Rights, Responsibilities and Religious Bodies
 AIDAN O’NEILL QC

[Editor’s Note:  This is one of a series of talks given in London as The  Alan Bray Memorial Lecture Series sponsored by the Roman Catholic Caucus of the Lesbian & Gay Christian Movement.  For additional information on the series, click here].

“The Church respects the legitimate autonomy of the democratic order and is not entitled to express preferences for this or that institutional or constitutional solution.”¹

Introduction: Scottish Catholicism

I am a lawyer.   I practise in the area of human rights.   I have a particular interest in constitutional law.     I am also a Catholic, although to understand that last statement it is perhaps necessary to unpack more of my personal history and upbringing.

My Catholicism is, in one sense, tribal.   I was born into it – as the sixth of nine children, all but one of whom survived to adulthood.   My parents were Catholics of good standing, both teachers in the wholly State-funded Catholic school sector in Scotland.   The Catholicism into which I was born was Scottish Catholicism, which by the time I was born was composed primarily of third or fourth generation descendants of immigrants to Scotland, predominantly from Ireland but also from Italy, Lithuania, Poland and the Ukraine.    Catholics in the west central belt of Scotland where I was brought up sometimes comprised 50% and over of the predominantly coal-mining and steel-producing communities in which they lived, but taking Scotland as a whole, the proportion of Catholics was just under 20%.     Catholics in Scotland when I was growing up were overwhelmingly working class in culture, although there were also the beginnings of a Catholic middle class, school teachers, publicans and criminal lawyers being in the vanguard of its creation.

Growing up Catholic in Scotland in the 1960s involved, however, a series of “not-belongings” or dislocations.  One didn’t feel wholly Scottish, since the then dominant cultural myth of what it was to be Scottish seemed to be one that commenced with the Reformation of 1560 and John Knox denouncing Mary, Queen of Scots for her “foreign harlotry”.   Despite many of our forenames and surnames, we didn’t feel ourselves to be Irish – they had a different accent and attitude to life, and a wholly different politics and history.  We were certainly not English.   But even any sense of “Britishness” was fraught with difficulties, given that we knew that the Monarch vowed to uphold the Protestant religion and would lose any claim to the throne on becoming or marrying a Catholic.

The one identity one could be sure of, however, was one’s being a Catholic.    And the Church we experienced – as a minority Church in a historically hostile land - was one marked by solidarity with the poor, the down-trodden, the immigrant, the oppressed.    Our Church gained moral authority and respect for that.   We had little, if any, of the oppressive experiences which marked Irish Catholicism in the age of DeValera where strong social and political power rested in (and was abused by) members of the clergy and religious.   Instead, to identify as a Catholic in Scotland, was to identify with the powerless and those discriminated against.   It was to accept a calling to witness to truth and to fight against injustice.    It was all one seamless web.   Those were the (romantic) ideals, but of course they were not always realised in practice.

Much has changed since the early 1960s of course.    Catholics in Scotland and in the United Kingdom as a whole have a surer sense of belonging within this realm.     British identity which, on Linda Colley’s thesis²  was forged in the eighteenth century  with the marriage of patriotism with Protestantism, has largely shed its distinctively anti-Catholic basis.    These islands’ vestigial anti-Catholicism grows ever weaker.    Catholics have become more visible and explicitly involved in the public life of the nation.   We have Catholic judges, Catholic peers, Catholic MPs, a Catholic as Speaker of the House of Commons, a Catholic heading the BBC, Catholics elected as leaders of the major political parties, Catholic royals (although excluded by virtue of their Catholicism from the right of succession to the throne).   Even the present Archbishop of Canterbury, Rowan Williams, is reported to have considered becoming a Catholic at an earlier stage in his ecclesiastical career, while the former Anglican Bishop of London, Dr. Graham Leonard, has already taken that course.    And the Prime Minister (whose wife and children are Catholic) regularly attends Mass with his family and, if recent Press reports are to be believed, has himself given serious thought to converting to Catholicism, at least once he demits office.³

Catholics now take a prominent and leading role in the public life of the State.    The question I wish to address is whether we can indeed fully, unreservedly, and conscientiously carry out the duties of our various public offices in accordance with the laws and constitution of the democratic and pluralist State in which we live ?   Or does the fact of our being Catholic mean that our ultimate loyalty, even in the performance of their public office, lies elsewhere ?   Put crudely, are Catholics committed by their religion to being the Pope’s “Fifth Columnists”, supporting the structures and laws of the State only insofar as permitted to do so by the institutional Church.    Or can one instead be both a faithful Catholic and a loyal citizen of the State ?

My hope is that the answer to that last question is “yes”, otherwise I would have to give up either my job (admission to which involved my giving in open court an oath of fidelity and allegiance to the Queen) or my religion.   But my fear is that some of the presentation of official Catholic teaching on this matter is not as clear as it should be.   My concern is, in particular, that some of the language used, the images chosen, the metaphors adopted in Church documents place real difficulties in our being able to say with absolute confidence that one can be a loyal subject of both God and the King, or both the Church and Parliament ?.    And if those two loyalties cannot, in fact, be reconciled, then the issue as to whether Catholics can properly accept or be appointed to public office in the State arises.   Does the Church require, in effect, the withdrawal of Catholics from public life ?

The root of the problem is this: can the Church reconcile itself to democracy ?    I am interested then – as a citizen of the UK (and EU), as a lawyer, as a Catholic - in the inter-relationship among: those who are invested with a form of legal (canonical) authority within the institutional Catholic Church – the Vatican, national episcopal conferences, and individual bishops; those who exercise legal authority within the democratic state – Government ministers, legislators and judges; and the people in whose name - and over whom - such authority is sought to exercised.

More concretely, I want to examine the question as to if, when and how the clergy should seek to exert their influence within the political sphere.   In particular, I wish to consider whether the bishops of the Catholic Church should seek to use their ecclesiastical authority (over the faithful) to oppose or promote changes in the laws which apply to all within our society and/or to influence the way we might vote.    I want to examine the implication that the use of such ecclesiastical authority for the States we live in.

This is a big and complex area.  It involves the interplay of politics and theology; of private and public morality.  It touches on the role of teaching office of the Church and the assent (and possibility of dissent) on the part of the faithful.  It takes in questions of conscientious objection and unjust laws.   It concerns individual conscience and the hope of salvation.   It is about voting and sinning.    It is about judging, and being judged.

2.  The Eucharist, the Vote and the US Presidential Election

Whatever else one might say, these matters are at least topical: this is clear from a brief survey of some recent episcopal pronouncements arising out of the current US Presidential election.    Thus, in January 2004 Bishop Raymond Burke then of bishop of the diocese LaCrosse, Wisonsin published a canonical notification in the diocesan newspaper which he stated that Catholic politicians, who in their work as legislators were deemed by the bishop to have shown “support” for abortion or the legalisation of euthanasia, would not be admitted to Communion within “his diocese”.⁴    Bishop Burke was subsequently installed as Archbishop of St. Louis, Missouri.   As Archbishop, he specified that the Catholic US presidential candidate, John Kerry would be refused communion and that individual Catholic voters who voted for him in the election should also be excluded from communion until such time as they had confessed and repented their “sin” in voting for such “a pro-choice politician”.      We have, then, the paradoxical position of a Catholic prelate effectively campaigning against the Catholic candidate for high public office and favouring the candidacy of the professed born-again Evangelical who currently holds the position.

Another American bishop, Bishop Michael Sheridan of Colorado Springs, has also stated that the act of voting for politicians whom he judged to have fallen into error on the issue of the regulation of abortion and the legalization of gay marriage constituted a serious sin.     In a Pastoral letter issued in May 2004 he stated:

“There must be no confusion on these matters.  Any Catholic politicians who advocate for abortion, for illicit stem cell research or for any form of euthanasia ipso facto place themselves outside full communion with the Church and so jeopardize their salvation.   Any Catholics who vote for candidates who stand for abortion, illicit stem cell research or euthanasia suffer the same fateful consequences.

As in the matter of abortion any Catholic politician who would promote so-called ‘same-sex marriage’ and any Catholic who would vote for that political candidate place themselves outside the full communion of the Church and may not receive Holy Communion until they have recanted their positions and been reconciled [with God and the Church] by the Sacrament of Penance.”⁵

In response to these individual Bishops pronouncements, the US bishops’ conference issued in June 2004 a public statement - “Catholics in political life” – in which they appeared to uphold an individual bishops’ right to proclaim such diocese-specific “excommunications”⁶ while allowing that

“bishops can legitimately make different judgments on the most prudent course of pastoral action”.⁷

Cardinal Ratzinger’s approach to the issue is, perhaps, more nuanced than some of the more rigorist American bishops.   In a memorandum to the President of the US Episcopal conference he stated that a Catholic politician who consistently campaigned and voted for permissive abortion and euthanasia laws and any individual Catholic who deliberately voted for a politician “precisely because of the candidate’s permissive stand on abortion and/or euthanasia” would be guilty of “formal co-operation in evil” and therefore would be deemed “unworthy” to present himself or herself to Communion.   Cardinal Ratzinger did leave open the possibility that an individual voter might have “proportionate reasons” for voting for such a candidate despite their stand on abortion and/or euthanasia.   The Cardinal asserted too that “not all moral issues have the same moral weight as abortion and euthanasia”.   While the Catholic Church has always and everywhere taught that abortion, euthanasia “intrinsically evil” it has not shown such consistency as regards the death penalty or just war.     Accordingly Cardinal Ratzinger allowed that:

“there may be legitimate diversity of opinion, even among Catholics, about waging war and applying the death penalty but not however with regard to abortion and euthanasia.”⁸

Archbishop Burke has come back into the fray with the publication, on 1 October 2004, of a new pastoral letter entitled “On Our Civic Responsibility for the Common Good” in which he expanded on his earlier positions, and stated that individuals had a moral duty both to vote9  and to use that vote against any candidate supporting, inter alia, same sex marriage no matter that candidate’s position on any other issues.   He noted:

“As Archbishop … I write now to assist you in informing your consciences as fully as possible, regarding your responsibilities as a citizen.     I do not claim to be wise and can offer no wisdom of my own.   What I give you is the wisdom of the Church, the wisdom of Christ.…

Some Catholics have suggested that a candidate’s position on the death penalty and war are as important as his or her position on procured abortion or same sex marriage.    This, however, is not true.   Procured abortion and homosexual acts are intrinsically evil and as such can never be justified in any circumstances.   Although war and capital punishment can rarely be justified, they are not intrinsically evil.   Neither practice includes the direct intention of killing innocent human beings.   In some circumstances, self-defence and defence of the nation are not only rights but responsibilities.   Neither individuals nor governments can be denied the right of lawful defence in appropriate circumstances.…

But there is no element of the common good, no morally good practice that a candidate may promote and to which a voter may be dedicated which could justify voting for a candidate who also endorses and supports the deliberate killing of the innocent, abortion, embryonic stem cell research, euthanasia, human cloning or the recognition of a same sex relationship as legal marriage. These elements are so fundamental to the common good that they cannot be subordinated to any other cause, no matter how good.” ¹⁰

Whether or not this stark (and apparently reductionist approach) approach to a complex issue does in fact accurately reflect Catholic social teaching – under which Catholics are exhorted fully to participate in public life and “to reject as unacceptable all forms of violence, to promote attitudes of dialogue and peace and to commit themselves to establish a just international and social order”¹¹  - is a matter for another paper, noting only at this stage Pope John Paul II words in his recent encyclical letter Ecclesia de Eucharistia:¹²

“Many problems darken the horizon of our time. We need but think of the urgent need to work for peace, to base relationships between peoples on solid premises of justice and solidarity, and to defend human life from conception to its natural end. And what should we say of the thousand inconsistencies of a globalized world where the weakest, the most powerless and the poorest appear to have so little hope! It is in this world that Christian hope must shine forth!”

For the purposes of the present paper, however, the interesting thing about these controversies is that they indicate a growing readiness on the part of sections of the Catholic hierarchy directly to intervene in the political sphere and threaten the use of ecclesiastical sanctions against Catholic politicians and Catholic voters if they fail to act in accord with the bishops’ instructions.     But what sort of model of the relationship of Church to State do any such instructions to politicians and voters suppose ? And is such a model compatible with the possibility of Catholics continuing to participate in public life – as legislators, judges, administrators, and indeed voters - within liberal pluralist democracies ?

3.  A “necessary conformity of civil law with the moral law” ? - Catholic laws in a Godless polity

But what is the problem ?    The bishops protest that all that they are doing in making their public pronouncements is exercising the prophetic and teaching function that inheres in their episcopal office.  They would say that they are not illicitly interfering in the political sphere, but are simply reiterating the Church’s constant teaching on respect for life and on matters of sexual ethics.      They are just doing their job.        But of course they are not just teaching, they are telling.   Their claim is that it is “sinful” to vote in a particular way and they seek to impose such sanctions as they have at their disposal – exclusion from Communion – in an attempt to enforce uniformity and discipline among their flock.    Theirs, then, is a model of society in which people can be told how to vote and punished – at least ecclesiastically - if they fail to exercise the vote in the required manner.

If the bishops’ threatened use of Church disciplinary measures against the recalcitrant liberals were successful, and the faithful then obeyed their instructions on the use of their franchise, what would then be created would be a Catholic bloc vote, which could be delivered on call.   The bishops would thus become powerful political players, of similar influence and importance to the trade union barons of old Labour or to the lords of Tammany Hall.   In this way the institutional Church might increase its power within civil society – even where Catholics form a minority of the electorate - and politicians would once again fear the wrath and condemnation of turbulent priests.

The legislature within such a society - in which Catholic voters voted for the political candidate favoured by the bishops, and where Catholic legislators voted in accordance with the bishops’ moral instructions - might be expected to push through a radical legislative programme.   Given the tone of some of the more recent pronouncements emanating from the Vatican this specifically Catholic agenda might include: the re-criminalisation of abortion¹³ and the banning of IUDs and the morning-after pill;¹⁴  the outlawing of stem cell research and therapeutic cloning of human embryos;¹⁵  strict regulatory control on the use of in vitro fertilisation with a view to avoiding the creation of “excess embryos”;¹⁶   strengthening the laws against euthanasia or any physician assisted suicide;¹⁷   abolition of the death penalty;¹⁸  limitation on the availability of contraceptives;¹⁹  withdrawing legal recognition from de facto unmarried family relationships,²⁰ making divorce more difficult,²¹ and, conceivably, also prohibiting remarriage after divorce;²²  withdrawal of the protection of anti-discrimination legislation covering sexual orientation;²³  a veto over any possible legal recognition of same sex unions;²⁴  and the promotion of a sex education curriculum directed against the fostering of a “contraceptive mentality”.²⁵

The passing and enforcement of such a legislative programme would not depend on there being a general consensus among the electorate, or even a majority opinion in their favour, since legislation of this nature would be intended to instantiate the Natural Law which sets out the objective standards of justice and morality applicable to all.²⁶       As Pope John Paul II has written:

“Democracy cannot be idolized to the point of making it a substitute for morality or a panacea for immorality. Fundamentally, democracy is a ‘system’ and as such is a means and not an end. Its ‘moral’ value is not automatic, but depends on conformity to the moral law to which it, like every other form of human behaviour, must be subject. … [T]he value of democracy stands or falls with the values which it embodies and promotes.… The basis of these values cannot be provisional and changeable ‘majority’ opinions, but only the acknowledgment of an objective moral law which, as the ‘natural law’ written in the human heart, is the obligatory point of reference for civil law itself.
…

Even in participatory systems of government, the regulation of interests often occurs to the advantage of the most powerful, since they are the ones most capable of manoeuvering not only the levers of power but also of shaping the formation of consensus. In such a situation, democracy easily becomes an empty word.

It is therefore urgently necessary, for the future of society and the development of a sound democracy, to rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person: values which no individual, no majority and no State can ever create, modify or destroy, but must only acknowledge, respect and promote.” ²⁷

These radical “Catholic laws” would seem, then, to gain their binding force and legitimacy not from any consent of the people, but from the fact that they reflect the world as it ought to be, as God intended it.    What, then, is the difference between such an agenda, and the calls made by radical Islamists for the imposition in all Muslim countries of shari’a law, based on the Quran, sayings of the Prophet and the subsequent writings of Islamic scholars ?    Paradoxically, the push for a “Catholic” legal agenda such as that outlined above would, if anything, be more radical in its scope than the Islamic programme.    This is because the Church contends that the moral standards which it seeks to proclaim are not mandated by any specific Divine revelation or founded on any authoritative religious text, but are instead the products of rational reflection on the human condition.   They are therefore standards which everyone, regardless of religious belief or culture, can properly be expected to recognise and affirm.

But it is rather difficult to fit in this high theocratic vision with the democratic ideals to which Western civil societies now adhere, and which our politicians so zealously seek to spread among the nations of the developing and of the Islamic worlds.     The bishops’ vision of the City of God being realized on earth leaves little room in it for the (potentially various) voices of the people.   This is a problem.    

4. “Catholic” disobedience to unjust law

In the interim, while waiting for the establishment of this Godly State, what do the bishops tell us should be the attitude of Catholic Christians to those apparently objectionable civil laws which still hold their place in the statute book on the constitutional or fundamental rights rulings of the courts ?     The episcopal critique of such laws has, of late, tended to use the language of fundamental or human rights.   The problem is that many of the documents emanating from the Vatican (and some of the more politically activist bishops) is that they show little or no awareness either of what use of the language of human rights commits them to as a matter of process.      And there seems little awareness, at times, of the complexities involved in the process of the rule of law and the fact that fidelity to the values of legality and constitutionality is itself a moral requirement for participation in the public life of a democracy.

Instead the model for the relationship of the individual to the State which is put forward is that the individual’s obedience to the laws of the State (no matter the position he holds within the State) is always contingent on a judgment that those laws conform to the demands of God, as mediated through His Church.   Thus the Catechism of the Catholic Church states:

“The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel.   Refusing obedience to civil authorities, when their demands are contrary to those of an upright conscience, finds its justification in the distinction between serving God and serving the political community.”²⁸

And in Evangelium Vitae, the Pope states that:

“The doctrine on the necessary conformity of civil law with the moral law is in continuity with the whole tradition of the Church.…

Laws which authorize and promote abortion and euthanasia are … radically opposed not only to the good of the individual but also to the common good; as such they are completely lacking in authentic juridical validity. … [A] civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law.   Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection…

It is precisely from obedience to God -to whom alone is due that fear which is acknowledgment of his absolute sovereignty-that the strength and the courage to resist unjust human laws are born. It is the strength and the courage of those prepared even to be imprisoned or put to the sword, in the certainty that this is what makes for ‘the endurance and faith of the saints’ (Rev 13:10).²⁹

There is a paradoxical reliance in this passage on the primacy of individual conscience – apparently otherwise denied to legislators and voters – and the use of apocalyptic language to deny the binding nature, and legal validity, of laws with which the Church is in disagreement.    Comparisons are drawn with the Christian martyrs of Ancient Rome.    At the same time, however, the Pope seeks the protection of the civil law for those who would disobey those laws from which the Church dissents, noting:

“[M]orally upright people … have a right to demand not to be forced to take part in morally evil actions. Sometimes the choices which have to be made are difficult; they may require the sacrifice of prestigious professional positions or the relinquishing of reasonable hopes of career advancement.…

To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. … Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane.” ³⁰

What the Pope seems here to be calling for is a legally guaranteed right for individuals in the name of individual conscience to dissent from and oppose laws with which that individual is in moral disagreement.    But it is difficult to see how any legal system within a democratic society could give carte blanche for its citizens to engage such a pick-and-choose approach to legality.   Indeed such an attitude to the civil law taken by the religious authorities parallels the accusations that are made against (liberal) Catholics who seek to engage in debate over certain aspects of official Church teaching that they are indulging in “à la carte Catholicism”.

The simple (repeated) assertion that a law which the Church considers to be unjust is neither morally or legally binding on individuals – and that these individuals have a duty to resists such laws - in fact, fails to do justice to a complex and weighty problem.    It appears, on its face, to contravene traditional Catholic moral teaching in suggesting that the good end (achievement of a result consistent with Church teaching) justifies the means (disobeying the duly enacted law).    If the Church is indeed going to promote conscientious objection to the laws of civil society it needs to do better than that.

True conscientious objection, instead, has to be rooted in fidelity to the legal values of civil society, and to the democratic process which produced the whole corpus of law.  Otherwise it become nothing more than a manifestation of contempt for the laws and the political system which sustains it.

5.  Respect for Human Rights as a Democratic principle

As we have seen, documents emanating from the Pope, the Curia and the bishops have increasingly been willing to use the language of human rights³¹  (although the Vatican itself has not subscribed to the European Convention on Human Rights).    And the institutional Church has shown itself willing to criticise certain aspects of the laws of civil society because of their alleged incompatibility with human rights – for example in relation to the right to religious freedom.³²

Of course, if the Church is willing to use human rights language to criticise civil society, it has also to be open to the possibility that it and its actions may itself be judged and criticised under reference to these self-same human rights standards.³³

But the main problem with the use of human rights language by the institutional Church to criticize those laws of civil society with which it is in disagreement is that the Church’s uses the language of human rights as if it were simply another way of talking about “natural law.  In so doing the Church fails to take due account of the political (and specifically the democratic) context within which fundamental rights talk is embedded.    In so de-contextualising, de-democratising and de-historicising human rights there is a danger that the Church misunderstands them.

The context within which the adoption of legally enforceable statements of fundamental rights which the States authorities bind themselves to obey is, for the most part, a post-World War II phenomenon.   It may best be understood as a reaction to the perversion of the form of the law that was engendered within the Nazi State, and the consequent corruption of those who participated as lawyers within that system.³⁴

  The unique horror of the Nazi system is that it purported to maintain the forms of law and legality, while permitting tyranny and injustice to reign.    The omnipresent mark of the authority of the Nazi State was the “Fasces”, a symbol originally taken by Mussolini from Ancient Rome, which showed an axe surrounded by birch or elm rods bound together by a red strap.    The very name “Fascism” is derived from their use of this symbol.   The rods symbolised the power of the State authorities to carry out corporal punishment upon individuals found guilty of infractions of the law.   The axe symbolised the power of the State to impose the death penalty upon law-breakers.      Fascism, then, carried a constant symbolic assertion by the ruling authorities’ powers of punishment, indeed of life and death, over all those under its rule.

Under the Nazi State, however, the legal system not only provided for punishment and death.    It allowed for torture to be used against individuals.   It routinely reversed the presumption of innocence and the principle that criminal legislation should not be applied retrospectively.    It legislated for people to be held in slavery and conditions of forced labour.    Under its “Nuremberg laws” it grossly interfered in the rights to privacy of those under its rule, and denied them rights to free expression, free assembly and to freedom of thought, conscience and religion.   The Nazi authorities in the name of “eugenics” withdrew from certain individuals the right to marry and to found a family.   Notoriously, they discriminated amongst the populations under their control on the grounds of “race”, religion, national and social origin and political or other opinion.    In the words of the Nuremberg War Crimes Tribunal the Nazi legal system was one which nurtured

 “a nation-wide government-organised system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice and through the instrumentality of the courts.    The dagger of the assassin was concealed beneath the robe of the jurist”.³⁵

The response to the horrors and excesses of the Nazi State and its so called “legal system” – which purported to “legitimize” discrimination against, and ultimately the expropriation and wholesale extermination of the Jews - was for jurists to come together to set out, both in international Charters and national constitutional documents, the actual substance of the moral underpinnings to the domestic law of States.    Thus, the United Nations proclaimed the Universal Declaration of Human Rights in 1948.   Regional agreements further expounding the principles of international humanitarian law were also entered into, notably the 1950 European Convention on Human Rights.   The post-War German national constitution, the Grundgesetz, set out a list of basic rights which the German State was henceforth bound to accept and which could not be changed or abrogated by any constitutional amendment.    In the post-War process of decolonisation, too, States newly independent of the British Empire were given written constitutions containing bills of fundamental rights modelled on the European Convention.   And in the years after the War, Canada, New Zealand and South Africa created and incorporated their own Bills or Charters of Fundamental Rights and Freedoms.   The domestic law of Australia, through the decisions of its courts, become permeated by the fundamental rights standards drawn from international instruments to which Australia is a signatory, it being a general principle of Australian law that domestic law is applied in a manner so as not to offend international law and not to derogate from fundamental rights, unless the words of the statute are clear.

With the exception of the United States, then, almost every other nation experienced significant constitutional change or development since World War II, whether through the creation of the European Union, the dismantling of Communism, the process of decolonisation, the transformation of Empire into Commonwealth, or the ending of apartheid.   A central part of that constitutional change was the incorporation into the structures of the States the insights gained from the post-Nuremberg experience, in particular the need to protect individuals’ fundamental rights and set substantive limits on the powers of the State.

This embracing and incorporation of fundamental rights standards within national legal systems post-Nuremberg may be seen as a memorial for or legal monument to the victims of Nazism.  The creation of this monument in so many States was also part of a specifically democratic process – being a conscious rejection of the evils and excesses seen in totalitarian dictatorships.    Human rights charters were seen to embody the essence of the “rule of law”.     Making human rights into politically and legally enforceable standards is seen as being fundamental to what it is to be a democracy.

The legal systems of the Western world may now be said to be “post-Nuremberg” in that they have incorporated (with the acceptance of human rights) the fundamental insight that law and morality are not wholly distinct and separate spheres, and that those who hold office within national legal systems have a duty to “administer justice” in accordance with humanitarian principle and not simply mechanistically to “apply laws”.    The draft European Constitution (as agreed between the Governments of the now twenty five Member States³⁶  of the European Union in June 2004, and due to be signed in Rome on 29 October 2004) makes this “value laden” aspect of the law and constitutions of the Member States explicit when it states:

“Drawing inspiration from the cultural, religious, and humanist inheritance of Europe, from which have developed the universal values of inviolable and inalienable rights of the human person, democracy, equality, freedom and the rule of law, … the Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.   These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail.”³⁷

There is no doubt that many of these values that Western democratic States now proclaim have their roots in the Christian moral tradition.    But other values – such as the importance of freedom of speech and the idea of pluralism and tolerance – have their roots in the Enlightenment rejection of institutional Christianity.   And the claim that “democracy” and the processes of the rule of law have a central value in themselves have no direct counterpart in the traditions of unreformed Catholic Christianity.    The Roman Church – in stark contrast to the presbyterian Church of Scotland – is not a democracy, nor has it any aspiration to be such.

The moral vision implicit in the Western democratic State is one based on the following propositions:

that all individuals have intrinsic worth and value;

that respect for this intrinsic worth can be translated into statements of fundamental rights;

that others’ respect for the individual’s rights entails correlative obligations placed upon that individual - that of respecting the rights of other individuals as equal to one’s own and of respecting the interest of the community as a whole;

that the interests of the community as a whole are to be determined by a democratic process, under which the majority’s will prevails - subject always to the duty of the majority to give due respect to others’ fundamental rights;

that the creation and maintenance of a balance of mutual respect for the rights of individuals and the interests of the community, requires that institutions for open dialogue and discussion flourish – hence the importance accorded to the principle of freedom of speech, open and honest Parliamentary debate, and the flow of information and comments through the press, broadcasting, and the internet;

that the avoidance of tyranny and abuse of power by (or in the name of) the  majority, and the due protection of the fundamental rights of minorities and individuals entails that there should be independent and impartial courts whose judgments are to be respected and accepted by all parties before them, most obviously by those entrusted with political power;

that for the institutions of power (executive, legislative and judicial) to be able to work together in maintain the structures of democratic society - in which the majority leads but does not dominate or exploit the minority - there has to be an attitude of humility and contingency of views, an acceptance that one might be wrong and a consequent readiness to be open to persuasion of the rightness of other views;

that all those who participate within civil society – and most clearly those who hold public office – do so in good faith and share those values of respect for the individual, tolerance of difference, equality of treatment, and willingness to listen upon which all the civil institutions of the society are based;

that the laws duly passed under the democratic deliberative process and which have been duly found to be in accordance with the constitution and respect for fundamental rights be respected and obeyed by all parties within society, subject always to the right to continue to press for constitutionally mandated change in such laws;

that the possibility is recognised that, in certain rare and extreme cases, an individual may feel impelled, as a matter of conscience, to break a duly enacted law of the State in order to prevent further illegal action³⁸  but only where –

the action which is sought to prevent is in fact illegal, whether under domestic or applicable international (humanitarian) law;

the individual’s action is necessary in the senses that there was no legal reasonable alternative is in fact available to the actor (for example because the relevant authorities have refused or refrained from enforcing the law in relation to the illegal act)

that the individual actor could reasonably and properly expect that the actions taken would be effective in impeding the illegal act;

that the individual’s actions are marked by a “fidelity to legal values”, that is to say that it is proportionate, involves no possibility of harm to individuals and no attempt is made to avoid detection in the doing of the act

On the basis of these propositions, civil democratic society does not differ radically from the institutional Church on the question of the substantive fundamental values which it seeks to promote: human rights discourse is common to both communities.³⁹ 

The difference between civil democratic society and the Church lies rather in two aspects.   Defined negatively, it might be said that in comparison to the Church, civil democratic society shows a lack of certainty or finality in the judgments made on how those substantive values are to be realised and on the requirements of the common good.    Defined positively, civil democratic society differs from the Church in its openness to the possibility of alternative views of the good than those which currently hold sway, and in its procedures for general consideration and popular participation in the process of deliberation and decision on how we might achieve the common good.

Civil society – in contrast, it would seem, to the Church - admits its fallibility in getting the right answer, but it has procedures and institutions to allow for continued debate and for the possibility of change in the rules and the law in this search for the right answer.   Such an admission of fallibility does not mean, as is sometimes charged, that a democratic society is therefore committed to “ethical relativism”.⁴⁰   Ethical relativism is an assertion that there is no right answer.   The structures of a democratic civil society are precisely to allow for the continued search for the right answer.

A civil democratic society is one which allows that where a decision has to be taken on such issues, the decision is taken on the basis of the vote of the majority of the people (or their representatives).    A civil democratic society will also be a pluralist society: that is to say one which allows for the possibility of individuals holding different views of questions of political and moral importance and having the right and opportunity to express, publicise and proselytise for those views – whether it be fox hunting or abortion regulation.    A civil democratic society will also be a liberal society, that is to say one which aspires to seeks to allow individuals the greatest degree of freedom to express those views, consistent with due respect for others to express opposing views.

Human rights within civil democratic society are based on the recognition of the value of the individual human being and on the value of democratic process and the maintenance of dialogue and free expression as the only means toward the resolution of moral and political disputes.   From the viewpoint of civil democratic society, it makes no sense to seek to disentangle ideas of substantive “human rights” from the deliberative and procedural matrix in which they have been engendered.

In using the language of human rights, the Church is - from the point of view of civil society - in fact committing itself to a particular moral and political vision: one which speaks of the value of the individual but which also speaks of the value and fundamental importance of democratic processes. Dialogue within a liberal pluralist democracy involves a willingness to listen as well as a readiness to speak and an acceptance of the existence of different and dissenting voices.  It involves, too, an acknowledgment of the value of the procedures existing within society for the resolution of differences on questions touching on the common good – whether this be by legislation or litigation.      It necessitates respect for the “rule of law”.

Any Church teaching on the proper relationship between the civil law and the “moral law” needs to take account of the fact that in the context of the democratic State, the legitimacy of each individual law comes not from the end which it achieves, but from the fact that it has passed through the democratic process and has been found, by the institutions of the State duly charged with this task, to be in conformity with respect for the fundamental rights of those falling within the care of the State.   But laws in the State democratic are not fixed and final, and its governments are not eternal.    Precisely because the ideal which democracy represents is that the law continues to be responsive to and reflective of the community, there is provision for lawful change.   Lawful change is brought about by using the mechanisms of a democratic society which allow for: campaigns to be mounted; petitions gathered; public discussions initiated in the press and the broadcasting media; Parliamentary debates sponsored; and Ministers lobbied all with a view to bringing change in the law, the better for it to reflect the common good and to instantiate justice.   All of these are activities in which the Church may legitimately take part

In a democracy, the approach taken is that those who object to particular laws should campaign for their amendment or repeal by the democratic legislature in accordance with the values of the constitution.    But simply to claim that there is always and everywhere a right immediately to disobey the laws which the Church considers to contravene “natural law” is to threaten the integrity of the whole legal system which sustains the democratic State, and to seek to bring it down in anarchy and with it the very institutions which exist within a democracy to facilitate dialogue and change.

And it is just not good enough for any implicit comparison to be made between the legal and political systems which currently exist within Western democracies with that which existed in Nazi Germany. ⁴¹     As we have seen, the case of the German legal system from 1933 to 1945 is one of a system which was systematically corrupted in its subordination to the Nazi tyranny such that all those who participated within in (and more generally in public life) were tainted by its failings.   It became truly a system of and only of State oppression, such that it became no longer worthy of the name of a “legal system” because in no sense could it be said to embody or seek the common good.   The only moral response in relation to such wholesale corruption was for the just to withdraw from any participation in it and, indeed, to seek to overthrow the regime – by “unlawful “revolutionary means if need be – which sustained.

 It does not seem to me that that is a situation which, on any view, could be said currently to hold within the legal systems of Western democracies.    But if that is indeed the Church’s assessment of those legal systems which make provision for the possibility of procured abortion, then the only option would be for the Church to instruct its members to withdraw wholly from participation in the public lives of these societies.

The overall tenor of at least the Pope’s remarks however seems to be more that while he accepts that some  - indeed the majority - of the laws within Western democratic systems are indeed at the common good, others – notably in relation to abortion and other issues associated with respect for human life – fail to achieve this ideal.    But the proper response of the Church which continues to accept the overall legitimacy of the legal systems of Western democracies cannot be to call for revolt against the system as a whole,⁴²  but instead to call for change in specific aspects and laws thereof.    And if such change is indeed to be legitimate within the terms of the legal system it has to be one mandated by the accepted democratic and constitutional process.    Accordingly, in order to promote such change it is necessary, to engage in debate within the market place of ideas.    As one Jesuit commentator has put it:

“The willingness to subject the civil law and public policy to moral critique within ecumenical political dialogue must constitute the heart of the doctrine of the necessary conformity of the moral law and the civil law in a pluralistic society.    That doctrine can be most fruitfully understood as a call for critical moral reflection on contemporary standards of civil law, rather than as a dogmatic insistence on the imposition of Christian morality on a religiously pluralistic society.” ⁴³

6.  City of God v. City of Man ?

The overall problem with the theocratic vision for society which has been articulated by some of the bishops is that while they would accept that individual have fundamental rights which fall to be respected by the community as a whole,⁴⁴   they do not seem to regard the democratic process as being fundamental in the determination of the community interest.  The Church after all is not a democracy, so why should civil society be so ? ⁴⁵

Similarly there is no reason in this theocratic vision, for any fundamental structural importance given to freedom of speech for all, since the truth is known to and will be taught by the Church, and the spreading of erroneous views is more likely to cause harm than good by tempting people, in the words of the Catechism of the Catholic Church, “to prefer their own judgment and reject authoritative teachings”.⁴⁶    And since on the theocratic vision laws gain their legitimacy not from the consent of the people, nor by the democratic process nor by their being judged constitutional by the courts, but rather from their conformity with Natural law, then there is no intrinsic respect given under this model for legality and due process.⁴⁷    Rather the theocratic Church would require conscientious objection from all its members in respect of the application of laws which it considers to be unjust

But the theocratic approach effectively makes it impossible for Catholics properly participate in good faith within the structures of a democratic State.   By virtue of the theocratic approach, Catholics in public life are enjoined to pursue the values of the Church rather than of the State, the legitimacy of whose actions are contingent on their conforming to Catholic values and teaching.    Thus Catholic voters are told that voting for a particular candidate is “sinful” and would be incompatible with their continued full participation in the life of the Church.   Catholic members of the democratic legislature are then instructed not to act or vote in a manner which may be reflective of the views of the people who actually elected them to office, but instead to use their office to promote “Catholic legislation”.⁴⁸     Catholic members of the judiciary should use their office, not to protect and uphold the values of the constitution and laws of the State, but instead to decide cases in accordance with the dictates of “Natural law”, as these are vouched to them by the bishops.    And Catholic heads of government should not consider themselves answerable and accountable to the people, but instead to God and his Church. The idea that civic magistrates and leaders of the people hold office contingently on their adherence to and being in communion with the requirements of the Godly is a model of Church-State relations which was also developed in the reformed tradition by Calvin and his followers in 16^th century Geneva and in 17^th century Scotland.  

But if the Catholic bishops are correct in their political philosophy, and that Catholicism entails theocracy, then it would seem that the post-Reformation British State got it right in seeking to ban Catholics from public office.⁴⁹   If a Catholic is to be a servant of God and the Church, then he cannot be a servant of the State.   Catholic emancipation from the 19^th century onward in the United Kingdom, and the gradual admission of Catholics to the franchise, to the universities and to offices of States (now excepting only Head of State) would appear to have a major constitutional error.

Can the theocratic vision of (or for) the Church be reconciled with the democratic vision of the liberal pluralist State ?   At first glance it would seem not.    For the Church, authority (and legitimacy) comes from above, God revealing his laws through his Church to the obedient and faithful people.   The democratic vision is, by contrast, one in which authority (and legitimacy) comes from below: the people decide on the content of their laws, no absolute or permanent authority is conferred on those chosen to lead them, and the voice of the people is the voice of God.⁵⁰

Perhaps the problem is in the bishops’ implicit model for what a law is.   That model seems to be one of command.   A law is something telling you what to do, and if you fail to do it you will be punished.     It is a demand from a superior to a subordinate, backed by threats.    We may call it the “big stick theory” of legal obligation – obey or be punished.

In claiming that their prescriptions as to what we ought to do will outweigh the individual’s legal obligations, what at times seems to be being offered by way of model is the “bigger stick” – obey the bishop’s prescriptions (for example in the way that you vote, either as a citizen or as a Parliamentarian) or place yourself “outside full communion with the Church and so jeopardize your Eternal salvation”, to use the language of Bishop Michael Sheridan.

The model outlined above is also a dualist (indeed almost Manichean) model. On the one hand, you have the command of the State; on the other hand you have the commands of God (as mediated through his Church) which trumps human laws.   On the one hand you are a citizen of the State; on the other hand you are a citizen of the kingdom of God, to which greater loyalty is due – “we must obey God rather than men”.⁵¹     On the one hand you are a servant of the State; on the other hand you are a servant of God, but “no-one can serve two Masters: he will either hate the first and love the second, or treat the first with respect and the second with second with scorn.  You cannot serve both God and Mammon”.⁵²   On the one hand you may be punished by the State for disobeying its law; on the other hand far greater punishment will come the way of those who disobey the law of God.

One possible resolution of the “two masters” problem is simply for the State to nationalise the Church and asserts the authority of the secular arm over the spiritual, with the State’s Parliament legislating for the Church, the Government making ecclesiastical (in particular Episcopal) appointments and the Head of State taking on the role of Supreme Governor of the Church.  This is the model that was effectively followed in the case of the Church of England, and the Lutheran State churches of the Nordic countries.  It is not a model which works so readily for a supra-national Church such as the Catholic Church, which avowedly transcends national and State boundaries.

Surely there is a way out of this impasse, because if the Church’s teaching always has primacy over one’s duties and obligations to the State, why should the State entrust any members of that Church with public office ?  They cannot be trusted to suborn that office to the ends of the Church ?

It may be that the Church’s teaching on “natural law” - that is to say that moral prescriptions are objectively based, and may be discerned by all people of good will reflecting on the presuppositions of what it is to be human – shows us the beginnings of a way out of this deadlock ?.   Morality, in Catholic teaching, is not founded on Church dogma or based on specific divine revelation.     It is, instead, to be established by reason.⁵³      And to reason in human society is to engage in discourse, to argue, to debate, to consider.      The problem of course, is that the old model of “law as command” sometimes infects the Church’s pronouncement on natural law, such that it becomes not something which we reason and argue over as rational beings one with another, but rather simply something the Church authorities tell you to do.⁵⁴

But if we are to take seriously the Church’s reference to and reliance upon “natural law” as being an appeal to the rational natures of all human beings, then it may be understood as an invitation to everyone within civil society and the Church to enter into that debate – to seek in their dialogue the right answers.   In remarks made on the fifth anniversary of Evangelium Vitae, there is some indication that the Pope accepts that is not enough to insist on immediate change in civil laws which fail to conform to the Church teaching on the respect for the right to life.⁵⁵    There must be a campaign for hearts and minds.    He states:

“The changing of laws must be preceded and accompanied by the changing of mentalities and morals on a vast scale, in an extensive and visible way.  In this area the Church will spare no effort, not can she accept negligence or guilty silence.”⁵⁶

Dialogue, of course, implies ground rules.     Where Archbishop Burke goes wrong is that he seeks to rely on his canonical authority and issue instructions and threaten sanctions, rather than actually engage in debate with those engaged in public life.    In this he turns the life issue into sectarian ones – peculiar to the Church discipline of Catholicism – rather than, as the tradition has it, of natural law, issues which all persons of good will guided by the light of reason rather than revelation will see are objectively right.   And in throwing his episcopal weight around in this way, he shows lack of respect for the democratic process and lack of appreciation that the process has a moral weight in and of itself because it embodies the idea of the worth of each individual and seeks to reconcile individual conscience with the interests of the community.

But if the Church is indeed taking human rights seriously rather than instrumentally, it is also committed also to respecting these democratically mandated processes under which matters in dispute are resolved within civil society.     This at least seems to have been accepted in principle by Pope John Paul II when he noted in his 1991 encyclical, Centesimus Annus:

”The Church values the democratic system inasmuch as it ensures the participation of citizens in making political choices, guarantees to the governed the possibility both of electing and holding accountable those who govern them, and of replacing them through peaceful means when appropriate.  Thus she cannot encourage the formation of narrow ruling groups which usurp the power of the State for individual interests or for ideological ends.  Authentic democracy is possible only in a State ruled by law, and on the basis of a correct conception of the human person.”⁵⁷

7. The Primacy of Conscience

Perhaps the better approach in conceiving of the possibility of resolving for the individual the potentially conflicting claims of the spiritual and secular worlds would be for us to abandon altogether the language and metaphor of “masters” and “servants”, and develop instead a model which has its basis on concepts such as dialogue, mutual respect and trust and confidence.     And the key to the resolution of the matter may lie once again the individual taking responsibility for his actions.     Church and State may indeed make conflicting claims upon in the individual Catholic in public life but ultimately those demands have to result in action by that individual.    What is to be done and how can it be justified ?     We are driven inexorably back to the question of an individual’s conscience.

Traditional Catholic moral teaching has always held that individuals must be accorded the right and freedom to act in accordance with the dictates of their conscience and to be free to make a positive decision to do good and avoid evil.⁵⁸    The whole history of salvation is one predicated on free will and the individual making a choice.   The Church has also taught that individuals have an obligation to seek to inform their consciences as to what is objectively the right thing to do.⁵⁹     But the debate over the place of individual conscience in determining moral action seems to be bedeviled by a failure to make a distinction between the undoubted duty to inform one’s conscience, and the much more problematic question of whether an individual can properly be required to conform his conscience and actions to the demands and expectations of others.

Being a Catholic does not mean the abdication of moral responsibility for one’s own actions.    As a Catholic one may be expected to have regard to authoritative texts within the Church’s tradition, including: Scripture, official Vatican pronouncements on the requirements of the moral life, and the works of theologians and exegetes.     The duty to inform one’s conscience is not confined to looking at formal Church sources, however.   Regard may also properly be had to, for example, the insights provided by science, medicine, psychology, philosophy, law, logic and experience.   Having informed one’s conscience to the best of one’s ability, the duty of the moral agent is then to act in accordance with that informed conscience.   To act contrary to that conscience is to act immorally.   To purport to hand over one’s moral responsibility to another - and to act in a manner simply because told to by some external source, whether it be Archbishop Burke or Cardinal Ratzinger - is to act immorally; committing, in Kantian terms, the sin of “willful heteronomy”.

One also needs distinguish between two quite distinct concepts: namely, an individual deciding how to act morally; and an individual judging on the morality of action.    In Murder in the Cathedral, T. S. Eliot has the character of St. Thomas Becket exclaim that the “ultimate treason” would be “to do the right thing for the wrong reason”.    This is because to act against one’s conscience is to betray oneself as a moral agent.     Acting in accordance with one’s conscience is, then, a necessary pre-condition for any action to be moral.   If you act contrary to your conscience you act immorally, no matter what you do.⁶⁰

In Catholic tradition – and indeed to any moral philosophy which aspires to anything other than relativism -  acting in accordance with conscience is not, however, sufficient to establish that an action will be judged as being a moral one: one may well do the wrong thing, albeit in accordance with conscience and thus for the right reason.      But to be judged to be moral, such action also has to be right action, that is to say action which is consonant with objective values.   Ultimately then one can be said to act morally, and can be judged as having acting morally, only if one does the right thing for the right reason.  The obligation to inform one’s conscience clearly seeks to ensure that one does not fall into the situation of “moral perplexity”, whereby no matter what one does, one does wrong.

As moral agents, we are impelled to try and seek a congruence between the subjective demands of conscience and the objective requirements of the good life, commonly referred to in Catholic tradition as “natural law”.    Natural law cannot, however, be defined or confined simply by the terms of documents emanating from the Vatican.   It is, instead, as Thomas Aquinas notes “written in the hearts of mankind”.⁶¹  It may be discerned by careful thought, reflection, and inquiry of what it is that makes sense of our lives and our human relationships.   It is reason’s participation in Creation, seeking to uncover the underlying “grammar of conduct” which determines how our lives may be rightly ordered.      In the Catholic tradition, natural law is quite distinct from Revelation or any form of command, order or direction – whether from the civil or religious authorities – backed by sanction.   It is instead a way of seeing how things really are.     We are relational beings, and not self-sufficient.  We begin to understand the structures and meanings of our lives together by communicating, engaging in dialogue, searching together.   But ultimately as individual moral agents we each have to make decisions on what to do – who to vote for – ourselves, and not because an Archbishop, a Cardinal or Pope tells us what to do.    As the Venerable John Henry Newman noted:

“[C]onscience is not a judgment upon any speculative truth, any abstract doctrine, but bears immediately on conduct, on something to be done or not done. ‘Conscience,’ says St. Thomas, "is the practical judgment or dictate of reason, by which we judge what hic et nunc is to be done as being good, or to be avoided as evil.’…

[C]onscience being a practical dictate, a collision is possible between it and the Pope's authority only when the Pope legislates, or gives particular orders, and the like. But a Pope is not infallible in his laws, nor in his commands, nor in his acts of state, nor in his administration, nor in his public policy. Let it be observed that the [First] Vatican Council has left him just as it found him here.…

Since then infallibility alone could block the exercise of conscience, and the Pope is not infallible in that subject-matter in which conscience is of supreme authority, no deadlock … can take place between conscience and the Pope. … [I]ts dictate, in order to prevail against the voice of the Pope, must follow upon serious thought, prayer, and all available means of arriving at a right judgment on the matter in question.…

Cardinal Gousset has adduced from the Fourth Lateran [Council]; that ‘He who acts against his conscience loses his soul.’ … Of course, if a man is culpable in being in error, which he might have escaped, had he been more in earnest, for that error he is answerable to God, but still he must act according to that error, while he is in it, because he in full sincerity thinks the error to be truth.…

I add one remark. Certainly, if I am obliged to bring religion into after-dinner toasts, (which indeed does not seem quite the thing) I shall drink ‘to the Pope’, if you please, still, ‘to Conscience first, and to the Pope afterwards’.” ⁶²

Each of us will ultimately be answerable in Judgment for the actions which we ourselves do and the inaction for which we are responsible.   As the Pope states in Evangelium Vitae (at paragraph 74):

 “Each individual in fact has moral responsibility for the acts which he personally performs; no one can be exempted from this responsibility, and on the basis of it everyone will be judged by God himself (cf. Rom 2:6; 14:12).”

8. Kenosis: The Hierarchy, Humility and the Beginning of Dialogue

The Congregation of the Doctrine of the Faith in its 2003 Communication attacking proposals for the legal recognition of same sex unions recognizes the primacy of individual conscience, by alluding to the existence of a right (or, indeed in certain circumstances a duty) of “conscientious objection” over the demands of the law.⁶³  Of necessity, that same right of informed conscientious objection has to be conceded within the institutional Church if the baptized are to remain moral agents.    The pronouncements of the Congregation then may be relevant to, but are certainly not determinative on, questions as to how the individual may live a moral life, faithful to Christian values.

If the bishops are to take seriously this traditional Catholic teaching on the primacy of individual conscience  and of the universal discernibility of natural law, then they are going to have to learn to: allow that individuals may, in conscience, differ as to what moral action demands of them in any particular circumstance; allow that questions regarding how best to legislate in or regulate areas of moral dispute or controversy - where people of good will in fact reach contrary positions - are ones for the prudential judgment of the elected legislators rather than for ex cathedra pronouncements of the higher clergy;⁶⁴ be willing to listen and engage in dialogue within civil society and within the Church, without resorting to the use of anathema or ecclesiastical sanctions; seeks to persuade by the authority of their reasoning rather than to command obedience to their views by reason of their authority; be willing to accept that they may themselves get it wrong.⁶⁵     In sum, to trust the people (of God).  

Such an approach, if adopted, would also mean that there was no longer the radical incompatibility between the principles embodied of the institutional Church and those proclaimed by Western democracies, in that both would seek to protect individual liberty of conscience, freedom of speech, equality of treatment, tolerance and pluralism.   Tolerance and pluralism are not to be equated with ethical or cultural “relativism” – which is instead the claim that there is never a “right answer” to moral questions, and that distinctions between the objectively good and evil cannot properly be made^.66     Instead a society characterized by tolerance and pluralism is one in which it is accepted that sometimes – in areas of particular moral complexity or controversy – the right answer may not be immediately evident or clear and that individuals may, in good faith, reach different answers on these issues.  It is a society which places value on the process of dialogue and discussion among differing views; one which sees that process as being necessary and valuable step for the society to seek to discern the common good for all.

The model for Church-State relations which such a tolerant and pluralist society entails would be one in which neither side – Church or State – claiming to be in a relationship of hierarchy or superiority over the other.   Instead, each are engaged with each other in a dialogue, a conversation in a relationship of mutual respect.   But such a conversation presupposes an ability and willingness to listen and a readiness to at consider that the other may have something useful to say.  It requires that neither side believe themselves to have a monopoly on the truth, because to claim such a monopoly would be to render the whole dialogue a sham and is simply a disguised reintroduction of the superiority/inferiority relationship which the model disavows from the outset.   It is a model which allows members of the Church to participate fully within the public life of civil society.   But crucially insofar as members of the Church do so participate, it also involves the institutional Church imposing on itself a self-denying ordinance – out of respect for the web of obligations involved in civil society and the duties of public office – to refrain from instructing its members as to how they are to carry out their duties as public office holders within civil society.    The duty of public office holders is to uphold the constitution under which they hold office, not to undermine that office by seeking to further the agenda of another body or to promote values which are not compatible with the civil society in which they hold office.     All that the Church can properly expect from its members participating in the public life of the polity is that they will carry out their duties in accordance with their conscience and with the law.

Such an approach would appear to require a change of heart, a conversion experience, a metanoia, on the part of some of the hierarchy, certain of whose pronouncements in area of particular sensitivity and complexity have perhaps not been marked out by the language of charity and humility which one might hope to see under the new model.⁶⁷

We may note in this regard, not only Archbishop Burke’s characterizing the commission of homosexual acts as “intrinsically evil” and in all cases worse than imposing the death penalty or waging war,⁶⁸  but also the more subtle intimations set out in the Congregation for the Doctrine of the Faith 2003 communication on legal recognition for same sex partnerships which bears to have been issued from the Offices of the Congregation for the Doctrine of the Faith on June 3, 2003, the Memorial of Saint Charles Lwanga and his Companions, Martyrs.    Saint Charles Lwanga and his companions were executed - by being put to the fire and the sword - on the orders of King Mwanga of Uganda after their conversion to Christianity and, apparently, because of their refusal to submit to the King’s homosexual advances.   The very dating of the document then carries with it potent images of burning, martyrdom, tyranny, homosexual desire, and denial.    Is it intended to give a subliminal warning of the dangers which the Holy Office, at least, sees as being inherent in any further social acceptance of homosexuality ?   It seems that for Cardinal Ratzinger - inverting St. Paul’s dictum on matrimony (1 Corinthians 7:2) - it would be better for homosexuals to burn than to marry.    But as the document itself notes at the outset:

“The present Considerations do not contain new doctrinal elements; they seek rather to reiterate the essential points on this question and provide arguments drawn from reason.  …  Since this question relates to the natural moral law, the arguments that follow are addressed not only to those who believe in Christ, but to all persons committed to promoting and defending the common good of society.”  

The document is, then, inviting that its arguments be assessed and judged, not in the light of doctrine, but in the light of reason.    As such it is not, and cannot be the last word on the subject.   It cannot be said that Rome has spoken finally on the matter and the cause is therefore finished.⁶⁹    Instead it may be seen to mark an invitation to open debate and begin a dialogue.   Let us hope that this dialogue- both within and outside the Church – may be allowed to proceed in good faith and with good-will on all sides.⁷⁰

The title of my paper was “Rights, Responsibilities and Religious bodies”.   I hope that part of what it is to be a member of a religious body such as the Catholic Church which claims as an expression of its universality, true Catholicity, to found its moral teaching on reason rather than revelation, is that we not only have the right to engage in such a dialogue, it may indeed be our responsibility as committed (and still faithful) members of our Church.

19 October 2004               AIDAN O’NEILL QC

______________________________
Footnotes

¹Pope John Paul II Centesimus Annus (1991) at paragraph 47
²See Linda Colley Britons:  forging  the nation 1707-1837 (1992)
³ See: Francis Beckett “God’s Conviction Politician” The Tablet 9 October 2004; and The Daily Telegraph 15 October 2004
⁴ See Bishop Raymond Burke Catholics and Political Responsibility 33 Origins 557 (30 January 2004) (www.dioceseoflacrosse.com/Home/main)
⁵ Bishop Michael Sheridan: Pastoral letter on The duties of Catholic politicians and voters, (May 2004) published at http://www.diocesecs.org/bishopsOffice/PastoralLetterMay2004.pdf

⁶ Those bishops announcing their intention to deny communion to individuals of whose voting record they disapprove claim to be relying on Canon 915 of the Code of Canon Law (1983), which refers to communion being refused to persons who have displayed an obstinate persistence in “manifest grave sin”.    To qualify as “heresy” – in respect of which general excommunication from the sacramental life of the Church might be pronounced – Canon 751 requires that there be “obstinate denial or doubt, after received baptism, of a truth to be believed by Divine and Catholic faith”.   Canon 750(1) provide as follows:

• “Those things are to be believed by Divine and Catholic faith which are contained in the word of God as it has been written or handed down by tradition, that is, in the single deposit of faith entrusted to the Church, and which are at the same time proposed as divinely revealed either by the solemn Magisterium of the Church, or by its ordinary and universal Magisterium, which is manifested by the common adherence of Christ’s faithful under the guidance of the sacred Magisterium.   All are therefore bound to shun any contrary doctrines.”

⁷ United States Conference of Catholic Bishops: Catholics in Political Life published at www.nccbuscc.org/bishops/catholicsinpoliticallife.htm
⁸ Cardinal Ratzinger’s memorandum to Cardinal Theodore McCarrick “Worthiness to receive Holy Communion: general principles” is published in The Tablet 10 July 2004 at page 36 paragraph 3 and online at http://213.92.16.98/ESW_articolo/0,2393,42196,00.html
⁹ Relying on Catechism of the Catholic Church which states at paragraph 2240:

“Submission to authority and co-responsibility for the common good make it morally obligatory to pay taxes, to exercise the right to vote, and to defend one’s country”

¹⁰ Archbishop Raymond Burke On Our Civic Responsibility for the Common Good (October 2004) published at www.archstl.org/letters/100104pastoral_letter.pdf paragraphs 19, 30 and 39
¹¹ See for example Pope John Paul II Christifidelis Laici (December 1988) at para 42:

• “In order to achieve their task directed to the Christian animation of the temporal order, in the sense of serving persons and society, the lay faithful are never to relinquish their participation in ‘public life’…
• [T]he lay faithful must bear witness to those human and gospel values that are intimately connected with political activity itself, such as liberty and justice, solidarity, faithful and unselfish dedication for the good of all, a simple life-style, and a preferential love for the poor and the least.
• …The fruit of sound political activity, which is so much desired by everyone but always lacking in advancement, is peace. The lay faithful cannot remain indifferent or be strangers and inactive in the face of all that denies and compromises peace, namely, violence and war, torture and terrorism, concentration camps, militarization of public life, the arms race, and the nuclear threat.
• …
• The lay faithful in working together with all those that truly seek peace and themselves serving in specific organizations as well as national and international institutions, ought to promote an extensive work of education intended to defeat the ruling culture of egoism, hate, the vendetta and hostility, and thereby to develop the culture of solidarity at every level. Such solidarity, in fact, "is the way to peace and at the same time to development".  From this perspective the Synod Fathers have invited Christians to reject as unacceptable all forms of violence, to promote attitudes of dialogue and peace and to commit themselves to establish a just international and social order.”

¹²  Pope John Paul II Ecclesia de Eucharistia (April 2003) at para 20, published on-line at  www.vatican.va/holy_father/special_features/encyclicals/documents/hf_jp-ii_enc_20030417_ecclesia_eucharistia_en.html
¹³ See Congregation for the Doctrine of the Faith Declaration on Procured Abortion (November 1974) at paragraphs 21-22:

• “It must in any case be clearly understood that whatever may be laid down by civil law in this matter, man can never obey a law which is in itself immoral, and such is the case of a law which would admit in principle the liceity of abortion. Nor can he take part in a propaganda campaign in favor of such a law, or vote for it. Moreover, he may not collaborate in its application.”

¹⁴ Pope John Paul II Evangelium Vitae (March 25, 1995) para 13:

• “The close connection which exists, in mentality, between the practice of contraception and that of abortion is becoming increasingly obvious. It is being demonstrated in an alarming way by the development of chemical products, intrauterine devices and vaccines which, distributed with the same ease as contraceptives, really act as abortifacients in the very early stages of the development of the life of the new human being.”

¹⁵ Pope John Paul II Evangelium Vitae (March 25, 1995) para 63:

• “[T]he use of human embryos or foetuses as an object of experimentation constitutes a crime against their dignity as human beings who have a right to the same respect owed to a child once born, just as to every person.
• This moral condemnation also regards procedures that exploit living human embryos and foetuses - sometimes specifically ‘produced’ for this purpose by in vitro fertilization-either to be used as ‘biological material’ or as providers of organs or tissue for transplants in the treatment of certain diseases. The killing of innocent human creatures, even if carried out to help others, constitutes an absolutely unacceptable act.

¹⁶ Pope John Paul II Evangelium Vitae (March 25, 1995) para 14:

• “The various techniques of artificial reproduction, which would seem to be at the service of life and which are frequently used with this intention, actually open the door to new threats against life. Apart from the fact that they are morally unacceptable, since they separate procreation from the fully human context of the conjugal act, these techniques have a high rate of failure: not just failure in relation to fertilization but with regard to the subsequent development of the embryo, which is exposed to the risk of death, generally within a very short space of time. Furthermore, the number of embryos produced is often greater than that needed for implantation in the woman's womb, and these so-called ‘spare embryos’ are then destroyed or used for research which, under the pretext of scientific or medical progress, in fact reduces human life to the level of simple "biological material" to be freely disposed of.”

¹⁷ See Congregation for the Doctrine of the Faith Declaration on Euthansia (May 1980):

• “[N]othing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying. Furthermore, no one is permitted to ask for this act of killing, either for himself or herself or for another person entrusted to his or her care, nor can he or she consent to it, either explicitly or implicitly. nor can any authority legitimately recommend or permit such an action. For it is a question of the violation of the divine law, an offense against the dignity of the human person, a crime against life, and an attack on humanity. It may happen that, by reason of prolonged and barely tolerable pain, for deeply personal or other reasons, people may be led to believe that they can legitimately ask for death or obtain it for others. Although in these cases the guilt of the individual may be reduced or completely absent, nevertheless the error of judgment into which the conscience falls, perhaps in good faith, does not change the nature of this act of killing, which will always be in itself something to be rejected.”

¹⁸ Pope John Paul II Evangelium Vitae (March 25, 1995) para 56:

• “[T]here is a growing tendency, both in the Church and in civil society, to demand that [the death penalty] be applied in a very limited way or even that it be abolished completely.
• …
• [T]he nature and extent of the punishment [meted on offenders] must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”

¹⁹ See Archbishop Raymond Burke: On the Dignity of Human Life and Civic Responsibility (November 2003) published at www.wf-f.org/Burke-Life-CivicRespons.html:

“So often Catholics fail to act against abortion or euthanasia with the appropriate energy, because they have compromised the Church’s teaching on the procreative end of marriage by accepting artificial birth control … The port of entry for the culture of death in our society has been the abandonment of the respect for the procreative meaning of the conjugal act. It is the contraceptive way of thinking, the fear of the life-giving dimension of conjugal love, which very much sustains that culture.”

²⁰ Pope John Paul II Discourse to the Roman Rota on Divorce (28 January 2003):

“[There must be] resolute opposition to any legal or administrative measures that introduce divorce or that equate de facto unions - including those between homosexuals  - with marriage

²¹ See Cardinal Ratzinger On the future of Europe, lecture reported at www.zenit.org on 17 May 2004:

“Marriage and the family are threatened, on one hand, because of the emptying of its indissolubility through ever-more easy forms of divorce; on the other, because of a new behavior that is spreading increasingly: a man and woman living together without the juridical form of marriage”

22  Pope John Paul II Discourse to the Roman Rota on Divorce: (28 January 2003):

“One must overcome the view of indissolubility [of marriage] as a restriction of the freedom of the contracting parties, and so as a burden that at times can become unbearable. Indissolubility, in this conception, is seen as a law that is extrinsic to marriage, as an "imposition" of a norm against the "legitimate" expectations of the further fulfillment of the person. Add to this the widespread notion that indissoluble marriage is only for believers, who cannot try to "impose" it on the rest of civil society. … Indissolubility is not an ideal but a natural law requisite of universal applicability. … In this perspective, it is meaningless to speak of an "imposition" by human law, because human law should reflect and safeguard the natural and divine law, that is always a freeing truth

²³ See Congregation for the Doctrine of the Faith, Some considerations concerning the response to legislative proposals on the non-discrimination of homosexual persons (July 24, 1992) at paragraphs 14, 17 where the Congregation warns that:

“[T]here is a danger that legislation which would make homosexuality a basis for entitlements could actually encourage a person with a homosexual orientation to declare his homosexuality or even to seek a partner in order to exploit the provisions of the [anti-discrimination] law.…
[W]here a matter of the common good is concerned, it is inappropriate for church authorities to endorse or remain neutral toward adverse legislation even if it grants exceptions to church organizations and institutions. The church has the responsibility to promote family life and the public morality of the entire civil society on the basis of fundamental moral values, not simply to protect herself from the application of harmful laws”

²⁴ See: Congregation for the Doctrine of the Faith Considerations regarding proposals to give legal recognition to unions between homosexual persons (June 2003) at paragraphs 6, 8

• “Civil law cannot contradict right reason without losing its binding force on conscience.   Every humanly-created law is legitimate insofar as it is consistent with the natural moral law, recognized by right reason, and insofar as it respects the inalienable rights of every person.    Laws in favour of homosexual unions are contrary to right reason because they confer legal guarantees, analogous to those granted to marriage, to unions between persons of the same sex.…
• The principles of respect and non-discrimination cannot be invoked to support legal recognition of homosexual unions. Differentiating between persons or refusing social recognition or benefits is unacceptable only when it is contrary to justice.   The denial of the social and legal status of marriage to forms of cohabitation that are not and cannot be marital is not opposed to justice; on the contrary, justice requires it.”

²⁵ Pope John Paul II Evangelium Vitae (March 25, 1995) para 13:

“It is frequently asserted that contraception, if made safe and available to all, is the most effective remedy against abortion. The Catholic Church is then accused of actually promoting abortion, because she obstinately continues to teach the moral unlawfulness of contraception. When looked at carefully, this objection is clearly unfounded. It may be that many people use contraception with a view to excluding the subsequent temptation of abortion. But the negative values inherent in the ‘contraceptive mentality’- which is very different from responsible parenthood, lived in respect for the full truth of the conjugal act-are such that they in fact strengthen this temptation when an unwanted life is conceived. Indeed, the pro-abortion culture is especially strong precisely where the Church's teaching on contraception is rejected.”

²⁶ Cardinal Joseph Ratzinger: Crises of Law an address was delivered on the occasion of being conferred the degree of Doctor Honoris Causa by the LUMSA Faculty of Jurisprudence in Rome, Nov.10, 1999.

“[J]uridical positivism … has taken on the form of the theory of consensus: if reason is no longer able to find the way to metaphysics as the source of law, the State can only refer to the common convictions of its citizens' values, convictions that are reflected in the democratic consensus. Truth does not create consensus, and consensus does not create truth as much as it does a common ordering. The majority determines what must be regarded as true and just. In other words, law is exposed to the whim of the majority, and depends on the awareness of the values of the society at any given moment, which in turn is determined by a multiplicity of factors. This is manifested concretely by the progressive disappearance of the fundamentals of law inspired in the Christian tradition. … Because in modern States metaphysics, and with it, Natural Law, seem to be definitely depreciated, there is an ongoing transformation of law, the ulterior steps of which cannot yet be foreseen; the very concept of law is losing its precise definition.”

²⁷ Pope John Paul II Evangelium Vitae (March 25, 1995) para 70-71
²⁸ The Catechism of the Catholic Church, paragraph 2242
²⁹ Pope John Paul II Evangelium Vitae (March 25, 1995) paras 72-73.
³⁰ Pope John Paul II Evangelium Vitae (March 25, 1995) para 74
³¹ See for example, Pope John Paul II Evangelium Vitae (March 25, 1995) para 18:

“[T]he various declarations of human rights and the many initiatives inspired by these declarations show that at the global level there is a growing moral sensitivity, more alert to acknowledging the value and dignity of every individual as a human being, without any distinction of race, nationality, religion, political opinion or social class.”

And Pope John Paul II Centesimus Annus (1991) at paragraph 22:

“In the course of the 1980s … there began a difficult but productive transition towards more participatory and more just political structures. An important, even decisive, contribution was made by the Church's commitment to defend and promote human rights. In situations strongly influenced by ideology, in which polarization obscured the awareness of a human dignity common to all, the Church affirmed clearly and forcefully that every individual whatever his or her personal convictions bears the image of God and therefore deserves respect.”

³² See Archbishop Silvano Tomasi, the Holy See’s permanent observer to the United Nations offices in Geneva, addressing the 60th session of the UN Human Rights Commission in April 2004 (www.zenit.org)

“An emerging subtle form of religious intolerance is opposing the right of religion to speak publicly on issues concerning forms of behavior that are measured against principles of a moral and religious nature. While respecting a healthy sense of the state’s secular nature, the positive role of believers in public life should be recognized. This corresponds, among other things, to the demands of a healthy pluralism and contributes to the building up of authentic democracy. Religion cannot be relegated to a corner of the private sphere of life and in this way risk losing its social dimension and its charitable action toward vulnerable people it serves without any distinction.”

³³ In Application no. 30882/96 Pellegrini v. Italy, ECtHR 20 July 2001 the European Court of Human Rights found that the procedures operated by the Roman Rota, the ecclesiastical appeal court charged with determining marriage annulment applications, failed to reach the standards required for a fair trial under Article 6(1) of the European Convention and therefore its judgments could not properly be recognised and enforced in Italian law.   The procedural failings of the Rota included:

• that witness statements were not provided to parties so that they were deprived of the opportunity to comment upon them;
• that parties were not advised that they could appoint lawyers to appear for them;
• that parties were not advised of the terms of the legal submissions made by the canon lawyer appointed by the court to argue against annulment (defensor vinculis); and
• that parties were refused sight of a full copy of the Church court’s judgment setting out its reasoning.

In the circumstances, the Strasbourg court took the view that justice was not seen to have been done in the annulment proceedings before the Church courts.

³⁴ Nuremberg “Case 3” or United States v. Altstötter and others concerned the prosecution of a selection of some 16 jurists (public prosecutors, presiding judges and officials and ministers in the Ministry of Justice) who had assisted in the administration of the legal system during the Nazi era.     They were presented by those putting them on trial as being representative of the judicial system for the administration of “what passed for justice in the Third Reich” and were put on trial as regards their involvement in or complicity with war crimes, organised crime and crimes against humanity, in particular

 “judicial murder and other atrocities which they committed by destroying law and justice in Germany and by utilising the empty forms of legal process for persecution, enslavement and extermination on a vast scale”.
See Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Nuremberg October 1946-April 1949 (Washington DC: US Government Printing Office, 1951) Volume III at 32-33

³⁵ See Trials of War Criminals before the Nuremberg Military Tribunals (Washington DC: US Government Printing Office, 1951) III at 984-985
³⁶ The Member States of the European Union  - “Europe, reunited after bitter experiences” as the second preamble to the draft European Constitution puts it - are as follows: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands,  Poland, Portugal, Slovakia, Slovenia, Spain,  Sweden, the United Kingdom.    There are now 20 official (and equally authentic) languages of the European Union: Greek, Czech, Danish, Estonian, Finnish, French, German, Hungarian, Italian, Latvian, Lithuanian, Maltese, Dutch, Polish, Portuguese, Slovak, Slovenian, Spanish, Swedish and English
³⁷ This text, taken from the first preamble and Article I-2 of the draft European Constitution may be found at http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/misc/81000.pdf
³⁸ Francome v. Mirror Group of Newspapers Ltd. [1984] All ER 415 per Sir John Donaldson MR at 412h-413b:

• “Parliamentary democracy as we know it is based on the rule of law.  That requires all citizens to obey the law unless and until it can be changed by due process. … The right to disobey the law is not obtainable by the payment of a penalty or licence fee.  It is not obtainable at all in a parliamentary democracy, although different considerations arise under a totalitarian regime.
• In saying this, I nevertheless recognise that, in very rare circumstances, a situation can arise in which the citizen is faced with a conflict between what is, in effect, two inconsistent laws.   The first law is the law of the land.    The second is a moral imperative … Yielding to the moral imperative does not excuse a breach of the law of the land, but it is understandable and in some circumstances may even be praiseworthy.”

³⁹ Thus in Centesimus Annus (1991) Pope John Paul II stated (at paragraph 47):

“[T]oday we are witnessing a predominance, not without signs of opposition, of the democratic ideal, together with lively attention to and concern for human rights. But for this very reason it is necessary for peoples in the process of reforming their systems to give democracy an authentic and solid foundation through the explicit recognition of those rights.  Among the most important of these rights, mention must be made of the right to life, an integral part of which is the right of the child to develop in the mother's womb from the moment of conception; the right to live in a united family and in a moral environment conducive to the growth of the child's personality; the right to develop one’s intelligence and freedom in seeking and knowing the truth; the right to share in the work which makes wise use of the earth’s material resources, and to derive from that work the means to support oneself and one’s dependents; and the right freely to establish a family, to have and to rear children through the responsible exercise of one’s sexuality. In a certain sense, the source and synthesis of these rights is religious freedom, understood as the right to live in the truth of one's faith and in conformity with one's transcendent dignity as a person.”

⁴⁰ See Pope John Paul II Evangelium Vitae at paragraphs 69-70:

• “[I]ndividuals claim for themselves in the moral sphere the most complete freedom of choice and demand that the State should not adopt or impose any ethical position but limit itself to guaranteeing maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen. On the other hand, it is held that, in the exercise of public and professional duties, respect for other people’s freedom of choice requires that each one should set aside his or her own convictions in order to satisfy every demand of the citizens which is recognized and guaranteed by law; in carrying out one's duties the only moral criterion should be what is laid down by the law itself. Individual responsibility is thus turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere.
  70. At the basis of all these tendencies lies the ethical relativism which characterizes much of present-day culture. There are those who consider such relativism an essential condition of democracy, inasmuch as it alone is held to guarantee tolerance, mutual respect between people and acceptance of the decisions of the majority, whereas moral norms considered to be objective and binding are held to lead to authoritarianism and intolerance. But it is precisely the issue of respect for life which shows what misunderstandings and contradictions, accompanied by terrible practical consequences, are concealed in this position.
  It is true that history has known cases where crimes have been committed in the name of ‘truth’. But equally grave crimes and radical denials of freedom have also been committed and are still being committed in the name of "ethical relativism". When a parliamentary or social majority decrees that it is legal, at least under certain conditions, to kill unborn human life, is it not really making a ‘tyrannical’ decision with regard to the weakest and most defenceless of human beings? Everyone’s conscience rightly rejects those crimes against humanity of which our century has had such sad experience. But would these crimes cease to be crimes if, instead of being committed by unscrupulous tyrants, they were legitimated by popular consensus?”

⁴¹ See Archbishop Raymond Burke On Our Civic Responsibility for the Common Good (October 2004) published at www.archstl.org/letters/100104pastoral_letter.pdf paragraphs 2, 3:

• “[S]ome months ago … another native of Germany, who grew up during the Third Reich commented to me on the accusation made against a number of Catholic bishops of Germany of the time of not having done enough to teach against the evils of Nazism.
  …
• I think how much weightier the individual responsibility for the common good is in a democratic republic like our own nation, in which we elect the officials of our Government.   As a Bishop I think of the tremendous responsibility which is mine to teach clearly the moral law to all the faithful so that, in turn, we all have a clear understanding of our civic responsibility for the common good.”

⁴² The Catechism of the Catholic Church makes the following assertions at paragraphs 2242-2243:

• “When citizens are under the oppression of a public authority which oversteps its competence, they should still not refuse to give or to do what is objectively demanded of them by the common good; but it is legitimate for them to defend their own rights and those of their fellow citizens against the abuse of this authority within the limits of the natural law and the Law of the Gospel.
• Armed resistance to oppression by political authority is not legitimate, unless all the following conditions are met: 1) there is certain, grave, and prolonged violation of fundamental rights; 2) all other means of redress have been exhausted; 3) such resistance will not provoke worse disorders; 4) there is well-founded hope of success; and 5) it is impossible reasonably to foresee any better solution.”

⁴³ Gregory Kalscheur SJ “John Paul II, John Courtney Murray and the relationship between civil law and moral law: a constructive proposal for contemporary American pluralism” Journal of Catholic Social Thought (Summer 2004) 231 at 268
⁴⁴  Pope Paul VI Gaudium et spes – pastoral constitution on the Church in the modern world  (1965) at paragraph 27:

• “All offences against life itself, such as every kind of murder, genocide, abortion, euthanasia and willful suicide; all violations of the integrity of the human person, such as mutilation, physical and mental torture, undue psychological pressures; all offences against human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children, degrading working conditions where men are treated as mere tools for profit rather than free and responsible persons; all these and the like are certainly criminal: they poison human society; and they do more harm to those who practice them than those who suffer from the injury. Moreover, they are a supreme dishonour to the Creator’.

⁴⁵ Compare however Pope John Paul II Centesimus Annus (1991) at paragraph 29:

• “In the totalitarian and authoritarian regimes, the principle that force predominates over reason was carried to the extreme. Man was compelled to submit to a conception of reality imposed on him by coercion, and not reached by virtue of his own reason and the exercise of his own freedom. This principle must be overturned and total recognition must be given to the rights of the human conscience, which is bound only to the truth, both natural and revealed. The recognition of these rights represents the primary foundation of every authentically free political order.”

⁴⁶ The Catechism of the Catholic Church states (at para 1783):

• “Conscience must be informed and moral judgment enlightened.     A well-informed conscience is upright and truthful.   It formulates its judgment according to reason, in conformity with the true good willed by the wisdom of the Creator.    The education of conscience is indispensable for human beings who are subjected to negative influences and tempted by sin to prefer their own judgment and reject authoritative teachings.”

⁴⁷ See Pope John Paul II Evangelium Vitae (March 25, 1995) n 62d:

• “No circumstances, no purpose, no law whatsoever can make licit an act which is intrinsically illicit, since it is contrary to the law of God which is written in every human heart, knowable by reason itself and proclaimed by the Church”

⁴⁸ Thus Archbishop Raymond Burke: On the Dignity of Human Life and Civic Responsibility published at www.wf-f.org/Burke-Life-CivicRespons.html (November 2003) stated:

• “Catholic politicians have the responsibility to work against an unjust law, even when a majority of the electorate supports it. When Catholic politicians cannot immediately overturn an unjust law, they must never cease to work toward that end. At the very least, they must limit, as much as possible, the evil caused by the unjust law.”

⁴⁹ See for example the Claim of Right of 1689  - a Declaration of the Parliament of Scotland to the effect that James VII of Scotland (and II of England) had, by his conduct and religion, forfeited the right to the Crown in Scotland and that the throne had become vacant, thereby allowing the pre-Union Scottish Parliament to offer the Scottish Crown to the King and Queen of England, William and Mary.     The Claim stated:

• “That the disarming of Protestants and employing papists in the places of greatest trust both Civil and military the thrusting out Protestants to make room for papists and the entrusting papists with the forts and magazines of the Kingdom are Contrary to law”

⁵⁰ See St. Alcuin of York writing to Charlemagne c. 800 CE:

• “You should not listen to those people who say ‘the voice of the people is the voice of God’, since the tumult of the crowd is always close to insanity.”

⁵¹ Acts 5:29
⁵² Matthew 6:24
⁵³ See James Alison On being liked (2003) in Chapter 6 “Being wrong and telling the truth” at page 95:

• “[N]atural law is the way verifiability challenges metaphysical a prioris, and this saves our Church from becoming a sacred sect, defied by bizarre and anti-rational taboos.”

⁵⁴ See Thomas Shaffer “Jurisprudence in the light of Hebraic faith” (1984) 1 Journal of Law, Ethics and Public Policy 77 at 87:

• “When natural law measures positive law, natural law is likely to take the form of positive law.  How else are the two to be compared ?   This way of thinking leads towards codification of natural law – statements of it in hornbook form.  And of course hornbooks have authors: they have institutional authorities who promulgate and enforce them.   And the institutional authority which stands behind these codifications of natural law can become a god.   There are examples of this in … Roman Catholic moral theology.”

⁵⁵ See, too, Pope John Paul II Evangelium Vitae (1995) at paragraph 90:

• “[I]t is not enough to remove unjust laws. The underlying causes of attacks on life have to be eliminated, especially by ensuring proper support for families and motherhood. A family policy must be the basis and driving force of all social policies. For this reason there need to be set in place social and political initiatives capable of guaranteeing conditions of true freedom of choice in matters of parenthood. It is also necessary to rethink labor, urban, residential and social service policies so as to harmonize working schedules with time available for the family, so that it becomes effectively possible to take care of children and the elderly.”

⁵⁶ Pope John Paul II “Civil Law, Morality and the Right to Life” Address at the Commemoration of the Fifth Anniversary of Evangelium Vitae (February 2000) at paragraph 6, published on-line at www.vatican.va/holy_father/john_paul_ii/speeches/documents/hf_jp-ii_spe_20000214_acd-life_en.html
⁵⁷ Pope John Paul II Centesimus Annus (1991) at paragraph 46
⁵⁸ Catechism of the Catholic Church at paragraph 1781:

“Conscience enables one to assume responsibility for the acts performed. If man commits evil, the just judgment of conscience can remain within him as the witness to the universal truth of the good, at the same time as the evil of his particular choice. The verdict of the judgment of conscience remains a pledge of hope and mercy. In attesting to the fault committed, it calls to mind the forgiveness that must be asked, the good that must still be practiced, and the virtue that must be constantly cultivated with the grace of God”

⁵⁹  Catechism of the Catholic Church at paragraph 1798:

• “A well-formed conscience is upright and truthful. It formulates its judgments according to reason, in conformity with the true good willed by the wisdom of the Creator. Everyone must avail himself of the means to form his conscience.

• ⁶⁰ Catechism of the Catholic Church at paragraph 1790:

• “A human being must always obey the certain judgment of his conscience. If he were deliberately to act against it, he would condemn himself.”

⁶¹ Summa Theologiae IaIIae, q 94, a 6
⁶² John Henry Newman Letter to the Duke of Norfolk  (1874) at Section 5.   Available on-line at www.newmanreader.org/works/anglicans/volume2/gladstone/section5.html
⁶³ Congregation for the Doctrine of the Faith Considerations regarding proposals to give legal recognition to unions between homosexual persons (June 2003) at paragraph 5:

• “Those who would move from tolerance to the legitimization of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalization of evil is something far different from the toleration of evil.   In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.”

⁶⁴ As Thomas Aquinas notes in Summa Theologiae IaIIae q.96 a.2:

• “[L]aws should be appointed to me according to their condition; St. Isidore remarks how law ‘should be possible both according to nature and the custom of the country.…
• Law is laid down for a great number of people, of which the majority have no higher standard of morality.  Therefore it does not forbid all the vices, from which upright men can keep away. But only those grave ones which the average man can avoid, and chiefly those which do harm to others and which have to be stopped if human society is to be maintained, such as murder and theft and so forth.”

⁶⁵ See James Alison On being liked (2003) in “Introduction” at page xiv:

• “We have yet to develop a courteous and rational discourse about the fallibility of the Church.  Infallibility makes no sense at all unless it is a very particular sort of exception in a massive sea of fallibility and there is a realistic way of telling the difference between the two.”

⁶⁶ Compare the Congregation for the Doctrine of the Faith Doctrinal Note on some questions regarding the participation of Catholics in political life (November 24, 2002):

• “A kind of cultural relativism exists today, evident in the conceptualization and defense of an ethical pluralism, which sanctions the decadence and disintegration of reason and the principles of the natural moral law. Furthermore, it is not unusual to hear the opinion expressed in the public sphere that such ethical pluralism is the very condition for democracy.    As a result, citizens claim complete autonomy with regard to their moral choices, and lawmakers maintain that they are respecting this freedom of choice by enacting laws which ignore the principles of natural ethics and yield to ephemeral cultural and moral trends, as if every possible outlook on life were of equal value. At the same time, the value of tolerance is disingenuously invoked when a large number of citizens, Catholics among them, are asked not to base their contribution to society and political life through the legitimate means available to everyone in a democracy on their particular understanding of the human person and the common good. The history of the twentieth century demonstrates that those citizens were right who recognized the falsehood of relativism, and with it, the notion that there is no moral law rooted in the nature of the human person, which must govern our understanding of man, the common good and the State.”

⁶⁷ Contrast the position of Pope John Paul II as stated in Incarnationis mysterium (November 29, 1998), the Bull of Indiction of the Holy Year 2000:

• “As the successor of Peter, I ask that in this year of mercy the Church, strong in the holiness which she receives from her Lord, should kneel before God and implore forgiveness for the past and present sins of her sons and daughters.”
• See too the Apostolic Letter for the Millennium Tertio Millennio Adveniente where the Pope indicated to the Church the path forward for purifying her memory regarding the faults of the past and for giving an example of repentance to individuals and civil societies.   Thus, the Pope, addressing himself to the Moravians, has asked ‘forgiveness, on behalf of all Catholics, for the wrongs caused to non-Catholics in the course of history’ (cf. Canonization of Jan Sarkander in the Czech Republic, May 21, 1995). The Pope has also stated his wish to undertake ‘an act of expiation’ and ask forgiveness of the Indians of Latin America and from the Africans deported as slaves (Message to the Indians of America, Santo Domingo, October 13, 1992, and General Audience Discourse of October 21, 1992). Ten years earlier he had already asked forgiveness from the Africans for the way in which they had been treated (Discourse at Yaoundé, August 13, 1985).

⁶⁸ Compare however the words of Pope John Paul II in Centesimus Annus (1991) at paragraph 52:

• “[O]n the occasion of the recent tragic war in the Persian Gulf, I repeated the cry: ‘Never again war!’. No, never again war, which destroys the lives of innocent people, teaches how to kill, throws into upheaval even the lives of those who do the killing and leaves behind a trail of resentment and hatred, thus making it all the more difficult to find a just solution of the very problems which provoked the war.”

⁶⁹ In the words of St. Augustine of Hippo in a sermon given in Carthage in September 417 CE: Roma locuta est, causa finita est
⁷⁰ See, for an example of the beginning of just such debate, Gareth Moore OP A question of truth: Christianity and Homosexuality (2003)