Doug Kmiec is at it again. The debate on conscience protection is from April 2009 but has some interesting insights into the new thinking of Doug Kmiec.
Much of what he offers borders on a mistake in thinking that he pointed out in his Constitutional Law book. In the book Kmiec asks "Democracy, means or an end" (not exact quote but close enough). He used to answer the question "means" but now he has done a complete 180 and finds that democracy is actually the end. Amazingly, he states that democracy is no longer the favored means of achieving the good, it is the preferred method for determining the good:
"Unfortunately, in this temporal exile of ours, the fourth proposition is also true: the good is always disputed, and some mechanism in a pluralistic society is needed to resolve the differences in the conception of the good.
The fifth proposition, in America we decide in most cases to depend upon reasoned argument, persuasion, and ultimately democratic choice, to determine the good."
The fifth proposition is the most troublesome. Both from a Catholic and an American perspective. Here in America we have begun to define the good by democratic choice, especially individuals who label themselves liberals; but, this is not the American tradition.
In America, we hold the good of man and the rights and duties he must exercise to achieve this good to be "self-evident," i.e. not up for discussion, dialogue or democratic compromise. The right to life, being the first listed in the Declaration of Independence.
To argue that the very concept of the good can be disputed and chosen by a electoral vote, is to concede that we live in a tyranny, not of a monarch but of a mob. A mob without restraint, that has the power to say that good is evil and evil is good, is not the democratic ideal as Americans or our Founders understood it. It is these very two different conceptions of "democracy" that allowed thinkers like Edmund Burke to support our revolution and despise the French. The French revolution was the triumph of the mob, our revolution was the triumph, at least in the real of ideals, of government built on the non-negotiable Truth about man.
Turning now to the problems presented by Kmiec's statement from the Catholic perspective. Kmiec first starts by giving quick recognition of Church teaching, but then goes on to weaken its effect:
"Now, here is where the difficulty comes in. The church I love, the faith of my fathers and grandfathers, the American Catholic Church, has in modern times often chosen not to accept the democratic outcome as the conclusion to be guided by. Now, in some ways this is unproblematic, and one can find constitutional scholars across the land who dissent from various propositions when the Supreme Court of the United States, for example, undertakes to do something — like Roe v. Wade from my perspective — that is usurping of the legislature authority
and structure provided for in the Constitution. So the Church, when it echoes those arguments, is not particularly controversial.
But the Church makes a broader claim than that. It is a claim I am quite fond of, but it has great difficulty to it in terms of application. That is that democratic outcome can never trump the truth, that, as John Paul reminded us in Veritatus Splendor, a democracy not
well aimed with the truth of the human person in mind is very well on the track toward totalitarianism. The problem is that truth claims, like other claims of the good, are always disputed.
Then we come to really difficult times in our current Church circumstance, and that is some of our leaders guide us internally by intimidation and sacramental denial, or the threat of sacramental denial, and by practices of shunning, most recently Professor Glendon. She is the shunner, Notre Dame is the shunnee, in case you haven’t been following the stories.
. . .
So my eighth question and proposition is: How well situated is a church that proceeds in this fashion to ask for an exemption from generally applicable laws that we ask others to abide by? I would suggest that it tends to weaken its position in terms of asking for that exemption, and that in itself presents its own problems.
. . .
With respect to institutional claims for conscience exemption, I suggest that there should be a presumption against giving those, largely because they are anti-democratic. By contrast, in terms of individual claims of conscience, I suggest the law should be highly sensitive to those, for among other reasons, as I have been told over and over again because of my sin of “Obama meisting,” that I have a lot to answer for with St. Peter and for whom he works, and some metaphysical consequences of individually engaging in intrinsic evil are more profound for the individual than for the institution, which may or may not continue into eternity. The law should be particularly sensitive about it."
In other words, Kmiec thinks it anti-democratic for the Church to refuse to prostitute Herself to participate in the evil aspects of programs put forward by politicians who want to turn the Church from an independent entity to an arm of federal and state government public policy. Moreover, when Her pastors, our shepherds, the Bishops, shepherd us or our fathers, the priests, chastise us, who are their children, it is "intimidation" and "sacramental denial." This sounds like a teenager who is grumpy with his parents for threatening to punish them for staying beyond curfew. It is an act of mercy, not intimidation, to chastise the sinner, just read your Baltimore Catechism Professor Kmiec.
Finally, Kmiec (beyond advocating for the elimination of marriage and treating homosexual pairs and marriages equally in law and naming them all "quarks" as a model for religious freedom), states amazingly that:
"This notion of creating an ideal world through law is a forfeiture of the faith and the power of the faith. It is directly contrary, it seems to me, to Thomas’s teaching, to the Thomastic teaching about not seeing to enact every virtue or prohibit every vice. The human condition is just simply not capable of that and it is more variegated than that.
But it doesn’t mean you give up on the transformation of the culture. It just means you don’t expect the Supreme Court of the United States to be the chief catechist. You expect yourself to in fact embrace the Scripture and the Catechism, and through homiletics and through good works and your own personal witness and what happens in that parish community. That’s where the ideal world gets constructed."
Pretty ironic since Kmiec addressed the criticism of Obama by Cardinal Stafford by informing him that the cultural change the Cardinal had worked for his whole life in Christ would come to pass upon the inauguration of Obama, as President of the United States, a political office held by a non-Catholic! http://www.cuatower.com/2008/11/21/prof-doug-kmiec-on-cardinal-staffords-obama-comments/
Just imagine Kmiec sharing this point of view of the role of Church and the political State with the people of Malta who have shown an ability to engage in democracy and upholding the truth about the human person.
Kmiec also mistakenly implies that Humane Vitae's teaching is only applicable to Catholics rather than a teaching based on natural law and morality: "In terms of the conveyance of the significance of marriage and these other teachings on contraception, you don’t need to stop the coverage of insurance for contraception for people who have no moral objection to it in order to convey to Catholics the significance of Humanae Vitae. Now, you are going to need a lot of help conveying the significance of Humanae Vitae, and people have been working on it for a long time. But you are not going to get help from this passage of the law." Humane Vitae must be accepted by Catholics, but as a truth applicable to all mankind, we Catholics need to convey its significance to all peoples.
Just got this info from Opinionated Catholic: http://opinionatedcatholic.blogspot.com/2009/08/doug-kmiec-speaks-again-religious.html
The transcript of the conference at Fordham re conscience protection is available here: http://mirrorofjustice.blogs.com/mirrorofjustice/2009/08/conscience-at-fordham.html