Last weekend, we here at the University of St. Thomas sponsored a symposium on “Understanding the Intersection of Business and Legal Ethics,” in which, among many others, our co-blogger Stephen Bainbridge made an important contribution and all presentations of which will be published in the University of St. Thomas Law Review.
During the course of that event, in which many of the speakers addressed the various scandals arising in the business world – the Savings & Loan crisis of several years ago, Enron, Martha Stewart, etc. – in which lawyers failed in their role as moral counselor, I could not help but be disturbed by the painful parallel with the recent scandals of the American Catholic Church, Inc. Of course, the Catholic Church is not, or at least should not be, a business enterprise. And indeed a large part of the priest abuse problem was that the Church often conceived of itself as such. As Ralph McInerny says, some “bishops acted like CEOs rather than shepherds.”
Given the nature of the UST symposium, which looked not only to business ethics but also to the ethics of lawyers advising businesses, my more immediate focus was on the behavior of those lawyers retained by the Church either as general counsel or to represent it with respect to lawsuits alleging sexual abuse of minors by priests. Given the nature of this weblog on Catholic Social Thought and the law, the proper role of lawyers as Catholics, that is, people of faith who are in the legal profession, in proper counseling is directly pertinent.
The report of the National Review Board appointed by the bishops issued just a couple of weeks ago. It includes a section titled “Reliance on Attorneys,” a title that is meant to indicate not something salutary but rather delineate yet another of the multiple errors made by the bishops. In other words, when the bishops sought the advice of members of our profession, they went astray. Ouch.
Consider the details of the grievous errors outlined in the National Review Board report, which, while levied against the bishops in the first instance, encompass their lawyers as well: Attorneys used “tactics [that] often were inappropriate for the Church, and which tended to compound the effects of the abuse that already had been inflicted.” These tactics included defenses that “could be construed as blaming the victim,” arguing that the Church had no responsibility for priests by claiming they were “independent contractors,” and “in general adopting an overly adversarial approach.”
Moreover, the report says that “certain lawyers recommended, and certain bishops insisted, that the victims sign confidentiality agreements, which stifled their ability to discuss their experiences openly and thwarted awareness by the laity of the problem.” In addition, lawyers counseled Church leaders not to meet with or apologize to victims, even when the abuse was clearly substantiated. Not only does the report correctly say that this approach undermined the primary pastoral mission of the bishops, but it suggests that it ultimately led to greater legal liability as many victims said they would not have filed suit had someone heard their complaints and apologized.
The report says this problem was caused by “disastrous pastoral decisions” in selecting lawyers based on “friendship [with bishops] and a misguided perception of the lawyers’ loyalty to the Church.” As a consequence, the lawyers chosen “failed to adapt their tactics to account for the unique role and responsibilities of the Church.”
To be sure, as another part of that report states, “[t]he first role of a bishop or any Church leader must be to act as a pastor to the Catholic faithful.” Thus, the bishops have primary responsibility here, and cannot avoid that responsibility by alluding to the advice of counsel. Or as the report puts it, “the Church should not hide behind its lawyers.” That much is a given.
Nonetheless, is it not sad that counsel from their lawyers is cited as a problem, rather than as one of the means toward a solution? Is it not a scandal to us in the legal profession that, rather than assisting Church leaders in finding a morally superior means of responding to the sex abuse problem, Church lawyers are said to have exacerbated it? Now I am sure there were exceptions to this sorry pattern and perhaps we may hear at some point encouraging stories about individual lawyers who were part of the solution rather than the problem. And perhaps many of these lawyers did in fact provide moral counseling but because of confidentiality expectations have not been able to so reveal it publicly (although the bishops presumably waived any such confidentiality when cooperating with the investigation by the national review board). Nonetheless, it cannot be gainsaid that, on the whole, the involvement of lawyers made this serious problem a greater disaster.
What can we learn from this about our role as lawyers? To begin with, the growing revival in professional responsibility scholarship and education of attention to the foundational role of lawyers as moral as well as legal counselors needs to be heard and emphasized just as much among the Church’s lawyers as the rest of profession. One would have thought that the Church’s own legal representatives, with the full encouragement of their clients the bishops, would have been at the forefront of the movement to enhance ethical lawyering and moral counseling. Instead, the National Review Board report suggests they were among the last to get the message. How can we help ensure that this never happens again? As the bishops now seek to restore confidence in the Church among the faithful, how can we restore confidence in lawyers of faith as committed to partnership with Church leaders in providing legal advice that serves a greater moral purpose?
There is some appeal to Rick's suggested approach (posted below) to the specter of a double standard when it comes to Gonzaga rejecting the Christian Legal Society student group versus Seton Hall rejecting the gay student group. We could support Seton Hall's action, but not Gonzaga's action, with an eye toward the Catholic identity of the institution.
But that approach is of limited help when it comes to non-Catholic institutions. Many schools, including Harvard, have resisted InterVarsity Christian Fellowship's official presence on campus because the group limits leadership to Christians. Most of us probably think Harvard should allow such groups to operate in a way that is consistent with the group's own religious identity. But if schools like Harvard have any core identity these days, it's arguably an identity rooted in an expansive vision of non-discrimination. So isn't InterVarsity's Christian-only leadership requirement inconsistent with Harvard's identity, just as a gay student group's mission is (arguably) inconsistent with Seton Hall's identity? Do we think secular schools are obligated to embrace a more robust form of pluralism than Catholic schools?
I certainly don't pretend to have an easy answer to this, but it seems that if we're going to invoke principles of pluralism and liberty to second-guess institutional decision-making shaped by a secular worldview that cuts against religious groups, we also have to invoke it when institutional decision-making shaped by a religious worldview cuts against non-religious groups. (I'm not speaking in constitutional terms here, just as a matter of public argument.) Either that, or we have to offer a double standard for pluralism and associational liberty depending on whether the school has a secular or religious worldview, and I'm not sure how to defend that, especially given that many tenets of modern liberalism have risen to the level of religious belief in the eyes of many adherents, especially in the realm of higher education.
Eugene Volokh (here) and Nate Oman (here) have posted new, interesting thoughts about the use of religious arguments in the public-policy arena.
Nate asks, in light of a reason PETA ad, "is it proper to use religious arguments to persuade a religious believer when you yourself do not accept the religion in question?" He discusses, among other things, "television journalists [who] started lecturing the world about how the terrorism was really inconsistent with Islam and how the Koran doesn't really require this sort of thing"; "gay marriage activists who quote the New Testament at opponents of same sex marriage"; and the "attempts of westerners to persuade Muslims that Islam, properly understood, is not really inconsistent with modern liberal democracy."
Eugene explains why a particular "trope" -- "Those fundamentalist Christians are trying to force their religious opinions on us" -- bothers him. In his view, "that's what most lawmaking is -- trying to turn one's opinions on moral or pragmatic subjects into law."
Rick
UPDATE: Volokh has more to say about his post, and reactions to it, here.
Over at Slate.com, Steven Waldman of Belief.net has posted an even-handed, non-polemical article called "By Their Fruits: How to be a Catholic President in the 21st Century." In light of earlier exchanges, the article might be of interest.
Rob raises an excellent point (below), asking whether there is "any principled reason for supporting the students trying to create a Christian Legal Society chapter at Gonzaga, but not the student trying to create a gay student group at Seton Hall?" In my view, there probably is.
As Rob says, the decision by the SBA leadership at Gonzaga (and again, to be clear, I do not know all the facts) to deny recognition of the CLS appears to be not only an effort to "impose a collective, identity-squelching anti-discrimination norm on its student groups," but also an effort to impose a norm (i.e., a certain notion of anti-discrimination) that (in my view) runs counter to Gonzaga's character as a Catholic law school. Seton Hall's decision, on the other hand, is -- arguably -- in the service of its character as a Catholic law school, and -- arguably -- reflects a norm appropriate to that character. Certainly, I am a "fan" of associational integrity and freedom, I would want the state to treat both the CLS at Gonzaga and the gay-rights group at Seton Hall in an even-handed fashion. In each case, for instance, I would want the State to defer to the groups' own decisions about membership and leadership. I guess I have been approaching these cases, though, with an eye toward how these two (private) law schools should act.
Still, I'm not entirely satisfied with my own answer, and I welcome others' reactions to these two cases.
Yesterday a student filed suit against Seton Hall University after the school rejected his request to establish a gay student group on campus. I'm not sure as to the details of the student's request or the school's denial, but it raises an interesting point to follow up on Rick's post about Gonzaga. To the extent we value expressive liberty and associational identity, whose identity and expression should we support: the student group's or the university's? If the Gonzaga student government is trying to impose a collective, identity-squelching anti-discrimination norm on its student groups, isn't Seton Hall doing the same thing when it tries to enforce standards based on the Church's teaching? Besides the fact that we might favor the substance of one collective norm over the other, is there any principled reason for supporting the students trying to create a Christian Legal Society chapter at Gonzaga, but not the student trying to create a gay student group at Seton Hall?
Here's a link to an interesting story I've been following at the Gonzaga University School of Law. (Note: The link is to the website of an advocacy organization, "Foundation for Individual Rights in Education," with which I am familiar and which I, generally speaking, endorse). The School's Student Bar Association has refused to recognize the "Christian Legal Society" -- just as, a little while ago, it refused to recognize the "Christian Pro-Life Caucus" -- because the SBA president concluded that the group's requirement that its leadership be Christian is "discriminatory."
In my view, based on what I know, the decision by the Gonzaga SBA is quite unfortunate. For "Mirror of Justice" purposes, though, it strikes me that this incident points to a confusion about what we really mean -- or should mean -- about terms like "diversity" and "discrimination." Is it really meaningful to complain that the "Christian Legal Society," by requiring that its leadership be Christian (so as to preserve its expressive integrity), is "discriminating" against non-Christians? Or, do such complaints undermine the "purchasing power" of anti-discrimination arguments -- arguments that, I assume, we want to retain moral force? By refusing to recognize expressive groups like the CLS, on the ground that they fail to mirror in every respect the political norms of liberal democracy, is the Gonzaga SBA really serving "diversity"? Or, is the SBA undermining meaningful diversity by excluding from Gonzaga's "civil society" groups with a distinctive identity and message?
It seems to me that the debate about the treatment of the CLS at Gonzaga connects in interesting ways with discussions many of us have had -- and in which Mark Sargent has prominently participated -- about the place of distinctively Catholic law schools in the legal academy. It should also remind law teachers, I think, that we need to challenge our students and each other to think carefully about what discrimination *is*, given that the task of eradicating invidious discrimination (as opposed to religious associations) is one that we, as lawyers, are particularly called to perform.
Rob's kind mention in his last post of the Villanova conference next fall was a reference to the second annual conference on Catholic Social Thought and the law to be sponsored by Villanova's new Journal of Catholic Social Thought. Several of us in the blog group, as well as some other colleagues and friends, participated in the first conference last fall; Mirror of Justice was one of the fruits of that very productive gathering. Next fall's conference will focus on the significance of the CST concept of subsidiarity for the law. The keynote speaker will be a non-legal specialist in CST who will provide some insight on the concept (speaker suggestions welcomed). This will be followed by 6-8 papers on the concept's meaning, applicability, and usefulness for different fields of law and for legal theory. Among specialists in American law, we also hope to have European (or other non-US) specialists in both secular and CST versions of subsidiarity. The conference will be one day, Oct 8, 2004, and held at Villanova. Please consider this a call for paper proposals from both my blog-mates and our readers. It would be helpful to have proposals sent to me by May 15, 2004. Feel free to give me a call if you would like to discuss your ideas.
Prompted by Rick's post below, I read Nick Barber's paper, The Limited Modesty of Subsidiarity. I recommend it highly. Barber draws several broad distinctions between the Catholic vision of subsidiarity and the European Union's vision. The EU invokes subsidiarity as a principle governing the allocation of power among public bodies, while the Catholic model expands its focus to the allocation of all collective bodies, public and private. He points out that modern liberals will have a much easier time signing on to the EU's rather technocratic framework as compared to the value-laden vision of the Catholic model.
While most of Barber's commentary strikes me as sensible and insightful, I do disagree with his insistence that Catholic subsidiarity is neutral as to the devolution of state power. He argues that "the Catholic doctrine does not embody a preference for smaller government, or for devolving power to smaller units," but simply urges that "smaller units should get the power when they are able to exercise it properly -- there is no bias against centralisation." Certainly the Catholic model of subsidiarity does not categorically reject centralization, but I'm not sure how he can come to the conclusion that there is not even a preference for decentralization, especially in light of this foundational passage from Quadragesimo Anno (a passage he quotes, curiously):
". . . that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them."
What is this passage, if not a preference for decentralization? Barber's comments imply that Catholic social teaching simply wants social problems to be addressed effectively, regardless of the level at which that occurs -- if a government agency can feed your kids as effectively as you can, so be it. Subsidiarity, understood in the broader context of CST, unmistakably calls for individuals and the groups to which they belong to exercise direct control over the circumstances of their existence where possible. (This is not to suggest that the call for decentralization is unfettered, for effective decentralization presupposes that individuals and their groups are empowered and equipped to help themselves, and such empowerment may require an active state role.)
Despite our disagreement on a couple of key points, Barber's essay is well worth reading, and is further confirmation that this fall's CST conference at Villanova devoted to subsidiarity should spark some intriguing and wide-ranging conversations.
Boy, after a few sleepy days on the blog, no sooner do I leave the country than there’s a torrent of great posts, plus two questions specifically addressed to me from my co-bloggers. I’ll defer discussion of the subsidiarity paper that Rick mentions until I’ve finished reading it (though here’s a preview: at a first glance, I don’t think Barber really appreciates how comprehensive the personalistic foundations of subsidiarity are in the Catholic tradition), and comment briefly on the political debate below in indirect response to Mike’s question. First, I’ll say right up front that I find arguments over which political party’s policies better exemplify Catholic social thought to be mostly sterile discussions that often end up substituting moral abstractions for concrete human reality. One of the greatest virtues of the Christian position that CST represents is that its starting point and touchstone is the fact of human needs and our desire for truth, freedom and happiness – not programs or projects. The principles of CST are expressions, distillations, of an experience of life, not the other way around. CST is therefore fundamentally not ideological, and indeed it is specifically anti-ideological – that is, it gives us criteria of judgment with which to expose and critique all ideological positions, whether of the left, right or center, in favor of the real needs of human persons. Second, the most fundamental human need is that of meaning; i.e., the quest to satisfy the religious sense. That’s why in Catholic thought religious freedom is properly regarded as the first and truest human right, the foundation for all others. For that reason, I do think that it is hard to overstate how vital it is that political life be open to the human impulse to seek meaning and to seek satisfaction of the desire for truth that our reason points us toward. That dynamic is lived and formed principally through religious life and through education. So, without entering into the dispute about how specific parties and candidates stack up, I do strongly endorse Rick’s plea to regard those things with utter and uncompromising seriousness in judging our politics. With respect specifically to the relationship of religion to politics, although I would expect that Vince and I do not differ on this, I do think his post below could unintentionally be read as reducing the question of religion in public life to competing sets of moral principles rather than as something much deeper than and antecedent to ethics or politics. Our judgment shouldn’t be a function of “which particular expression of religious morality does each political party favor” so much as a question of “how can our political life be made most open to and supportive of our human need for and desire to satisfy our religious sense?” From that point of view, some contemporary political positions are decidedly more hostile to the truth of the human person than others are, even ones that can appear in other ways quite benign when the starting point is ethics rather than ontology, doing rather than being. And now you can call me coy, but having posed the question I won’t answer it. I struggle to do so all the time, and I think we all should lest the ever-present temptation to ideology and utopia should triumph over reality.
