September 15, 2015

Unjust Wars & Kim Davis (?)

In “A Question For Conservatives About Religious Liberty and Unjust Wars”, a recent post at The Mitrailleuse blog, author J. Arthur Bloom questions whether conservatives who have rallied around Kim Davis would likewise rally around a Romanian Catholic infantryman commanded by his Bishop, on the eve of the invasion of Iraq, to refuse orders to participate in the mission.

It’s not a mere thought experiment as Bloom utilizes the 2003 Lenten pastoral missive of Eastern Catholic Bishop John Michael Botean in which Botean rails against the Iraq War and, indeed, commanded those in his Eparchy to refuse direct service in what he determined was an unjust war. Believing that many of Kim Davis’ defenders would not extend similar support to the Romanian infantryman, Bloom wonders what precisely defenders of religious liberty would say to this soldier: “Should he quit? Should he be allowed to sit this one out? Should he be jailed for insubordination? Why, or why not?”

While the question of whether a warfighter should listen to his bishop counseling, presumably selective, conscientious objection has important real-world ramifications, any response to Bloom’s particular inquiry has to begin by noting the distance between the infantryman’s quandary and the situation regarding Kim Davis. Beyond both being issues of religious conscience, the two are only remotely analogous.

First, one has to ask how the respective players in each scenario are analogous. Obviously, Kim Davis and the infantryman are the moral actors in question. Davis’ refusal to process marriage licenses is then presumed to be mirrored in the infantryman’s refusal to follow invasion orders. In the Davis case, the authoritative source of her conscientious stance is what has, until only recently, been the undisputed position of the Christian tradition. In the case of the infantryman, the authoritative source of his act of conscience is the judgment of his Bishop who specifically cites the Christian tradition as the grounds for his judgment. This hints to the particular characteristics of the dilemma in each case and further demonstrates the disparity.

Kim Davis, in being asked to facilitate same-sex marriages, was confronted with something that is specifically and consistently opposed in the orthodox Christian theological tradition. Thus, for the infantryman’s predicament to be truly analogous, he would have to have been ordered to do something else the tradition has long deemed specifically immoral – such as willfully murdering innocent civilians. In the Roman Catholic theological tradition of just war, which Bishop Botean cites as his authoritative lens, war is not, unlike both homosexual activity and the intentional murder of the innocent, considered malum in se, or morally evil in-and-of-itself. For Davis, there is no room for prudential judgment regarding the morality of homosexual marriage, the matter is already decided; there are no homosexual unions that are, after prudential deliberations, declared just. For our infantryman, the complex issue of whether a given war in question is just or unjust is precisely a matter of prudential judgment – that’s the point of the just war tradition as a casuistic, or case-based, moral framework.

But here it gets further complicated. The prudential deliberation of whether a given war is or is not just is not, strictly speaking, a matter for the infantryman to determine. Nor is it for his Bishop to decide. The just war tradition, classically understood, locates the responsibility for such judgment in the proper authority of the Sovereign ruler above whom there is no higher earthly authority charged for the care of the public good. This does not mean that warfighters turn their conscience off and blindly follow the lead of the State. It does mean that they exercise humility in recognizing that they likely do not have access to all the information informing their Sovereign’s determined judgment. In most cases, the only thing for the common warfighter to do is to fight the war justly. It can, of course, happen in particular cases that the matter is clear and that a particular conflict is in the eyes of the common warfighter morally wrong. In such an event, the infantryman must obey his own conscience.

This is not, however, the scenario Bloom describes. In his scenario a Bishop forbids the infantryman to enter the fight. In doing so, the infantryman might well become a Kim Davis but instead of going against the authority of the State he might stand against the authority of his Bishop. He would have grounds for doing so as, in this case, Bishop Botean has overstepped his own grounds. His insistence that the infantryman’s soul is in peril is, to the best of my knowledge, unprecedented in the build up to Iraq. Pope John Paul II did not, despite his clear opposition to the war, ever suggest participation in it to be a matter of mortal sin. While the Bishop has as much right as any to enter the public realm and debate his view, and I admit a greater responsibility – especially for his flock – to do so than most – he is in his unrelentingly polemical posture in danger of not entering the public sphere but of trespassing into it. By not acknowledging any of the then ongoing debate, in not, himself, putting forward any argument but, rather, simply gesturing toward while completely ignoring the tradition, his bullying polemic has no value in public discourse.

But let’s assume that Bloom’s infantryman does, in fact, listen to his Bishop. Let’s further assume that he refuses service not simply in obedience to the competing authority of his Bishop over the State but that he genuinely believes participation in the invasion is morally wrong, a violation of his own conscience. Bloom suspects that many of Davis’ defenders would then not likewise defend the infantryman’s conscientious refusal to deploy. Perhaps, but it’s unclear of course which of Kim Davis’ defenders Bloom has in mind and the various options make a difference in any comparison. Among those who count themselves her supporters there is a significant range of positions. Some insist she shouldn’t have been punished because, after citing one or another complex legal argument, they doubt whether she broke any law at all while others arrive at the same conclusion by saying she lawfully refused to obey an unjust law. Others don’t deny she broke laws and should have been punished not by jail time but rather by being impeached. Others agree she should have been tossed in jail and is, nevertheless, a hero. Still others say she should have resigned after discovering she could no longer uphold the laws she swore to uphold while yet more others say she should not have resigned because the laws she swore to uphold were shifted under her and her refusal to either follow orders or resign forced the setting-in-motion of many necessary things. Because others have commented ably and at length on Kim Davis – among the more valuable are Joe Carter, Ryan Anderson, Eugene Volokh, Russell Moore, and, at the risk of flattering my boss, IRD’s own Mark Tooley – I cannot add anything of further substance.

But, in part because my wife will give me grief for tucking-tail and dodging-the-issue, let me say that my (somewhat tentative) judgment is that Kim Davis was right to refuse to uphold laws that were changed mid-game and against her conscience, should not have resigned, and was therefore required to suffer whatever consequences came of her refusals. This is not unrelated to my response to Bloom’s question about the soldier.

If Bloom’s infantryman did in fact refuse to obey orders and participate in the invasion of Iraq he has a legal apparatus in place to allow him to freely do so. He is not, of course, free to avoid the consequences. Nor would his refusal be groundbreaking. While the refusal to obey orders in the combat zone rightly has far more serious punitive consequences, many servicemen and –women have refused to deploy to Iraq on the grounds of either conscientious objection – which is objection to all wars – or on account of a more nuanced objection against Iraq as a particular war. While conscientious objection status can lead to an honorable discharge, those who simply refuse service in particular wars seem to more often face possibilities of court-martial, dishonorable or other-than-honorable discharge, and even jail time. I have no real problem with either of these outcomes. One can change their views and, even while in uniform, convert to pacifism. When the circumstances allow they should be given accommodation. But selective conscientious objection is, indeed, asking too much. While one can, indeed must, disobey unlawful orders, military leaders need the assurance of knowing lawful orders will be generally followed. While in disputed cases one might hope to sway those judging the case, as one might hope that Davis’ disobedience led to a change of judicial hearts and then of law, or at least of accommodation, the fact that judges might not be so swayed means that it is both expected, and reasonable, that one faces whatever consequences the courts deem appropriate. So it is with our infantryman.

While my primary counsel to the infantryman would be to get himself a new Bishop it might be that he agrees with his Bishop. In that case, he is free to suffer whatever consequences are judged appropriate. But that seems, at the end of the day, a small thing compared to the price of not following one’s conscience.


 

13 Responses to Unjust Wars & Kim Davis (?)

  1. Jordan Bloom says:

    Thanks for the dialogue. May reply in another blog post, but could I get a link, so people can see the original? Here it is for readers-of-comments: http://mitrailleuse.net/2015/09/15/a-question-for-conservatives-about-religious-liberty-and-unjust-wars/

    I guess I’m not sure what the point of just war tradition is if not to determine what sort of war one can directly participate in without committing a mortal sin. Isn’t that what it’s for? One may debate whether the Iraq invasion met those criteria, but surely an unjust war is one in which we are obliged not to participate. It’s not *just* a “matter of prudential judgment,” for that reason, but mainly because his bishop forbade him.

    This also strikes me as backwards:

    “In the Davis case, the authoritative source of her conscientious stance is what has, until only recently, been the undisputed position of the Christian tradition. In the case of the infantryman, the authoritative source of his act of conscience is the judgment of his Bishop who specifically cites the Christian tradition as the grounds for his judgment.”

    First of all, if one is participating in an unjust war, one is abetting murder, and to my knowledge the “undisputed position of the Christian tradition” has always been opposed to that too. Also, while I agree with you that the Christian tradition has always supported Kim Davis’s definition of marriage, so she’s on solid ground there, I don’t agree that one person’s rationalizations of conscience are necessarily, or even often, superior to the considered judgment of bishops. Unfortunately, conscientious objector status works in a similarly individualistic way, as you note.

    One of the requirements for a just war is that the resulting situation must be better than when you started; probably only ISIS would think Iraq is better off now. Haven’t events demonstrated that we needed more people in 2003 “overstepping their grounds” and “trespassing” into the public sphere? Especially since that “public sphere” was and is still dominated by those respectable idiots on whose counsel the Bush administration began the process that has emptied Iraq of its Christians.

    • MLiVecche says:

      Jordan, Thanks for the response. I’ll wait to see if you post another blog before responding to your comments here. Meanwhile, I don’t know what you mean by ‘could I get a link’. If you’re asking about permissions to link to our site then link-away. If you’re asking about something else let me know. There, now everyone knows I’m faking my way through social media!

  2. entonces_99 says:

    The just war tradition, classically understood, locates the
    responsibility for such judgment in the proper authority of the
    Sovereign ruler above whom there is no higher earthly authority charged
    for the care of the public good. This does not mean that warfighters
    turn their conscience off and blindly follow the lead of the State. It
    does mean that they exercise humility in recognizing that they likely do
    not have access to all the information informing their Sovereign’s
    determined judgment.

    IIRC, this is what people advised Bl. Franz Jägerstätter when he refused to serve in the Reich’s army, on grounds that if he did so he would be participating in an unjust war.

    • MLiVecche says:

      Yes. Which compels us to also recall that abuse does not invalidate proper use as well as to recall what I say at the conclusion of the paragraph you cite: “…in particular cases the matter is clear and … a particular conflict is [recognized] in the eyes of the common warfighter [as] morally wrong. In such an event, the infantryman must obey his own conscience.”

  3. Walt Durham says:

    Marc Livecche misses the essential point. The infantryman is not using his state office to enforce his religious view on the public and people coming before him for legally required services. Kim Davis is. The fact that she is using her state office to enforce her religious views makes the entire difference.

  4. Trey Caldwell says:

    I guess I find the two cases insufficiently analogous to make the comparison useful.

    In the case of Mrs. Davis: Let’s suppose that some of the couples requesting marriage licenses were doing so for religious reasons (This would be unsurprising). Mrs. Davis’s right to freedom of conscience does not trump that of those she was elected to serve.

    By design the government is prohibited from choosing between the beliefs of differing believers. Her proper course was to resign rather than try to use her government position to assert her own orthodoxy. Her punishment was entirely appropriate.

    Going forward, the state should correct its process so she can (and must) step aside and cannot impede the requests of those who wish to marry despite her objections.

  5. rtcdmc says:

    The two examples are analogous only in the sense that both are free to follow their consciences AND suffer the consequences for that decision.

    In the case of Davis, as an elected official (and only subject to removal from office by impeachment by the Legislature) she can remain in office until removed and behave however she sees fit. I believe that she should have resigned due to the conflict between her personal views, and the legal procedures that her office obliged her to fulfill, but I have an exaggerated notion of honor.

    The soldier is another case entirely. There are mechanisms to avoid combat duties — or military service entirely. Don’t volunteer. Or claim conscientious objector status. Waiting until the moment of deployment brings penalties through the uniform code of military justice. Cowardice or misbehavior before the enemy are two such charges.

    When in conflict between one’s own moral conscience and legal obligations, one must accept the legal penalties associated with the decision. It really isn’t more complicated than that.

  6. EqualTime says:

    I’m sure some of Kim Davis’ supporters might see the analogy in the “State” deciding to go to war and the USOC, 5 of whose members are Roman Catholic determining that the State cannot deny same sex couples the same rights hetero couples have, under the 14th Amendment. Where most of them would not see an analogy, would be if Kim issued FOID’s, and had a revelation that she should not issue gun permits based on a pacifist religious belief.

  7. Russ Neal says:

    All of the mischief in the same sex marriage business stems from the ill-conceived and improperly ratified 14th amendment which includes the undefined rights of due process and equal protection of the laws. Since such generalities can be interpreted to mean almost anything, it falls to the Court to decide what they mean. But since the Court can also stretch that definition without limit these phrases potentially allow the Court to act despotically, ignoring the rest of the Constitution altogether. When they stretch it a little bit as in Loving, no one cares. When they stretch it a lot, as in Obergefell, it can be dangerous. The Court and the whole federal government can lose its legitimacy in the eyes of the governed, or at least the losers.

    The 14th amendment received its ratification by 3/4 of the legislatures only by including puppet legislatures in Alabam and Georgia and by not allowing Ohio and New Jersey to rescind their previous ratification.

    The remedy for Obergefell is for Congress to remove abortion and marriage from the jurisdiction of the federal courts which it can do with a 51% vote. This will make the courts reluctant to play God.

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