Christianity and the Civil Law: Secularity, Privacy, and the Status of Objective Moral Norms
Wagner, William Joseph, St. John's Law Review
WILLIAM JOSEPH WAGNER*
If asked what concrete issue comes to mind when the topic of "Christianity and the Civil Law" is mentioned, the average American today, who is also a practicing Catholic, would probably answer "abortion." The abortion controversy has been the occasion for one of the most intensive efforts ever made by American Catholics to influence the shape of civil law.1 Catholic efforts have not generally led to an amendment of the laws, but have often led merely to a renewal of intellectual prejudice against Catholics.2 The association of the Catholic stance on the relationship of civil law and religion with the abortion issue is painful for many Catholics.3
The devout Catholic tends to hold that there is an objective basis for rejecting abortion, which lawmakers should be amenable to understanding no less than arguments in favor of prohibiting theft or fostering public education.4 But, the Catholic may also experience doubt about his or her position, since it is so widely repudiated by the press and an influential sector of public opinion.5
When the Catholic Christian tries to apply objective moral norms to proposals for legal reform in this area, he or she frequently is ruled out of order on one of two grounds. The first ground used to invalidate Catholic arguments is that the civil law is "secular" and, thus, in principle, closed to arguments based in religion;6 the "objective moral norms" of the Catholic being characterized as "religious."7 The second ground raised to quash Catholic arguments is that the areas of conduct implicated in abortion are "private" and beyond the regulative scope of the civil law.8
The trauma of the abortion controversy for the Catholic is only partly that he or she is powerless to change the law. The trauma also lies in the Catholic position being treated, in effect, as having no meaning worthy of public recognition.9 The latter event is what accounts for many Catholics desisting from further defense of the Catholic position, even while they are unable to affirm a status quo which they find morally disturbing.10 The intellectual danger of the abortion controversy is that it will lead Catholics not only to abandon a practical commitment to the present concrete moral challenges of lawmaking and citizenship, but to abandon as well their own distinctive modes of reasoning about law and morality.11 The latter kind of abandonment would be an irremediable harm. It would entail the loss of a constitutive element of the Catholic religion.12 And, from a purely human standpoint, it would be to relinquish one of the world's profound traditions of thought on the nature and meaning of law.
If this danger is to be averted, Catholics must retrieve and renew their distinctive understanding of the relationship between civil law and objective morality, and their understanding of how their view of that relationship forms a constitutive element of their religion. In today's context, however, Catholics cannot be said to understand these matters adequately unless they have understood and answered, within a Catholic framework, the overriding objections based on "secularity" and "privacy."13
The remainder of this article will explore the outlines of an answer to this intellectual challenge to Catholicism. In doing so, it will address three specific questions within a Catholic framework: 1) What is the justification for asserting that objective moral norms apply to the content of the civil law?; 2) Why is not the law's "secular" character a barrier to enactments, based on objective moral norms?; and 3) Why is not the "private" character of reproductive and other activities a barrier to the enactment of legal regulation affecting them?
In developing answers to these questions, this article will rely primarily on the writings of St. Augustine and St. Thomas Aquinas, taking it as noncontroversial that these thinkers are perennial sources of Catholic thought. …