LAW & MORALITY Red Mass Banquet Address - October 2004 Fr. Charles E. Irvin, J.D. Being both a lawyer and a priest, the subject of Law & Morality frequently is on my mind. The occasion of this Red Mass Banquet, and the honor you have given me, allows me the opportunity to share with you a few general thoughts I have on the topic. I ll follow my general thoughts with some observations on Archbishop Burke s denial of Holy Communion to certain Catholic politicians running for office along with Catholics who vote for them. I begin these remarks by bringing to mind the logo used by the MasterCard credit card. It consists of two circles, one red, and the other gold. In the middle they overlap to some extent. Imagine the red circle represents law and the gold circle represents morality. We all recognize that while law and morality have certain similarities, each field retains its own uniqueness remains distinct from the other. Such crimes as murder and theft are examples of what is both illegal and immoral at one and the same time, and is found in this image in their overlapping spheres. It is in this confluent overlapping that some people are tempted to argue that law and morality are one and the same thing. I do not believe that is true. Each, however, remains distinct in its own nature, although not entirely separate from the other. Being Catholics who are at the same time lawyers and judges, we play out our roles in both fields, dealing with human behavior common to each. Certain human behaviors are rewarded; others are penalized, or punished if you will. Each these fields has its own traditions, and each has its own code, canons, statutes and primary documents. I cannot resist pointing out how ridiculous it is, given such a setting, to assert that there is a separation between religion and society. Each field gets mixed up with the other when it comes to engaging themselves on the field of human activity and in setting public policy. Thus I believe that the so-called wall of separation between Church and State (as it has been misinterpreted) is an artificial construct that does not work. An examination of U.S. Supreme Court decisions subsequent to the Everson case back in 1947 shows us that our U.S. Supreme Court has not yet, over these past fifty-seven years, found a test that reveals the footprint of that mythical wall of separation. In any social system there will be some overlap between legal rules and moral norms. There will be a zone in which the two spheres overlap. But I digress. Returning now to an examination of law and morality, we can discern that there are some striking differences and distinctions between the two. Law (generally speaking) is objective, visible and public. Morality (generally speaking) is subjective, invisible and interior. Law draws its force from the coercive power of the State. Ultimately one obeys the law because of the enforcement power of the State. Morality draws its power from an interior voluntary assent. One s conscience knows along with others (the meaning of the word con-scientia) and obeys moral norms because of the Rule of Reason. Thus the approaches to engaging life s game and motivating the players to follow the rules are radically different. But the engagement between law and morality, however, is quite public, being joined, as they are, in the field of human interactions and human behavior. Sin and lawbreaking both have public and social consequences; they affect the lives of others. The idea that morality is strictly a private matter is a silly idea, just as silly as the idea that laws are private matters. Morality and law constrain what we do. For many people the fact that an act is immoral is sufficient reason not to do it. By the way, one does not have to be a Christian to hold that view. I know of atheists who hold to that norm. They, too, speak of immoralities. For others (and some Catholic Christians are among them) the threat of the law s punishment is the reason for doing or not doing certain acts. It is the law s threat that constrains them more than their own moral sensibilities.
Laws are enforced by punishment. But we must always remember that morals rely on individual conscience, societal norms, and above all, respect for God ( fear of the Lord as the bible puts it). Morality is composed of normative rules that set out what a person should do, or should refrain from doing. The emphasis is on "should", because the individual is not compelled by external power to abide by moral norms; he or she does so simply because one ought to do the ethical thing. Law, on the other hand, is made up of positive rules that impose a legal obligation to do or refrain from doing something. If a posited rule, a law placed on our societal behavior by either our legislative branch or judicial branches of government, is breached a state imposed punishment may result. There is no necessary relationship, many argue, between a legal system and the ideas of justice or morality. A legal system, they point out, can function effectively even though it is neither a just system nor a moral system. Take for example the legal systems that functioned in the Nazi regime, or in the Soviet Communist regime. They were, for the most part, neither just nor moral. Laws, therefore, may be moral or immoral, just or unjust. Others argue that law and morality cannot be so neatly disentangled from each other, basing their reasoning on Natural Law theories. The Nuremberg courts, they reason, were entitled to hold Nazi rules not to be laws. To call the Nazi system legal and to call its rules laws was a false description of what they really were, the argument runs. They were nothing more than instruments of an arbitrary and tyrannical terrorist regime. They were not based on any moral system. There is a lot more that we could examine in considering the relationship between law and morality. It is a topic that is both broad and deep. If I were to continue on down this path you would all be asleep before long, unless you subscribe to a moral code that holds such behavior to be rude, if not uncomfortable. So I ll stop here and turn to an issue that we have all talked about - one that s quite current, very important, and is a matter of consequence to us all. Those who are not Catholic question us about it. I speak now of a few bishops who have declared that Catholic politicians who favor mercy killing and pro-choice abortion legislation should not receive Holy Communion. The case illustrates the difference between law and morality. The controlling question, it seems to me is this: Should the State by its laws and powers of enforcement make what is immoral to be at the same time and to the same extent illegal? In answering that question let's look at the current situation generated by Archbishop Raymond L. Burke, formerly Bishop of La Crosse, Wisconsin, and presently Archbishop of St. Louis, Missouri. There are two aspects to the Archbishop s actions. One deals with denial of Holy Communion to specific politicians running for office, the other with Catholic citizens who vote for them. As to the first aspect, while exercising his authority as bishop of a diocese, Archbishop Burke issued a declaration on June 24, 2004 stating that Catholic politicians who publicly cooperate in the sinful activity of advocating abortion on demand or who promote mercy killing are not to be admitted to Holy Communion. This public activity excludes such politicians from the worthy reception of Holy Communion, the bishop argues, since their manifested and unchanging advocacy ipso facto puts them objectively in the state of grave sin. Moreover this public advocacy on the part of a Catholic politician, coupled with his or her public reception of Holy Communion, causes both scandal and confusion in the minds of people with respect to the teachings of the Catholic Church on the question of abortion. Archbishop Burke issued his declaration after he had personally communicated the Church's teachings on the question to particular Catholic politicians of his dioceses and requested to speak with them. There was, however, no personal dialogue or face-to-face exchange of views between the Archbishop and them on the issue. His declaration was based on Canon 915 of the Code of Canon Law, which reads: Those upon whom the penalty of excommunication or interdict has been imposed or declared, and others who obstinately persist in manifest grave sin, are not to be admitted to holy communion. What is interesting to me is to observe that the purpose of this particular canon, Canon 915, is to protect the integrity of the Eucharist and
our Catholic communion of faith, not to punish unworthy communicants. It is what Catholic Holy Communion means that is primarily in focus, not the subjective moral condition of the communicant. Permit me a sidebar on this point having to do with Canon 915. We are, as I see it, at a major juncture in which some initial moves are being made to bring the U.S. Bishops as a body to a more strict position on who may or may not receive Holy Communion. Just about everyone who comes to Mass these days receives Holy Communion -- this at a time when fewer and fewer people are going to confession. The traditional requirement that one should not receive Holy Communion while in a state of mortal sin has all but fallen away in its non-observance. This will undoubtedly, I think, cause our nation s bishops as a body to reexamine their collective enforcement of the provisions of Canon 915 on a wider scale than just in cases involving Catholic politicians and their political positions on abortion, euthanasia and other intrinsically immoral actions. To return to our main topic, I want to bring an important point to your attention. Some acts are malum in se, evil in their very nature, and others are malum prohibitum, illegal and wrong because they are prohibited. Child abuse is a malum in se. So is infanticide. The Catholic Church recognizes and understands abortion and mercy killing to be evil in their nature and therefore unjustifiable, or to be tolerated only in cases where they are an indirect effect resulting from intending a good act that is preeminent. Complicity in an act that is malum in se is to be allowed only on a very restricted basis. I want to highlight the fact that Archbishop Burke did not formally excommunicate any of the Catholic politicians in question. Nor did he impose any formal ecclesiastical sanctions upon them. Instead he exercised his prerogatives as set forth in Canon 915 of the Code of Canon Law, a canon not found in Book Six of the Code, the section of the Code of Canon Law that sets forth ecclesiastical sanctions. This, I believe, is a very important, even controlling, point. By his action, the Archbishop removed the question from the field of law and placed it squarely in the field of morality. It was because of the moral condition of these politicians, their objective state of sin as he judged it, that the Archbishop declared that they could no longer be admitted to Holy Communion. The formal, external, and canonically legal process of excommunication was by-passed. It was now a matter of morality, not a matter of law. And while the Archbishop did not formally excommunicate anyone, he took an action very close to it. What substantive difference, we are entitled to ask, is there between being denied Holy Communion and being formally excommunicated? Last month on September 7th Cardinal Joseph Ratzinger, Prefect of the Vatican's Congregation for the Doctrine of the Faith, declared in an Italian magazine article that a Catholic who votes for a pro-choice candidate is not thereby in a state of sin and should not be denied Holy Communion solely because of such a vote. A Catholic, Cardinal Ratzinger noted, could vote for a pro-choice candidate if the voter considered other positions of the candidate that are in conformity with other major positions of the Church. I do not know exactly the substance of Cardinal Ratzinger s reasoning but I suspect there is more to it than has been reported in newspapers and magazines. Among his points I would hope to find the following: First of all, we need to see that the process employed in formally excommunicating an individual is an extensive legal process involving several face-to-face meetings during which the position of the Church is made perfectly clear. The process further requires that the person in question be warned that he or she is liable to be excommunicated, be given time to modify his or her position, and then be given a final opportunity to change his or her position. Only then, after that cautious and deliberate process, may the person be formally declared to be excommunicated from the Church. I want to highlight this because authentic excommunication is never the result of a summary judgment. The Church's Code of Canon Law has a definite bias against all forms of summary or declaratory judgments. Should a Catholic politician, in this or a similar situation, therefore request a formal process of excommunication? It s an interesting strategic question, isn t it? As to the second aspect, namely voters who vote for candidates supporting abortion, embryonic stem-cell research, euthanasia and same-sex marriages, Archbishop Burke, joined by two or three other bishops, has raised the stakes by going on to declare that Catholic citizens who simply vote for pro-abortion candidates,
or candidates advocating euthanasia or other moral issues deemed intrinsically evil, should not receive Holy Communion. The most recent event occurred just this past week when, on October 6th, Archbishop Burke issued a pastoral letter informing Catholic voters that it is a grave sin, that is a mortal sin, to vote for such candidates for public office. It is to be pointed out that the Archbishop s declaration does not deal with a ballot proposal such as, for example, voting on school vouchers, or changes in the law allowing euthanasia or same-sex marriages. Here the Archbishop declares that it is a grave sin to vote for specific candidates for public office. This, I remind you, is terra incognita for moral theologians. There are few, if any, cases wherein the Catholic Church has made it a matter of grave sin to vote for particular political candidates. I further point out that this is a moral question and only tangentially a question of law. How Cardinal Ratzinger responds to this latest escalation remains to be seen. I have no doubt that in the back of Archbishop Burke s mind he wanted to put the ball in Cardinal Ratiziner s court. Archbishop Burke is intentionally, I am sure, dropping a catalyst into the brewing Church and State issue now before us. Finally I observe that the law of unintended consequences may now come into play. I am confident that the United States Internal Revenue Service will be pressured, as a result of the Archbishop s actions, to withdraw the tax-exempt status of the Archdiocese of St. Louis along with the parishes and other institutions within its ecclesial jurisdiction. How that will be played out will be a matter of considerable interest to us all. I move now to another point. Those who are elected to public offices here in the United States must take an oath to support and defend the Constitution of the United States. Implicit in that is an oath to enforce the decisions of the Courts of the United States, even though those who take the oath may disagree with, or have moral objections to, those court decisions. Decisions of our courts, particularly decisions of the Supreme Court of the United States, are a part of the laws of our land, laws which public office holders are duty bound to uphold. This raises the question of whether or not a Catholic politician can run for public office while being supported by a political party that has a pro-choice platform. Just what constitutes "complicity" in procuring abortions; what makes one an accessory before or after the fact? Furthermore, what can a president, governor, or legislator do in the face of the decisions handed down by judges in our Judicial Branch of government? Those judicial decisions have effectively trumped the actions of both governors and legislators. I will not presume to give any answers to the vexing questions now facing Catholics in our nation's political system. Certainly questions of great magnitude are before us as American voters. Our Catholic bishops face some daunting policy formulations given the fact that we live in a pluralistic society composed of many cultures along with their diverse moral and ethical systems. The greatest question of all that must be addressed in such a way that all of our U.S. Catholic bishops will answer it is this: Are holders of political office who happen to be Catholic to be told by our bishops how they should vote and what policies they should follow? And if they, subject as they are to the public oaths they have sworn to enforce our nation s laws when they entered upon their offices, should not follow their bishop's declaration, are they to be refused the reception of Holy Communion? In answering these questions I want to return to the one I posed earlier, the main question that's underneath all of the others: Should the State by its laws make what is immoral to be illegal? I would answer "No" it should not. Nor should Catholic office holders, under the threat of being denied Holy Communion, be forced to enact legislation that would make illegal what is known to be immoral. My main reason for taking this position is found in the fact that a moral act is moral insofar as it is deliberately and freely chosen. It is choice made in freedom that determines the nature and degree of responsibility one has in morally acting upon that choice. An act is legal or illegal, good or bad, moral or immoral only insofar as it is freely chosen. Forcing a Catholic office holder to make or not make certain choices is to deny them their moral responsibility as well as their moral accountability.
Another Archbishop, Archbishop Sean O Malley of Boston, the bishop in whose diocese Senator John Kerry maintains his residence, has not enforced the provisions of Canon 915 with respect to Senator Kerry s public pro-choice stance. This brings to our awareness that our U.S. bishops as a body do not have a uniform position as to the enforcement of Canon 915. Of what effect, we must now ask, does this selective enforcement have on both Catholic candidates for high office and on Catholic voters? The question is unanswered. All we can say at this point is that Archbishop Burke has placed a strong case before the American bishops as a body. Will they adopt his course and together, as a unified body, enforce the provisions of Canon 915 uniformly on all Catholics, not just those running for political office? The question is not simple and it raises a number of subsidiary questions. 1 Should Canon 915 be enforced during this presidential election? 2 Should it be enforced at a later time because its enforcement at this time would give the appearance that the U. S. bishops are trying to determine the outcome of this election? 3 Would its enforcement upon Catholic voters jeopardize the tax-exempt status of every Catholic parish and institution in dioceses where the bishops have taken this prohibitive stance? 4 As long as Roe v. Wade remains the law of the land, what can a Catholic legislator or governor or president really do? Any actions they take would be negated by the judiciary, and any pro-life public pronouncements made legislators or politicians running for office would be seen as mere posturing and vote-pandering. Our nation s abortion question will be resolved as a legal matter not in the legislative branch or in the executive branch, but only in the judicial branch. While I respect Archbishop Burke's integrity and sincerity, as well as his good intentions, I want to point out that a number of our Cardinals nevertheless think his public stance is unwise -- more damaging to our Church here in America than it is helpful. Cardinal McCarrick summed up the thinking of these Cardinals when in a recent interview he said: I think the canons [in the Church s Code of Canon Law] remind us that we have to tell our people that if they are not in communion with the church they should not go and receive Communion. But that doesn t say to us that we should deny them Communion when they come. I would be very uncomfortable to have a confrontation at the altar, because it implies that I know precisely what s in a man s heart or in a woman s heart, and I m not always sure. I must bring this to a close now by observing once again that we are lawyers and priests, each one of us following our own discipline in both the objective order and the subjective order. All of us here are called by God, vessels of clay that we are, to help others to do good and avoid evil. We are called to observe what is objective and visible and then to serve the invisible God made visible in those around us, remembering always that those whom we serve have inner and hidden souls made in the image and likeness of God. May all of our judgments be made in fear and trembling before God, for we, too, will one day stand before His throne to be judged. May God in His mercy help us in full measure to be his good servants. Whatever we may do that is legally permissible, may it always be what is morally right. For while we are the Law s good servants, we are God s first.