From the January/February, 2007 issue of Touchstone

Arizona Alert by William L. Saunders

Arizona Alert

The Duty to Defend Life & Marriage Just Got Harder

by William L. Saunders

On Election Day last November, voters in seven of eight states with constitutional amendments protecting marriage (as the union of one man and one woman) on their respective ballots, passed them. However, even here there was bad news: Arizona became the first state to reject such an amendment.

Same-sex marriage advocates are calling the elections a “victory.” It is true that the campaign in Arizona for the amendment seems to have been barely, and poorly, organized. But it still lost, and when that loss is combined with the New Jersey Supreme Court’s unanimous endorsement of same-sex relationships (if not same-sex “marriage” by name), the Arizona defeat robs the marriage-protection movement of some of its momentum.

Pro-life forces also lost two high-profile ballot initiatives. In Missouri, voters barely approved an amendment to the state constitution that, like the successful initiative in 2004 in California, permits—and effectively all but mandates—embryonic stem-cell research and cloning.

Poorly written ballot initiatives are the bane of social conservatives. Arizona’s marriage-protection initiative was so badly written as to make some voters think that voting against it would protect marriage.

Missouri’s initiative, prepared by cloning advocates, seems to have been badly written on purpose to confuse the voters. It claimed to ban cloning, when all it did was to simply and brazenly re-define it, from the creation of a living, single-cell human being to the implantation of the clone in a woman’s womb.

In South Dakota, under a unique state constitutional provision, voters were given the option to approve or reject a legislature-passed ban on all abortions except when the life of the mother is at risk. They rejected it.

The pro-abortion forces campaigned against the ban by emphasizing that it did not permit abortion when rape or incest was involved. In any case, even had the voters approved the ban, the law was certain to be enjoined by a federal court. And that brings us to the true tragedy of this election.

The True Tragedy

In America, of course, we have not chosen abortion through the ballot, but have had it imposed upon us by the courts. In the past year, the Senate approved two new justices to the US Supreme Court, John Roberts and Samuel Alito, who are judicial conservatives.

But that does not mean they would impose “conservative” public policy. It means they would return to the people, through their legislatures, the most difficult and divisive social issues, such as abortion and same-sex marriage, precisely the kind of issue for which democratic deliberation (political give-and-take, horse-trading, compromise) is necessary.

And they would return these issues to the state legislatures, in accordance with both the principles of federalism and the principle of subsidiarity (the idea that issues should be addressed by the level of society best able to deal with them).

When one considers that the Supreme Court will ultimately decide whether there is a “constitutional right” for same-sex couples to marry (state constitutional provisions and amendments must pass federal constitutional muster), and when one reviews the Court’s ruling in Lawrence v. Texas (2003) that, under the Fifth and Fourteenth Amendments, outlawing homosexual sodomy violates a constitutionally protected liberty interest, it is clear that a Supreme Court without a majority of judicial conservatives—that is, a Court that confuses its competency with that of the legislature—will seek to “settle” this issue for the nation, as it did with abortion.

On November 8, the Supreme Court heard oral arguments in two cases concerning the federal ban on partial-birth abortion. It is a measure of just how precarious matters stand that upholding the federal ban requires the vote of Anthony Kennedy, one of the justices who upheld abortion in Planned Parenthood v. Casey (1992)despite conceding that the Constitution did not protect it—and admonished pro-life Americans to be quiet and go home.

The confirmation of Roberts and Alito (as well as similarly inclined judges on the federal appellate courts) was, however, only possible because the Republican party held a majority in the US Senate. To overturn Roe v. Wade and the other cases that created a right to abortion despite the silence of the text of the Constitution, at least one more judicial conservative must be confirmed.

That now seems impossible. If so, the United States will remain one of the most deeply unjust societies on earth.

After the election, the twin defenses of marriage and of life are in dire straits. Is there a way forward?

The Way Forward

The way forward comes, ironically, from Arizona. In October, Bishop Thomas J. Olmsted of Phoenix published

“Catholics in the Public Square.” While written by a Catholic for Catholics, it points the way, I believe, for all Christians—and even for those elusive “people of good will.”

Olmsted begins by quoting Pope Benedict XVI: “There are times when the burden of need and our own limitations might tempt us to become discouraged.”

But that is not the Christian response, Benedict continued. “Precisely then we are helped by the knowledge that, in the end, we are only instruments in the Lord’s hands. This knowledge frees us from the presumption of thinking that we alone are personally responsible for building a better world. In all humility we will do what we can, and in all humility we will entrust the rest to the Lord.”

Olmsted continues by reminding his people that there is, in fact, much that they must do. They cannot “stay home.” They have a responsibility to vote. Then, in hard and bracing words—words that many comfortable Christians in the United States need to hear—he says: “If one’s faith does not impact one’s whole life, including one’s political and social responsibilities, then it is not authentic faith; it is sham, a counterfeit.”

He notes that while Catholics can disagree about disputed social facts or matters of prudential judgment, no Catholic may support laws that are “intrinsically evil.” While we may disagree over whether particular circumstances satisfy the requirements of “just war,” and thus whether a particular war is justifiable, acts like abortion and euthanasia “are intrinsically wrong and can never be supported.”

Are all political and social issues equal when it comes to choosing a political candidate? he asks. “Absolutely not! . . . When it comes to direct attacks on innocent human life, being right on all the other issues can never justify a wrong choice on this most serious issue.”

There are several “non-negotiable issues” for Catholics. Recalling a recent address of Pope Benedict’s, he points to: “protection of all life in all its stages”; “the protection of the rights of parents to educate their children”; and

recognition and promotion of the natural structure of the family as a union between a man and a woman based on marriage, and its defense from attempts to make it juridically equivalent to radically different forms of union which, in reality, harm it and contribute to its destabilization.

Making an Issue

While noting that Catholics, and all others of good will, contribute to building a “culture of life” through “crisis pregnancy centers, hospices, nursing homes, and many other facilities,” and through both private prayer and public prayer that offers “a striking witness to the rest of society,” Olmsted notes that “Catholics are called to advocate and to work for a ‘culture of life’ by making it an issue of constant importance in political debate and in the public square.” No counsel of quietism here.

He demolishes the old idea (common among morally liberal Catholics) that conscience justifies one in acting against the moral law, by noting that one’s (subjective) conscience must submit to objective truth. “Conscience” is not an excuse to do as one wishes.

In a lovely, poetical passage, he notes that “a person’s conscience cannot invent what is true and good. It must search it out beyond itself. When acting correctly, we discover the truth through the grace of the Holy Spirit and the help of God’s word handed down to us in the Church. Then, when we submit our conscience to this objective truth, we act uprightly.”

Having instructed and admonished ordinary Catholics about their responsibilities as citizens, the bishop turns to public officials.

There are a large number of candidates or politicians in our country who label themselves as Catholic. Regrettably, however, some of these are an embarrassment to the Church and a scandal to others by virtue of their support of issues that are intrinsically evil. A candidate who is authentically Catholic . . . can be from any political party, but will never support matters that are intrinsically evil such as abortion, euthanasia, or “same-sex marriage.”

And then Olmsted, in words of fiery fidelity to Christ, notes:

It is somehow claimed by [some Catholic politicians] that it would be inappropriate to support legislation protecting human life because doing so would impose their faith on others or somehow violate their oath of office. These claims are ludicrous. Protecting human life is not only a religious imperative, it is a human imperative, and it is an imperative for all people.

William L. Saunders is Senior Vice President and Senior Counsel at Americans United for Life.

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