Victories Made Bitter

Editor’s Note: Friends, after the pope’s shocking announcement yesterday that he planned to resign, there arose an instantaneous tidal wave of commentary. Instead of adding to what has already become a highly repetitive and sometimes bizarre reaching for something to say, we have decided to continue on with our daily business for now here at The Catholic Thing. We fully expect that in time we’ll have even more reason to be confident that Benedict XVI has done what is best for the Church and the world. And we can hope that by then the vague efforts to connect his decision with the abuse crisis, Vatican scandals, and the attacks of Catholic dissenters will have slipped into the oblivion they deserve. We’ll bring you some reflections at a later date when it seems more helpful to do so. In the meantime: Let’s pray for our dear Holy Father, and for the cardinals who will choose his successor. – Robert Royal

Those of us who have spent years reading constitutional history have by now encountered a long stream of encomia on the rise of parliamentary power in England, marking the regime of expanding “rights,” the precursor to the American Revolution. That movement in Britain was led by the men who became known as Whigs, in their resistance to Charles II and the powers of the monarchy, painted ever dark.  

The parliamentary election of 1679 was the first in eighteen years, and it brought a surge for the Whigs. But what has been nicely airbrushed out of the clichéd accounts is what fueled this ascent of the Whigs: namely, that Charles could be succeeded by his brother James, Duke of York, a Catholic. And with that came the grave danger that everyone’s liberties would be endangered through a takeover by the Papists. In the first months of the new Parliament, one of the Whig leaders, William Harbord, brought in a bill to banish all Catholics from London.

What brought all of this back is a kind of presentiment that, years from now, the regime in America, transformed by Obama and his party, will be celebrated with comparable encomia for spreading vast benefits to common people. But airbrushed out of this account will be the unlovely fact that the grand achievements came along with a deliberate scheme to push the Catholic Church out of the public arena. 

Catholic teaching would be stamped as illegitimate for our politics and our laws, for it would be branded as essentially irrational, groundless, a body of blind belief. And after all, was it not Justice Kennedy, a Catholic, who had pronounced the ancient rejection of the homosexual life as nothing more than an “animus,” an irrational hatred?

As the question of same-sex marriage is litigated more and more, this theme has been threading through the arguments of those people who have sought to claim that the opposition to homosexual marriage reduces simply to prejudices, to irrational hatreds, long settled. But another version of this understanding came out about a week ago, in a trial that went in favor of the Susan B. Anthony List (SBA), a major pro-life political action group, headed by the formidable Marjorie Dannenfelser. 

The group was sued in Ohio for helping to deprive Rep. Steven Driehaus of his job as a congressman through the un-chivalrous tactic of reporting on his voting record. Rep. Driehaus had represented himself to his constituents as a pro-lifer, but the SBA contended that his claims were belied by his actual record.

          Associate Justice Anthony M. Kennedy

To be fair, Steven Driehaus did stand with a band of pro-life Democrats trying to keep abortion out of Obamacare. But he was willing to fold his opposition, as they were, for verbal promises that everyone knew would soon evaporate. For Driehaus, as with Richard Neal in Massachusetts, that was a sign of politicians affecting to be pro-life, while being quite unserious.

A law in Ohio allows candidates for office to sue people who “lie” about them in the course of the political campaign. It was essentially a trial for libel, and rather hard to take seriously:  Since the case of New York Times v. Sullivan (1964) it seemed to be understood that politicians could not make facile use of the laws of libel to silence their “citizen-critics.” But even before that, it was long understood that political speech was heated speech, spoken often on the run, and there had to be certain room for “fair commentary,” even with certain errors. 

And yet Judge Timothy Black in Ohio, a former president of Cincinnati Planned Parenthood, allowed the trial to continue.  Eventually, Driehaus dropped his charges under that special law for candidates, and waged his case as a suit for libel.

The SBA was represented by that accomplished lawyer, and son of Ohio, Robert Destro from the law school at the Catholic University of America. And about ten days ago Destro and the SBA prevailed: Judge Black dismissed the suit. But the reasoning of the judge simply laid the ground for a further campaign of vilification for the pro-lifers.

The judge gave the victory to the pro-lifers by invoking the recent cases of Snyder v. Phelps (2011) and U.S. v. Alvarez (2012). In Phelps, the Supreme Court dissolved an action against a group harassing the family of a dead Marine with signs saying “Semper fi fags” and “Thank God for Dead Soldiers.”  In Alvarez, the Court overturned the prosecution of a man who had lied about his military record. In both cases, the Court detached itself even further from the moral common sense that used to govern the cases on speech. 

With the notable exception of Samuel Alito, even the conservative judges were willing to sign onto the doctrine that all speech was protected, even the hateful and fraudulent. Judge Black was willing to give the victory to the pro-lifers now by likening them to Phelps and Alvarez:  He was willing to install the predicate that the SBA was in fact “lying,” when it was doing no such thing.  

In other words, the premises are gradually – and quite earnestly – being put in place: To criticize a public figure for being favorable to abortion is itself taken as immanently hurtful and hateful – and animated by irrational beliefs, which cannot be justified. Step by definite step, the speech defending Catholic teaching is being stamped as illegitimate, by definition, in our public discourse.

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.