Holy Communion and Unholy Politics
By John P. Beal
When Cardinal Francis Arinze, prefect of the Vatican Congregation for Divine Worship and the Sacraments, was asked at a press conference in Rome on April 23 whether Senator John F. Kerry should be denied Communion, he responded: “The law of the church is clear. The church exists in the United States. There are bishops there, let them interpret it.” The flurry of conflicting statements prompted by the cardinal’s remark suggests that the law relevant to determining who can be barred from the reception of Communion may be clear, but its applicability to Senator Kerry (or any other politician) is not.
Church Teaching and Politics
The church’s magisterium has emphasized that politicians are not free to leave their moral principles in the cloakroom when they go to the floor of the legislature, or on the bus when they espouse public policy positions on the campaign trail. Pope John Paul II has clearly stated that all citizens, and by implication public officials, have “a grave and clear obligation to oppose” any law that attacks human life (Evangelium Vitae, No. 73). In a doctrinal note issued in 2002, the Congregation for the Doctrine of the Faith gave the pope’s directive particular application to public officials. The note quotes from Evangelium Vitae (No. 73), “For them, as for every Catholic, it is impossible to promote such laws or to vote for them,” and then comments that nevertheless, when the politician’s personal opposition to abortion is a matter of record and it is impossible to overturn laws allowing abortion, it is permissible for politicians, as Evangelium Vitae says, “to support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion or public morality.”
In fact, most Catholic politicians in the United States more or less clearly assert their personal opposition to abortion, but this personal opposition is rarely put to the test in straight up-or-down votes on abortion or other life issues. Conformity with the teaching of the church must be discerned from politicians’ public records—their policy pronouncements, campaign rhetoric and actual votes on a variety of issues touching on life but not directly attacking (or promoting) it. On both sides of the aisle, these public records often reflect, to put it charitably, something less than ringing endorsements for the consistent ethic of life. Discrepancies between personal protestations and public records have sparked the current controversy over the admission of some politicians to Communion.
Exclusion From Holy Communion
The basic principle concerning admission of Catholics to holy Communion is clear: “Any baptized person not prohibited by law can and must be admitted to holy Communion” (Canon 912). Exceptions to this norm are to be interpreted strictly, i.e., by giving them the narrowest construal consistent with their literal meaning (Canon 18). The Code of Canon Law does contain two exceptions to this principle that are relevant for assessing the eligibility for reception of Communion by politicians whose public record is inconsistent with church teaching. Canon 916 addresses those who are conscious of having committed grave sin and warns such individuals that they are not to approach holy Communion unless they have first been reconciled to God and the church through sacramental confession. Since sin involves not only an external violation of a moral norm but also internal advertence and consent, the law normally leaves the decision about approaching holy Communion to the informed conscience of the individual. Canon 915, on the other hand, is addressed to ministers of holy Communion and stipulates, “Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persisting in manifest grave sin are not to be admitted to holy Communion.”
Excommunication
If anything is clear, at least to canonists, about the current furor over admission of politicians to holy Communion, it is that no so-called “pro-choice” politician has been excommunicated as a result of her or his public record. Those who successfully procure an abortion and their necessary cooperators do, by that fact, incur the penalty of excommunication (Canon 1398). A necessary cooperator is one without whose assistance a specific abortion would not have occurred (Canon 1329 §2). However reprehensible politicians’ records on life-related issues may seem, it is virtually impossible to establish the causal link between their views and votes and any specific abortion, which is a necessary condition for them to incur the penalty. Nor does it seem plausible to claim that their public pronouncements amount to heresy. Thus, exclusion of politicians from holy Communion must rest on a judgment that they are obstinately persisting in manifest grave sin. The question immediately arises, however, what precisely is their grave sin? Does the fault lie in their views or in their votes?
Grave Sin
Most Catholic politicians do not directly contest the truth of the church’s moral teaching; they do, however, disagree with bishops and often among themselves about how this teaching can and should be applied in a pluralistic society in which there is no consensus on how public policy should deal with critical moral issues. The binding force of church teaching diminishes as it descends from the mountaintop of moral principles to the dark valley of practical applications. Thus it is hard to say, when views of politicians on public policy issues clash with those of church authorities, that the politicians’ dissenting views are per se sinful. They may be open to criticism, wrong-headed, inconsistent, pusillanimous or even stupid, but they are not unambiguously sinful.
Politicians’ votes on issues touching on the sacredness of human life can be equally ambiguous. In European countries, laws allowing abortions were enacted by (and could be repealed by) legislatures; in the United States, however, the basic law allowing abortion has since 1973 been one imposed by judicial fiat. Absent a constitutional amendment or a change of heart by the U.S. Supreme Court, public officials must make their choices within the stifling parameters established by Roe v. Wade and its progeny. Consequently, what is possible for politicians in this less than best of all possible worlds may fall considerably short of enactment of the full pro-life agenda. A legislator’s voting record, moreover, reflects only a fraction of his or her legislative activity. Votes on the floor do not disclose the log-rolling, compromising, horsetrading, armtwisting and other behind-the-scenes legislative maneuverings, which may render the bill on which politicians eventually vote, if not ideal, at least less toxic than it might otherwise have been. Votes on the floor, furthermore, especially when they are negative votes on bills favored by church authorities, leave opaque the motives without which a moral assessment of a legislator’s public actions is hazardous. In short, it is difficult to characterize a politician’s voting record as unambiguously sinful.
Manifest Grave Sin
Even if a politician’s views or votes can be fairly characterized as sinful, they do not qualify as “manifest” grave sin, as that word has been used in canonical tradition. For a sin to be manifest, it is not enough that it be public or even notorious; it must also be so habitual that it constitutes an objectively sinful lifestyle or occupation. The 1917 code, like the current Eastern code, spoke of excluding the “publicly unworthy” from holy Communion. Commentators suggested that these publicly unworthies included pimps, prostitutes, fortunetellers and magicians. While wags have long accused politicians of bearing uncanny resemblances to these miscreants, no one has seriously suggested that politicians constitute a comparable class of practitioners of an inherently disreputable occupation or cultivators of an intrinsically immoral lifestyle.
Under Pius XII, the Holy Office declared that, as presumed apostates who adhered to an anti-Catholic society, members of the Communist Party and some of its “fellow travelers” were to be refused holy Communion, since they were not properly disposed for its reception. But it requires a stretch to find an analogy between the Communist Party in Italy in the late 1940’s and any mainstream American political party today. If there were such an analogy, the refusal of holy Communion would have to be extended beyond politicians to those who support and vote for them, as it once was in Italy.
In its declaration in 2000, the Council for the Interpretation of Legislative Texts affirmed the traditional exclusion from holy Communion of the divorced and remarried as a class of people “obstinately persisting in manifest grave sin.” As authority for its declaration, the council cited Pope John Paul II’s Familiaris Consortio, which justified this traditional exclusion by the fact that the “state and condition of life [of divorced and remarried Catholics] objectively contradict that union of love between Christ and the church which is signified and effected in the Eucharist.” However loathsome some politicians’ views and votes on life issues may be, it is hard to see how it can be said that theirs is a state and condition of life in such objective contradiction to the Gospel that their grave sin should be judged “manifest.”
Obstinacy
To be refused admission to holy Communion, one must also “obstinately persist” in manifest grave sin. Such obstinate persistence presupposes that the one who would refuse politicians Communion has engaged in a serious effort to teach them to see the truth of the church’s teaching and the error of their ways. Effective teaching requires something more than turning up the rhetorical volume and brandishing anathemas. Resort to disciplinary measures like refusal of holy Communion is an implicit acknowledgment by church authorities that they have failed as teachers to convince Catholic politicians in particular and the larger society in general of the truth of the Gospel of life. Resignation to such a failure ill befits those who are charged to “proclaim the message; be persistent whether the time is favorable or unfavorable; convince, rebuke, encourage with utmost patience in teaching” (2 Tim 4:2).
Conclusion
It may be objected that by making it difficult to discipline erring members of the flock by refusing them Communion, this strict interpretation of Canon 915 makes “a scarecrow of the law.” This was, in fact, an objection raised during the code revision process about drafts of what eventually became Canon 915. The response of the commission responsible for revision, however, was not to lower the bar for refusing holy Communion but, if anything, to raise it. One of the functions of law in the church, as in every society, is to make it difficult for people, especially those in authority, to act on their visceral instincts, lest hasty action inadvertently harm a higher ecclesial value. By making it difficult for church authorities to refuse admission to holy Communion to politicians whose public records arguably cannot be squared with church teaching, a necessarily strict interpretation of Canon 915 serves as a brake on the temptation to politicize the Eucharist by allowing the sacrament that signifies and effects the union of love between Christ and the church to become a sacrament that signifies and brings about disunity. Zeal to protect the Eucharist from profanation by sinners can unwittingly lead to an even greater profanation by transforming the eucharistic celebration into a continuation of politics by liturgical means.
The Rev. John P. Beal is an associate professor in the School of Canon Law of The Catholic University of America, Washington, D.C.
I've enjoyed, over the past few days, several e-mail exchanges with Professor Leiter, concerning his critical comments regarding Justice Thomas's Newdow opinion. (For a taste of the exchange, click here). Professor Leiter reminded me that, in his discussion, it was not Justice Thomas's *historical* argument about the original meaning and purpose of the Establishment Clause that was characterized as "lunatic" -- again, many scholars endorse it. Rather, his point was that "when there are legal arguments on both sides of a question--say, whether the Establishment Clause applies to the states--to adopt the side that has repulsive moral and political consequences is lunatic."
Now, as Professor Leiter and I have discussed, I have a more positive view of Justice Thomas's work and views than he does, and I am not convinced that embracing Thomas's position -- i.e., "the federal establishment clause does not apply against the states, but the free exercise clause does, and prevents state action that interferes with religious freedom and liberty of conscience, while probably permitting some things that today are regarded as 'endorsements' of religion" -- would lead to "repulsive moral and political consequences." Still, I thought I should clarify any misimpressions I might have created about his argument.
Boston College's Professor Jim Repetti has posted an article on SSRN that will likely be of interest to many Mirror of Justice readers and bloggers. The article is called "Democracy, Taxes, and Wealth." Here is the abstract:
"This article demonstrates why wealth concentration matters and why the tax system should be used to help control wealth concentration. It shows that wealth concentration appears to be related to slow economic growth because of the lack of opportunities. It also shows that wealth concentration adversely affects the democratic process. It argues that because inheritances represent approximately fifty percent of wealth, wealth transfers should be taxed so long as the tax provides benefits that outweigh any assoiated harms. Using the current estate tax as a case study, the article concludes that a wealth transfer tax raises significant revenues and helps curb upward spiralling wealth concentration. Moreover, contrary to what has commonly been asserted, empirical studies generally show that the tax does not discourage savings."
Over at SCOTUSBlog, Marty Lederman has a typically thorough discussion of the petition for certiorari filed in the Catholic Charities case. Professors Tuttle and Lupu have also posted an excellent primer on the case over at the Roundtable on Religion and Social Welfare Policy. Finally, here is a link to the petition itself.
Rick
UPDATE: I sent the following note to Marty Lederman, regarding his discussion of the Catholic Charities case:
"I appreciated your post on the CC case, and agree with much of what you had to say. Although I suspect that I regard the California court's decision as being more ominous for religious freedom than do many of our colleagues, I'm inclined to agree (with regret) that the petition for cert -- despite being very well done -- faces an uphill battle.
I'd offer a few, quick thoughts, in response to your analysis:
First, I think it would be interesting and worthwhile for all of us to think more about Justice Brown's suggestion that perhaps Smith should apply differently -- or that, perhaps, the rule should be different -- in cases where the burden on religious exercise falls on the autonomy or integrity of a religious *group* or institution, as opposed to the religiously motivated conduct of an individual. What do you think?
Second, although I agree with you that all accommodations of religion require careful line-drawing at the boundaries (and that those of us who support accommodation shouldn't want the necessary line-drawing to be too difficult!), I think that Justice Kennard was on to something in suggesting that the first and third requirements for the religious-employer exemption to the California law raise serious "entanglement"-type problems (and, maybe, "Hull Church"-type, interpretation-of-doctrine problems, too). As you point out, though, Catholic Charities failed to meet *any* of the requirements. Still, perhaps even the inclusion of the suspect requirements raises entanglement-type concerns?
Third, I think (as Justice Brown suggested) there are non-trivial concerns about Lukumi-type hostility and sect-specific gerrymandering here. As I understand the record -- but I could be wrong -- the religious-employer exemption was crafted *specifically* (not just knowingly) to make sure that Catholic social-service agencies, schools, and universities would *not* be covered. As I understand it, the legislature was aware that (a) most employers in the State were already providing contraception coverage and that (b) a sizeable portion of the not-already-providing employers were Catholic affiliated organizations. Obviously -- given all the Catholic universities and schools in the State -- an exemption that included these employers would make the mandate itself much less useful in achieving full (as opposed to 90-ish percent) coverage.
It also appears that several legislators -- including some Catholic legislators -- said things on the floor like, "we need to get the Church to do the right thing," or otherwise emphasized the need to nudge the Church away from its stand on contraception. While I agree with Steve Smith's recent (and wonderful) essay in First Things, where he argues that the focus of our constitutional doctrine on the bad motives of public actors is unfortunate, I *also* think that these floor statements are troubling.
Finally -- and this is, I realize, probably not a cert-worthy issue -- I was struck by the California court's conclusion (which might not be holding, I guess) that, even if "strict scrutiny" applies, the burden imposed by the contraception mandate satisfies that standard. It's not at all clear to me that moving from (as I understand it) 90 percent coverage to, say, 98 percent coverage, in large part at the expense of Catholic employers, either serves a compelling interest or is narrowly tailored.
All that said, since I think that the Smith decision is (basically) right, I'm left with the hope that California will revisit this matter, and that other States will prove more generous in crafting their own conscience exemptions."
My friend Stuart Buck has put up a characteristically helpful post responding to the "those who are willing to say that the non-establishment clause was a structural, jurisdictional provision are lunatics" claim. He quotes, for example, Professor Amar's observation that "to apply the [Establishment] clause against a state government is precisely to eliminate its right to choose whether to establish a religion -- a right explicitly confirmed by the establishment clause itself! . . . The Fourteenth Amendment might best be read as incorporating free exercise, but not establishment, principles against state governments." Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991). Also quoted is Professor Carter:
"Let us be realistic. Surely the clause means what it says, and no more than that. At the moment of the founding, the majority of the states had official, state-supported, established churches, and all but two required religious tests for public office. The states were not giving these powers away. On the contrary, they wanted to protect their own established churches from interference by the new national government, and also wanted to prevent that national government from establishing a church of its own. My Yale colleague Akhil Reed Amar has argued persuasively that we should therefore read the "Establishment Clause" as a states'-rights provision, as an allocation between the national and local sovereignties of the authority to create or to endorse an official church.
If Professor Amar is right, then the Supreme Court's subsequent proclamation that the clause is "incorporated" against the states through the agency of the Fourteenth Amendment begins to lose its luster, to say nothing of its coherence. If the purpose of the "Establishment Clause" was to keep the national government from interfering in what was properly a local responsibility, the only sensible meaning of incorporation would be that it now prevents the state government from interfering with local communities as they decide whether to establish their own churches. In other words, if the clause is truly to be applied against the states, then the state of Arizona would not be able to prevent Tucson from establishing an official church, and the state of Connecticut would not be able to prevent New Haven from reviving the old established Congregational Church as its formal public faith.
I am not suggesting that this is a desirable result. I mention it only because I think it quite wrong historically, and quite unpersuasive textually, to look to the "Establishment Clause" as the source of a prohibition on creation of these things called "establishments," which leads in turn to the long line of unfathomable federal court cases telling us which government programs amount to forbidden "establishments" and which do not. Without that line of cases, however, we have no wall of separation; or none, at least, located in the first half of the first clause of the First Amendment."
Stephen L. Carter, Reflections on the Separation of Church and State, 44 Ariz. L. Rev. 293, 299-300 (2002).
Thanks to my friend Robert McLauchlin for passing along Archbishop Burke's statement yesterday on Catholic politicians and the bishops, including further elaboration on the centrality of the Eucharist in the life of the Catholic and exclusion from holy communion for Catholic politicians who promote the right to abortion.
Appropos of Rob's posting today about religiously affiliated law schools, I thought I should point out that, contrary to what is suggested in the posting, Emory is not a religiously affiliated university, any more than, say, Northwestern is. (Hope no one's disappointed.) Of course, Emory, Northwestern, Princeton, etc., etc., etc. (as the King of Siam used to say), were all once religiously affiliated universities. But no more. Even Wake Forest University is no longer a Baptist-affiliated institution. Alas, I have never been on the faculty of a religiously-affiliated law school--even one, like Georgetown, whose religious affiliation is more nominal than substantial. None of them will have me.
Over the past few days, my friends at "Punishment Theory" have put up some interesting and detailed posts concerning the "torture memo." The posts might be of interest to Mirror of Justice readers, given that the discussions of intent, etc., seem to connect nicely with the conversation we've been having about the double-effect doctrine and capital punishment
Justice Thomas's opinion in Newdow (the Pledge case) is, in my view, the most interesting -- and, probably, the most candid -- of the bunch. In that opinion, he observed (among other things) that the Religion Clause's no-establishment provision seems to have been designed to (a) prevent the establishment of a national church; (b) prevent the federal government from interfering with the then-existing establishments in the States; and, more generally, (c) to leave questions of church-state relations to the States. He then went on to consider whether, even assuming that the no-establishment norm applies against the States, the state action at issue in Newdow constitutes an "establishment" of religion, as that term was originally (and is best) understood.
I've been surprised, frankly, by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked, for example, "[n]ow we know what it would be like to have Judge Roy Moore on the Supreme Court." Brian Leiter concludes that Justice Thomas has "solidif[ied[ his status on the lunatic fringe." And Doug Laycock states that Thomas's "is a pretty astonishing view. . . . He acts as though the Civil War didn't happen, or it didn't matter." (Full disclosure: I'm quoted in the same article, offering a different reaction).
Larry Solum has also weighed in, commenting on Marci Hamilton's take.
It strikes me, though, that Thomas's observations are not particularly astonishing, and certainly do nothing to put him on "the lunatic fringe." With respect to the "Establishment Clause as a federalism provision" point, I do not think he says anything that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, and many others have not also said. And, with all due respect to Professor Laycock, I'm not sure it is fair to conclude that, because Justice Thomas agrees with those who believe that the Establishment Clause is particularly, and perhaps uniquely, unsuited for incorporation via the 14th Amendment (but see, e.g., Kurt Lash), he is therefore unmindful of the (obvious) sweeping changes that the post-Civil War Amendments worked in the constitutional law of individual rights. (Recall, for example, his passionate concurrence in Zelman, the school-voucher case!).
Now, I'm inclined to think that, merits aside, the matter is water under the bridge, and that Justice Thomas's views on this question -- like his views on the scope of the Commerce Clause -- are not likely to become governing constitutional law. As our colleague Michael Perry likes to put it, the incorporation of the Establishment Clause has become "bedrock." Still, is there a reason why eminent constitutional law scholars should not concede that, with respect to the "incorporation" of the Establishment Clause, he is -- or, at least, MAY be -- correct?
Rick
UPDATE: Professor Brian Leiter has responded to this post, and to others on the same topic, here.
