One of our readers, attorney and judicial clerk John Doe, writes with appreciation for our the Mirror of Justice and our ongoing discussion about the shameful role of lawyers in what Richard John Neuhaus has described as our Church’s “Long Lent” since the priest sex abuse scandal seized public attention. While agreeing that lawyers should not neglect the moral counseling aspect of our role, Mr. Doe remarks that, in the specific context of this Catholic Church scandal, this might have been a “tall order.” He quite rightly points out that it might be rather presumptuous for a lawyer, even a Catholic lawyer, to act as a moral advisor to a bishop or other high church leader. Mr. Doe thoughtfully asks whether the lawyer, at least in this particular context, is really qualified or justified in offering moral advice to the client.
I do regard it as fundamentally important for the lawyer to begin every attorney-client relationship by asking the client a basic question: “Who are you?” The lawyer should not presume the answer, but neither should the lawyer allow the representation to stumble along unguided and without insisting upon the client’s answer to this question. By framing the inquiry in a manner that invites the client to draw upon the client’s own values, the lawyer assists the client to be true to the client’s own best self.
In other words, what I mean to encourage here is the initiation between the lawyer and the client of a moral conversation. This should not be a lecture by the lawyer nor serve as the vehicle by which the lawyer arrogates the position of moral dictator. Rather, this should be a cooperative process in which the lawyer and the client work together to achieve the best outcome for the client, including a humane outcome that is consistent with the client’s own moral compass. The lawyer thus would serve a catalytic role, encouraging the client to think more deeply about what the client should do, both legally and morally.
Would it have been presumptuous for an attorney to instruct the princes of the Church on morality? Perhaps, especially if the lawyer was not also trained in theology or canon law. But would it have been presumptuous for the lawyer to inquire whether the Church’s nature and mission demanded a different approach to this problem? Would it have been inappropriate to ask pointed questions that forced Church leaders to confront the possible disconnect between the mission of Christ’s Church and the legal tactics employed to deflect embarrassing disclosure of priestly failures? I don’t think so.
As Rob Vischer writes in his recent post here, the legal profession tends to elevate client autonomy to an absolute, regarding lawyers as amoral technicians who simply implement in legal terms the client’s stated objectives. Even worse, I want to emphasize here, most lawyers assume that their clients have no ideals, no values, no moral calling that would be relevant to the legal task. As Rob says, lawyers too often fail “even to suggest that a client reflect meaningfully on those objectives.” In so doing, the lawyer encourages the client to regard the world of legal affairs as devoid of values. In this way, the legal profession makes those who enter into this world comfortable with amoral attitudes and ethical neglect, thereby lowering the quality of moral discourse and interaction in society.
In sum, if we as lawyers fail to provoke the client to consider the moral implications of legal problems, we encourage the client to divorce the essential moral dimension of the client’s identity from the client’s responses to legal problems. The legal profession for too long has told clients, at least implicitly, to leave their values at the door when entering the lawyer’s office. Not surprisingly, that way lies disaster. And that danger inherent in amoral legalisms were tragicly realized in the role played by lawyers in the Church sex abuse scandal.
Greg Sisk
I agree strongly with Rick that the participation of Catholic and other religious organizations in programs like Charitable Choice and school vouchers raise troubling issues for the religious participant. As the Virginia Association of Baptists wrote in 1776, "those whom the State employs in its Service, it has a Right to regulate and dictate to." I think precisely these dangers are present when the government funds social and educational institutions today. Already, we have seen strings attached to the vouchers programs upheld by the U.S. Supreme Court in Zelman v. Simmons-Harris and by the Wisconsin Supreme Court a few years earlier in Jackson v. Benson. The program in Zelman requires participating schools to "agree not to discriminate on the basis of race, religion, or ethnic background, or 'to advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin or religion.'" Such restrictions could be liberally construed to bar a Catholic school that approves of Operation Rescue or a fundamentalist Christian school that teaches that Satan is at work within Islam. The program in Jackson v. Benson required participating schools to permit voucher students to opt out of religious activities if their parents request. In the social services area, too, one can expect that the more governments privatize the provision of social services, the more they will seek to regulate the "private" sector they are funding. Indeed, a number of scholars are already advocating such regulation as a means of shaping deviant religious groups according to majoritarian "public values."
I have never written on vouchers or funding for faith-based social services programs because I cannot yet figure out how to address these problems adequately. On the one hand, if governments continue to move in the direction of privatizing social and educational functions and religious organizations do not or cannot participate, the resulting services will be skewed strongly in a secularist direction. Such skewing would be unfair and damaging to religion. But if religious organizations do participate, will they risk becoming part of a "private" sector heavily regulated by the government? Indeed, a sector that may take on more of the features of government bureaucracy as time goes on?
Monday, March 22, 2004
The United States Court of Appeals for the Fourth Circuit has held, in Planned Parenthood v. Rose, that South Carolina's "Choose Life" license plate violates the First Amendment. (The opinion is here; thanks to Howard Bashman for the link). Because I have the pleasure of teaching a course on First Amendment law, I will have to untangle the court's winding path through the Supreme Court's increasingly tricky caselaw on government speech, public forums ("fora"?), and viewpoint discrimination.
Because our blog is not so much about legal doctrine as it is about our efforts to better understand, and to critique, that doctrine from the perspective of the Catholic intellectual tradition, I'll spare my colleagues any thoughts on the court's selection, interpretation, and application of the relevant precedents. But because many who write and think about religious freedom (including Kathleen and others of my colleagues) also -- by necessity -- write and think about free-speech and public-forum doctrine, the Fourth Circuit's decision will likely be of interest to "Mirror of Justice" readers.
Rick
With respect to the recent Catholic Charities case, Kathleen asks (below) "why church lawyers so readily admitted that Catholic Charities was not involved in the 'direct inculcation of religious values' and, thus, failed the first of the four necessary criteria for exemption as a religious employer under the state's Women's Contraception Equity Act." As she notes just a few lines later, though, "insisting that Catholic social services agencies are involved in the direct inculcation of religious values may send off red flags for government funding vis-a-vis the Establishment Clause."
A reporter asked me recently if I agreed with "those" (who are they?) who think that "Catholic Charities is trying to have it both ways" (i.e., to receive large amounts of government funds, but also insist on a religion-based exemption to the WCEA). I'm not sure. But this case did start me thinking, again, about the potential downsides of policy experiments like "Charitable Choice" and even school vouchers. Now, I am quite confident that these kinds of experiments are "constitutional," if the Religion Clause is properly understood. And, I agree with Kathleen that "through the Church's social mission, those who assist those in need proclaim the Gospel message as much as do preachers from the pulpit" and that "serving those in need IS the Christian message in deed." Still, I wonder if the Catholic Charities case is a kind of wake-up call, reminding us that, if the Church wants to be the Church, at a time when the state would prefer that the Church not be so much the Church, then the Church might not be able to rely on government funds for its social mission. Any thoughts?
Rick
