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By Douglas W. Kmiec

3/4/2008 (7 years ago)

Legal Times (

That "we can live with one another in a way that reconciles the beliefs of each with the good of all."


By Douglas W. Kmiec

Legal Times (

3/4/2008 (7 years ago)

Published in Politics & Policy

LOS ANGELES (Catholic Online) - In the Feb. 26 Democratic debate, Tim Russert asked Sen. Barack Obama what he thought of minister Louis Farrakhan's endorsement of him.

Obama said he denounced it, which was good enough for everybody but Sen. Hillary Clinton, who demanded that Obama also reject it. Obama, with bemused annoyance, complied, but I thought, uh-oh, here we go, will Republicans dissatisfied with their default nominee be the next potential votes denounced and rejected?

Russert didn't ask, and Obama said he welcomed support from a wide range of people including Republicans and independents. What a relief!

In an essay for Slate magazine ("Reaganites for Obama?" Feb. 13), I suggested that two groups I know well -- Reaganites and Catholics -- might be happier with Barack Obama than Sen. John McCain.

The essay stirred up a ruckus among my former Reagan administration colleagues (who thought I was abusing some substance, like a few other Malibuites who succumbed to their "last temptations" in recent years) and in church communities across the country (which just said they would pray for me).

My reasons for writing so provocatively were a combination of skepticism toward McCain (full disclosure: I was a legal adviser to Mitt Romney, so skepticism came naturally) and a fascination with Obama. Unless you gave up TV for the duration of the writers' strike or something shorter, such as Lent, the Ronald Reagan comparison is obvious. Obama's eloquence and inspiration is inescapable.

The Catholic doubts about McCain are more subtle, but my point -- which actually has implications for many faiths -- is that signing on to the McCain campaign by default slights a large body of religious teaching in opposition to Iraq and strongly in favor of immigrants, the environment, and the family wage.

So with the innocence of someone who teaches Sunday school in a laid-back beach community, I suggested that believers had a moral obligation to inquire further.


The suggestion gathered some support, but also abundant amounts of personal vilification insinuating that I had sold my soul for a prospective Supreme Court appointment in an Obama administration (which has the entire People for the American Way in stitches) or damning me for eternity.

Ordinarily this would not prompt me to write more, but now that the epithets have temporarily subsided (Muqtada al-Sadr's cease-fire or perhaps the surge is working), herewith a few additional thoughts in mitigation (or aggravation as the case may be).

Well before Obama entered the national consciousness by means of presidential primary, he addressed what he called "the mutual suspicion that sometimes exists between religious America and secular America."

In a speech entitled "Call to Renewal," given in Washington in the summer of 2006 (at a poverty conference of the same name), Obama noted that during his Senate campaign, he was challenged on his abortion views. Obama gave the standard liberal response: It is impermissible to impose his religious views upon another. He was running for "U.S. senator of Illinois and not the minister of Illinois," he quipped.

Had Obama left it at that, he could easily be written off by conservatives as just another secular, anti-religious, and, likely, big-government liberal.

But the insufficiency of that answer nagged at him. He realized -- and this epiphany explains his successful campaign, I believe -- that the greatest division in America today is "not between men and women, or those who reside in so-called red states and those who reside in blue, but between those who attend church regularly and those who don't." He also recognized that some conservative leaders "exploit this gap" by reminding evangelical Christians how much Democrats disrespect their values and dislike their church.

Truth hurts, but, of course, pointing fingers at Pat Robertson or Karl Rove would still not have merited positive conservative or Catholic notice -- if Obama hadn't kept talking. He didn't just criticize those on the right who used religion as a wedge issue; he directed a healthy amount of criticism at his own party.

Democrats, he said, avoid engaging the substance of religious values by falsely claiming the Constitution bars the subject. Even worse, some far-left liberals paint religious Americans as "fanatical," rather than as people of faith. Now that got my attention.

Here was a Democrat who got it. Indeed, why say "Democrat"? Here was a public figure who actually understood that, for millions of Americans, faith "speaks to a hunger that's deeper than... any particular issue or cause" -- his words, lest Hillary and the copyright police get on my case.

Obama reflected on how neither of his parents were actively religious, and yet he found himself drawn to the church. He could engage in community organizing for the poor, but without faith he would always remain "apart and alone." Faith did not mean no doubt, said Obama, but it did mean hearing God's spirit beckoning.

After joining an African-American church, he found himself employing the language of faith--well, OK, maybe he did hear it first from Deval Patrick--and ever since his work has been electrified. Xeroxed or not, those references to Abra­ham Lincoln's Second Inaugural Address and "the judgments of the Lord" or Dr. Martin Luther King Jr.'s embrace of "all of God's children" inspire and call upon our better selves.


Obama is frequently chastised these days by Mrs. C for being all words and no substance (or something about hats and cattle that is funny only in Texas), but that criticism is falling flat. Much earlier, Obama himself noted that there is nothing more transparent than "inauthentic expressions of faith."

Showing that occasional dry wit, he likened it to politicians who "come and clap -- off rhythm -- to the choir." So while the number of recent primaries won by Clinton can be counted on one hand clapping, Obama receives thunderous applause whenever he challenges secularism and those who would urge that religion be banished from the public square.

Calling as his faith witnesses Lincoln, King, Frederick Douglass, and Dorothy Day, Obama tells his audiences that it is an "absurdity" to insist that morality be kept separate from public policy.

Having urged liberals to see how much of American life is grounded in the Judeo-Christian tradition, Obama does have a request for conservatives -- namely, try to fully understand the liberal perspective on the separation of church and state. Not the infamous "wall of separation" that bizarrely mandates affirmative secularity disguised as neutrality, but the perspective, according to Obama, that separation more readily protects church from state than the opposite.

This sentiment, unlike the exclusionary view invented by the late Justice Hugo Black in the late 1940s, is as old and wise as Alexis de Tocqueville, who cautioned churches against aligning too closely with the state for fear of sacrificing "the future for the present." "By gaining a power to which it has no claim," Tocqueville observed, "[the church] risks its legitimate authority."

There is nothing in that assessment of church-state separation objectionable to conservatives. Indeed, Obama's thoughts could have been seamlessly added to Romney's "Faith in America" speech without changing its meaning.


Nevertheless, part of Obama's message remains difficult for conservatives, especially Catholics. Committed to the protection of human life in the womb, Catholics are urged (some of my critics say "mandated," but with respect, they are mistaken) to vote only for candidates who oppose abortion.

In truth -- and here let me quote the bishops directly so they can share in the mail -- "a Catholic cannot vote for a candidate who takes a position in favor of an intrinsic evil, such as abortion or racism, if the voter's intent is to support that position." But voters should not use a candidate's opposition to abortion "to justify indifference or inattentiveness to other important moral issues involving human life and dignity" -- such as, say, the invasion of a foreign nation leading to the sacrifice of the lives of our own troops and of thousands of others.

A digression? I don't think so, but here's the question: Does Obama's thoughtful appreciation of faith mean that he would work toward the protection of life in all contexts even if that protection cannot be achieved in a single step?

I'm inclined to think so, though it's at this juncture that large numbers of my Republican friends will say, "Kmiec, get real, just think who Obama will appoint to the Supreme Court?" That suggests at least two things: First, they really weren't at all serious about my prospects for the top bench, and second, isn't it time for both sides to stop treating the Court like a political sinecure?

Chief Justice John Roberts Jr. has done an able job of lowering the Court's profile. Even when the Roberts Court takes on big issues--such as "partial-birth" abortion and racial tie-breakers--it has knack of writing small, preferring the "as applied" to the "facial" challenge.

With that condo in Florida and his active tennis game, there's no reason to think Justice John Paul Stevens won't reach a Biblical age, and hey, if he hangs on long enough, maybe both sides will have decided so many jurisdictional, tax, and sentencing guideline cases that they won't remember the Court's previous, more activist history.


OK, that was a digression. Returning to religious conservatives, like me, who have faith-related, ethical concerns, Obama argues that there must be, in this life, a distinction between the uncompromising commitments that religion calls us to make and the public policy that we can realistically expect. This is a dose of political pragmatism, and reasonable on virtually any issue not involving a grave moral evil. It's not an easy answer. But frankly, that's a problem not just for Obama, but for all of us.

As he writes, "I may be opposed to abortion for religious reasons, but if I seek to pass a law banning the practice, I cannot simply point to the teachings of my church or evoke God's will. I have to explain why abortion violates some principle that is accessible to people of all faiths, including those with no faith at all."

To his credit, Obama neither offers up a glib, unsatisfying solution nor reverts to the standard liberal line that objective moral values have no place in the public discussion. Our problems are not mere technical dilemmas "in search of the perfect 10-point plan. They are rooted in both societal indifference and individual callousness -- in the imperfections of man."

If liberals and conservatives would stop shouting at each other (and most especially at me), more people might see abortion as a product of societal indifference and individual callousness: the former exemplified by economic conditions ranging from inadequate wages to evictions traceable to the subprime fraud; the latter typified by a self-centeredness that sees children as competitors or enemies to personal fulfillment.

A person who understands the significance of faith as well as Obama does is likely to have a better chance of understanding and addressing both causes. Why? Because when the seemingly insoluble intrudes upon life as it inevitably does, the religious person has the humility to pray. Obama concluded his own religious reflections a few years back with what he described as "a prayer I still say for America today." The prayer? That despite our profound disagreements, "we can live with one another in a way that reconciles the beliefs of each with the good of all."

This is as much a Catholic prayer as a Jewish or Protestant or Mormon or Muslim one, which is why barring the completely unexpected, Barack Obama will be the next president of the United States -- with or without my vote.

Douglas W. Kmiec holds the Caruso chair in constitutional law at Pepperdine University. He previously served as the dean and St. Thomas More professor of law at the Catholic University of America and as head of the Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush.


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