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II. From Moral Analysis to Public Policy Choices
Some commentators on the consistent ethic saw it primarily as a political policy. They missed its primary meaning: It is a moral vision and an ethical argument sustaining the vision. But the moral vision does have political consequences. The consistent ethic is meant to shape the public witness of the Catholic Church in our society.
Before exploring some of the political consequences, I would like to comment briefly on some related issues which provide a broader context for such a discussion. The movement from moral analysis to public policy choices is a complex process in a pluralistic society like ours.
First, civil discourse in the United States is influenced, widely shaped, by religious pluralism. The condition of pluralism, wrote John Courtney Murray, is the coexistence in one society of groups holding divergent and incompatible views with regard to religious questions. The genius of American pluralism, in his view, was that it provided for the religious freedom of each citizen and every faith. However, it did not purchase tolerance at the price of expelling religious and moral values from the public life of the nation. The goal of the American system is to provide space for a religious substance in society but not a religious State.
Second, there is a legitimate secularity of the political process, just as there is a legitimate role for religious and moral discourse in our nation's life. The dialogue which keeps both alive must be a careful exchange which seeks neither to transform secularity into secularism nor to change the religious role into religiously dominated public discourse.
John Courtney Murray spent a substantial amount of time and effort defending the Church's right to speak in the public arena. But he also stressed the limits of the religious role in that arena. Today religious institutions, I believe, must reaffirm their rights and recognize their limits. My intent is not, of course, to produce a passive Church or a purely private vision of faith. The limits relate not to whether we enter the public debate but how we advocate a public case. This implies, for example, that religiously rooted positions somehow must be translated into language, arguments, and categories which a religiously pluralistic society can agree on as the moral foundation of key policy positions.
Third, all participants in the public discourse must face the test of complexity. From issues of defense policy through questions of medical ethics to issues of social policy, the moral dimensions of our public life are interwoven with empirical judgments where honest disagreement exists. I do not believe, however, that empirical complexity should silence or paralyze religious or moral analysis and advocacy of issues. But we owe the public a careful accounting of how we have come to our moral conclusions.
Fourth, we must keep in mind the relationship between civil law and morality. Although the premises of civil law are rooted in moral principles, the scope of law is more limited and its purpose is not the moralization of society. Moral principles govern personal and social human conduct and cover as well interior acts and motivation. Civil statutes govern public order; they address primarily external acts and values that are formally social.
Hence it is not the function of civil law to enjoin or prohibit everything that moral principles enjoin or prohibit. History has shown over and over again that people cherish freedom; they can be coerced only minimally. When we pursue a course of legal action, therefore, we must ask whether the requirements of public order are serious enough to take precedence over the claims of freedom.
Fifth, in the objective order of law and public policy, how do we determine which issues are public moral questions and which are best defined as private moral questions?
For Murray, an issue was one of public morality if it affected the public order of society. Public order, in turn, encompassed three goods: public peace, essential protection of human rights, and commonly accepted standards of moral behavior in a community. Whether a given question should be interpreted as one of public morality is not always self-evident. A rationally persuasive case has to be made that an action violates the rights of another or that the consequences of actions on a given issue are so important to society that the authority of the State and the civil law ought to be invoked to govern personal and group behavior.
Obviously, in a religiously pluralistic society, achieving consensus on what constitutes a public moral question is never easy. But we have been able to do it—by a process of debate, decision-making, then review of our decisions.
Two cases exemplify how we struggled with public morality in the past.
First, Prohibition was an attempt to legislate behavior in an area ultimately decided to be beyond the reach of civil law because it was not sufficiently public in nature to affect the public order. Second, civil rights, particularly in areas of housing, education, employment, voting, and access to public facilities, were determined—after momentous struggles of war, politics, and law—to be so central to public order that the State could not be neutral on the question.
Today, we have a public consensus in law and policy which clearly defines civil rights as issues of public morality, and the decision to drink alcoholic beverages as clearly one of private morality. But neither decision was reached without struggle. The consensus was not automatic on either question. Philosophers, activists, politicians, preachers, judges, and ordinary citizens had to state a case, shape a consensus, and then find a way to give the consensus public standing in the life of the nation.
The fact that a spontaneous public consensus is lacking at a given moment does not prohibit its being created. When he was told that the law could not legislate morality, Dr. Martin Luther King, Jr., used to say that the law could not make people love their neighbors but it could stop their lynching them. Law and public policy can also be instruments of shaping a public consensus; they are not simply the product of consensus.
In sum, in charting the movement from moral analysis to public policy choices, we must take into account the facts that (1) civil discourse in this nation is influenced and shaped by religious pluralism; (2) there is a legitimate secularity of the political process; (3) all participants in it must face the test of complexity; (4) there is a distinction between civil law and morality; and (5) some issues are questions of public morality, others of private morality.
This brings us to the third part of my address.
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