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Published online by Cambridge University Press: 24 April 2015
Coming out of a church whose marks of identity include unity, holiness, and universality, it is ironic—and painful—that the “Catholic vote” has become a “metaphor” for polarization in United States culture and politics. As one reporter described the scene in the weeks before the 2004 presidential election:
Some rail against their own bishops, while others cheer what they see as a long-awaited stand of conscience. The tension seemed to reach a peak yesterday, when the Vatican felt compelled to publicly dismiss the claims of a Catholic lawyer who said he had Vatican support to seek [Senator] Kerry's excommunication.
Tensions have also manifested themselves in the variety of Catholic “voter's guides.” Some list a limited number of “non-negotiable” issues—particular actions that are identified in Catholic moral theology as “intrinsic evil” and suggest that candidates be evaluated according to their stand on these particular issues. For example, the Catholic Answers Voter's Guide for Serious Catholics, first distributed prior to the 2004 election, named “five non-negotiables”: abortion, euthanasia, embryonic stem-cell research, human cloning and homosexual marriage. As these moral principles “do not admit of exception or compromise,” the Guide reasoned that political consequences should be clear: “You should avoid to the greatest extent possible voting for candidates who endorse or promote intrinsically evil policies.”
In the interim between the 2004 and 2006 elections, a few organizations congealed to formulate competing guides. Others rallied around Faithful Citizenship, the United States Bishop's long-standing official commentary on the nexus between the principles of Catholic social teaching and political participation. Others directly challenged the Catholic Answers guide as a distortion of Catholic social teaching and argued that its partisan activities were a potential threat to the Roman Catholic Church's tax-exempt status.
1. See Catechism of the Catholic Church ¶ 811, at 232 (Doubleday 1995) (“[It is] Christ who, through the Holy Spirit, makes his Church one, holy, catholic, and apostolic, and it is he who calls her to realize each of these qualities.”).
2. Seib, Gerald, The Catholic Vote Becomes Metaphor for Polarized Views, Wall St. J. A4 (10 20, 2004)Google Scholar.
3. Id.
4. For a definition and discussion of “intrinsic evil,” see infra n. 45.
5. The 2004 version of the Guide has been removed from the Catholic Answers webpage, but it is available at the Priests for Life webpage. Catholic Answers, Voter's Guide for Serious Catholics (2004), http://www.priestsforlife.org/elections/voterguide.hrm (accessed Dec. 26, 2006) [hereinafter Voter's Guide for Serious Catholics].
6. Cooperman, Alan, Religious-Right Voter Guides Facing Challenge from Left, Wash. Post A5 (09 29, 2006)Google Scholar. See e.g. Catholics in Alliance for the Common Good, Voting for the Common Good: A Practical Guide for Conscientious Catholics, http://thecatholicalliance.org/new/voting-guide/guide.html (accessed Dec. 26, 2006).
7. United States Conference of Catholic Bishops, Faithful Citizenship: A Call to Political Responsibility, http://www.nccbuscc.org/faithfulcitizenship/ (accessed Dec. 26, 2006).
8. See Keating, Karl, Help Launch Catholic Action Answers (04 1, 2006), http://www.caaction.com/index.php?option=com_content&task=view&id=35&Itemid=101Google Scholar (accessed Nov. 22, 2006) (copy on file with the author). After a complaint was filed with the Internal Revenue Service that the 2004 Catholic Answers voter's guide was a partisan intervention in the 2004 election, “Catholic Answers Action” was formed as a social welfare organization not subject to the ban on partisan activity that applies to charities or religious organizations. OMB Watch, Catholic Group Responds to IRS by Forming New Group (July 11, 2006), http://www.ombwatch.org/article/articleview/3501/1/48?TopicID=1 (accessed Dec. 28, 2006).
9. Catholic Answers Action, Voter's Guide for Serious Catholics 14 (2006), http://www.caaction.com/pdf/Voters-Guide-Cadiolic-English-1p.pdf) (accessed Dec. 26, 2006)Google Scholar.
10. Id. at 16.
11. Burke, Daniel, Catholic Bishops say no to outside voter guides, Natl. Cath. Rptr. (11 3, 2006)Google Scholar.
12. Allen, John L. Jr., Catholic Common Ground Lecture (06 25, 2004), Natl. Cath. Rptr. 4 (available at http://www.ncronline.org/mainpage/specialdocuments/allen_common.htm), link through John L, Allen, Jr., National Catholic Reporter Online, The Word From Rome, v. 3, n. 45 (July 2, 2004) (available at http://www.nationalcatholicreporter.org/word/word070204.htm)Google Scholar.
13. Rodes, Robert E. Jr., Pilgrim Law (U. Notre Dame Press 1998) [hereinafter Rodes, Pilgrim Law]Google Scholar.
14. I will not belabor this description but instead refer to an excellent review essay published in this journal. See Gaffhey, Edward McGlynn Jr., Pilgrim Law (Review Essay), 16 J.L. & Religion 689 (2001)CrossRefGoogle Scholar.
15. Rodes, Pilgrim Law, supra n. 13, at 33.
16. Id. at 66-67.
17. Id. at 68.
18. Id. See also id. at 93:
Liberalism, by contrast, with its twin principles of freedom and equality, permits distortion of values not by appealing to high-level moral principles, but by rejecting them. As long as people live together, the price of freedom for one person will be the coercion or constraint of other people. To the extent that the government and the legal system are prevented from coercing, others may coerce all the more. And those who are able to coerce the most will be the members of the ruling class. So unless freedom is referred to some higher value, it will serve only to keep the government or the law from interfering with that class taking full advantages of its privileges. Similarly, as it is impossible to make everyone equal in every respect, the pursuit of equality is necessarily a matter of determining which differences shall be significant and which shall not. In the absence of any higher principle, the differences that are found to matter will naturally be those that distinguish the ruling class from the rest of society.
19. Id. at 84-85.
20. Id. at 85.
21. Id. at 75.
22. Id. See also id. at 93 (“Natural law doctrine, with its appeal to high-level moral principles, its technical naivete, and its lack of allowance for the consequences of sin or failure, can be made to judge the ruling class entirely on its aspirations, without regard to its effect in the real world.”).
23. For further discussion of Rodes's vision of natural law, see generally Rodes, Robert E. Jr., The Legal Enterprise 119–139 (Kennikat Press 1976)Google Scholar.
24. Shaffer, Thomas L., The Christian Jurisprudence of Robert E. Rodes, Jr., 73 Notre Dame L. Rev. 737, 760 (1998)Google Scholar.
25. Rodes, Pilgrim Law, supra n. 13, at 75.
26. Id. at xii.
27. Id. at 11.
28. Press Release, Congresswoman DeLauro, Rosa L., Statement of Principles by Fifty-Five Catholic Democrats in the U.S. House of Representatives (02 28, 2006), http://www.house.gov/delauro/press/2006/February/catholic_statement_2_28_06.html (accessed Dec. 26, 2006)Google Scholar.
29. Catholic News Agency, Democrats Statement of Principles Seen as a “Sham” and a “Bundle of Contradictions” by Catholic Leaders (03 2, 2006), http://www.ewtn.com/vnews/getstory.asp?number=65383 (accessed Dec. 26, 2006)Google Scholar.
30. Rodes, Pilgrim Law, supra n. 13, at 50.
31. Id. at 52.
32. Id. at 87. See also Gaffhey, supra n. 14, at 695-696 (describing Rodes's “characteristically gracious, even generous” spirit in his critique of Critical Legal Studies scholars Mark Kelman and Roberto Mangameira Unger).
33. Rodes, supra n. 13, at 10.
34. Id. at 6-7.
35. Id. at 8.
36. Id. at 10.
37. John Paul II, Evangelium Vitae ¶ 12 (Libreria Editrice Vaticana 1995).
38. Id. at ¶ 70.
39. Id.
40. For two excellent discussions of the complexities of legal regulation of abortion, see Kaveny, M. Cathleen, The Limits of Ordinary Virtue: The Limits of the Criminal Law in Implementing Evangelium Vitae, in Choosing Life: A Dialogue on Evangelium Vitae 132 (Wildes, Kevin Wm. & Mitchell, Alan C. eds., Georgetown U. Press 1997)Google Scholar; Sanger, Carol, Infant Safe Haven Laws: Legislating in the Culture of Life, 106 Colum. L. Rev. 753 (2006)Google Scholar.
41. Evangelium Vitae supra n. 37, at ¶ 73 (emphasis in original).
42. Id. at ¶ 90 (emphasis removed).
43. See e.g. Congregation for the Doctrine of the Faith, Doctrinal Note on Some Questions Regarding the Participation of Catholics in Public Life ¶ 3 (Nov. 24, 2002) [hereinafter Doctrinal Note]:
On the level of concrete political action, there can generally be a plurality of political parties in which Catholics may exercise especially through legislative assemblies their right and duty to contribute to the public life of their country. This arises because of the contingent nature of certain choices regarding the ordering of society, the variety of strategies available for accomplishing or guaranteeing the same fundamental value, the possibility of different interpretations of the basic principles of political theory, and the technical complexity of many political problems. It should not be confused, however, with an ambiguous pluralism in the choice of moral principles or essential values. The legitimate plurality of temporal options is at the origin of the commitment of Catholics to politics and relates directly to Christian moral and social teaching. It is in the light of this teaching that lay Catholics must assess their participation in political life so as to be sure that it is marked by a coherent responsibility for temporal reality.
44. Voter's Guide for Serious Catholics, supra n. 5.
45. For a discussion of “intrinsic evil” (the category of actions which Catholic moral theology defines as always wrong, regardless of the circumstances), see John Paul II, Veritatis Splendor (The Splendor of the Truth) ¶ 80 (Libreria Editrice Vaticana 1993):
Reason attests that there are objects of the human act which are by their nature “incapable of being ordered” to God, because they radically contradict the good of the person made in his image. These are the acts which, in the Church's moral tradition, have been termed “intrinsically evil” (intrinsece malum): they are such always and per se, in other words, on account of their very object, and quite apart from the ulterior intentions of the one acting and the circumstances. Consequently, without in the least denying the influence on morality exercised by circumstances and especially by intentions, the Church teaches that “there exist acts which per se and in themselves, independently of circumstances, are always seriously wrong by reason of their object.”
Interestingly the examples listed in this discussion move far beyond the five “non-negotiables” discussed above. Compare examples discussed supra at n. 5 with Veritatis Splendor ¶ 180:
The Second Vatican Council itself, in discussing the respect due to the human person, gives a number of examples of such acts:
Whatever is hostile to life itself, such as any kind of homicide, genocide, abortion, euthanasia and voluntary suicide; whatever violates the integrity of the human person, such as mutilation, physical and mental torture and attempts to coerce the spirit; whatever is offensive to human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution and trafficking in women and children; degrading conditions of work which treat labourers as mere instruments of profit, and not as free responsible persons: all these and the like are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer injustice, and they are a negation of the honour due to the Creator.
(quoting Gaudium et Spes ¶ 27).
46. Rodes, Pilgrim Law, supra n. 13, at 75.
47. See generally Rodes, Robert E. Jr., Classic Problems of Jurisprudence 45–46 (Carolina Academic Press 2005)Google Scholar (discussing German Constitutional Court's approach to the problem of abortion).
48. See e.g. Doctrinal Note, supra n. 43, at ¶ 3.
49. David Brooks, Sense and Sensibility, N.Y. Times A15 (Oct. 2, 2004).
50. Id.
51. Kaveny, M. Cathleen, Prophecy and Casuistry: Abortion, Torture and Moral Discourse, 51 Vill. L. Rev. 499 (2006)Google Scholar.
52. Id. at 507.
53. Id. at 511.
54. Id. at 514.
55. Id.
56. Id. at 515.
57. Id. at 572.
58. Id. at 574.
59. Shaffer, supra n. 24, at 760 (quoting Rodes).
60. Id. (quoting Rodes).
61. Allen, Catholic Common Ground Lecture, supra n. 12, at 4.
62. See generally Uelmen, Amelia J., The Spirituality of Communion: A Resource for Dialogue with Catholics in Public Life, 43 Cath. Law. 289, 302–310 (2004)Google Scholar (outlining how the spirituality of communion might serve as a vehicle for working beyond the impasse of political polarization).
63. Rodes, Pilgrim Law, supra n. 13, at xi (“The theology comes mainly from [liberation theologian] Gustavo Gutiérrez …”).
64. Id.
65. Rodes, Robert E., Law and Liberation 1 (U. Notre Dame Press 1986)Google Scholar [hereinafter Rodes, Law and Liberation].
66. Id.
67. Id.
68. Id. at 2.
69. Id.
70. Id.
71. Id. at 3.
72. Id.
73. Id.
74. Id.
75. Id. at 4.
76. Rodes, Pilgrim Law, supra n. 13, at 94.
77. Id.
78. Id. at 96.
79. Id. at 23.
80. Id. at 99.
81. Id. at 26.
82. Id. at 86.
83. Id. at 96.
84. Id. at 103.
85. Id. at 23-24.
86. Id. at 23.
87. Id. at 103.
88. Rodes, Law and Liberation, supra n. 65, at 214 (emphasis in original).
89. 2 Cor 5:7 (all Biblical citations are from the Revised Standard Version).
90. Rodes, Pilgrim Law, supra n. 13, at 96.
91. Id. at 94.
92. Id. at 95.
93. John Paul II, Centesimus Annus ¶ 28 (Libreria Editrice Vaticana 1991) [hereinafter Centesimus Annus].
94. Id.
95. Id. at ¶ 57.
96. See Finn, Daniel, Commentary on Centesimus Annus, in Modern Catholic Social Teaching: Commentaries and Interpretations 436, 459–460 (Himes, Kenneth R. ed., Geo. U. Press 2005)Google Scholar (noting critiques of John Paul's inclusion of “spiritual paupers” in the preferential option).
97. See e.g. John Paul II, Sollecitudo Rei Socialis ¶ 28 (Libreria Editrice Vaticana 1987) (critiquing the “excessive availability of every kind of material goods” which makes people “slaves of ‘possession’ and of immediate gratification” resulting in “crass materialism” and “radical dissatisfaction.”).
98. See generally Rodes, Law and Liberation, supra n. 65, chs. 3, 5 & 6.
99. Rodes, Pilgrim Law, supra n. 13, at 99. See also Rodes, Law and Liberation, supra n. 65, at 10-11 (noting Gutiérrez's argument that the work of evangelization must be “to conscienticize, to politicize, to make the oppressed person become aware that he is a person”).
100. Second Vatican Council's Pastoral Constitution on the Church in the Modern World, Gaudium et Spes ¶ 24 (Libreria Editrice Vaticana 1965).
101. Id. at ¶ 24.
102. Id. at ¶ 25.
103. John Paul II, Apostolic Letter Novo Millennio Ineunte ¶ 43 (Libreria Editrice Vaticana 2001).
104. Id.
105. Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church ¶ 54 (Libreria Editrice Vaticana 2004).
106. For the seeds of many of the ideas that follow, 1 am indebted to the Focolare Movement's international “Communion and Law” project. See Pearce, Russell G. & Uelmen, Amelia J., Religious Lawyering's Second Wave, 21 J.L. & Religion 269, 277–281 (2005–2006)Google Scholar (describing how the initial project emerged as a group of lawyers and judges from different countries began to reflect together how their own efforts in their course of their work to build relationships of mutual love, brotherhood and solidarity was transforming their approach to their legal work and their conceptions of jurisprudential categories); Uelmen, Amy, Relationships in Law: Is There Room for Fraternity?, 45 Living City 14 (03 2006)Google Scholar (describing the project's first international conference gathering of 700 legal professionals in Castelgandolfo, Italy) (Living City is the Focolare Movement's North American monthly magazine). What follows are tentative ideas that I and others in the project hope to expand in future scholarship.
107. Rodes, Pilgrim Law, supra n. 13, at 24.
108. Centesimus Annus, supra n. 93, at ¶ 41.
109. See id. at ¶ 41.
110. Rodes, Pilgrim Law, supra n. 13, at 95.
111. Id.
112. See id. at 99-100; Rodes, Law and Liberation, supra n. 65, at 213.
113. Uelmen, Amelia J., Toward a Trinitarian Theory of Products Liability, 1 J. Cath. Soc. Thought 603 (2004)CrossRefGoogle Scholar.
114. Id. at 632-635.
115. Id. at 630-632.
116. See Rodes, Law and Liberation, supra n. 65, at 3 (“… the only way to love him may be to confront him.”).
117. Id. at 214 (emphasis in original).
118. Rodes, Pilgrim Law, supra n. 13, at 10.
119. John Paul II, Dives in Misericordia ¶ 14 (Libreria Editrice Vaticana 1980).
120. Id.
121. Id.
122. Rodes, Pilgrim Law, supra n. 13, at 96.
123. Id. at 95.
124. Bruni, Luigino & Uelmen, Amelia J., The Economy of Communion Project, 11 Fordham J. Corp. & Fin. L. 645, 654–655 (2006)Google Scholar (included in the collection of presentations and papers from the 2004 Fordham Symposium on Religious Values and Corporate Decision Making).
125. Id. at 646-651. For more extended descriptions of and reflection on the project, see generally The Economy of Communion (Bruni, Luigino ed., Gold, Lorna trans., New City Press 2002)Google Scholar; Gold, Lorna, The Sharing Economy (Ashgate 2004)Google Scholar.
126. Bruni & Uelmen, supra n. 124, at 653-657.
127. Id. at 654-655.
128. Rodes, Law and Liberation, supra n. 65, at 33.
129. Id. at 38.
130. Rodes, supra n. 13, at 103 (emphasis added).
131. Centesimus Annus, supra n. 93, at ¶ 28.
132. Id.
133. See id. at ¶ 41.
134. Rodes, Law and Liberation, supra n. 65, at 95.
135. Id.
136. Rodes, Pilgrim Law, supra n. 13, at 96.
137. Gaudium et Spes, supra n. 100, at ¶ 24.
138. Rodes, Pilgrim Law, supra n. 13, at 26.