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Get the Church Out of Politics?

Yesterday's decision in Roper v. Simmons and the revelation that the Church (I should say the USCCB) wrote an amicus curiae brief on behalf of 30 religious groups raises some particular problems that need confronting.

In regard to the decision, it held that the execution of persons who committed the crime while minors was a violation of the 8th Amendment's prohibition against cruel and unusual punishment. Now this is perhaps a defensible position, but the Court's rationale in the case is not.

In his majority opinion, Justice Anthony Kennedy employed international standards of what constitutes cruel and unusual punishment as well as relying on what he considered evolving standards of decency. The problem is, Kennedy states that ultimately, it is the Court's role to decide what constitutes "evolving standards of decency." Thus, as many have claimed, controversial social questions will be decided by the instinct of nine lawyers (actually, just five).

While I am sure the USCCB did not use this line of reasoning for ending execution of minors (although I won't put anything past them), can it be said that they were complicit in furthering a line of jurisprudence that began in cases such as Griswold v. Connecticut and Roe v. Wade? The USCCB had to know if the Court were to decide in its favor, it would have to be on the grounds outlined by Kennedy. The likelihood that the Court were to adopt a natural rights jurisprudence based on a vision of the constitution outlined by the Founders and Lincoln (grounded in a scholastic natural law conception of ordered liberty) was doubtful. This would be the same line of reasoning that would find a right to life in the fifth or fourteenth amendments. A defensible position (although the idea that a right for minors (under the arbitrary age of 18) not to be executed is a natural right is rather specious. So on another level, the Court's and the Church's position looks less defensible.

What the USCCB brief did do was aid the argument that "evolving standards of decency," in other words, the collective "yuck" factor was against this form of captial punishment. Note, this is not about morality, this is about taste. We are not discussing fixed principles of morality that ground the dignity of human persons and provides a basis for republican government. And now it looks as though five lawyers will be able to determine what is and what is not distasteful. This is nothing less than the gradual step toward judicial tyranny. And the Church cooperated in this instance.

This incident, along with the plethora of others where the USCCB does something that is by no means required of them doctrinally (advoacating tax increases, saving the snail darter), nor necessarily the right thing to do on a prudential (and moral?) level. Would we be better off if the Church closed its various policy arms? What if the bishops were limited to pronouncing the principle (and only if it is a necessary principle -- right to life, preferential option for the poor, subsidiarity, etc.) and remains silent as to the best way of effectuating these principles. Sometimes, it is clear, as in the case of banning abortions through legislative means. One needs no guidance. But what about more difficult situations? It is my premise that the Church sacrifices a great deal of its credibility and moral witness when it starts trying to intimate that a particular course of action is synonymous with the moral position. Of course, the Church can, and should, sanction those who publicly work against these positions. Scaling back its prudential political involvement would also make this tool easier to exercise. We may lose some lobbying power for particular bills, but we will also lose a lot of confusion as to what constitutes the authentic Catholic teaching, as well as the range of acceptable teaching. Bishops should say one position or another is not in accord with the Church's principles, but should remain silent and allow the laity to exercise their proper role in working these things out.

This is obviously a controversial position. Note that it is meant to foster conversation, not to be a definitive answer to the question.

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Comments (1)

niemann:

We definitely need faith in the political sphere, but not from the pronouncements of bishops. It is bitterly ironic that American bishops feel that they need to fill a void by speaking officially to various issues when it is their lack of catechesis, moral leadership and fidelity to Tradition that has left the faithful here so anemic. Kerry, Kennedy, etc. are the legacy of this generation of American bishops. There are far fewer faithful, obedient Catholics now in politics and the academy because there are fewer faithful, obedient Catholics overall. Which bishoprics are there that can spare a bishop or two to craft an amicus brief for a purely political case? I guess declining school enrollments, heterodox parishes, bankruptcy and the extinction of faith in the Real Presence isn’t a problem everywhere.

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