Clash of Orthodoxies - Law, Religion, and Morality in Crisis 1882926625

Citation preview

THE

OF

_XE

Law) Religion) and Morality in Crisis

THE

CLASH

OF

ORTHODOXIES Law) Religion) and Morality in Crisis

ROBERT P. GEORGE

ISI

BOOKS

WILMINGTON, DELAWARE 2001

Copyright © 2001 ISi Books All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, or any information storage and retrieval system now known or to be invented, without permission in writing from the publisher, except by a reviewer who wishes to quote brief passages in connection with a review written for inclusion in a magazine, newspaper, or broadcast. Cataloging-in-Publication Data: George, Robert P. The clash of orthodoxies : law, religion, and morality in crisis/ Robert P. George. - 1st ed. - Wilmington, Del. : ISi Books, 2001. p. ;cm. ISBN 1-882926-62-5 1. Religion and law. 2. Law and ethics. I. Title. II. Law, religion, and morality in crisis. BL65.L33 .G46 2001 344.096-dc21

2001-87755 CIP

Interior book design by Sam Torode Published in the United States by: ISi Books Post Office Box 4431 Wilmington, DE 19807-0431 Manufactured in the U.S.

This book is dedicated) with fraternal affection) to Leonard Joseph George) Kent Joseph George) Keith Joseph George) and Edward Joseph George.

CONTENTS

Foreword: Faith, Reason, and Truth by John J. Diiulio, Jr. Preface

Xlll

The Clash of Orthodoxies in . . . THE PUBLIC SQUARE

1.

The Clash of Orthodoxies (Including an exchange with Josh Dever)

3

2.

Liberal Political Theory and the Culture of Death

39

3.

God's Reasons

63

4.

"Same-Sex Marriage" and "Moral Neutrality"

75

5.

The Concept of Public Morality

91

6.

Making Children Moral: Pornography, Parents, and the Public Interest

111

THE COURTS

7.

The Tyrant State

127

8.

Justice, Legitimacy, and Allegiance: "The End of Democracy'' Symposium Revisited

137

Natural Law and Ciyil Rights: From Jefferson's "Letter to Henry Lee" to Martin Luther King's "Letter from Birmingham Jail"

153

Natural Law, the Constitution, and the Theory and Practice ofJudicial Review (Including an exchange with James Fleming)

169

What Is Law? A Century of Arguments

211

9.

10.

11.

THE CHURCH

12.

Religious Values and Politics

231

13.

Nature, Morality, and Homosexuality

259

14.

Bioethics and Public Policy: Catholic Participation in the American Debate

273

On Fides et Ratio

303

15.

Afterword: We Should Not Kill Human Embryos-For Any Reason

317

Notes

325

Index

367

FOREWORD Faith) Reason) and Truth

A

CAD EM IC LEGEND has it that there once was an A+

student in a moral philosophy class whose passionately argued term paper was titled "There Is No Such Thing as Justice." Without penning a single remark on the paper, the profes­ sor gave it a failing grade. Stunned, the student went to see the professor. "Professor," the student began, "I worked extremely hard on that paper. I thought it was quite good. " "Quite so," the professor interrupted. "In fact," he continued, "it was perhaps the best term paper I have read in thirty years of teaching this class. Your argu­ ments \\Zere lucid. Your writing was brilliant. And your withering attack on all legal, moral, and religious orthodoxies concerning jus­ tice was profound. In fact, you persuaded me 'There's no such thing as justice,' so don't complain!" As our student may have learned, trifling with long-established legal, moral, and religious truths can be self-defeating and danger­ ous. But from the dawn of the Enlightenment down to the present, generation upon generation of well-meaning Western intellectuals and their ·students have trifled with or trashed virtually every

X

THE CLASH OF ORTHODOXIES

traditional understanding of human nature, human sexuality, and human decency. Thus have Judeo-Christian orthodoxies honoring human life in

"

'· \

all its stages and conditions been thrust·into competition with neopagan orthodoxies promoting everything from abortion on demand to death for the severely disabled. Thus has the conventional moral case for "traditional" marriage begun to clash with same-sex mar­ riage apologetics. Thus have godly people been made increasingly unwelcome in the public square, even when and where they have entered it only to give witness to their religious faith through civic good works, and even as advocates of almost every conceivable anti­ religious orthodoxy and ism have had their say and, increasingly, gotten their way. Of course, to opponents of traditional ideas about humankind and society, "orthodoxy'' is itself a dirty word, one associated in their minds mainly with orthodox religious beliefs which, or so they insist, inevitably beget intolerant ideologies, unscientific beliefs, and all manner of unreasoning legal and moral arguments. Rarely, however, do these critics pluck the beam of true intolerance from their own eyes or ponder how their own worldviews-modern, postmodern, or whatnot-are often wholly unref lective orthod�xies by another name. A document such as Fides et Ratio1 written by that rather ortho­ dox religious character, Pope John Paul II, gives them little cause. Voltaire himself, however, might have been a bit surprised had he known that at the end of the twentieth century, having confidently relegated Faith to intellectual limbo, his latest disciples would count among their "contested" concepts Truth, leaving the enlightened leader of the Roman Catholic Church to defend Reason. As Professor Robert P. George suggests in chapter 15 of the mas­ terful work now in your hands, the truly radical religious orthodoxy about humankind and society embedded within the Pope's defense of Reason is rooted ih the traditional Catholic understanding of Faith as friend and companion to Reason, and all Truth-philo­ sophic, religious, scientific-as ultimately one with God. Or, ifl may quote the Catechism: "In defending the ability of human reason to

Foreword

Xl

know God, the Church is expressing her confidence in the possibil­ ity of speaking about him to all men and with all men, and therefore of dialogue with other religions, with philosophy and science, as well as with unbelievers and atheists."

The Clash ofOrthodoxies will upset many readers, especially ortho­

dox secularists who are not used to having their often facile attacks on traditional legal, moral, and religious understandings balanced or rebutted by so unfailingly logical, learned, and lucid a mind as that of Princeton's Professor George. A distinguishing mark of Professor George's scholarship is how scrupulous he is in dealing with the ideas and arguments of all, including those with whom his disagreements could hardly be wider or go deeper. In fact, I recall one accomplished senior scholar ex­ pressing acute discomfort at having been on the receiving end of a George review of his work, but conceding that George had, in fact, "rendered his argument for slaughter" better than he himself had "rendered it for feast." How George can be so temperate yet so powerful, passionate, and persuasive remains a mystery-and a joy­ to me. Not, mind you, that Professor George, either in the present vol­ ume or in previous works, is at all wishy-washy about puncturing myths that need no-frills puncturing. For example, in the book's opening chapter, he lets the stale air out of the orthodox secularists' myth that "there is only one basis for disbelieving its tenets: namely, the claim that God has revealed propositions contrary to these te­ nets." He likewise unmasks orthodox secularism's pseudo-intellec­ tual pretensions to scientific probity and political moderation in all things. Orthodox secularism, he bluntly argues, "stands for the strict and absolute separation of not only church and state, but also faith and public life: no prayer, not even an opportunity for silent prayer, in public schools; no aid to parochial schools; no display of religious symbols in the public square; no legislation based on the religiously informed moral convictions of legislators or voters. " Agree or disagree with Professor George, it is impossible not to be intellect.ually awed and rewarded by the essays in this volume. I

..

Xll

THE CLASH OF ORTHODOXIES

close with a word to readers of opposite orthodoxies who will almost certainly disagree with nearly all that he c!,rgues: Suspend disbelief just enough to consider whether Faith its central place in a well' has '· � ordered and just society, whether Truth is in fact not all relative, and whether Reason has not long since taken tradition's side in these debates. As we of Professor George's orthodoxy say, "Be not afraid." JOHN J. DIIULIO, JR.

PRE FACE

T

HE C LASH OF ORTHODOXIES in contemporar y American social and political life manifests itself above all in

conflicts over "life issues," such as abortion, infanticide, phy­ sician-assisted suicide, and euthanasia, as well as issues pertaining to sex, marriage, and family life. Underlying these disputes are pro­ found differences regarding the source and nature of morality and the proper relationship of moral judgment to law and public policy. This clash of worldviews characteristically pits morally conserva­ tive Jews, Christians, and other believers against secular liberals and those who, though remaining within religious denominations, have adopted liberal ideas about personal and political morality. Ortho­ dox Jews, conservative and evangelical Protestants, faithful Catho­ lics, and eastern Orthodox Christians today find themselves allied with one another in defending, say, the sanctity of human life or the traditional conception of marriage against their liberal co-religion­ ists who have joined forces with secularists of various stripes to sup­ port such things as legal and publicly funded abortion, physician­ assisted suicide, no-fault divorce, and the social acceptance of homo­ sexual and other forms of nonmarital sexual conduct. Does the predominance of orthodox Christians and Jews on one side of these conflicts, and of secular liberals on the other, indicate

XlV

THE CLASH OF ORTHODOXIES

that the battle is between the forces of "faith" and those of "reason"? Secularists frequently depict the struggle Jn these terms, and occa­ sionally their opponents appear to" acquiesce in this depiction. In the '· �

chapters that follow I seek to persuade readers to understand the

conf lict differently. For those on the conservative side in what is sometimes called the "culture war" should not, and in a great many cases do not, understand faith and reason as separated in the way that many secularists and some believers hold them to be. Faith and reason are, rather, mutually supportive, the "two wings on which the human spirit rises to contemplation of truth," in the words of Pope John Paul II. I want to show that Christians and other believers are right to defend their positions on key moral issues as rationaUy supe­ rior to the alternatives proposed by secular liberals and those within the religious denominations who have abandoned traditional moral principles in favor of secularist morality. My criticism of secular liberal views is not that they are contrary to faith; it is that they fail the test of reason.. In proposing reasonableness as the criterion of moral validity, I do not pretend to write from a position of neutrality. I am a Chris­ tian. At the same time, my arguments for the soundness of what I take to be the Christian position (which is also, of course, very often the Jewish position) will not presuppose propositions that can be asserted only on the basis of religious faith. Inasmuch as my claim is that the positions I defend are superior rationally to the secularist alternatives, it is incumbent upon me to make the case for my posi­ tions without appealing to the authority of religion. Otherwise, I would be begging the question. Because the essays collected in this volume are meant to be ac­ cessible to non-specialist readers, I have tried to avoid presenting technical philosophical arguments. As a result, specialists who do me the honor of reading the book will desire to have more thorough argumentation on various points. To that end, I regularly refer read­ ers in notes to writings published in scholarly books and profes­ sional journals in which I (or scholars with whom I collaborate) defend in greater detail key propositions asserted here.

Preface

xv

Some chapters repeat points made or examples used in other chapters. For this I beg the reader's indulgence. My goal has been to retain each chapter's capacity to function as a free-standing essay. It is my pleasure to acknowledge the help of many friends. Will­ iam L. Saunders deserves recognition as co-author of chapters 7, 12, and 14. I owe a similar debt of gratitude to Dennis Teti for his work on chapter 9. If anything in this book is worthwhile, it is due, no doubt, to what I have learned in discussions with these friends, as well as Hadley Arkes, Stephen Balch, Jeffrey Bell, Joseph M. Boyle Jr., Gerard V. Bradley,James Burtchaell, C.S.S.C., Frank Cannon, Charles Colson, Midge Deeter, Christopher DeMuth, John Diiulio, John Dolan, Jean Bethke Elshtain, John Finnis, Kevin L. Flannery, S.]., Jorge Garcia, Rabbi Marc Gellman, Peter Gellman, Elizabeth Fox­ Genovese, Mary Ann Glendon, Germain Grisez, Russell Bittinger, Robert Jenson, Leon Kass, John Keown; James Kurth, Patrick Lee, Gilbert Meilaender, Douglas Minson, Anne Morse, Walter F. Murphy, Fr. Richard John Neuhaus, Rabbi David Novak, Michael Novak, Ramesh Ponnuru, William C. Porth, Dermot Quinn, Roberto Rivera, Daniel N. Robinson, Seana Sugrue, Herbert W. Vaughan, George Weigel, Robert Wilken, Bradford Wilson, and Christopher Wolfe. I am also grateful to friends on the other side of the moral and political divide with whom I have «clashed" in public and private debate. In particular, I thank Josh Dever and James Fleming for their kind permission to reprint the texts of our vigorous exchanges on important questions of law and morality. Though for this book they have been revised in various ways, many of Ehese pieces originally appeared in other places, including American Journal ofJurisprudence, Arizona State Law Review, Catholic University Law Review, Crisis, Fellowship of Catholic Scholars Quarterry, First Things, Fordham Law Review, Loyola Law Review, Notre Dame Law Review, Touchstone, and The Wall Street Journal. I thank these periodi­ cals, as well as Catholic University of America Press, Eerdmans Pub­ lishing, Georgetown University Press, the Linacre Center, St. Augustine's_ Press, Spence Publishing, and Villanova University Press, for permission to reprint them here.

Finally, I thank the Earhart Foundation for its unfailing moral and material support.

THE PUBLIC SQUARE

I

THE CLASH OF ORTHODOXIES (Including an exchange with Jash Dever)

A

FEW YEARS AGO, the eminent Harvard political scien­

tist Samuel Huntington published in Foreign Affairs a widely noted article called "The Clash of Civilizations." 1 Looking at contemporary international relations from a geopolitical vantage point, he predicted a clash of the world's major civilizations: the West, the Islamic world, and the Confucian East. Huntington's ar­ ticle provoked a response from one of his own most brilliant former students-Swarthmore's James Kurth. In an article in the National Interest entitled "The Real Clash,"2 Kurth argued persuasively that the clash that is coming-and that has, indeed, already begun-is not so much among the world's great civilizations as it is within the civilization of the West, between those who claim the Judea-Chris­ tian worldview and those who have abandoned that worldview in favor of the "isms" of contemporary American life-feminism, multiculturalism, gay liberationism, lifestyle liberalism-what I here lump together as a family called "the secularist orthodoxy."

4

THE CLASH OF ORTHODOXIES

This clash of worldviews is sometimes depicted (though not by Professor Kurth) as a battle between the f