Moral Theology and the Affirmative Action Decision

Before I became a theologian, I gave serious thought to becoming a lawyer. I still continue to be a keen observer of the law, particularly Constitutional law. It’s striking how much theological education illumines the Supreme Court’s enterprise.  

There are those who insist the Court operates only on legal principles. In a very narrow way, that’s true—but only in a very narrow way. Because unless you hold to positive law—the law is whatever the legislator says it is, so if he changed it 180° tomorrow, it’s still the law—you recognize that other factors, even if they are further removed, have made the law what it is. Like the philosophy and worldview your law presupposes. 

Pace John Rawls, our law did not emerge out of nowhere from behind a curtain. It emerged in a religious—primarily Catholic—environment. Nobody less than Justice William O. Douglas admitted, “We are a religious people whose institutions presuppose a Supreme Being.”  

Americans, by the way, are not a positive-law people. Today we celebrate the 247th anniversary of the Declaration of Independence, which asserts there are certain “inalienable” rights that come not from government but from God, whose abridgement invalidates positive law. The positive law said that the 56 men who signed the Declaration were subject to every act of the British Parliament and decree of the British King; their claim was that when King and/or Parliament violated those inalienable rights, their claim to bind them was voided.

Scratch this hard enough and you get back to natural law, a mainstay of Catholic moral theology. The moral law is binding not just because God said so but because it corresponds to the demands of our human nature. So, whether or not you believe in God, the natural law is binding on you, since you are a human being with a human nature (unless you identify as a cat, in which case your views are irrelevant).

Take the June 29 Supreme Court decision on affirmative action. A superficial, political analysis would say the conservatives got a majority on the Court and so, 6-3, they enacted their policy agenda. While that is the narrative much of the media pushes, its vacuity justifies its dismissal. I take Supreme Court justices, of whatever stripe, to understand the gravity of their office as Constitutional arbiters not political referees. Unless you think that “interpreting the Constitution” means “agreeing with you,” there’s more to that job.

The affirmative action decision in a very real way involves how we understand a human act. Decisions are, after all, acts: we decide to do something, in this case, admit a student to college. According to Catholic moral theology (which happens to correspond with reality), acts have three components: the act itself, its intention, and relevant circumstances.  

The act is what the act does, independent of the agent’s intentions. I stick a knife into your heart. That act does something, independent of my intention. It kills you. You cannot say, “I didn’t mean it,” if you did it. There’s no way a normal person cannot not know that act is fatal.

In the normal run of things, intentions cohere with acts. Most people who stick a knife through your heart want you dead. It may be the very rare case where a person is defending himself say, from assault, and thrusts a knife into the assailant’s chest. Even then, he will have to account for whether he could have used less lethal means to ward off the attack. Intention adds another moral level, but it does not replace the meaning of the act itself.

Circumstances usually have less of a direct effect on an act than being aggravators or modifiers of guilt. Having sex with somebody you’re not married to is itself wrong. Having sex with somebody you’re not married to who’s married to somebody else is a greater evil because it’s adultery.

For an act to be good, it must be good on all three levels. Goodness is wholeness; evil is the deprivation of goodness in any part. It’s like a shirt: it’s either clean or not. You can’t say, “That shirt is clean, except for that mud stain on the right sleeve.”

The Court was grappling with this act problem in the affirmative action case. Can a public entity (the University of North Carolina) or a private entity that takes public money (Harvard) ever take race into consideration when deciding on college admissions?

Back in 1954, in Brown v. Board of Education, the Supreme Court set America on the path of colorblindness when it said that assigning students to a particular school on account of their race was unconstitutional. Most Americans understood Brown as saying law and public policy should be colorblind. Race should not be a factor in decision-making. Martin Luther King captured that vision when he spoke of dreaming his children not be judged “by the color of their skin but by the content of their character.”

Since affirmative action first appeared in the Johnson Administration, and over the years as America has morphed through “diversity” to “critical race theory,” a new line of thought started competing with the principle of colorblindness. America’s “original sin” is racism. (Notice how even secular folks cannot avoid the cultural appropriation of Christian terms?) Based on that assertion, taking race into account is “essential” to overcoming alleged “systematic racism” that 50+ years of civil rights laws and the election—twice—of a black President have supposedly not eliminated. While affirmative action presupposes explicit race consciousness, ignoring colorblindness is proper to “right past wrongs.”

Now, the 14th Amendment says, “no person [shall be denied]…the equal protection of the laws.” Brown said taking race into account when it came to school segregation violated that guarantee. So, is affirmative action problematic because it takes race into account (what the majority said) or not problematic because it supposedly takes race into account for “good” reasons (the minority’s claim), e.g., “diversity” in the freshman class?  

Advocates of the latter now argue for an “antisubordinationist” interpretation of the 14th Amendment, i.e., that it does not demand colorblindness but that it only bans laws that hinder, not those that help, blacks. But the Amendment speaks of “no person,” without any racial qualifier; and the truth is that in a limited group (e.g., a freshman class), “helping” one applicant on the basis of race necessarily hurts another on that basis. That injury occurs whether racially conscious selection happens by setting different standards for potential admittees or in triaging a pool of admissions which supposedly takes place using uniform standards.  

Either race is an inadmissible category—period—or it is a permissible category based on the intentions of those applying it. That would require defining “good racism” versus “bad racism,” an effort even affirmative action’s devotees might blanch at attempting.   Either race is an inadmissible category or it is a permissible category based on the intentions of those applying it.  Tweet This

So, where does the evil of racism lie—in the act of slicing and dicing based on race, or in the intention behind the slicers and dicers? That is the crux of the affirmative action case, one whose core problem Catholic fundamental moral theology can illumine. 

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