Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, March 11, 2010

Pope Benedict XVI on religious communities' freedom and "equality legislation"

Here are some interesting and timely remarks, shared by the Pope with the Bishops of England and Wales:

Your country is well known for its firm commitment to equality of opportunity for all members of society. Yet as you have rightly pointed out, the effect of some of the legislation designed to achieve this goal has been to impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs. In some respects it actually violates the natural law upon which the equality of all human beings is grounded and by which it is guaranteed. I urge you as pastors to ensure that the church's moral teaching be always presented in its entirety and convincingly defended. Fidelity to the Gospel in no way restricts the freedom of others – on the contrary, it serves their freedom by offering them the truth. Continue to insist upon your right to participate in national debate through respectful dialogue with other elements in society. In doing so, you are not only maintaining long-standing British traditions of freedom of expression and honest exchange of opinion, but you are actually giving voice to the convictions of many people who lack the means to express them: when so many of the population claim to be Christian, how could anyone dispute the Gospel's right to be heard? . . .

Read the whole thing.  Comments are open.

"Does Faith Trump Equality"

"When religions believe they must discriminate on grounds of sex, or gender, or of belief, what should the state do?"  Ugh.  Still, this way of framing the question is revealing -- "what should the state do?"  More here.

"Spiritual, not religious"

The youth (or, as Joe Pesci would put it, "the yutes") are, increasingly, "spiritual", not "religious."  Patrick Deneen suggests, though, that they might have it backwards:

Spirituality is another kind of reaction against “forms” – this time in the religious realm – but, as with these other kinds of “informalism,” exists in order to overthrow the strictures and limitations that “forms” demand. As Blow reports, one woman arrived at spiritual “peace” by taking a vacation to Costa Rica, where she was able to overcome the “moral strictures” of her youth. Spirituality becomes the means to liberation, even dissipation.

Tocqueville argued that democracy would need forms, though it would seek their evisceration. Forms are necessary especially because democracy needs to inculcate the capacity for self-government, and self-government is achieved through an habituation in self-discipline that the forms provide. In so many areas of life today, it is obvious that our problems derive from our incapacity for self-governance, in the formal discipline of self.

What we need today is not a generation that is “spiritual, not religious.” I would argue that what is needed is the studied capacity to be “religious, not spiritual.” Let’s make that the new buzz.

What Eugene McCarraher -- one of my favorite Catholic marxists! -- once wrote makes, to me, a lot of sense:

“I think of myself as religious but not spiritual. Partial to the sensuous, communal, and cerebral forms of ritual and text, I’ve always considered ‘spirituality’ too ethereal and invertebrate a way of being.”

An interesting new institutional-First-Amendment case

Here is the Ninth Circuit's decision in McDermott v. Ampersand Publishing.  The district court had ruled that "a significant risk of First Amendment violation" would arise if a newspaper was forced by the NLRB to reinstate employees that the newspaper had fired for certain union-related activities.  The Ninth Circuit agreed.  The court observed:

It is clear that the First Amendment erects a barrier against government interference with a newspaper’s exercise of editorial control over its content. . . .

The union organizing campaign arose in the wake of an xtended dispute between the News-Press management and newsroom employees regarding allegedly biased reporting and newspaper content. . . .

No matter how laudable the goals of the fired reporters in promoting the Union to, as the ALJ put it, “restore journalistic integrity,” the risk that granting an injunction will infringe the News-Press’s right to publish what it pleases is inescapable. . . .

This decision would seem to have interesting implications for the debate about the applicability of non-discrimination law and other general employment regulations to religious institutions. 

More on the Church's teaching authority, Arbp. Chaput, and Catholic schools

I have been hunting fresh snow beneath the ridges and among the trees in Jackson Hole, and so am late in coming to the ongoing discussion about Arbp. Chaput, same-sex unions, and Catholic schools’ admissions policies. 

It seems to me, for what it’s worth, that there are (at least) two separate, but related questions being debated and discussed.  The first is whether or not the Church has the authority -- given by Christ to Peter, the Apostles, and their successors -- to teach regarding faith and morals.  This is the question that Michael P. engaged, I think, when he asked:

The teachings of the magisterium, yes.  But the teachings of Jesus Christ?  I didn't realize that Jesus had anything to say about same-sex unions.  What Gospel passages am I overlooking?

My understanding is that, for Catholics, the content of the “teachings of Jesus Christ” – that is, the content of the revealed Word of God – is not exhausted by the reported sayings of Jesus that appear in the Gospels.  We have just as much reason, it seems to me, to believe that Jesus gave the Church teaching authority with respect to faith and morals as we do to believe that he in fact said what the Gospels report that he said.  (Michael’s view, I understand, is different.)

The second question is whether, all things considered, Arbp. Chaput’s decision is wise, prudent, just, and faithful.  For me, this question is not answered by asking whether the Archbishop would also exclude from Catholic schools the children of parents who practice contraception, who lie-cheat-and-steal, or do anything else immoral in their private lives.  No one thinks that Catholic schools should be open only to children whose parents lead sinless lives (thank God!).  But, would a Catholic school act wrongly if it were to exclude the children of parents who were publicly and notoriously involved in gravely wrong activities or campaigns?  Not necessarily (in my view).  So, this particular question about Arbp. Chaput's decision is, it seems to me, one of those “all things considered” kinds of questions.  I would think that a pastor and bishop may (and should) consider, among other things, the extent to which the enrollment and involvement of people (children and parents) in Catholic schools could undermine the schools' moral-formation efforts.  Is this such a case?  I'm not sure. 

Now, for Michael, the Archbishop’s decision is misguided because, at the end of the day, the Archbishop is wrong about the morality of same-sex unions and sexual activity -- the Church's teaching on these matters is false and contributes to injustice, in his view.  I agree with Michael that it would be strange to exclude the children of parents for doing or supporting X if X were morally unobjectionable.  But if what the parents are doing were morally objectionable, and it would create, in the Archbishop’s best judgment, a scandal – it would send the wrong message -- to enroll the children in Catholic schools, then I see no principled reason why the Archbishop could not, as part of his vocation and obligation, take these facts into account when deciding whether or not to admit those parents’ children to a Catholic school.

I would welcome others' reactions to this last sentence.  Comments (civil, germane, and charitable ones, that is) are welcome.

On magisterial infallibility and same-sex unions

I appreciate the care with which Robby has articulated the issues in his post below.

Robby tells us, in his post, what he understands the magisterium to say about its own teaching authority and about same-sex unions.  He also tells us what he understands to be the status of what the magisterium says about same-sex unions, if not what he understands the magisterium to say about the status of what it says about same-sex unions.

The focus of my dispute is not what Robby understands the magisterium to say about its own teaching authority or about same-sex unions.  (Nor is my focus what Robby understands to be the status of what the magisterium says about same-sex unions.)  Rather, the focus of my dispute is what the magisterium says about those two topics:  I dispute what the magisterium says not only about same-sex unions but also, and more fundamentally, about its own teaching authority.  Why?  See Hans Kung, Infallible?  An Unresolved Enquiry.  For fuller theological and historical context, see Hans Kung, My Struggle for Freedom:  Memoirs; Hans Kung, Disputed Truth:  Memoirs Volume 2.  See also Charles Curran, Loyal Dissent:  Memoirs of a Catholic Theologian.

Let's return to where this particular to-and-fro began.

Archbishop Chaput believes that the magisterium's teaching about contraception and its related teaching about same-sex unions are "teachings of Jesus Christ".  Like many other Catholics, and many other Christians, I believe that those teachings are false teachings.  I believe that the magisterium's teaching about same-sex unions is not only a false teaching but, worse, a false teaching that helps to underwrite an unjust political-legal situation.  So you can understand why I, like many other Catholics and many other Christians, viscerally recoil from the notion that the magisterium's teaching about same-sex unions is a "teaching of Jesus Christ".

In any event, we now understand that Archbishop Chaput was not speaking literally when he said that the magisterium's teaching about same-sex unions is a "teaching of Jesus Christ".  He was speaking theologically (for want of a better term):  "We, the Magisterium of the Roman Catholic Church, speak for Jesus Christ; at least, we do when we say we do.  In that sense, and not in any literal sense, if we teach X about same-sex unions, and we say, implicitly if not explicitly, that we teach X infallibly, then Jesus teaches X about same-sex unions."    

Wednesday, March 10, 2010

More on the teachings of the magisterium and the teachings of Christ

We need to be precise about the propositions being asserted, so that readers can assess the competing arguments and decide where they believe the truth lies.

Archbishop Chaput, I believe, asserts two propositions,

(1) the validity of the teaching confirmed in Lumen Gentium 25 concerning the conditions under which the ordinary and universal magisterium proposes a teaching on faith and morals infallibly, thus demanding the full assent of faith.  ("Although the bishops, taken individually, do not enjoy the privilege of infallibility, they do proclaim infallibly the doctrine of Christ on the following conditions: namely, when, even though dispersed throughout the world but preserving for all that amongst themselves and with Peter's successor the bond of communion, in their authoritative teaching concerning matters of faith and morals, they are in agreement that a particular teaching is to be held definitively."  Lumen Gentium 25.)

(2) that the teaching that homosexual conduct is intrinsically immoral has been proposed by the ordinary and universal magisterium in a way that fulfills the conditions for infallibility set forth in Lumen Gentium 25, thus demanding the full assent of faith.

Notice that Archbishop Chaput is not asserting that the teachings of the magisterium are necessarily the teachings of Christ.  Only those demanding the full assent of faith are necessarily the teachings of Christ.  Others may be the teaching of Christ, and may even require religious assent of intellect and will despite the possibility that they are not the teaching of Christ.  That, too, is the clear teaching of the Second Vatican Council in Lumen Gentium.

Both of Archbishop Chaput's propositions seem sound to me.  The first one strikes me as simply undeniable from a Catholic point of view.  It is the historic teaching of the Church, frequently confirmed by ecumenical councils, and very explicitly reaffirmed by the extraordinary magisterium at Vatican II.  Some may deny the second proposition, but I very seriously doubt whether a persuasive historical case can be made against it. The teaching is ancient as well as consistent across time and space. If any teaching fulfills the conditions set forth in Lumen Gentium 25, this one pretty clearly does.

If we are precise about what is (and is not) being asserted, it's clear that this is not a debate about whether doctrine ever develops; nor is it a dispute about whether everything that comes from Rome has been authorized by God; nor is it a dispute about whether the non-infallible teachings of the Church (whatever level of assent they demand) are, well, fallible.  Rather, the questions are: (1) Does Lumen Gentium 25 reliably transmit and confirm sound Catholic doctrine, and (2) Does the teaching of the magisterium on the immorality of homosexual conduct fulfill the conditions set forth in Lumen Gentium 25 for a teaching demanding the full assent of faith (i.e., an infallible teaching)?    

L'Affaire Chaput, con't

This is lifted from dotCommonweal.  To see the comments on the post, click here.

Archbishop Chaput: no Catholic education for the children of gay couples.

Posted by Grant Gallicho [associate editor of Commonweal]

As blogged by Paul Moses here, a Catholic school in Boulder, Colorado, has told a lesbian couple that their children cannot re-enroll next year. Yesterday, in a column posted to the Web site of the Archdiocese of Denver, Archbishop Charles Chaput tried to explain that decision.

First, Archbishop Chaput says that the children–one in preschool and the other in kindergarten–are not being sent packing immediately. They’ve been invited not to return next year. So there’s that. And: “the policy applies to all Archdiocese of Denver schools.” Now we know: the children of same-sex couples are not welcome in schools run by the Archdiocese of Denver.

Then, after a brief detour into the history of Catholic education and a reminder of the fact that Catholic parents “pay twice” to educate their children in Catholic schools (presumably the archbishop recognizes that all parents who send their kids to private school “pay twice”), Chaput acknowledges that Catholic schools admit the children of divorced parents (even non-Catholics). “These students are always welcome so long as their parents support the Catholic mission of the school and do not offer a serious counter-witness to that mission in their actions.” The archbishop does not explain how he or his Catholic-school administrators are supposed to verify that their students’ parents are tilting the right end of the scale. He continues: “The idea that Catholic schools should require support for Catholic teaching for admission and a serious effort from school families to live their Catholic identity faithfully, is reasonable and just.” Again, he does not define “serious effort.”

The Church never looks for reasons to turn anyone away from a Catholic education.  But the Church can’t change her moral beliefs without undermining her mission and failing to serve the many families who believe in that mission.  If Catholics take their faith seriously, they naturally follow the teachings of the Church in matters of faith and morals; otherwise they take themselves outside the believing community.

No one is confused about church teaching on marriage. (Some Catholics may, however, be lost as to why the seriousness with which they take their faith doesn’t always naturally lead to morally pure behavior.) What many Catholics find perplexing is the way some bishops translate that teaching into policy positions–both internal and external to the church.

Chaput acknowledges that the church does not teach that gays and lesbians are “bad,” or that “their children are less loved by God. Quite the opposite.” (More loved by God?) But the church does teach against divorce and against sex outside of marriage. “The Church cannot change these teachings because, in the faith of Catholics, they are the teachings of Jesus Christ.” A curious observation, given that no one has reported that the parents of these kids had been lobbying the church to change its teachings.

Finally, Archbishop Chaput argues that this policy is really for everyone’s own good–parents and students alike. If parents don’t respect the beliefs of the church, or live in open rejection of them, he writes, they don’t have a place in the Catholic school system. After all, how can Catholic schools fully teach the faith ”if teachers need to worry about wounding the feelings of their students or about alienating students from their parents”?

This is about more than hurt feelings of course. This is about the nature of the church’s educational mission. If the Archbishop of Denver truly believes that the children of parents who fail to adequately support church teaching cannot be educated at Catholic schools, then he has more explaining to do. To the children of parents who  are divorced and remarried (without going through the annulment process–at which point the church needs to explain that process to the children of annulled marriages). To the children of parents who practice and even recommend birth control. To the children of non-Catholic parents–especially those who do not support the central dogmas of Catholicism, such as, say, the Incarnation. Is there no place in Catholic education for the children of those kinds of parents? Or is there no place for the children of gay couples? And if so, why doesn’t the archbishop want such children to encounter the truths of Catholic teaching? If it’s merely to avoid upsetting the children of straight, non-divorced, non-contracepting, non-racist, anti-torture, pro-life parents, then I’m afraid he’ll have to do better.



How should a Catholic react to the new national education standards?

It looks like we're going to have national education standards soon, as 48 states have come together, along with the Obama Administration, to support standards laying out what students should be learning year by year, from kindergarten through high school, in math and English. 

It's probably not too tough to guess the two holdout states: Alaska and Texas.  Texas Gov. Rick Perry explained that only Texans should decide what their children learn.  (In reality, I think Texans have a big role in deciding what all American children learn, but that's another issue.)

So how should fans of subsidiarity respond to the new standards?  It's reassuring that states seem to be taking the lead on this, and it will be up to the states to decide whether to adopt the standards.  More broadly, is there any harm in adopting a "best practices" model to ensure that all Americans are equipped with the skills necessary to thrive in an increasingly competitive and connected world?  Or is the danger related more to the trend that this represents -- i.e., if we can have national math and English standards, maybe we should have national standards on social studies, civics, service learning, sex ed, etc.  In other words, are the Texans just being Texans, or are they wise to stay on the sidelines?  

A question about Archbishop Chaput and the Denver Archdiocese

"In his written statement Tuesday, Chaput said the parents of Catholic school students are expected to agree with church beliefs, including those forbidding sex between anyone other than married, heterosexual couples."

"Church beliefs"?  Let's assume Archbishop Chaput is talking about the magisterium's *moral* beliefs.

"Catholic school students"?  Let's assume that non-Catholic students too will be excluded if they are living with a parent who is a member of a same-sex couple.  

Again,does anyone know whether Archbishop Chaput intends to exclude children living with a parent who practices contraception (or at least is willing to admit to it on an application)?  Children living with a parent who is divorced and remarried?  And so on.  Or just children living with a parent who is a member of a same-sex couple?  What's the archbishop's criterion?

Does anyone know whether there is another bishop in the country--or outside it--who has adopted, or is inclined to adopt, this policy?