? Which Morality? The Limits of Law as a Teacher of Virtue – A Comment on Cathleen Kaveny, in CHOOSING LIFE: A DIALOGUE ON EVANGELIUM VITAE 150 (K. Wildes & A. Mitchell eds., 1997). [hereinafter CHOOSING LIFE]
like abortion, physician-assisted suicide, embryonic stem-cell research, and the legal recognition of homosexual unions. Moreover, the often"muddled"understanding of the relationship that should exist between law and morality exacerbates the confusion stemming from the plurality of moral views. Given this social reality, it is difficult to articulate the precise shape and scope of the " necessary conformity" between civil law and moral law that the Pope desires to promote The Pope's extensive jurisprudential reflections in Evangelium Vitae prompt the question I consider in this presentation: How should we understand the doctrine on the necessary conformity of civil law with moral law in a religiously pluralistic democratic relationship between moral values and civil law that is grounded in the tradition of tif o society like that of the United States today? My objective is to articulate a vision of th church's social thought and that can allow the church to contribute credibly and effectively to public discourse regarding the law and public policy in our religiously pluralistic democratic society I will begin by outlining the understanding of the relationship between law and morality John Paul Il articulates in Evangelium Vitae. I will then turn to the understanding of the differentiated relationship of law and morality developed in the work of theologian John Courtney Murray, S.J. It is appropriate to ground contemporary analysis of this issue in the pioneering work of Murray, since, in the words of Cardinal Bernardin, "In]o single figure in American history has had greater impact on how Catholics conceive of the relationship between religion and politics. Finally supplementing Murray's views with insights gleaned from a number of contemporary voices in Catholic social thought, I will suggest six axioms that ought to inform our vision of the appropriate relationship between religious values, the objective moral order, and civil law and public discourse in the context of twenty-first century American pluralism I. The jurisprudence of Evangelium vitae The Pope's jurisprudential reflections begin with a catalogue of tendencies that underlie contemporary claims to legal justification for attacks on human life like abortion and euthanasia. John Paul ii believes these tendencies are rooted in the ethical relativism pervading much of contemporary culture. The first of these tendencies is a claim he characterizes as"a proportionalist approach, an approach of "sheer calculation According to this approach, the life of an unborn or seriously disabled person is only a relative good. This good must be balanced against other goods, and only the moral decision maker in a particular concrete situation can correctly evaluate the goods at stake [O]nly that person would be able to decide on the morality of his choice. The state See Quinn, supra note 8, at 152 (calling for" a more complete exposition of the muddled relation between law and morality, and suggesting the social theory of John Courtney Murray as an appropriate starting point) Joseph Cardinal Bernardin, Religion and Politics: Stating the Principles and sharpening the Issues(Woodstock Forum Address-Georgetown University, Oct 25, 1984), in A MORAL VISION FOR AMERICA 38(John P. Langan, S.J., ed, 1998) I See EVANGELIUM VITAE, supra note 4,170
2 like abortion, physician-assisted suicide, embryonic stem-cell research, and the legal recognition of homosexual unions. Moreover, the often “muddled” understanding of the relationship that should exist between law and morality exacerbates the confusion stemming from the plurality of moral views. 9 Given this social reality, it is difficult to articulate the precise shape and scope of the “necessary conformity” between civil law and moral law that the Pope desires to promote. The Pope’s extensive jurisprudential reflections in Evangelium Vitae prompt the question I consider in this presentation: How should we understand the doctrine on the necessary conformity of civil law with moral law in a religiously pluralistic democratic society like that of the United States today? My objective is to articulate a vision of the relationship between moral values and civil law that is grounded in the tradition of the church’s social thought and that can allow the church to contribute credibly and effectively to public discourse regarding the law and public policy in our religiously pluralistic democratic society. I will begin by outlining the understanding of the relationship between law and morality John Paul II articulates in Evangelium Vitae. I will then turn to the understanding of the differentiated relationship of law and morality developed in the work of theologian John Courtney Murray, S.J. It is appropriate to ground contemporary analysis of this issue in the pioneering work of Murray, since, in the words of Cardinal Bernardin, “[n]o single figure in American history has had greater impact on how Catholics conceive of the relationship between religion and politics.”10 Finally, supplementing Murray’s views with insights gleaned from a number of contemporary voices in Catholic social thought, I will suggest six axioms that ought to inform our vision of the appropriate relationship between religious values, the objective moral order, and civil law and public discourse in the context of twenty-first century American pluralism. I. The Jurisprudence of Evangelium Vitae The Pope’s jurisprudential reflections begin with a catalogue of tendencies that underlie contemporary claims to legal justification for attacks on human life like abortion and euthanasia. John Paul II believes these tendencies are rooted in the ethical relativism pervading much of contemporary culture.11 The first of these tendencies is a claim he characterizes as “a proportionalist approach,” an approach of “sheer calculation.” According to this approach, the life of an unborn or seriously disabled person is only a relative good. This good must be balanced against other goods, and only the moral decision maker in a particular concrete situation can correctly evaluate the goods at stake. “[O]nly that person would be able to decide on the morality of his choice. The state, 9 See Quinn, supra note 8, at 152 (calling for “a more complete exposition of the muddled relation between law and morality,” and suggesting the social theory of John Courtney Murray as an appropriate starting point). 10 Joseph Cardinal Bernardin, Religion and Politics: Stating the Principles and Sharpening the Issues (Woodstock Forum Address – Georgetown University, Oct. 25, 1984), in A MORAL VISION FOR AMERICA 38 (John P. Langan, S.J., ed., 1998). 11 See EVANGELIUM VITAE, supra note 4, ¶ 70
therefore, in the interest of civil coexistence and social harmony, should respect this choice, even to the point of permitting abortion and euthanasia. "12 The second tendency the pope identifies is the claim that the civil law cannot demand that citizens conform to moral standards higher than those acknowledged and shared by all citizens. Hence the law should al ways express the opinion and will of the majority of citizens"and recognize in some cases the right to abortion and euthanasia. 3 unsafe illegal practices, would be unenforceable in practice and, as a result, would oe a third tendency is rooted in prudential and pragmatic concerns. It is claimed that given popular support for abortion and euthanasia in certain circumstances-the legal prohibition and punishment of these practices would inevitably lead to an increase undermine the authority of all law Finally, the Pope describes a viewpoint that might be characterized as a"complete autonomy" claim. This view maintains that, in a modern and pluralistic society, people should be allowed complete freedom to dispose of their own lives as well as the lives of the unborn. "[t is not the task of the law to choose between different moral opinions and still less can the law claim to impose one particular opinion to the detriment of others The Pope believes that these views contribute to the contemporary assertion that the legal system of any society should be based only on what the majority considers moral and actually practices. Because many believe that an understanding of objective truth shared by all is unattainable, the norms governing social coexistence should be based simply on the will of the majority, whatever this may be. " Hence, every politician, in his or her activity, should clearly separate the realm of private conscience from that of public conduct This bifurcation in turn supports"what appear to be two diametrically opposed tendencies. l7 On the one hand, the state is not to adopt or impose any ethical position instead, in the name of freedom of choice, the state's only role is to guarantee[ maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen On the other hand, public officials, when exercising their duties, are to set aside their own moral convictions "in order to satisfy every demand of the citizens which is ecognized and guaranteed by law' the only moral criterion for the exercise of ones official duties is what is laid down by the law itself. "Individual responsibility is thus ld at 1 4 See id ld EVANGELIUM VITAE, supra note 4,169
3 therefore, in the interest of civil coexistence and social harmony, should respect this choice, even to the point of permitting abortion and euthanasia.”12 The second tendency the Pope identifies is the claim that the civil law cannot demand that citizens conform to moral standards higher than those acknowledged and shared by all citizens. “Hence the law should always express the opinion and will of the majority of citizens” and recognize in some cases the right to abortion and euthanasia.13 A third tendency is rooted in prudential and pragmatic concerns. It is claimed that – given popular support for abortion and euthanasia in certain circumstances – the legal prohibition and punishment of these practices would inevitably lead to an increase in unsafe illegal practices, would be unenforceable in practice and, as a result, would undermine the authority of all law.14 Finally, the Pope describes a viewpoint that might be characterized as a “complete autonomy” claim. This view maintains that, in a modern and pluralistic society, people should be allowed complete freedom to dispose of their own lives as well as the lives of the unborn. “[I]t is not the task of the law to choose between different moral opinions, and still less can the law claim to impose one particular opinion to the detriment of others.”15 The Pope believes that these views contribute to the contemporary assertion that the legal system of any society should be based only on what the majority considers moral and actually practices. Because many believe that an understanding of objective truth shared by all is unattainable, the norms governing social coexistence should be based simply on the will of the majority, whatever this may be. “Hence, every politician, in his or her activity, should clearly separate the realm of private conscience from that of public conduct.”16 This bifurcation in turn supports “what appear to be two diametrically opposed tendencies.”17 On the one hand, the state is not to adopt or impose any ethical position; instead, in the name of freedom of choice, the state’s only role is to “guarantee[ ] maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen.”18 On the other hand, public officials, when exercising their duties, are to set aside their own moral convictions “in order to satisfy every demand of the citizens which is recognized and guaranteed by law”; the only moral criterion for the exercise of one’s official duties is what is laid down by the law itself.19 “Individual responsibility is thus 12 Id. at ¶ 68. 13 See id. 14 See id. 15 Id. 16 EVANGELIUM VITAE, supra note 4, ¶ 69. 17 Id. 18 Id. 19 Id
turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere The Pope strongly condemns the idolization of democracy that he sees fl from these tendencies. Democracy's moral value is not automatic, nor is the system of democracy a substitute for morality. Instead, the moral value of democracy depends on its conformity to the moral law -"its morality depends on the morality of the ends which are not to be ignored by the democratic system: the dignity of every human person, respect for inviolable and inalienable human rights, and adoption of the common good as the end and criterion regulating political life These values are not rooted in shifting majority opinions, but in acknowledgement of the objective moral law. This objective moral law-the natural law written on the human heart-serves as the obligatory point of reference for civil law itself. Social peace built on some foundation other than the values of human dignity and solidarity frequently proves to be illusory. The interests of the powerful operate to sha consensus, and democracy becomes an empty word. In order to avoid this fate, it is urgently necessary" to"rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person. 4+ These values are not created, modified, or destroyed by individuals majorities, or states. Instead, these values can only be acknowledged, respected, and promoted. 25 Moreover, this rediscovery of essential and innate human and moral values must include the recovery of the proper vision of the relationship between civil law and moral law. The Pope recognizes that" the purpose of the civil law is different and more limited in scope than that of the moral law. The civil law cannot take the place of conscience or dictate norms concerning matters outside its competence. The limited competence of the civil law"is that of ensuring the common good of people through the recognition and defense of their fundamental rights, and the promotion of peace and of public morality Because the real purpose of the civil law is to guarantee an ordered social coexistence in true justice, it must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law 2 EVANGELIUM VITAE, Supra note 4, 70 ld 23 Id at71 See id EVANGELIUM VITAE, supra note 4,171 Dignan. Id. In support of this conception of the limited role of civil law, the Pope cites paragraph 7 of nt can be found VATICAN II: THE CONCILIAR AND POST CONCILIAR DOCUMENTS 799-812(Austin Flannery, O.P., ed, new rev. ed, 1998) For a discussion of the role played by John Courtney Murrays thought in the drafting of Dignitatis Humanae, see JOHN T NOONAN, JR, THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM 329-53(1998)
4 turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere.”20 The Pope strongly condemns the idolization of democracy that he sees flowing from these tendencies. Democracy’s moral value is not automatic, nor is the system of democracy a substitute for morality. Instead, the moral value of democracy depends on its conformity to the moral law – “its morality depends on the morality of the ends which it pursues and the means which it employs. . . . [T]he value of democracy stands or falls with the values which it embodies and promotes.”21 Certain values are fundamental and are not to be ignored by the democratic system: the dignity of every human person, respect for inviolable and inalienable human rights, and adoption of the common good as the end and criterion regulating political life. These values are not rooted in shifting majority opinions, but in acknowledgement of the objective moral law. This objective moral law – the natural law written on the human heart – serves as the “obligatory point of reference for civil law itself.”22 Social peace built on some foundation other than the values of human dignity and solidarity “frequently proves to be illusory.”23 The interests of the powerful operate to shape consensus, and democracy becomes an empty word. In order to avoid this fate, it is “urgently necessary” to “rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person.”24 These values are not created, modified, or destroyed by individuals, majorities, or states. Instead, these values can only be acknowledged, respected, and promoted.25 Moreover, this rediscovery of essential and innate human and moral values must include the recovery of the proper vision of the relationship between civil law and moral law. The Pope recognizes that “the purpose of the civil law is different and more limited in scope than that of the moral law.”26 The civil law cannot take the place of conscience or dictate norms concerning matters outside its competence. The limited competence of the civil law “is that of ensuring the common good of people through the recognition and defense of their fundamental rights, and the promotion of peace and of public morality.”27 Because the real purpose of the civil law is to guarantee an ordered social coexistence in true justice, “it must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law 20 Id. 21 EVANGELIUM VITAE, supra note 4, ¶ 70. 22 Id. 23 Id. 24 Id. at ¶ 71. 25 See id. 26 EVANGELIUM VITAE, supra note 4, ¶ 71. 27 Id. In support of this conception of the limited role of civil law, the Pope cites paragraph 7 of Dignitatis Humanae, Vatican II’s Declaration on Religious Liberty. The document can be found in VATICAN II: THE CONCILIAR AND POST CONCILIAR DOCUMENTS 799-812 (Austin Flannery, O.P., ed., new rev. ed., 1998) For a discussion of the role played by John Courtney Murray’s thought in the drafting of Dignitatis Humanae, see JOHN T. NOONAN, JR., THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM 329-53 (1998)