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Published: November 4, 2008

Kmiec vs. Chaput

Law professor spars with archbishop over “proportionate reasons”

Denver, Nov. 3, 2008 / (CNA) -- Doug Kmiec, a law professor at Pepperdine University and supporter of Sen. Barack Obama, has criticized Denver Archbishop Charles J. Chaput, claiming the archbishop’s comments on today’s election do not allow “proportionate reasons” to be considered in voting for a presidential candidate.

Kmiec, a former Reagan administration official and onetime dean of the law school at the Catholic University of America, also charged that the outspoken prelate diverges from the counsel provided by Joseph Cardinal Ratzinger concerning Catholics’ voting responsibilities.

Archbishop Chaput has called Obama the "most committed" pro-abortion candidate from a major party in 35 years, and said Catholics who support Obama are doing a disservice to the Church. "To suggest -- as some Catholics do -- that Senator Obama is this year's 'real' pro-life candidate requires a peculiar kind of self-hypnosis, or moral confusion, or worse," the archbishop told a Catholic women’s group in mid-October.

In an essay published by the National Catholic Reporter, Kmiec said the disagreement between himself and Archbishop Chaput is not over the “essence of Church instruction,” that is, “the promotion of human life.” Rather, their disagreement is over “the preferred means of implementing it.”

In Kmiec’s view, the archbishop argues for “the necessity of promoting life through law,” which primarily means working to reverse Roe v. Wade. He also claims Archbishop Chaput “discounts reducing the incidence of abortion by cultural (economic and social) means.”

According to Kmiec, this legal course has an “unsuccessful history,” saying the court has refused to overturn Roe v. Wade five times. The legal route also features “genuine uncertainty” because the prospects of judicial vacancies are speculative and as many as three more Supreme Court votes may be required to overturn the decision which imposed permissive abortion laws nationwide.

“The deliberations of conscience lead me to conclude that an alternative way to promote life must exist,” Kmiec remarked.

He argued this alternate route was found in Sen. Obama’s policies, such as adequate prenatal and postnatal care, funded maternity leave, and a “caring” adoption procedure. “This kind of assistance especially into the lives of poor women has been shown to have significant impact in the reduction of abortion,” he noted, saying this reasoning means a Catholic can vote for Obama with a “clear conscience.”

“The Catholic difficulty stems not from having to avoid casting a ballot with the intent of not promoting or encouraging abortion -- for, honestly now, who does that? -- but instead having one's vote proclaimed cooperation with sin or evil without what the Church calls ‘proportionate’ reasons,” Kmiec argued.

He wrote that neither major party candidate is a “perfect Catholic candidate” on abortion, with “some remote cooperation with sin” being necessary regardless of the candidate. Obama supports the status quo on abortion while his Republican opponent Sen. John McCain’s position, if implemented, “leaves the states effectively pro-choice.”

Kmiec continued his argument by quoting from then-Cardinal Joseph Ratzinger’s counsel on voting. In a 2004 letter to Archbishop of Washington Cardinal Theodore McCarrick, the future Pope Benedict XVI wrote: “When a Catholic does not share a candidate's stand in favor of abortion... but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.”

In Kmiec’s view, this means that Catholics “are not morally precluded from picking an imperfect candidate.” He claimed the statement also shows “some divergence” between Archbishop Chaput and Cardinal Ratzinger. Kmiec argued that Cardinal Ratzinger allows individual conscience to decide what is a “proportionate reason” to vote for an imperfect candidate, but claims Archbishop Chaput thinks “Catholics in the 2008 presidential race do not have both major candidates from which to choose -- they have the one offered up by the Republicans.”

Archbishop Chaput’s “obvious and justifiable” concern that there is no proportionate reason that outweighs the 1.2 million abortions each year, Kmiec claimed, ignores that such injustices are already built into the “ethical calculus” of Cardinal Ratzinger. Otherwise, in Kmiec’s view, a repetitious argument results: “Q. When can I vote given millions of abortions? A. When there are not millions of abortions.”

The “other reasons” to vote for a pro-abortion rights candidate must be compared, Kmiec argued, claiming Archbishop Chaput balanced not competing candidate policies as they relate to abortion, but rather weighed abortion against each candidate’s policy.

Obama’s cultural and economic assistance to Americans, he continued, would be of more help. “Obama's policy saves at least some children as against saving none,” he wrote, arguing Obama is the “better alternative in terms of overall Catholic social teaching.” Kmiec also criticized critics of Obama who cite the senator’s support for the Freedom of Choice Act (FOCA) as a reason to vote against him.

“At the Democratic convention, leading members of the House and Senate publicly expressed the view that FOCA is so deeply flawed -- some scholars believing it unconstitutional and most lawmakers finding it unacceptable as a matter of policy -- that it will never reach the president's desk. This is a fact that has some plausibility given its history, but of course, one that may change with the composition of the new Congress. This is more fairly an issue regarding the election of others, and not primarily Obama or McCain.”

Sources at the Archdiocese of Denver told CNA that Archbishop Chaput has no plans to respond to Kmiec’s essay. However, two prominent Catholic commentators told CNA their view of Kmiec’s pro-Obama efforts.

“Throughout this campaign, I fear that Doug Kmiec has wandered ever farther through Lewis Carroll's looking glass, into a world in which the White Queen teaches herself 'impossible things before breakfast' -- impossible things, like the manifest absurdity that Barack Obama, NARAL's poster child, is, in fact, the real pro-life candidate,” said George Weigel. “If and when a President Obama and a Democratic Congress (led by a self-professed 'ardent Catholic') begin dismantling every legal achievement of the pro-life movement over the past three decades, it will be interesting indeed to see what Professor Kmiec has to say. As for Archbishop Chaput, he is a model bishop, and the Church in America should pray for two hundred more bishops with his insight and his courage,” Weigel continued.

Austin Ruse, president of the Catholic Family and Human Rights Institute, also weighed in: “Doug Kmiec is not just arguing with Archbishop Chaput but with at least 100 other bishops who have spoken out strongly against a Kmiec-like position. We have never seen so many bishops willing to risk an IRS audit to speak out against the idea that other issues are proportionate to abortion or the absurd notion that Obama is anti-abortion. The first thing Obama will do is sign the Freedom of Choice Act, which will overturn every tiny but meaningful restriction on abortion that has ever passed the Congress and the States. This includes things like waiting periods for adolescents and laws against taking a minor across state lines for an abortion. Kmiec's position that Obama is anti-abortion is tragically wrong on its face.

“In the not too distant future, Kmiec will be looked upon as a tragic figure and Chaput as a brave hero,” Ruse told CNA.

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