Doug Kmiec - A Response to Deacon Keith Fournier

"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."

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MALIBU, CA. (Catholic Online) - Professor Doug Kmiec responded overnight to the first article which I wrote concerning his recent book. He asked that we publish his response with the bold wording set forth below.As we draw closer to this momentous election,there will be more articles in our continuing effort to equip our readers to exercise their "Faithful Citizenship".(Editor) Here is professor Kmiec's response:

"In his review of my new book entitled "Can a Catholic Support Him? Asking the Big Question about Barrack Obama" (Overlook Press), Deacon Keith Fournier writes with the courage of his convictions that I have asked the wrong question, suggesting that the appropriate inquiry is whether Senator Obama ought to or should receive Catholic support? I have concluded that Senator Obama is indeed worthy of the support of conscientious Catholics. The Deacon dissents. Many of his points are unassailable and once again readers of this site are in his debt for the clarity of his thought. Nevertheless, in positing that the book asks the wrong question, the Deacon obscures the correct answer: namely, after proper discernment and with the right intent, Catholics are free to vote for Obama in good conscience.

I offer these few comments in response to his. In what follows I quote the major argument passages from his essay and beneath in bold explain why at critical points the Deacon's approach leaves much of our faith needlessly out of reach and applied only hypothetically.So let us begin with the heart of the matter: The Deacon argues: "It is immoral to vote in a manner which fails to protect innocent human persons from being unjustly killed."

No,it is immoral to vote with that intent. This point is reaffirmed in the American Bishops' splendid "Call to Faithful Citizenship," where it is written: "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. In such cases a Catholic would be guilty of formal cooperation in grave evil. At the same time, a voter should not use a candidate's opposition to an intrinsic evil to justify indifference or inattentiveness to other important moral issues involving human life and dignity."

The Deacon continues: "Doug and his candidate are right to emphasize that we are our brother's (and sister's) keeper, but wrong to then exclude an entire class of brothers and sisters, the unborn, from the protections of the positive law."

Yes, I am my brother's and sister's keeper, I am not, however as a private citizen, their legislator. In voting for a candidate who represents views affecting the totality of the social gospel, I cannot be assumed to materially participate or cooperate in any particular mistaken decision of that candidate - again, absent my intent to share in that mistaken view.

The Deacon then notes that I rely upon the recent letters of Archbishop Charles Chaput and Francis Cardinal George for guidance, and asserts in a rare moment of uncharacteristic intemperance that this reliance is "sophistry."

Not so, I have relied upon these fine teachers of the faith in order to undertake the proper inquiry into whether there is proportionate reason allowing the choice of a candidate who has an alternative way of promoting human life other than a thus far futile, and in any event, insufficient effort to criminalize some, but not all, abortion practice.

Continuing, the Deacon observes: "Doug maintains that Senator McCain's position in favor of the overturning of Roe v Wade is simply a 'Federalist position' and not a truly Pro-life stance. The Deacon concedes that McCain's pro-federalism position is less absolute than the Deacon's own based upon Catholic teaching, but he writes in apology for the weakness of the McCain position: "I know that the reversal of Roe opens up the field to securing protection of the children and will at least slow the shedding of innocent blood while we work on outlawing the act. I think (Doug) does as well but has backed himself into a corner."

No, the corner we inhabit together as Catholics is one we were consigned to occupy by the Supreme Court's mistaken jurisprudence and the larger culture's hardness of heart. Part of the exercise of conscience we are called upon to make in terms of proportionality analysis as we vote necessarily includes an evaluation of which path is more likely to free us from that corner. In other words, we are asked as part of our proportionality inquiry to evaluate the likelihood of positive result in favor of life. Given the length of time Mr. McCain has exercised the levers of legislative power, is it not the least bit disturbing that during that entire almost 30 year period Senator McCain did not offer and actively champion a Human Life Amendment? Indeed, to the contrary, it was John McCain who previously stated: "I'd love to see the point where [Roe v. Wade] is irrelevant, and could be replaced because abortion is no longer necessary. But, certainly in the short term, or even in the long term, I would not support repeal of Roe v. Wade, which would force X number of women in America to undergo illegal and dangerous operations." Of course, Senator McCain's change of view is to be welcomed, but let us then not overstate his bona fides as "pro-life," at least not in the sense the Deacon himself has correctly articulated a position worthy of that title.

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Also, as I note in the book in evaluating proportionality, the Church has directed that we exercise our conscience, giving primacy to the issue of life while also considering with due regard and moral weight of the totality of Catholic social teaching. Some individual bishops have given further guidance to their parishioners. For example, while I will not repeat here the full treatment of this important issue from the book, I would like to especially point out to the reader, the rigorous analysis of Archbishop Charles Chaput who writes that a proportionate reason "would be a reason we could, with an honest heart, expect the unborn victims of abortion to accept when we meet them and need to explain our actions -- as we someday will." This is, as my commentary observes, a powerful statement, but fairly taken on its own terms, I doubt that I could legitimately explain to unborn victims either support for Senator McCain's claimed 'pro-life' position or the Democratic platform reforms of Senator Obama to address the dire social and economic conditions of their mothers.

The McCain approach -- no matter how many hems and haws the Deacon wishes to insert -- is only truly pro-federalism (which is not only not reliably pro-life, but given the tragic example of international practice, might even facilitate in a radical state abortion mandates that because of the reversal would no longer be checked by the women's individual autonomy right the Court articulated in Roe).

Since I have to make a decision between those incomplete positions if I am going to participate in the political process, I would much more prefer Senator Obama's efforts to directly intervene for the better in the life of an expectant mother now than the remote possibility that after 35 years, the next president may appoint someone new to the Supreme Court of the United States who in turn - in a case not yet filed, not yet accepted for review, not yet briefed and not yet argued -- might be able to persuade four of the other existing justices to overturn, against the principles of stare decisis, the decision in Roe, and then further persuade the individual legislatures of the 50 states and their governors to sign into law protections for human life. In my judgment, the position represented by Senator McCain in the 2008 election represents such an inconceivable chain of events that unborn victims could legitimately ask how could an honest heart ever have expected anything favorable to human life to come from it.

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The Deacon then makes this claim: in the book, "Doug vacillates between acknowledging the existence of objective moral truths which should govern human behavior and contending that someone could deny their existence, claim that such a denial is a 'deeply held religious belief' and we should form our positive law to accommodate them under some misguided understanding of religious liberty and pluralism."

Quite honestly, I do not "vacillate." To the contrary, I state unequivocally, "The humanity of the unborn child to me and every geneticist on the face of the planet is patent. It is the natural law from which no human being can or should want to escape. Try escaping from your nature, it's uncomfortable, and downright, dangerous. Think you can fly without a para-glider or similar device from the top of the Santa Monica Mountains along the Pacific; think again. Arm-flapping will be your last aerobic exercise.

"Can it be said that natural law is an obligatory part of the American Constitution? You bet, except that, with the possible exception of Justice Thomas, there is not a single Justice prepared to say so. Natural law is not Catholic law; it is universal; it is timeless; and it is what Thomas Jefferson anchored the new American Republic upon in the Declaration of Independence - self evident truths derived from the 'Laws of Nature and Nature's God.' Only one problem: not everyone sees the truth of the unborn child the same way, and in the American democracy, majority rules."

Now the Deacon may wish to say the majority cannot overrule those natural law presuppositions, and that is a fine point of philosophy and moral reality. It is, however, to lose touch with political reality, which was acknowledged by John Paul II in the Gospel of Life and by His Holiness Benedict XVI in instruction he gave before his elevation to the seat of St. Peter. We are to "promote life and work within the existing political and legal reality." To just engage in systematic theology or philosophic discourse loses sight of the unborn children, we might actually - right now, this day -- save by improving the life circumstance of expectant mothers - which, by the way, is the experience of all those who have donated time at crisis pregnancy centers as well as the formal conclusion of studies by Catholics in Alliance for the Common Good and Catholics United both showing significant reductions in abortion through economic support.

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The Deacon correctly observes that he "could never be accused of being what (Doug) now rejects as a "Republican Faith Partisans" (RFP's)." "Like him, the Deacon continues, "I might be considered a 'Reagan Democrat,' at least in the sense that I left the Democratic Party when it abandoned children in the womb and I voted for Ronald Reagan. . . . The problem is that many Catholics do not know the Social teaching of their Church or have wrongly allowed 'experts' on the 'left' or the 'right' to interpret what it is for them."

Amen, brother. You are indeed not an RFP, since this shorthand applies to those who do not write with courage and insight, as I described your work in the book acknowledgements, but those who instead ply the trade of demonizing and denigrating their political opponents, and worse, those who unfairly and mistakenly portray voting for Senator Obama as a sin contrary to faith and morals. It is, as you noted at the outset, not the calling of the Church to tell us how to vote and you and I join in the expectation that everyone from bishops to priests to fellow parishioners will not use in terrorem tactics denying Communion, threatening the denial of Communion, pronouncing in public press without pastoral counseling the demand that Catholic office holders go to confession, or otherwise being manipulated by those who have learned to win elections by setting red against blue, and who care little if at all, about the full social teaching of the Church.

And what is that teaching? It is not well discussed in the general church since it has been arbitrarily closed off to many by those who insist on putting out fraudulent voter guides that list the reversal of Roe as a nonnegotiable demand to be fulfilled prior to any consideration of family wage, just war, environmental stewardship, or the reasoned welcome and treatment of the immigrant family. RFPs - Republican Faith Partisans - thus take the carefully nuanced and balanced teaching of the Church, including its just call to give life primacy, and derive from it only their own electoral success paid for by a "pro-life" label without meaningful result; the skewing of the tax code in favor of the affluent and in disregard of the dignity of human work (John McCain over the last decade has voted against a modest increase in the minimum wage at least 8 times, yet he is foresworn to keep "the Bush tax cuts" whose target audience is more concerned with compensation packages in the millions of dollars, than the minimum wage); and a war without justification or even well-conceived military objective costing us $720 million a day or $500,000 a minute, according to the work of Nobel Prize-winning economist Joseph E. Stiglitz and Harvard public finance lecturer Linda J. Bilmes. The money spent on one day of the Iraq war could buy homes for almost 6,500 families or health care for 423,529 children, or could outfit 1.27 million homes with renewable electricity, according to the American Friends Service Committee.

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The costs of war and failed, nay untried, diplomacy are great. Perhaps it is those costs that prompted George W. Bush to veto, and his protégé John McCain to sustain, the disapproval of extending (SCHIP) which had sent more than six million children from low income families to the doctor, cutting the number of uninsured children by one-third. No one has even begun to calculate the cost of John McCain's drastic proposal to dismantle the present health care relationship with employers and to tax the value of health care to employees. There is reason to be leery, however, of McCain's prescription of the same principles of deregulation that he brought to the financial markets for which we are paying dearly today, and a predicted increase in the numbers of uninsured will pay tomorrow.

Deacon Fournier is a splendid teacher of the faith. Reflecting upon that faith, he concludes: "Truly good governance begins with the smallest governance, the family and should give priority to the principle of subsidiarity. We were made for one another and we find our human fulfillment only in giving ourselves to the other. Then there is that other vital principle, a principle of social charity called solidarity, which insists that we are "our brothers (and sisters) keeper."

Those are important words, and they are echoed by these:

"Ours is a promise that says government cannot solve all our problems, but what it should do is that which we cannot do for ourselves -- protect us from harm and provide every child a decent education; keep our water clean and our toys safe ; invest in new schools and new roads and new science and technology. Our government should work for us, not against us. It should help us, not hurt us. It should ensure opportunity not just for those with the most money and influence, but for every American who is willing to work. That's the promise of America -- the idea that we are responsible for ourselves, but that we also rise or fall as one nation; the fundamental belief that I am my brother's keeper; I am my sister's keeper. That's the promise we need to keep. That's the change we need right now."

Those are the words of Barack Obama accepting the nomination for President of the United States. Their resonance with Catholic teaching is self-evident. Can a Catholic Support Him?As a matter of faith, yes. As a matter of hope, unquestionably.

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