“We’ve grown hoarse saying this is not about contraception, this is about religious freedom,” Timothy Cardinal Dolan has repeatedly insisted, regarding the lawsuits opposing the HHS Obamacare Mandate.
I beg to differ. On both prudential and metaphysical grounds, it is about contraception.
On the practical level, in politics, as Grover Norquist reminds us, you don’t get two desserts. With the loss at the Supreme Court, we will have to adopt the position that the Mandate is a bad law and we will not follow it regardless of our loss in court. “Sore losers!” will come the reply.
Why not just tell the truth now? Yes, our First Amendment rights are fundamental – in fact, they existed long before the Bill of Rights was written. But the courts are no longer bound by Jefferson’s “Laws of Nature and of Nature’s God,” and they have said so. With regard to our religious freedom, they simply cannot be trusted. And for that judgment we have ample precedent.
New York Gov. Charles Evans Hughes, before he became Chief Justice of the U.S. Supreme Court, affirmed 95 years ago that “we are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.”
Actually, Your Honor, the Constitution is the safeguard of our liberty and of our property. But the Supreme Court has been glad to arrogate to itself that august task. In Cooper v. Aaron (1958), a unanimous Court made it clear:
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous court, referring to the Constitution as the “fundamental and paramount law of the nation, declared in the notable case of Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.” This decision declared that basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this court in the country as a permanent and indispensable feature of our constitutional system.”
Which brings us to the metaphysical level – or, rather, to the denial of metaphysics altogether. If “the Laws of Nature and of Nature’s God” – that is, the Natural Law – no longer constrain the Court’s powers, what – beyond judicial caprice — is to protect our First Amendment rights? Los Angeles Archbishop José Gomez acknowledges America’s Christian roots, but goes on to observe that “our freedoms are also being eroded as the result of constant agitation from de-Christianizing and secularizing elements in American society.” Unfortunately, those “elements” now dominate our legal system, where “the Dictatorship of Relativism” abounds in the robes of Legal Positivism.
Natural Law Need Not Apply
Legal Positivism rests on the assumption that the law need have no basis in morality. As Notre Dame Professor of Constitutional Law Charles Rice has noted, “Hans Kelsen, the father of legal positivism, observed that Auschwitz and the Soviet Gulags were valid law. He could not criticize them as unjust because justice, he said, is ‘an irrational ideal.’”
Kelsen’s view holds not only for Hitler’s Germany and Stalin’s Soviet Union, but for America today. During the Senate hearings considering the nomination of Judge Clarence Thomas to the Supreme Court, Judiciary Committee Chairman Joseph Biden repeatedly browbeat the nominee about the dangers of applying the Natural Law in American jurisprudence. “You come before this committee with a philosophy different from that which we have seen in any Supreme Court nominee in the [last] 19 years,” he sniffed. What did Biden find so “different”? Simple: “You are an adherent to the view that the Natural Law should inform the Constitution.” Biden couldn’t have been more clear: appeals to the Natural Law will fail in the Supreme Court.
Senator Patrick Leahy then asserted that the Natural Law is “elastic,” a notion which Biden seconded by alleging that his version of the Natural Law protects abortion rights. But Judge Thomas would not engage the legal issue. “My interest in the whole area was as a political philosophy,” he told Biden.
Biden, Leahy, and Thomas are all Catholics. So is Justice Kennedy, who wrote in 1992 that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Clearly current jurisprudence has sundered the courts from the true source of justice. They simply cannot be trusted.
Catholic? Or American?
In Cardinal Dolan’s May 12 commencement speech at Catholic University, he exulted “that this university is both Catholic and American, flowing from the most noble ideals of truth and respect for human dignity that are at the heart of our Church and our country.” Indeed, ever since Cardinal Gibbons, American prelates have labored to make Catholics “good Americans.” But today the bishops — longtime supporters, collaborators, and beneficiaries of the federal government — have suddenly awakened to the fact that the government might have filed for divorce.
Clearly, Catholics have every right to demand that the courts respect what Cardinal Dolan’s address called the “essential ingredient in American wisdom and the genius of the American republic … the freedom it allows for religion to flourish.” However, our positivist courts roundly reject the notion that they might have any responsibility to do so. The courts have revised the First Amendment repeatedly over the years, and they are likely to do so again. After all, “the Constitution is what they say it is.”
Is The Truth “Too Hot To Handle”?
What cannot be revised, however, is Humanae Vitae. There, Natural Law and the Teaching and Tradition of the Church combine to illuminate our troubled world with the brilliant, saving light of eternal moral truth. Why hasn’t Cardinal Dolan even mentioned Humanae Vitae, at least en passant, in the current Fortnight of Freedom? Aren’t our freedoms grounded on truth – the Way, the Truth, and the Life? After all, the Truth is still the Truth, whatever the courts say it is.
Cardinal Dolan has candidly admitted why he doesn’t want contraception to be the issue: the bishops, he told the Wall Street Journal in March, haven’t taught Humanae Vitae for 44 years. In essence, he has admitted that, when it comes to sexual morality, our shepherds have abandoned the teachings both of the Magisterium and the Natural Law ever since Vatican II.
“We have gotten gun-shy…in speaking with any amount of cogency on chastity and sexual morality,” he said. The “flashpoint” was Humanae Vitae: “It brought such a tsunami of dissent, departure, disapproval of the Church, that I think most of us—and I’m using the first-person plural intentionally, including myself—kind of subconsciously said, ‘Whoa. We’d better never talk about that, because it’s just too hot to handle.’”
Cardinal Dolan went on to regret that the clerical abuse and cover-up scandals have attenuated even more the authority of our bishops. The scandals “intensified our laryngitis over speaking about issues of chastity and sexual morality, because we almost thought, ‘I’ll blush if I do. . . . After what some priests and some bishops, albeit a tiny minority, have done, how will I have any credibility in speaking on that?’”
Cardinal Dolan proposed no program to reverse this half-century trend.
The laity have every right to know that however weak the voice of our bishops has been on moral matters in our lifetimes, the truth has not been abrogated. And when the law attacks the truth, the decision is simple: lex malla, lex nulla. As Aquinas puts it, “human law is law only by virtue of its accordance with right reason; and thus it is manifest that it flows from the eternal law. And in so far as it deviates from right reason it is called an unjust law; in such case it is no law at all, but rather a species of violence.” (ST I-II 93.3 ad 2)
Avoid contraception? Avoid Humanae Vitae? Abandon Natural Law? If we do, we are left naked before a sterile secular sword wielded by the Dictatorship of Relativism. Moreover, on the practical level, as Mary Eberstadt observes in her penetrating Adam and Eve After the Pill, “contraceptive sex … is the fundamental social fact of our time.”
Which brings to mind: doesn’t Humanae Vitae teach genuine “Social Justice”?
Pope Benedict knows the score. He has repeatedly offered encouragement regarding the Church’s moral teachings to various groups of bishops on the ad limina visits to Rome. “I urge you as Pastors to ensure that the Church’s moral teaching be always presented in its entirety and convincingly defended,” he told a group from the United Kingdom. To bishops from the United States he said in May, “It is no exaggeration to say that providing young people with a sound education in the faith represents the most urgent internal challenge facing the Catholic community in your country.”
Given the Supreme Court’s decision on Obamacare, it is clear that Catholics cannot put their faith in princes, however highly regarded their station. We are up against the cultural haycutter — Archbishop Gomez is correct: it is not only the Obama Administration, but the entire panoply of the cultural elites that confronts the Church today as never before. Even though the elites constitute a small minority of Americans, their deleterious impact has been so profound that one wonders if it is reversible at all. Whatever those prospects, the Church cannot count on a court that has abandoned metaphysics, the Natural Law, and The Laws of Nature and of Nature’s God.
What Is To Be Done?
One cannot blame Cardinal Dolan for pursuing the legal defense of our First Amendment rights. After all, at Catholic University, Dolan proudly hailed the school – and implicitly the church in the United States – as “both Catholic and American.” But if Cardinal Dolan were to firmly plant his feet on the Catholic Truth and the Natural Law, instead of going to the U.S. courts, it would amount to a Declaration of Independence by the American Church from America’s rotting regime. It would also constitute a Declaration of War – in this case, fully justified under the Just War doctrine because the Catholic Church, her members, and her good works have been brutally and mortally attacked.
Such a declaration would be supported by the teaching, tradition, and authority of the Church –not only declaring the ObamaCare Mandate illegitimate, but proclaiming that the American legal system is no longer to be trusted. Clearly, since Engel v. Vitale, Roe v. Wade, and a host of other deleterious Supreme Court decisions, any sane person knows that the Supreme Court, like Biden and Leahy, has only contempt for the Natural Law. But for the Church formally to announce that fact as the basis for its refusal to obey a lex malla would bring on certain retaliation, abuse, and even persecution, driven by the cultural and political elites whose power relies on the progressive degeneration of our culture and the corruption of our politics.
Cardinal James Francis Stafford has written that 1968 represents America’s “suicide attempt” – most notably evidenced within the Church by the rebellion against Humanae Vitae. What Cardinal Dolan has called the “laryngitis” of our shepherds has led to a laity that is adrift, suffocating in a culture of sin and swill. They are longing to breathe free, energized by the truth – as Pope Benedict insists, all of it. Ignoring Humane Vitae has brought the Church to the brink of suicide, yet that document is precisely the life preserver we have been longing for.
The perils of positivist law should be posted with a “no trespassing” sign when it comes to eternal truths. The Catholic Church should tell the U.S. government what religious liberty is, not the other way around.
Today our bishops are united as never before, and so are the faithful. Our bishops have our prayers, our attention, and our support. This very day the American Church is more energetic than it has been for decades.
Enough of the “laryngitis”! Now is the time to teach Humanae Vitae!