What did Kmiec really say in the TIME article?

The Pope’s enemies have skulked out of the forest and are forming packs.  They seek to hound the Pope, bite at him, drive him from the direction he is leading the Church.

A couple days ago I posted about the article in TIME by the squishy Doug Kmiec, a professor of law.  During the last presidential campaign Kmiec worked to undermine the Catholic view that concern for lives of the unborn outweighs other burning social concerns.

Kmiec, whom I suspect wants to be appointed to something by the Obama Administration, some time ago issued a +3000 word jeremiad/apologia about how badly he was was treated in the blogosphere.

Kmiec’s recent piece in TIME follows the meeting pro-abortion "Catholic" Speaker of the House Nancy Pelosi (D-CA) had with Pope Benedict XVI in Rome.  Subsequent to that fifteen minute meeting, both Pelosi’s office and the Holy See issued very different statements about what was discussed.

In the Holy See’s statement, released by the Press Office, we read: "His Holiness took the opportunity to speak of the requirements of the natural moral law and the Church’s consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development."

Kmiec wrote in his recent TIME article that this statement effectively changes the Church’s teaching and obliges also jurists in the same way legislators are obliged by the Church.

Now that some other bloggers are picking up on Kmiec’s article in TIME, and since that article was still bugging me, I need to add something.

The real problem with Kmiec’s article is that he dissimulates about what the Holy See’s statement actually says.

Leave aside the question of the original Italian, if the statement said in Italian guiristi or guidici.  That is interesting, but it’s not the real problem.

Kmiec wants the reader to accept the premise that the Pope is imposing a new moral duty imposed on jurists, a duty to "undertake an activist, law-changing role".  

The Pope didn’t say that at all.  The statement does not say that jurists must be activists.  It says that jurists should "work for a system of law capable of protecting human life at all stages of its development".

Kmiec says that there is now a "new directive" from Rome.  There isn’t.

Here is the slight of hand: Kmiec says the Pope says that judges must use judicial activism in order to limit abortion, implying that they should "legislate from the bench" as judges do when they interpret the US Constitution broadly instead of narrowly or strictly).  Kmiec reasons that the Pope is saying that if judges don’t oppose abortion by employing this kind of activism, then they are guilty in the same way as Catholic legislators are when they promote abortion rights.

Again, that is not what the Holy See’s statement says.

The statement did not, as Kmiec claims, impose "moral duties on Catholic jurists that are incompatible with their envisioned judicial role".

Kmiec wrongly interprets the papal statement as putting jurists and legislators in the same category so that their responsibilities about protecting human life must be exercised in the same way.  Kmiec says the pope doesn’t recognize that there are different roles. 

Remember that Kmiec is writing for the for TIME/CNN machine, which has its expectations.  He is using "activist" as the polar opposite of "originalist".  I think he uses "originalist" because it sounds more like "fundamentalist" than "strict constructionist" would.  On the surface, Kmiec is trying to make it seem that the Pope came out against originalism embraced by Justice Scalia.  In other words, you can no longer hide behind originalism.  Kmiec says the Pope says you MUST become a judicial activist.


All of that said….

My biggest problem with Kmiec’s article is how he seeks to undercut the Pope’s authority.  He is suggesting that the Pope is being unreasonable.  The Pope can’t possibly mean what is said in that statement.  It would be a disaster for Catholic jurists.  Strong pro-life/anti-abortion statements were already disaster for legislators, after all.   Catholics will have to opt out of juridical life, indeed any public role, if the Pope meant what he said because they would be caught between too many rocks and hard places.

The diabolical side of this is that a dimension of what Kmiec is saying veers close to the truth: it is not going to be easy to square the demands of faith in the context of public responsibilities. 

How will Catholics be able to participate in public life when our systems reject natural law in favor of a utilitarian ethic?

Must we either opt out of the public square or lead a revolution?  Will Catholicism end up being a curious sect, like the Amish?  

So, in that sense, and that sense only, Kmiec raises a good point. 

But what he is really saying is false and dangerous: "See what an impossible situation the Pope has created even for my enemies the originalists?  We are now all in the same sinking boat of extremism because of what the Pope said.  We must, for the sake of having a Catholic role in the public square carefully filter out the extremism of the Pope and other Catholic leaders who parrot his hard line position."

That, folks, is Kmiec’s real agenda.

Catholic theologians and pastors are looking at ways of keeping our voice in the public square.  This is a major component of Pope Benedict’s vision for his pontificate.  He is trying to revitalize Catholic identity so that within the Church we know who we are and what we believe so that to the outside we have something worth while to say and contribute in the public square. 

Kmiec’s article is set against this vision: Catholic teaching matters for Catholics, but it shouldn’t bind Catholics in public discourse.

What Kmiec is really saying (as he proceeds from a false reading of the Holy See’s statement) is that if the Pope said what he said, then once your Catholic faith impedes you from reaching compromises with people who don’t share your religious views, you can no longer meaningfully participate in public life.

We all admit that some laws will provoke hard consequences for some Catholics in public life (e.g., governors, prison wardens, doctors paid by the state, workers in adoption agencies, etc.). The really tricky thing to understand is that not everything you believe with Catholic faith requires you to become an activist solely because of the Church’s teaching. 

There is no question that Justices are not free to do what they want to do on the bench and still be good Catholics.  They are called to be Catholics on the bench also.  That is not new.   The Pope’s statement to Pelosi didn’t alter that.

Caveat: Some people will surely make the mistake of thinking I am saying that Catholics don’t have to fight abortion.  That is a misstep.  A trap.  I am not saying that.

There is a difference between legislators who promote abortion and people active on the judicial side who are not activists

Kmiec fogs this distinction and tried to make the Pope look like an extremist.  Savvy Catholics, like Kmiec and Pelosi and Kerry and Kennedy and Cuomo and Sebelius and Granholm and Dodd and Biden, etc., must set aside the urgings of extremists and filter out the interpretations of hard-liners in order to save their version of the Church’s message in the public square.

That is his true agenda.

About Fr. John Zuhlsdorf

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  1. Jennifer says:

    Thank you so much for posting this Father Z…. I really think it needed to be heard… or read in this case. It’s an excellent analysis… and Doug Kmiec has lost all respect (if he had any in the first place) from a lot of people….

    May the truth be heard…. and not ignored or casually brushed aside!

  2. Bob Recchia says:

    “There is a difference between legislators who promote abortion and people active on the judicial side who are not activists.”

    Agreed. However, one does not have to be a judicial activist or abandon originalism to “work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.”

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

  3. Brian Day says:

    I would also recommend Thomas Peters’ (American Papist) entry on this:

    Key quote –

    From an AmP source with extensive experience in Italian legal matters:

    “… giuristia is not the word an Italian author would use when referring to a judge. He would use giudice. A giurista is someone who attends to he law as a matter of profession, most frequently a lawyer, or a professor of law. But a giudice is a magistrate who evaluates the merits of an argument in a case or controversy.

    In American law, distinctions between words carry great significance; and in Vatican press releases, the spokesmen for the Holy See select their words very carefully. In this instance, the press office elected to use the more vague term giuristi rather than the specific term giudici. However, Kmiec misses this critical distinction.”

  4. Brian: As interesting as that link is, it doesn’t affect what is really going on in Kmiec’s article. It makes no difference if he didn’t understand “jurist” in Italian: he had his own agenda.

  5. Sal says:

    “He is trying to revitalize Catholic identity so that within the Church we know who we are and what we believe so that to the outside we have something worth while to say and contribute in the public square.”

    OK, this is fine as far as it goes. But in the “public square” the Catholic element is invariably filtered out. Read Justice Scalia’s remarks again. That’s inherently the problem with the “public square” and the “autonomy of the secular” and the fantasy that Catholicism can be brought in, whole and entire, by the laity. Scalia made a point of defending American jurisprudence and its principles over the points of Catholic faith. And the law isn’t the only arena where that happens.

    Catholic teaching should bind Catholics in public discourse (and I know it’s not about activism). But until the ambiguity of the autonomy of the secular is cleared up, it will be possible for many Catholics to skate around this.

  6. I must object to the use of the term “activist” judge, when it comes to a judge recognizing the natural law. A judge that recognizes the natural law is not legislating from the bench, the law already exists. He is not claiming authorship of the law, he is only recognizing the law as any sane moral person must. This does give Catholic judges a problem. As Catholics they must admit that there is a natural law, and that any law that violates the natural law is no law at all. But as judges they have to pretend that the natural law does not exist, and that laws that violate the natural law are really binding. I really can not see how a judge can do this without lying. Scalia talks about how rights come about in a democracy … by voting for the right. But this is a lie. The “right” to kill the unborn is no right at all, and can never become one, even in a democracy. Are we willing to lie in order to have a voice in the public square? And what good is having a voice in the public square if it must be muted from sounding the whole truth?

    With regard to judges going beyond the positive law John Paul II said this concerning judges and divorce:

    “On the other hand, professionals in the field of civil law should avoid being personally involved in anything that might imply a cooperation with divorce. For judges this may prove difficult, since the legal order does not recognize a conscientious objection to exempt them from giving sentence.

    “For grave and proportionate motives they may therefore act in accord with the traditional principles of material cooperation. But they too must seek effective means to encourage marital unions, especially through a wisely handled work of reconciliation.”

    Notice it is not enough to recognize the law and render a judgment of divorce, they must seek effective means to encourage the marital union. This is the least that they can do. If they can do more without losing their jobs they must. Now if the Church is going to make judges do this with regard to divorce, how much more do you think judges must work against abortion. Any of the Catholic justices could write an opinion that recognizes the personhood of the unborn. The opinion would be personally honest, and compatible with proper legal theory. There would be little risk to their job (I really do not see the Congress impeaching them for the decision). The only reason they do not is because they are putting man’s law above God’s.

  7. Brian Day says:

    Fr. Z,
    I do not disagree with you. I found AmPap’s reasoning interesting in that if Prof Kmiec’s foundational argument is incorrect, then the entire article isn’t worth the paper it is printed on. I found it complemented/reinforced your argument nicely. (Or I’m lacking my daily intake of coffee.)

  8. Largebill says:

    Kmiec’s “logic” makes my brain hurt.

  9. Fr. Z, very insightful. I was thinking the same thing. These sort of half-truths are the most dangerous of all–far more so than blatant ignorance and rebellion exhibited by other public Catholics.

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