In the Sacristy and Senate: Catholics and U.S. Politics

Fr Frank Brennan SJ*
The Christoph Memorial Lecture
Gonzaga University, Spokane, Washington
28 January 2005

I am delighted to be back in the United States.  Thank you for the invitation to come to Spokane and honour the memory of Fr Van F Christoph SJ who was professor, religious superior and chairman of the Department of Sociology here at Gonzaga University. The brief for the Christoph Memorial Lecture is brief and daunting: to address “a vital contemporary issue”.  I had the pleasure of a one semester Fulbright at Georgetown back in 1995 and now I am enjoying a fellowship at Boston College.  Much has changed in the US in those ten years.  There has also been great change in my home country Australia.  Both countries had a national election late last year.  Your bishops are definitely in the eye of a political storm which shows no sign of abating.

Foreigners are well advised to step gently and nimbly when proffering opinions on the situation here in the US, if only because the country is so diverse and the issues often so complex are intensively discussed from all perspectives.  I had the good fortune to visit Notre Dame University in the first week of December.  I was staying with the Holy Cross Fathers.  It was a week when, you might recall, there was considerable media attention on events at Notre Dame.  During my first night at dinner with the Holy Cross community, I was introduced to a priest named “Monk”.  I greeted him and inquired about his teaching duties.  He told me that he taught a first year course in culture and cinema.  A couple of minutes later, another of the fathers thought he should spare me any further embarrassment and pointed out that I was speaking to the university president, Fr “Monk” Molloy.  Making light of my faux pas, I opened my mouth only to change feet and observed, “Ah, you’re busy looking for a football coach, aren’t you?”  Sometimes it takes an ignorant foreigner to pose the blunt question so that others at the table might be apprised the situation.  That may be something of my role this evening in delivering the Christoph Lecture.

You will be aware that cultural insensitivity can occasion misunderstanding and embarrassment on both sides.  A week after I left Notre Dame, your ambassador to Australia, Tom Schieffer, was speaking at the National Press Club in Canberra on the occasion of his retirement.  He told the Australian audience:

Not all Australians heard this as just a good news story, though the ambassador went on to extol the virtues of the free trade agreement concluded between our governments in the last year.  Our desire to emulate Texas or indeed any other state of the Union is, in the Australian way, understated and not usually well highlighted by visiting Americans.

But nothing ventured, nothing gained.  I have been here for your presidential election as well as the win of the Red Sox.  I have been surprised to see that the abortion controversy has grown even more contested and political in the last ten years.  I am witnessing the world’s only superpower coming to terms with the vulnerability and horrific assault of September 11.  I am watching US servicemen dying every day on a foreign battlefield in a cause which is greatly contested.  There is a US administration that views the old democracies of the European continent with suspicion.  As if the abortion controversy and the Iraq war were not enough, there is now a whole new debate about same sex marriage. 

During your election campaign, I saw some of your bishops refusing communion to some of your Catholic politicians.  In the wake of the sexual abuse crisis in the Catholic Church, bishops seemed to be less listened to when it came to issues like the Iraq War and yet they were more visible in this last presidential campaign than during any previous campaign.  They were definitely much more visible than the bishops in my home country Australia where we were also having an election. Your bishops are now even writing to congressmen about judicial appointments.

Australia and the US have some similarities.  But being a country of only 20 million people, we do not have any of the obligations, responsibilities and opportunities of a superpower.  For that, most Australians are very grateful.  Our government was a member of the Coalition of the Willing in the most recent Iraq War, helping to oil the wheels of negotiation in Washington for the negotiation of the free trade agreement.   Our government was adamant that there was only one justifiable reason for our joining the coalition: the disarming of Iraq.  Our Prime Minister told us repeatedly that we had no interest in the issue of regime change.   And humanitarian relief for the Iraqi people became a public objective only once the initial conflict was over and when no weapons of mass destruction were found. 

When it comes to issues like abortion and same sex marriage, we do not have a constitutional bill of rights, with the result that such questions are not contested primarily in the courts but in our parliaments. 

This evening, I would like respectfully to offer some observations about the role of your bishops in these public controversies, especially during election time, and how we Catholics can best involve ourselves in the great moral debates of our time and our society.  I will focus on war, abortion and same sex marriage, highlighting some of the problems common to our societies and indicating some of the surprising differences. Visiting another country, I am also able to reflect on some of our common problems in espousing the Catholic way in a free, democratic, pluralistic society when Vatican statements can tend to be too universal, authoritatively declaratory and insufficiently attentive to local circumstances and complexity.

Bishops and Elections

Bishops in Australia, like the bishops here, publish a document well before the election setting out the issues that should be considered by candidates and electors wanting to inform themselves of the Catholic position on disputed questions.  The document has two purposes: to provide accurate information on the Church's position on key social and moral questions,  before the electoral heat is turned up; and to excuse the bishops from the need to walk the tight rope of comment on sensitive issues during the clamour of the election campaign.  Usually, some issue will arise during the campaign that draws some of the bishops into debate.  This then causes a flurry of speculation about the prudence and political motivation for such intervention. 

For example in the recent Australian election, the Archbishops of our two largest cities (Sydney and Melbourne) came out during the campaign in a joint statement with their Anglican (Episcopalian) colleagues expressing disquiet about the opposition Labor Party’s proposals for the funding of private schools.  Such a coalition of senior bishops critiquing the policy of just one of the political parties (no matter what the merits or demerits of the particular policy) caused some surprise in Australia.  One of the other Catholic Archbishops was prepared to speak to the media in response to his brother bishops’ action saying that if Catholic leaders "were constructive in the matter" they would "find flaws in both sides of an education policy".

Here in the US, it had been difficult for the bishops to get any airplay in the publication of their considered views about the war in Iraq.  But once the election was on, your bishops were even appearing on the front page of the New York Times, denying communion to those candidates for election who supported the Supreme Court’s status quo on the abortion question, or who voted against Congress’s Partial-Birth Abortion Ban Act which has already been struck down by three District Courts.  As a foreigner, I was left wondering if a good Catholic candidate is now unselectable and unelectable in the US.  Would a Catholic candidate be at a significant disadvantage to a non-Catholic opponent who would not usually expect such strict scrutiny from the leaders of his or her religious group?  Surely it is a matter for each voter to determine for themselves the weight they want to give to a comparison of the moral worth and character of each candidate, and to any particular policy issue.  As George Weigel says, “Americans don’t just elect a president; we elect a party and its people, who will fill the federal government for years – and the appellate benches for decades.” [1]

I am one of those Catholics who is always troubled when the Eucharist is politicised.  I even cringe a little when I see national flags flown permanently in sanctuaries of churches.  In Australia some years ago, we had a stand-off between some gay rights activists and bishops when the activists presented themselves for communion wearing rainbow sashes and the bishops denied them communion.  I expressed disquiet both with the wearing of the sashes and with the refusal of communion.  All of us who take communion, whether we be bishop or not, gay or straight, approach the table of the Lord with the apprehension of any sinner declaring: “Lord, I am not worthy to receive you, but only say the word and I shall be healed.”  I would deny communion to a totalitarian, murderous dictator who made a mockery of the Eucharist and of the table fellowship by presenting himself for communion in the community that he was terrorising.  But usually, I think it best that priests and communicants leave their political and moral differences at the door of the church, approaching the table of the Lord, not presuming to judge each other, and offering Eucharistic hospitality to those who do believe they are receiving the Body of Christ.  There is a teaching role vested in the bishop who is entitled to teach about the disposition of one who approaches the table of the Lord.  But having taught, he is not commissioned to pass public judgment on a communicant, while presiding at Eucharist.  Pope John Paul II has given communion to a range of government leaders who support laws permitting abortion in some circumstances.  He is not to be taken as approving every action of such a communicant, any more than any priest is deemed to approve all things done by a communicant parishioner whose confession he hears regularly. 

I would hope that future popes and bishops will continue to give communion to those who approach for reception unless the communicant is one who causes grave scandal to the community by actions which are totally offensive to the Eucharistic community.  Those who approve war in some circumstances, or capital punishment in some circumstances, or abortion in some circumstances should not be denied communion if they come to the altar in good faith, not seeking some public showdown, and not wanting to display contempt for the Eucharistic community as would a tyrannical, murderous dictator seeking communion from a bishop or pope on a solemn occasion.  It is no defence for the priest to claim that he is simply setting down the circumstances in which the communicant can come in good conscience.  To do that during an election campaign, deciding that some moral issues rather than others are the determinative issues, is to politicise the Eucharist. 

If the priest finds himself giving the Eucharist to a public official,  with a heavy heart and with grave reservation, the priest is of course entitled to discuss the matter with the official but he should not make a public display of his reservation about the worthiness of the official to receive communion.  Such a public display during election time with inevitable attention by the national media is just as much a national political act as a parochial pastoral one.

If there were a choice of candidates or parties, one of which opposed the church position on all moral questions and one of which supported the church position on all moral questions, there may be a case for a church leader publicly urging a vote for the latter if he or she is also notoriously known to be the morally superior, more prudent and wise candidate.  But given the unlikelihood of such a choice, church pastors are well advised not to campaign for one candidate or party.  Who are they to determine which issue or issues are the litmus test for the conscientious Catholic voter?  I am heartened by the interim report of your bishops’ task force: [2]

The Jesuit Cardinal Avery Dulles gives the right mix of pastoral concern, reverence for the Eucharist and political pragmatism and common sense in his observation:

He cautions against penalties, including a public banning of communion: [3]

Let’s recall the June 2004 statement of the Bishops Catholics in Political Life:

As an Australian Catholic, I am very suspicious about the public description of political parties and their policies permitting commentators to boldly assert, as George Weigel did before your recent election: “A second Bush administration will give Catholics an unprecedented opportunity to help create a new governing majority informed by the riches of Catholic social doctrine.  That cannot be done in the Democratic Party.” [4]

Abortion

It is always impressive to see how promptly you Americans are able to produce the most extraordinary range of statistics.  Even your regular enjoyment of sport requires a range of statistics that would make a BBC cricket commentator look innumerate.  When it comes to elections, you are able to produce statistics within the day explaining not only who voted for whom, but also why they voted as they did.  It seems to be well accepted that 22% of voters named “moral values” as the issue that most mattered in  the casting of a vote.  Of that group, 80% voted for Bush and 18% for Kerry.  I defer to Fr Richard Neuhaus who asserts that “all sensate voters understood that ‘moral values’ referred to the candidates’ clear differences on abortion, embryonic stem cell research, a marriage amendment, and, more generally the role of morality and religion in public life.” [5]

When I was here ten years ago, you had already endured 20 years of controversy following the Supreme Court's decision in Roe v Wade [6] .  With the court's 1992 decision in Planned Parenthood v Casey [7] , the court's jurisprudence of abortion was laid bare.  Key members of the majority abandoned the strict trimester framework imposed by Roe over the objections of Justice Blackmun who said it should not be disturbed.  Chief Justice Rehnquist, a constant dissenter on the issue, observed that "Roe continues to exist, but only in the way a store front on a western movie set exists: a mere facade to give the illusion of reality." [8]   Justices O'Connor, Kennedy and Souter thought they were consolidating the court's task by calling upon "the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution". [9]   Twelve years on, you are further from that than ever.  While Supreme Court justices on both sides of the abortion controversy have distanced themselves from the reasoning in Roe v Wade, the Democratic Party has turned unquestioning adherence to Roe into a precondition for party participation.  Ever since the exclusion of Governor Bob Casey from the speaker list at the 1992 Democratic National Convention, the Democratic Party has provided the opening for the Republicans to present themselves as the pro-life party, though there is little reason to expect that ultimately there would be fewer abortions in Republican states than in Democrat states were the Supreme Court to deconstitutionalise the issue.  By the time of the 2004 Convention, the Democrats had politicised the issue and determined that Roe v Wade was “sacred ground” [10] espousing in the party platform:

Commencing his epic 1973 decision in Roe, Justice Blackmun had declared, "Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection." [11]   Two decades later in Planned Parenthood he was lamenting, "A woman's right of reproductive choice is one of (the) fundamental liberties.  Accordingly that liberty need not seek refuge at the ballot box...I am 83 years old.  I cannot remain on this court forever, and when I do step down, the confirmation process of my successor well may focus on the issue before us today." [12]   How right he was then about the confirmation process of judges; and even more right now as you prepare for the first round of Supreme Court appointments after a record term of stability on the court.  There was more than a dose of emotion and predilection in Blackman's last judicial utterance on the issue of abortion.  It has now reached the stage thirty years after Roe that the limits of what some judges describe as a fundamental liberty depend not on the ballot box directly but on the view of the judges chosen and confirmed by those at the ballot box.  By attempting to constitutionalise the issue of abortion, the Supreme Court has further politicised the issue and the court itself, such that abortion features in US election campaigns far more than it does in the elections of other western democracies where the abortion rate is similar.

In the last ten years your debate has focused on attempts to outlaw partial birth abortion or D & X ("intact dilatation and extraction" as distinct from D & E "dilatation and evacuation").  In Stenberg v Carhart,  Justice Scalia observed: [13]

Not only has the Supreme Court been consumed by the issue.  So too has the US political process at election time, and also the Catholic Church.

The jurisprudence of abortion has been rendered even more incoherent because Justice Kennedy, one of the three judges in the joint opinion in Planned Parenthood v Casey, has now split from the pack and insisted that Casey permitted a State to outlaw partial birth abortion providing an exception only when such a mode of abortion was necessary to protect the life of the mother.  He saw no need for an added exception permitting this style of abortion for the health of the mother.  He acknowledged that some doctors did practise this form of abortion but he obviously had a fairly low opinion of their professional competence.  At the time Stenberg v Carhart  was decided, Kennedy was able to say: [14]

Since then the partial birth abortion procedure has become the defined battleground for all those Americans agitating the abortion question.  It has become a federal issue with Congress taking up where 27 state legislatures had left off, seeking to limit the availability of the procedure.  Defying the courts to challenge their fact finding capacity, Congress has asserted, "Partial-birth abortion is never necessary to preserve the health of a woman". [15]   Congress also asserts that partial birth abortion "poses serious risks to a woman's health, and lies outside the standard of medical care." [16]   Four Congresses have now conducted hearings on partial birth abortion.  President Clinton vetoed legislation passed by Congress criminalising the procedure.  President George W Bush signed into law a measure banning partial birth abortion.  Presidential aspirant John Kerry voted against proposed laws on partial birth abortion at every turn.  So by the time of this last election, you had a clear split on party lines regarding attempts to limit partial birth abortion. 

Following the lead of Justice Kennedy, Congress has gone further in questioning the competence, impartiality and professionalism of those doctors who practise partial birth abortion, asserting: "No controlled studies of partial-birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods. Furthermore, there have been no articles published in peer-reviewed journals that establish that partial-birth abortions are superior in any way to established abortion procedures." [17]

Congress claimed that the legitimate state interests to be achieved by the banning of partial birth abortion included the promotion of maternal health, and the drawing of "a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life". [18]

The three District Courts which have already been asked to rule on the constitutionality of the Congress provision have pointed out:  "The congressional record, encompassing the views of individual physicians and medical associations on both sides of the debate surrounding D & X, and as supplemented by the trial testimony, evidences a division of medical authority over the issue of whether D&X is generally safer than the alternatives." [19]   Where there is a division of medical opinion, the lower courts have said they have no option but to strike down any provision that does not contain an exception for the procedure to be used when the medical practitioner thinks it is for the health of the mother.  Obviously such an exception arms pro-choice doctors with the legal entitlement to use D&X whenever they choose, thinking it the more appropriate or convenient means.

The American Medical Association (AMA) continues to state: [20]

Whatever may have been its previous stand on the issue, the AMA cannot now be classed as an opponent of partial birth abortion because it goes on to say, “The physician must, however, retain the discretion to make that judgment, acting within standards of good medical practice and in the best interest of the patient.”

For a visitor to your country, there is something surreal to this whole debate about partial birth abortion.  Even if the Bush administration succeeds in having the Supreme Court uphold the validity of the law, doctors like Dr Carhart will still be free to use the D&E procedure on foetuses who are very close to viability, and with a reckless disregard for the viability of the foetus.  While all sorts of adverse descriptions can be proffered of the D&X technique, surely there is nothing more humane or moral about the dismembering of the foetus inside the womb before it is taken out piece by piece.  What is the real point in being able to restrict Dr Carhart's choice to the D&E technique rather than his having the option of using D&X when he thinks this technique will be better for the health of the mother?  I can only presume that pro-life advocates and your bishops have decided that the D & X abortion technique is a useful focus for the debate because it is so akin to infanticide, permitting the President and others to claim:  "A terrible form of violence has been directed against children who are inches from birth, while the law looked the other way. Today, at last, the American people and our government have confronted the violence and come to the defense of the innocent child." [21]   The tragic irony is that the result of this law is not that the innocent child is spared in these circumstances but that he or she is dismembered in the womb rather than being partially delivered before death. 

Why has the church become so identified with a political campaign which does not reduce the number of abortions, but which, if successful, will simply mean death is administered in one way and not another, and in some of those cases, the death will be administered in a way that the treating doctor thinks would increase the risk to the health of the mother?  I can only presume that a political assessment has been made that this is the best way to keep the issue before the courts, trying to exploit the Kennedy disillusionment with the Casey reinterpretation, and as the best way to focus the public on the barbarity of late term abortions.  But who are the bishops to make these political judgments?

As a visitor my purpose is not to attack George Bush nor to favour John Kerry.  But presumably there could be some members of Congress who could in good conscience oppose the Partial Birth Abortion law on the basis that it could adversely affect the health of some women while not saving the life of one near viable foetus.  Politics is a dirty business.  What are the bishops doing getting into a situation where a law such as this becomes the litmus test for the moral appropriateness of election to office?

There is also something surreal to the pro-choice lobby crying foul at every attempt to limit the access to abortion when the foetus is very close to viability.  Procedures such as D&E and D&X highlight that by the time the foetus has reached that stage of development, you are dealing with a defenceless being who is recognisably and tangibly a human being.  You are no longer in the moral penumbra where nature as of course disposes of many embryos [22] or where there is still the possibility of twinning.  The abortionist beholds the bodily parts of a human being who is only days and inches away from life amongst us.  The question for society is how best to draw the bright line, distinguishing the time when continued life of the embryo or foetus will be prerogative of the mother, from the time when continued life will be the preserve of the State which is positioned to protect the foetus despite the wishes of the mother.  The smartest judges in the US have now had over 30 years to craft an answer.  They can’t.  They are the wrong people to decide.  Such moral conflicts can be resolved only by compromise crafted by elected legislators in the various states.  Resulting legislation will emerge from the legislators’ attention to the qualms of ciitzens being revolted by the D&E and D&X procedures, rather than from fine judicial distinctions between levels of scrutiny and between classes of interest.

Justice Scalia makes good sense when he observes in Lawrence v Texas that many persons wrongly assume that an overruling of Roe v Wade would have resulted in abortion being made unlawful.  He says: [23]

When you strip away the heat of the argument in this country, as it was played out during the recent election campaign, the debate is largely about symbolic issues.  Those of us who are pro-life need to dedicate our energies to the support and encouragement of mothers during the time that life in their womb is solely their prerogative, and to the design of law and policy which in part reflects, and in part contributes, to an emerging moral consensus that late term abortions fill us with dread because they are wrong.  In a democratic society, the law will always permit some access to abortion if only because there is no moral consensus about the status of the embryo.   Now that your election is over, President Bush seems to have admitted as much in this morning’s interview  in the New York Times: [24]

Whatever the moral arguments, many of us also know that the criminal law is too blunt an instrument to use even on the doctor alone when a woman is wanting to decide what is for the best before the new life in her womb is recognisable, tangible and viable.

In Australia, we do not have a bill of rights.  We do not have any Roe v Wade.  Our abortion rate is similar. [25]   After the recent election, our Minister for Health, a strong Catholic, announced a desire to limit the availability of taxpayer funded abortion.  The Prime Minister vetoed the suggestion and Cardinal Pell announced that the church would devote greater resources to the support of pregnant women who thought they had no option but abortion.

From the Australian experience, I can attest that Justice Scalia is right.  If Roe v Wade, Planned Parenthood v Casey and Carhart v Stenberg were all overruled tomorrow, there would be no significant change in the national abortion rate of the United States.  The political debate would move to the states and the crunch question would be: “Which abortions do we want to criminalise so that a doctor will face a jury with a real risk that the jury will record a verdict of guilty requiring the doctor to be sent to prison?” Education and support will be far more determinative than the criminal law.  Even if pro-life groups were to succeed in their political campaigns in some states by criminalising abortion from the moment of conception except when the life of the mother was in danger, the net result would be a negligible decrease in the number of abortions or a politicisation of the criminal law and its mode of administration which would undermine the integrity of the legal processes.  

In a democratic society the law is not likely to be a significant determinant of the rate of abortions.  At most, it might limit the time at which an abortion may be performed.  It does not matter what the religious affiliation of the electors. 

The results of the  Fourth National Survey of Religion and Politics, by the Bliss Institute, University of Akron have now been released.  As usual, they surveyed 4000 Americans in 2004.  13% of Catholics (compared with 15% of the overall sample) thought abortion “should not be legal at all.”  35% of Catholics (and 33% of the overall sample) thought abortion “should be legal in only a few circumstances such as to save the life of the mother.”  17% of Catholics (and 17% of the overall sample) thought abortion “should be legal in a wide variety of circumstances”.  35% of Catholics (and 35% of the overall sample) thought abortion “should be legal and solely up to a woman to decide.” [26]

The present Holy Father has been tireless in teaching that all direct abortion is a grave moral disorder.  He has invoked scripture, natural law, Church tradition and the Magisterium:

But the invocation of so many sources to conclude that something is a grave moral disorder does not help to determine whether there should be a law against it in all circumstances especially when there is no equivalent moral consensus even amongst the faithful of the church community.  At election time, we all need to distinguish three discrete questions:

Is something a grave moral disorder?
Should there be a law against it?
Is this the best way to work for a change in public understanding and commitment, providing some prospect for legislative change leading to a change in people’s thinking and actions?

For the majority of citizens, and dare I say for the majority of Catholics, disposing of a beaker full of embryos is not the moral equivalent of committing thousands of partial birth abortions on near viable foetuses.  Or is it?  There are times when both sides of the debate want to insist that they are morally equivalent.  Insisting that a partial birth abortion is not morally different from the removal of an embryo (even one implanted against the wishes of the mother), the pro-choice lobby insists that partial birth abortion is permissible, no matter what the tangible and visible effects, and no matter what the revulsion experienced by many nurses and doctors.  And the pro-life lobby argues that the community revulsion at the detail of partial birth abortion should be translated into a blanket ban on all direct abortion.  It then becomes a winner take all argument.  Either all are permitted or none.

There are many Catholics of good will who believe that abortion is a grave moral disorder.  But they do not believe that a law criminalising all direct abortion from the moment of conception is appropriate or enforceable in a society where the majority of citizens draw some distinction between the embryo, the non-viable foetus and the viable foetus.  Or even if they believe such a law is ultimately achievable and desirable, they do not believe that making a party political issue of partial birth abortion in the interim is helpful or warranted given that not one life will be saved, and given that the health of some women may be placed at risk in the hands of less competent doctors.  There is a case for an enforceable criminal law that prosecutes a doctor for terminating the life of a foetus with reckless disregard for the viability of the foetus or without due regard for the health of the mother.  Beyond that, I am not convinced that the criminal law is an appropriate device to attempt further protection of the foetus.  I do not think the criminal law has any role to play in attempting to protect the embryo which the mother wishes removed from her womb.  There is neither deterrent value nor educative effect in passing a criminal statute which will never be enforced.  Such a statute undermines the efficacy of the law and imperils the integrity and impartiality of the law enforcers.  There are many Catholics who agree with the Pope that direct abortion is a grave moral disorder.  But in democracies under the rule of law such as Australia and the United States, not every grave moral disorder ought be made unlawful with provision for criminal sanctions.

The law, politics and morality of this issue is so much more complex than the case of the notorious murderous, tyrannical dictator who presents himself for communion in the community which he is persecuting.  I would still deny him communion, but I do feel very uneasy as a visiting priest to your country when bishops announce publicly that they would deny communion to John Kerry, and even suggest that those who vote for him should examine their conscience.  I am all in favour of all voters examining their consciences all the time.  But singling out voters for Kerry from voters for Bush is so morally selective as to be political, being perceived to be partisan.

If fewer Americans were having abortions, if fewer Americans were performing abortion, if far fewer Catholics were having abortions, if far fewer Catholics were performing abortions, there would be a stronger case for a law limiting the availability of abortion in the US.  Even then, it is not likely that many, if any, jurisdictions would pass and implement a law criminalising all abortion from the moment of conception except when  the life of the mother was in danger.  In part that is because we are a long way from a moral consensus that the withdrawal of an embryo from the womb is the equivalent of dismembering and killing a near viable foetus who is only days and inches from life protected by law and respected by society.  There are some citizens including many Catholics who are convinced of this moral equivalence and thus would urge a woman not to exercise her prerogative to control her own body by removing an embryo which would be dependent on her for survival and thriving.  But there can be no legitimate expectation that a democratic government will criminalize such activity when the majority of citizens are not so convinced.  That is why so many citizens are both revolted by the detail of D&X or D&E while being sanguine or regretful about the loss of an embryo which joins those many other embryos that leave the womb naturally.

The Iraq War

The invasion of Iraq was consistent with the previously published neo-conservative agenda of Mr Bush's key advisers. Regime change in Iraq was a centre-piece of that agenda. In Australia, our Defence Intelligence Organisation (DIO) told our parliamentary inquiry into the intelligence operations preceding the recent war: "We made a judgement here in Australia that the United States was committed to military action against Iraq. We had the view that that was, in a sense, independent of the intelligence assessment." [27] When tabling the unanimous, all-party report on Australian intelligence services in our parliament back in December 2003, the senior government member of the committee told Parliament of the Committee's conclusion "that there was unlikely to be large stocks of weapons of mass destruction, certainly none readily deployable."  In other words, the Australian intelligence service was convinced at the time that we went to war that WMD was not a pressing concern for the US administration or that the case for war was warranted even though Iraq was most unlikely to have any WMD and even though Iraq was no direct, immediate threat to the US.

We Australians  did not go to war because there was an imminent threat to our own security. We went to war because you Americans asked us to. The reasons you asked us to go to war have become a movable feast in the public square. Before the war, Prime Minister Howard insisted, "Our goal is disarmament." [28] He was anxious to explain to Parliament “the government’s belief that the world community must deal decisively with Iraq; why Iraq’s continued defiance of the United Nations and its possession of chemical and biological weapons and its pursuit of a nuclear capability poses a real and unacceptable threat to the stability and security of our world.” [29] Later the head of our Defence Intelligence Organisation told the parliamentary inquiry that this "was not a judgement that DIO would have made." [30] They just weren't asked!

Back on 11 February 2003, our prime minister had a round of meetings in Washington and received a briefing from Hans Blix, the executive director of the UN Monitoring, Verification and inspection Commission (UNMOVIC).  According to Blix, Howard "agreed with the US administration's line of reasoning regarding Iraq.  He listened kindly to my briefing and the hope I voiced for assurance of Iraqi disarmament through inspection, but appeared convinced that the Iraqis were cheating." [31]    A month later Howard told our National Press Club: "I couldn’t justify on its own a military invasion of Iraq to change the regime. I’ve never advocated that." [32] The problem was that George Bush's advisers had and that is what they got.

On 14 March 2003, John Howard explained in detail to our National Press Club the reasons for joining the Coalition of the Willing and going to war:

 He then added, “Of course our alliance with the United States is also a factor, unapologetically so.”

Even if the United Nations Security Council be not considered formally to be the competent, relevant authority for deciding just cause for war, it remains a suitable sieve for processing the conflicting claims in determining whether there is "a real and unacceptable threat to the stability and security of our world" and whether or not war is the only realistic resort. The French and Germans would have a mixture of motives for their stand, just as the English and the Americans would have for theirs. Given the mix of motives, the elusiveness of truth, and the now admitted unreliability of the intelligence, it would be better in future to have decisions made by a community of disparate nations united only by a common concern for international security against terrorism rather than a coalition of allies who either share or are neutral about the strategic objectives of the US administration.

Our politicians have a difficult call to make when assessing intelligence about the likelihood of weapons of mass destruction being developed and handed on to terrorist organisations that have no respect for western nations. In times of crisis, we need to trust our leaders. But it becomes more difficult to grant that trust when the rationale for war is changed after the event. The belated emphasis on the humanitarian concern for the Iraqi people was rank hypocrisy coming from the United States which had first given Saddam Hussein his WMD capacity for countering Iran and from an Australian government which had punished Iraqi asylum seekers who had the temerity to seek asylum within our borders.  In Australia, trust in government would be better maintained if Mr Howard simply admitted that his public rationale for war was the honouring of the US alliance no matter what the doubts about the wisdom of seeking Iraqi regime change without UN endorsement, and the concern about readily deployable weapons of mass destruction no matter what the shortcomings in the intelligence.

 A post World War II settlement of the UN Security Council configuration, including allocated seats enjoying a permanent veto cannot be determinative of any moral assessment about war. However when prudential assessments of threats have to be made on intelligence against a backdrop of continual breaches of solemn undertakings by a rogue state, the Security Council does provide a useful sieve for getting willing combatants over the threshold of their own self-interest and ideology to a publicly reasoned rationale for military engagement. If western democratic members of the Security Council cannot be convinced of the need for war, there are good grounds for citizens to suspect that the conditions for a just war have not been fulfilled. If such members voted for war, there would still be a need to scrutinise the conditions for a just war.

There was a surprising unanimity of views amongst church leaders opposing the Iraq invasion on the grounds that it did not comply with the just war criteria. On the eve of war, Bishop Gregory, the head of the US Catholic Bishops Conference said:

 As early as September 2002, the US bishops had told the President, "We fear that resort to force, under these circumstances, would not meet the strict conditions in Catholic teaching for overriding the strong presumption against the use of military force. Of particular concern are the traditional just war criteria of just cause, right authority, probability of success, proportionality and noncombatant immunity." The bishops maintained that view.

The suspected capacity to produce weapons of mass destruction is not itself just cause for an attack. Even if a state or a coalition of states is able to claim that it is the right authority to make a decision about war, that authority must be able to produce credible evidence about the possession of such weapons and the distinctive threat they pose to those states wanting to launch an attack. If you cannot convince the western democratic members of the UN Security Council that there is a real threat to world peace or a real and unacceptable threat to particular states, it is very likely that you are not engaged in war for a just cause. Even if the coalition of willing states be the appropriate authority, they still need to demonstrate that all other avenues have been tried to disarm the rogue state. If the coalition of willing states has provided the incentive for renewed inspections by pre-deploying troops, the coalition is entitled to put a reasonable limit on the terms of pre-deployment or to demand that other states opposed to war provide assistance with the pre-deployment simply to maintain the pressure for verifiable inspections. Even if the US had established that it was a competent authority to determine that there was a just cause for war which was a last resort, there would still have been a need to consider the consequences of such an engagement.

 The nonchalance and belated show of humanitarian concern by the Coalition of the Willing after they had failed to uncover large stockpiles of weapons of mass destruction confirms the suspicion that the Coalition's leader, the United States, had an alternative agenda, namely regime change in Iraq, an attempted re-ordering of the Middle East, and an experiment with a new American project premised on preventive intervention. Those who oppose such ideological experiments in the future will do better if they are able to articulate more clearly the margin of appreciation afforded governments which are privy to sensitive intelligence material. Even if such opponents fail to agree on whether the UN Security Council is the competent authority to determine the legitimacy of war, they could agree that the Security Council is the most appropriate sieve for sorting the conflicting claims made by nation states which may be the appropriate authority. The UN Security Council is well qualified to sift out those claims of nation states based only on ideology or national self-interest.

The Coalition of the Willing’s failure to find any weapons of mass destruction and its inability without UN endorsement and Arab acceptance to impose secular democracy on factionalised Iraq give us good grounds to return to the orthodox theory of just war, adapting the application of the criteria to the contemporary situation.

George Weigel says, “There is a world of difference between recognising the serious failures of US public diplomacy since 9/11 and a foreign policy approach that imagines the impossible (French and German support for deposing Saddam Husssein) and proposes the imprudent (waiting for French and German permission to do what needs to be done – whether that be in Iraq, Iran, North Korea, Darfur or wherever.)” [33]   There is also a world of difference with recognising that a threat to world peace is not likely to be as imminent or real as claimed by a US administration when neither the French nor Germans nor overwhelming majority of the UN Security Council can be convinced that there is no option but war.  Catholics should have some caution in backing their governments on such issues when the Vatican continues to express strong reservations.  We all need to review our faith in the respective governments in light of the fact that the US was confident that WMD would be discovered and then took almost two years to admit that none would be found.  I concede that not even Hans Blix knew whether or not the Iraqis had disposed of all their WMD’s, that he was happy to adopt Donald Rumsfeld’s line that “the absence of evidence is not the evidence of absence”, and that not even Hans Blix could guarantee that Iraq was without WMD.  In his book Disarming Iraq, Blix says: [34]

Could it have been argued that this uncertainty was intolerable and required elimination by armed action?  It could, but I think it is unlikely that such an argument would have been endorsed by the legislatures of the US and the UK, let alone the UN Security Council.  Presumably it was an awareness of this circumstance that led the US and UK governments to claim certainty that the weapons existed.

According to Blix it was most probable “that the governments were conscious that they were exaggerating the risks they saw in order to get the political support they would not otherwise have had.”  Blix concedes: [35]

As we look back over the Iraq War, all of us must concede that it does not make a good case for the so-called doctrine of pre-emption. Your bishops did well in spelling out the principles and directing the public to the relevant questions.

In a modern democracy, government needs to package the issue simply.  It has reached the stage that a civil servant like Paul Wolfowitz can admit that WMD was chosen as the “bureaucratic” reason for the war.  Government always acts out of a plurality of motives, not the least of which is national interest.  Since September 11, US bases have now been removed from Saudi Arabia and are established in Iraq.  Strategists in Washington would not have disregarded concerns about future oil supplies.  Following September 11, the American people had good grounds to fear further terrorist attack. 

A democratic government in such a situation rightly and understandably gives first priority to the safety and the fears of the population.  If a government can engage in action which it thinks guarantees the safety of its citizens while placing at risk only those under a tyrant regime which has failed to guarantee the removal of the threat, it will so act.  And as we have now seen, it will earn further electoral support and legitimacy from the people.

It is one thing for people like myself to advocate the role of the UN Security Council.  But once further inspections were contingent on the US doing the lions’ share of maintaining an army camped beside Iraq, the US had a prerogative for determining how long it was prepared to wait.  Those urging further delay had an obligation to commit troops to maintain the pressure.  And for how long?  These prudential and strategic questions are well beyond the competence of bishops.  But church leaders are entitled to maintain the pressure on the decision makers urging greater transparency and honesty in decision making, highlighting the national self interest and ulterior strategic objectives in any such unilateral, pre-emptive strike.  Given all that we now know, Hans Blix is surely right in asserting, “The action taken against Iraq in 2003 did not strengthen the case for a right of preemptive action.” [36]

Same sex marriage

 Here in the US, your are all engaged in a spirited debate about the recognition of same sex marriage.  In this country, there is always a court somewhere prepared to entertain equal protection and due process arguments about alleged discrimination when those arguments are yet to receive a sympathetic ear from legislators or any understanding from the majority of the population. 

In Australia, we do not have a bill of rights with the result that our courts become less embroiled in political controversies.  There was recently a suggestion that our courts would be required to recognise the same sex marriages of foreigners who came to Australia and whose “marriages” had already been recognised in their home jurisdiction.  Our parliament, with the support of both major political parties, promptly legislated to ensure this could not happen.  I suspect that we Australians are ahead of you ensuring that there is no state discrimination against gay couples in the ordering of their private affairs.  But we Australians still have a more consistently expressed preference for limiting adoption to an adult male and adult female couple.  We also place limitations on the availability of assisted reproduction technology (ART).

There is a shortage of children available for adoption in Australia.  ART has generally been restricted to a man and a woman in a stable relationship (regardless of their sexual orientation). In Australian jurisdictions, adoption generally is not available to single persons.  Except where the child is related to a single person or to a person in a same sex relationship, adoption usually is restricted to a man and a woman in a stable relationship (regardless of their sexual orientation).

In discussing same sex marriage in civil law, we need to consider the interests of children who are already being raised by couples in a same sex relationship, the interests of children who may be created in the future as the result of a same sex couple’s desire to have access to ART, the interests of same sex couples who want to care for each other in publicly recognised and affirmed relationships, and the interests of other citizens, including those who view their present or prospective marriage relationship as a distinctive social commitment to a person of the opposite sex for the purpose of bearing and nurturing the children of the union, as well as for the purpose of loving and supporting each other.

No matter what the differences between our countries, I think there are some common principles to apply:

 In Australia, we have just emerged from the sorry saga of “the stolen generation” – those Aboriginal children who were removed from their parents by the State and adopted by white families for their own well-being. These children, now adults, have demanded an apology from government. What is to be said in the future to the child of a same sex marriage who was created with genetic material from two known “mothers” and one unknown “father”(with state authorization) and who, as an adult or adolescent, demands the same right as her school-friends to know her mom and her dad? What is the state’s response?   From my Australian context, I think it makes good sense to:

 I appreciate that some of these principles would need to be differently applied in the US context. For example if adoption were to be generally available to single persons, then it ought be available according to the same criteria to same sex couples (regardless of their sexual orientation).

When it comes to moral issues and the law, church leaders often feel besieged, fearing that they are on a slippery slope. Often there is no way of crawling back up to the halcyon days when the law was presumed to reflect the church backed moral consensus.  In the search for a strategy or public position on same sex marriage, it is essential that church leaders and the spokespersons be seen to speak only once they have been attentive to the reflections on experience of their homosexual members.  It is also essential that there be an unequivocal commitment to non-discrimination and affirmation that the law is not well situated to enforce sexual morality when there is no community consensus about that morality.  Though some teenagers ambivalent about their sexuality may be assisted by laws that give preference to heterosexual relationships, others in their quest and in their later lifestyle will find such laws to be oppressive.  In such circumstances the morality of sexual activity must be left to the conscience of the individual who can be guided and assisted voluntarily by others including one’s co-religionists.  The state will intervene only on proof that there is threatened harm to others who are vulnerable and not yet consulted.  In the sphere of same sex relations, this requires the state to focus on the children who will be born and nurtured in such relationships in the future.

 Some church leaders are willing to tolerate same sex couples in society but they are loathe to endorse their relationships because such endorsement would entail a contradiction with their church’s teaching on the appropriate means of sexual expression.  This is most notably the case with the Roman Catholic Church and some of the more fundamentalist Protestant churches.  Church leaders need to accept that their teaching role is primarily with their own church members.

The Canadian Catholic bishops intervened in the recent proceedings before the Supreme Court of Canada instituted by the Governor in Council seeking a court ruling on the constitutionality of a proposed Bill which would extend the capacity to marry to persons of the same sex. The court was also asked if the freedom of religion guaranteed by the Canadian Charter of Rights and Freedoms would protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to the officials’ religious beliefs.  The bishops expressed strong objection to those who compare opponents of same sex marriage with those who opposed inter-racial marriage in an earlier century because this "paints all those in favour of traditional marriage, or who condemn homosexual sexual conduct, as the moral equivalents of racists". The bishops asserted that "neither the courts nor the State can force all citizens to publicly approve sexual relationships they find morally offensive".  While conceding the need and desirability of tolerance, the bishops said, "This does not mean promotion, or approval."  The bishops fear that same sex marriage legislation "would require all Canadians to treat same sex unions, and the intimate sexual relationships underlying those unions, with the same public respect and approval as intimate sexual relations underlying heterosexual marriages. Put another way, the state would require all Canadians to treat homosexual sexual conduct as a good." [37]

The bishops are afraid that State recognition of same sex marriage will result in a particular ideological opinion being instituted as a universal and binding norm holding "that intimate sexual relations at the core of same sex unions must be treated as a good".  They told the court of their added fear: [38]

The bishops are concerned that the legal recognition of same sex marriage entails not only tolerance of homosexual sexual activity but also moral approval of it, "a demand that could only be met by many Canadians through the abrogation of their religious beliefs". 

Even though these views are sincerely held, such arguments are not very helpful in the public forum.  The civil law permits many activities by citizens which must then be tolerated by other citizens.  This does not mean that all citizens are taken to give their moral approval to such activities.  To take a trite example, the law permits the sale of junk food or junk literature to citizens.  I must then tolerate such sales and purchases by my fellow citizens.  I am not to be taken to give my moral approval to any such sale or purchase.  The state cannot order me to participate in any such sale or purchase.  Or to the more complex and serious moral issue - abortion.   In most jurisdictions, the law tolerates abortion as a mother's prerogative in the early stages of pregnancy.  As we saw in the recent US election, this does not mean that all citizens morally approve abortion on demand.

Churches such as the Episcopalian church which permits marriage and sexual relations to its clergy and which has a less centralized hierarchy for the defining of doctrine and morals find themselves in a far more conflicted situation than the Catholic Church in agitating these issues in the public square.  It would be imprudent of Catholic bishops to think that they are better positioned than their Episcopalian colleagues when it comes to offering advice to government and legislators on these issues.  The Episcopalians are more likely to be facing the broad panoply of concerns of church members who are engaged in a variety of sexual relationships and who do not expect to be given clear moral answers by persons in authority. 

While the Catholic bishops in Canada have restated their commitment not to give moral approval to same sex unions, the Anglican Church of Canada General Synod of 2004 carried a resolution affirming "the integrity and sanctity of committed adult same sex relationships", requesting its Faith Worship and Ministry Committee "to prepare resources for the church to use in addressing issues relating to human sexuality, including the blessing of same sex unions and the changing definition of marriage in society". 

There is no purpose to be served by the Catholic bishops claiming in the public square that they are more reliable in expressing the Christian viewpoint on same sex relationships than the General Synod of the Anglican Church.  There is every prospect that legislators and citizens who are not active members of either church will presume that the Anglican response is more attentive to the lived experience of all citizens including those in same sex relationships. 

It is probably counterproductive in the public square for church leaders in countries such as Canada, the US and Australia to be simply repeating the claims of the Roman Catholic Church’s Congregation of the Faith: [39]

Many non-church members are not assisted by this specialized church language about issues of such complexity.  They are not reassured by the authors holding such judgments in tension with the solicitous observation:

In the United States, it is more likely that legislators and citizens having no allegiance to a Christian church would be guided by the resolutions of the Episcopal Church than by the statements of the Vatican’s Congregation of the Faith.  At their 2000 General Convention, the Episcopal Church passed a motion about same sex relationships: [40]

In 2003, the Episcopal Church acknowledged: [41]

An honest acknowledgement of disagreement between church members following broad consultation with church members including those who are gay and lesbian, rather than a church document holding in tension an inflexible moral argument and a solicitous pastoral concern, purporting to state the official church position, is more likely to commend itself to citizens and legislators in societies which themselves are in disagreement about the greater good for society through law and policy. 

Conclusion

Offering a visiting Australian perspective on the public debates about abortion, the Iraq war and same sex marriage, I hope I have shed a little light rather than more heat on these vexed issues.  I have noted the tendency in this country for people to be immediately labeled and dispatched to a particular camp in the debate of these questions.  I find these questions interesting because I am not convinced that the way forward on any of them can be derived simply by deductive reasoning from papal statements.  Taking seriously our church authority and teaching, our democratic ethos and constitutional traditions, we need to move from the realm of the pulpit and moral argument to the public square and debate about law and policy with prudence, respect and openness to dialogue.

No matter which way the next case goes on partial birth abortion, there will be no fewer abortions performed in the US.  If we are to criminalise some abortions, we have to be prepared to implement such a law without bringing the law and its agents into a cul de sac of non-compliance, corruption and unnecessary politicisation.  If we are to better debate the morality of military pre-emption next time the Bush White House decides to engage in military action not just to counter terrorism but also to counter tyranny, we need to concede the gap between the principles of just war and the application of the principles which require access to confidential, accurate intelligence information before there can be a prudent assessment made of the justification for action, when those governments providing the military pressure for international compliance have a prerogative to proclaim that war is now the last resort.  Debating same sex marriage, we need to respect the hopes and desires of all persons in the privacy of their affairs while giving highest priority to the well being of children and also being attentive to the self-perception of those citizens who have always regarded their own marriages as deserving state protection and recognition for the well-being of the children created from such a union.  If the issues of non-discrimination in access to benefits are rectified, the further demand for recognition of same sex marriage is an issue of tolerance and endorsement best handled by elected legislators rather than unelected judges forcing the pace of social change, risking further politicization of the issue and of the courts.

Preaching to the Knights of Malta a week before your election, Archbishop John Quinn of San Francisco concluded: [42]

I am saddened that in the country which prides itself on being the world’s most robust democracy “under God”, the Eucharist has been politicised at election time.  In the next four years, I hope and pray that good Catholic candidates will be both selectable and electable in both major political parties in this country, and that they and their supporters will be free to approach the altar with their political rivals and co-religionists affirming “Lord we are not worthy to receive you, but only say the word and we shall be healed together.”

May the prudence of our bishops help us all in our mission to proclaim the kingdom to come, discerning its signs breaking in around us here and now, even in the public square.  Who knows, we Australians might even come to envy those Texans just a little.  I trust that in my ignorance of local US matters, I have not caused any embarrassment as I did at the table of Fr Monk Molloy.