Two items of interest ...

MOJ-readers may be interested in these two items from the December 16th issue of COMMONWEAL. The first is by Cathleen Kaveny, Professor of Law and Professor of Theology at Notre Dame.  The second is an editorial.

Letter vs. Spirit
Why the Constitution Needs Interpreting
Cathleen Kaveny

When discussing Supreme Court nominees, President George W. Bush has long repeated the mantra: he wants judges who “will strictly apply the Constitution and laws, not legislate from the bench.” Yet Bush’s mantra sets up a false dichotomy. Good judges do far more than apply the law; they also interpret it, that is, they give a specific meaning to a general legal term or phrase in the context of deciding a case. In so doing, they’re not “legislating from the bench”-they’re simply doing their job as judges. The real question isn’t whether a Supreme Court justice will interpret the Constitution; it is impossible to avoid doing so. The real question is how a justice will approach the task of constitutional interpretation.

For many people, the right approach is defined solely in terms of the outcome. If the main focus is getting rid of Roe v. Wade, one might argue as follows: In interpreting the Constitution, a justice should be bound by the text of the document and the intentions of the text’s framers. The Constitution does not mention, or explicitly protect, a right to privacy, let alone a right to abortion. Furthermore, the framers of the Constitution, and of the relevant constitutional amendments, certainly did not mean to legalize abortion. In fact, in nineteenth-century America, the practice of abortion violated the statutory or the common law of most states. Consequently, in articulating a constitutional right to privacy which includes a right to abortion, the Roe majority was engaged in an act of “raw judicial power.”

If you only care about prolife issues, then this approach to constitutional interpretation works just fine. If you think other issues are important too, you immediately run into difficulties. Consider racial segregation in public schools. Is it unconstitutional? The key text is the Fourteenth Amendment to the Constitution, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Bush’s mantra notwithstanding, we can’t simply “apply” the law. Interpretation is required. What counts as “equal protection”?

In 1896, in Plessy v. Ferguson, the Supreme Court held that “separate but equal” facilities, especially in the school system, do not run afoul of the Constitution. The argument, like the anti-Roe argument above, was based on the text of the document and the intent of the framers. According to the Plessy majority: “The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are likely to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.” Plessy was the law of the land for nearly fifty years. But in Brown v. Board of Education (1954), Chief Justice Earl Warren wrote that “in the field of public education the doctrine of ‘separate but equal’ has no place.”

What was the basis of this holding? Not the text of the Constitution, which says nothing about segregation. Not the intent of those who adopted the Fourteenth Amendment, whose views Warren maintains were at best “inconclusive.” Some wanted only to end slavery, others wanted to abolish every difference based on race. In any case, Warren contends, their intentions are not decisive: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the nation.” Key factors considered by the Brown Court were the increasing role that education plays in a successful life, and the demonstrated inferiority of racially segregated schools. But the most important factor was the moral insight that racial segregation in public schools could not be distinguished from a poisonous racism that cannot but infect the hearts and minds of schoolchildren, particularly black schoolchildren. “Separate educational facilities,” wrote Warren, “are inherently unequal.”

It is a mistake to build a theory of constitutional interpretation around just one case, especially a case as controversial as Roe. We have to ask how we should make sense of the “basic law” of our country today, which faces responsibilities and challenges the Founding Fathers could never have imagined. An approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate. The general approach of the Court in Brown, which assesses basic constitutional values in light of current political and social realities, seems better able to deal with the challenges of the twenty-first century, which may well include questions such as whether a highly intelligent human/animal hybrid counts as a “person” under the Constitution. Does adopting this general approach mean you can’t criticize Roe? Absolutely not. But it means that you criticize Roe not because it cast its interpretive net too widely, but because it did not cast its net widely enough. Roe rightly took into account new social insights about the full equality of women and the special burdens women face in carrying unwanted pregnancies to term. But in holding that the unborn are not legal “persons,” the Court failed to consider the dangers to democracy of separating “personhood” from humanity-a lesson that the holocausts of the twentieth century drove home to us again and again.
__________

EDITORIAL
Instruction from Rome

Writing about the Vatican takeover of the International Commission on English in the Liturgy (ICEL) from bishops’ conferences (“Lost in Translation,” December 2), John Wilkins offered the rule of thumb he used when editor of the Tablet of London. “If the curial congregations became concerned about an issue, it should always be assumed that they had good reason,” Wilkins wrote. “But the methods they used and their answers could be wrong.”

That is a rule worth keeping in mind in the wake of the Congregation for Catholic Education’s November 29 “Instruction” banning men with “deep-seated homosexual tendencies” from seminaries and ordination. Much ink has been spilled over what the phrase “deep-seated homosexual tendencies” means. Some Catholics, welcoming the document as a clarification of what “has always been taught,” argue that the meaning is plain: homosexuals, even if celibate, cannot be ordained. And even some defenders of ordaining gay men concede that the Vatican’s language is all too unambiguous. Several bishops and bishops’ conferences have interpreted the Instruction differently: “deep-seated tendencies” to act on same-sex attraction would bar a candidate from ordination, not a seminarian’s underlying sexual orientation. It is further noted by others that the Instruction is directed to seminary rectors and bishops, and that individual bishops will continue to determine who is to be ordained. Moreover, the document was issued by a Vatican congregation, not by the pope, thus diminishing its authority. Like most edicts from Rome, everything depends on how it is interpreted and implemented.

Closing the priesthood to gay men, an orientation the church recognizes as involuntary and blameless, would be an extreme and unjust step to take. Whatever the complications surrounding the presence of a significant number of gay men in the priesthood, solving the “problem” in this way makes little sense. If nothing else, it is sure to drive gay priests deeper into a clerical closet, with all the potential that entails for moral and psychological damage and eventual scandal.

Timothy Radcliffe, OP, the former head of the Dominicans, responded to the Instruction with great tact (Tablet, November 26). He argued that it “cannot be correct” that Rome is barring homosexuals from the priesthood, for the self-evident reason that “there are many excellent priests who are gay and who clearly have a vocation from God.” Radcliffe, like many others, was equally perplexed by the Vatican’s vague language regarding characteristics such as “spiritual fatherhood” and “affective maturity,” capacities the document suggests homosexual men cannot possess.

Radcliffe does his best to read the Instruction in a positive light, but his analysis may be too artful. The Vatican’s subsequent release of a letter calling for the removal of rectors and seminary faculty who are homosexual has provoked fears of a purge. If the logic of the initial document suggests that homosexuality is an absolute impediment to “affective maturity” and a “true sense of spiritual fatherhood,” then homosexuals who are already ordained, even bishops, must be similarly incapacitated. If that is the Vatican’s position, the implications are dire.

It is commonplace to note that the celibate priesthood has historically drawn a disproportionate number of homosexuals to its ranks. The reasons are complicated. Certainly, the priesthood is a refuge or closet for many. Doubtless, the all-male society and sense of solidarity exert an appeal. In addition, the life of a priest can provide a gay person with a purposeful sense of vocation and a kind of surrogate family, which might otherwise be denied him. None of these reasons represents ignoble desires, nor need they create insurmountable problems, as long as the rule of celibacy is observed.

This is not to say that having a large number of gay priests in a church that considers homosexuality “intrinsically disordered” and condemns every aspect of the modern homosexual self-understanding doesn’t present profound challenges (see Paul Stanosz, "Gay Seminarians"). At least in this regard, Rome’s concerns are not entirely misplaced. It is no secret that something went terribly wrong in U.S. seminaries in the late 1960s, the ’70s, and even into the ’80s. Both gay and straight priests as well as former seminarians acknowledge that, as many priests left to marry, the proportion of priests who were gay increased dramatically, and in some places, gay subcultures flourished. What role this breakdown in discipline and morality played in the sexual abuse of minors is not clear, but the idea that it played no role in a pattern of abuse in which 80 percent of the victims were male is untenable.

By the ’90s reform of the seminaries was underway. Celibacy is now clearly understood to be obligatory. In that light, celibate gay priests are speaking out, defending the integrity of their vocations. These priests see a ban on homosexuals as a way of scapegoating them for the sexual-abuse crisis, while ignoring the malfeasance of bishops and obscuring the fact that only a small number of priests, whether homosexual or not, were responsible for those crimes.

For better and worse, the profound contemporary shift in the moral assessment of homosexuality mirrors a much broader acceptance of the positive value of sexuality, one the church itself embraces in celebrating the “unitive,” not merely the procreative value of the “conjugal act.” Admittedly, recognizing the good of sex does not mean all sexual relationships are good. At the very least, however, most Catholics no longer consider homosexual love to be inherently “evil.” Moreover, the church’s credibility with respect to sexual morality has greatly eroded in the aftermath of the sexual-abuse crisis. In this context, barring homosexuals from the priesthood appears to be another pastoral failure at the highest levels of the hierarchy. Whether it is birth control, homosexuality, or the range of sexual contact permitted between spouses, church teaching offers little that speaks to the experience of the vast majority of faithful Catholics, who now insist that they know something about sexual morality that the church’s leadership needs to learn. No one expects the Vatican simply to amend the Catechism. Nor should it be assumed that popular contemporary understandings of sexuality are beyond question. Far from it. Still, some measure of humility and generosity from Rome when pronouncing on the intimate lives of others would help. To be heard, one needs to listen.

There is hardly a Catholic alive who doesn’t have a colleague, a neighbor, a friend, a relative, or a child who is gay. Like Humanae vitae, barring homosexuals from the priesthood would force many Catholics, both straight and gay, into internal or outright exile from the church. Much, indeed, depends on how this Instruction is interpreted in the years ahead.
_______________
mp