Morality and Its Interconnections

The connection of morality with law, religion, and politics is obvious – or perhaps it’s more accurate to say that it used to be. Laws ought to be moral and inculcate morality. Religion, at the very least, should bolster morality. Politicians in executive positions should enforce laws that are moral, and may on occasion have to refuse to enforce a law that is clearly immoral.

But these other areas – legality, religion, etc. – are distinct from morality, and often do not coincide with it. Morality is concerned with right and wrong, and optimally is inspired by considerations of natural law. Civil laws are concerned with maintaining social order and justice, and may turn a blind eye to moral infractions outside the reach of the law. Religion optimally will lead us to go beyond the bare minimums of duty, to foster social and individual perfection and harmony. And moral politicians, practicing the “art of the possible,” often dealing with complex situations, will necessarily encounter limits in terms of their personal powers and the moral attitudes of the constituents they deal with.

Numerous examples of such distinctions and overlapping have turned up in recent U.S. history. When Griswold v. Connecticut (1965) struck down state laws restricting contraception, even a Supreme Court Justice who considered contraception immoral could join with the majority on the basis of the impossibility of controlling private and intimate practices, and/or of enforcing the existing laws.

When Lawrence v. Texas (2004) came out against sodomy laws, similar considerations would have been relevant – the limited length of the “arm of the law” in relation to the private practices of consenting adults. St. Thomas Aquinas agreed with Augustine that civil laws could tolerate prostitution in some circumstances in order to avoid the havoc that might result if authorities clamped down. More recently some lawmakers in Oregon and Washington may have had moral objections against the use of marijuana, as paving the way for drug addiction, but decided to decriminalize it purely as a matter of maintaining social order and focusing police efforts on other areas.

As we well know, distinguishing these prudential cases is one thing (and many read permission as approval). But fundamental questions raised by abortion, gay marriage, and the objectionable procedures included in the HHS mandate are quite another:

  • Gallup polls in recent years indicate that over 70 percent of respondents of both sexes hold that abortion should be prohibited or “legal only under certain circumstances.” The circumstances most often mentioned are: rape, incest, and threat to the life of the mother. In other words, there is a large majority of support for outlawing elective abortion. Thus, if a Catholic legislator on the state or federal level who considers all abortion immoral, and would perhaps prefer a “personhood” amendment to the Constitution, were faced with a strong possibility of passing a law against abortion, but with the three above-mentioned exceptions – would not he or she feel justified in supporting that law? The “three exceptions” involve conflicts of rights – in the case of rape and incest, the reproductive rights of women (not the “reproductive right” to abortion in liberal-new-speak). And in the case of threats to the physical life of the mother, Catholic bioethicists allow that certain procedures may be used that indirectly cause abortion. The hypothetical legislator might also be justified in supporting a law restricting abortion to the first trimester, as exists in most European countries – if this seemed to be the only such law that could be passed and enforced.

       An April protest in France against same-sex “marriage”

  • But the moral obligation of such a legislator is also quite clear: voting in favor of unrestricted elective abortion is never morally permissible. Too few understand that.

As I indicated in a previous column, there is a strong and usually unsuspected difference among Catholic, Protestant, and secular understandings of marriage. If marriage is just a civil contract, subject to regulation by the state, with a considerable stretch of the imagination for most of us, we can imagine the contract taking place between members of the same sex, i.e., civil unions categorized by Protestant or secular authorities as “marriages.” Because of changing perceptions, many people, Catholics (unfortunately) included, have somehow come to the conclusion, with no scientific evidence, that homosexuals are “born that way.” We are encountering a newly created “civil right” placed on par with racial and sexual equality. In view of such a broad-based (but scientifically baseless) change in perception, can a Catholic politician, even with moral objections to sodomy, tolerate laws permitting “civil unions”?

The obvious question here would be whether the Church would be pressured to officiate in sacramental marriages of homosexuals – which would be blasphemous. A politician’s decision may, in the last analysis, have to be based on this issue of religious freedom.

Beyond this hypothetical case, we arrive at a serious and very real religious-freedom issue with the HHS mandate. “Jesuit casuistry” might be required on this question. On the individual level, if a Catholic purchasing health insurance has no option to exclude funding of contraceptives, sterilization, and abortion in his insurance payments, and is required by law to have health insurance – this seems analogous to the frequent situation of the taxpayer who is indirectly being asked to contribute to governmental expenditures that he considers immoral or criminal. In other words, conformity to this unjust law is probably tolerable on the individual level.

But in the case of Catholic legislators, voting in favor of such legislation without a fight would be inexcusable; and for Catholic politicians to support and insist on such laws – aside from the obvious incompatibility with the Constitutional right to freedom of religion – is bizarre.

In the ethical chaos of our present democratic system, we daily run through moral minefields. We need to keep a steady eye on moral principle – carefully explaining when prudential judgments apply and why. But the heavy lifting, as always, lies in efforts to ratchet up public morality again to make that minefield less daunting.

Howard Kainz

Howard Kainz

Howard Kainz, Emeritus Professor at Marquette University, is the author of twenty-five books on German philosophy, ethics, political philosophy, and religion, and over a hundred articles in scholarly journals, print magazines, online magazines, and op-eds. He was a recipient of an NEH fellowship for 1977-8, and Fulbright fellowships in Germany for 1980-1 and 1987-8. His website is at Marquette University.

  • Michael Paterson-Seymour

    I recall pro-life deputies considered it a great point gained, when they secured the inclusion of Art 1 in the Veil Law ((Law No. 75-17 of January 1975, concerning the Voluntary Termination of Pregnancy), “The law guarantees respect for every human being from the outset of life. There shall be no derogation from this principle except in cases of necessity and under the conditions laid down by this Law.”

    The National Assembly, unwilling to sanction “a woman’s right to choose,” or, as the radicals were arguing, the principle that “the product belongs to the producer,” chose to represent abortion, not as a right, but as a derogation from a right, namely, the child’s right to life. The distinction is not entirely vacuous: a derogation can be subject to limitations, in ways that a right cannot.

  • Avery T

    A superlative post! You clearly distinguished religion, law and morality in their proper objects, however, there are several ways to put them back together again depending on what version of the natural law you ascribe to. Hugo Grotius and his followers developed it in a direction rather more toward a calculus for moral principles and legal process, than a Thomistic reasoning toward human happiness based on continually deeper understanding of human nature. Due to sin the reasoning process is difficult for many people since vices interfere with reason. So prudential judgments often go awry even with good intentions (good intentions are no match for sin). This leads to the conundrum of conscience … But I’ll leave that to you Dr. Kainz!

    N.B., I’m not writing in Latin. I recalled the English language.

  • Walter

    Professor Kainz, you back yourself into a corner too often by appealing to “last defense” arguments, which if disproven, leave you no ground to stand on:
    – regarding the pressure to officiate at gay weddings, it would be equally blasphemous for a priest to officiate at a divorced person’s wedding, yet this has never been an issue. Society has already shown its ability to navigate the differences between civil and sacramental marriage. This argument is a red herring.
    – regarding no conclusive scientific evidence that gays are “born that way”, what happens if that evidence ever arises?

  • Howard Kainz

    @Walter: Priests officiating at a divorced person’s wedding? Not quite sure what you’re talking about. If there were scientific evidence that “gays are born that way” this might create a new civil rights issue, but sacramental gay marriage would still be sacriligious. I discussed sacramental marriage in the column linked above.

  • Walter

    @Professor Kainz: my reference to divorced persons is simply a response to your suggestion that a lawmaker base his/her vote on gay marriage on religious liberty grounds, specifically because of the fear of priests being forced to officiate at gay weddings. This is a thin argument and if that’s the best one that Catholic politicians can put forth, they will lose. Why? Second marriages of divorced persons would be equally sacriligous, and priests have never been pressured by the state to officiate at them. So there is empirical evidence that society can navigate the potential conflict between gay marriage and religious freedom.

    I am not arguing that a Catholic legislator should not object to gay marriage. I am arguing that he/she should find more substantive grounds to object than the one that you propose.

    The “scientific evidence” argument is a separate issue. Here, I am asking what arguments Catholics would put forth if conclusive evidence emerges that homosexuality has a biological/genetic cause? You provide none.

  • Peter Northcott

    It would make a significant point if some Catholics were imprisoned for refusing to be blasphemous. 🙂