Douglas W. Kmiec on 'Obama's Miracle'

"Deacon Fournier is, of course, absolutely right: these pro-choice positions are not what the Catholic Church prays for, and so we shall keep praying."

MALIBU, California (Catholic Online) - As the readers of Catholic Online know very well,Professor Doug Kmiec and I disagreed quite seriously on how a faithful Catholic citizen should approach the exercise of their vote in this recent Presidential election in the United States. This strong disagreement over proper moral decision making and human action led to many articles and exchanges. However, the election is now over. We have a new President Elect, Barack Obama. I communicated with Doug following the election and he sent me the following article asking that it be published. (Deacon Keith Fournier, Editor) :

"Obama's Miracle"

There was a miracle in America Tuesday evening. Pro-life and Pro-choice views on abortion met in Chicago's Grant Park and in similar settings across the nation. Each respected the other's perspective and each understood how they could both work, differently, to promote human life.

The Catholic bishops in their "Call to Faithful Citizenship" document urged us to vote responsibly knowing that no candidate in the race was perfect. Senators McCain and Obama both varied from the absolute prohibition of abortion and embryonic stem cell research in Catholic teaching. Senator McCain favors turning "the choice" back to the states; while, Senator, now President-elect, Obama respects the woman's decision.

Deacon Fournier is, of course, absolutely right: these pro-choice positions are not what the Catholic Church prays for, and so we shall keep praying, but as President-elect Obama articulated in his acceptance last night - the hill may be steep, but we will continue to climb. And no Catholic should be distraught at this happy moment when race has been transcended and there is a promise of both social justice and peace at hand.

We owe a tremendous debt of gratitude to those bishops who did not violate our conscience, or theirs, by stepping into the role of partisan advocate for a candidate, or who even more outrageously, presumed to consign to eternal damnation those Catholic voters who studied, prayed, and formed their conscience prior to casting a ballot for Senator Obama. Neither man was eliminated from Catholic consideration. Neither was pro-abortion. After ascertaining that, it was up to each voter to consider the totality of Catholic teaching on the culture of life -- from the moment of conception to the moment of natural death and every point in between in order to give due weight to proportionate considerations.

While we must continue to strive to structure our personal lives and the larger society to honor life to the full, let us not overlook the miracle of a free election naming as President someone who a century and a half removed would have not even been acknowledged to be a created human being entitled under the Declaration of Independence to the unalienable rights of life, liberty or the pursuit of happiness.

Now is also the time to work together in the joy of new hope and fresh ideas. I have extended a hand of friendship to Archbishop Chaput who some told me had some especially harsh words for me because of his strongly held view against Senator Obama. It's a free country and the First Amendment protects the Archbishop's political perspective as well as mine own. And likewise in the exposition of the faith, the Conference of Bishops, knowing how to write with sensitive and fine grain pen, gave us both the opportunity to best assess how to promote human life within the context of a Republic of many different religious beliefs some of which see life beginning when a child is born alive and not before.

Of course, as John Paul II taught in Veritatis Splendor, no democracy should set itself against the truth of the human person. When John McCain proclaimed himself to be "pro-life," many thought we would hear from him a call for some effort to bring the Constitution in line with the protection of life. Ronald Reagan was a champion of this idea though he did not succeed in achieving it. The Reagan amendment would have included the unborn in the constitutional definition of "person" and it had the benefit of simplicity. Yet, given again the related criminal liability for mother and doctor, it lacked the support needed for ratification.

Is there another way to show legal respect for life? Obama's own cultural affirmation of enhanced support for the expectant mother points the way toward common ground. In this regard, a more modest constitutional amendment could be pursued that would presume life to begin at conception, while further providing that no government, federal or state, was competent to legislate on the question absent a specified supermajority. This would at least take the Supreme Court's "activist" thumb off the scale against life (no more waiting for a "fifth justice") while at the same time avoiding the criminalization of a women's freedom. Again, not the ideal Catholic position, but closer.

Going forward with our new President, it is likely that looking for new ways to be pro-life will hold more promise than re-arguing the merits of an election that brought a miracle our ancestors did not foresee. That same election miracle may hold the promise of yet another the outline of which may at this moment only be dimly perceived; namely, an amendment to our basic charter presuming life to begin from its earliest moment even if that would still leave it up to us to find the necessary supermajority or additional ways to honor that legal presumption consistent with our many faiths and collective freedom.

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Impossible? I don't see why. In the language of the moment: "Yes we can!"

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Douglas W. Kmiec is the Caruso Family Chair & Professor of Constitutional Law at Pepperdine University School of Law and the author of "Can a Catholic Support Him? Asking the Big Question About Barack Obama" (Overlook/Penguin 2008)

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