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.

Wednesday, July 4, 2012

A Reflection on Freedom

By Robert John Araujo, SJ

 

Today we in the United States celebrate our national day and observe the completion and proclamation of the Declaration of Independence. It is a day in which we announce publicly and reflect personally upon the self-evident truths about the nature and dignity of the human person. While the document is a part of our national heritage, it asserts several principles that are immutable about everyone everywhere by relying on the Laws of Nature and Nature’s God which lead any person to acknowledge that in fundamental ways all persons are made equal by their Creator, God who (not the state, not some political party or organization, not some other human power) bestows the human person with particular unalienable rights. Virtually every person is gifted with the capacity to rely on his or her intelligence to comprehend and appropriate the intelligible reality where these rights become evident and their meaning becomes comprehendible.

This does not mean that everyone is equal in every way, nor does it mean that everything every person wants to do is equal in merit or truth with whatever else anyone elsewhere wants to do. It does mean, however, that each of us possesses in his or her own uniqueness a commonality with everyone else which everyone has the capacity to understand as I have already presented. This is what we celebrate and upon which we reflect today. In a national context, we further deliberate how our forbearers considered certain actions by others to be abuses and usurpations of claims to authority and exercises of power. They discovered the self-evident truths and would remain silent and inactive no longer about how these truths had been discarded by the state.

Today we hear a great deal about freedom in the context of our nation’s governance once again. In the setting of our Catholic faith, the Catholic bishops have declared that in the present age there remain problems with the exercise of civil power that threatens that which is fundamentally the possession of the person and not the state—religious freedom, the first liberty that is a self-evident truth. As we celebrate our national day and proclaim freedom, I want to offer these few thoughts about the meaning of religious liberty that is true for the believer as it is true for the one who is not.

 The first point to remember about this freedom is that it is a natural right and because of this its existence comes from no earthly power, and its exercise is not a license (as the infamous Casey dicta describes liberty) but a responsibility as it is the common property of each member of the human family. Responsibility implies a distinction between the ought and the want.

Freedom, moreover, has two components—the from and the for. The Declaration of Independence in a temporal fashion explains this, and the Declaration of Religious Freedom of the Second Vatican Council does the same in the spiritual. Both explanations, when faithful to their essence, focus on the existence of truth versus falsehood. This is the freedom for something. Both demonstrate an antipathy to coercion. This is the freedom from something. The human person once again has been gifted with the fundamental capacity to comprehend these points.

There are those in the Church, our nation, and the world who also claim the necessity for freedom. I do not think that all of them have a proper understanding of this God-given gift, though, for often times their conception of freedom is whatever will satisfy the want for the self or the like-minded. This self and the group of like-minded enter alliances with those other persons who hold on to this same conception of freedom which is characterized by subjectivism and zealously protected by the will that has little or no virtue. What sustains this alliance is the concurrence to let each person decide for one’s self what is right and what is wrong and to not interfere with these decisions. This leads to the perilous course of freedom’s application about which John Courtney Murray warned a half century ago. However, when a different voice about freedom is raised and introduced into the public square, this alliance perceives a threat and reacts in ways seeking the silence of this alternative voice—the voice of authentic religious freedom.

This is the state of affairs today and why many bishops and other Catholics are participating in the Fortnight of Freedom. The soul which motivates this expression of freedom for the Church and her members is kin to the one that animated those who signed and proclaimed the Declaration of 1776. This is something worth acknowledging, celebrating, and protecting for the present moment and for our posterity.

Pope Paul VI highlighted this in one of his allocutions at the conclusion of the Second Vatican Council when he asked the temporal authorities of the world this rhetorical question which he also answered,

What does the Church ask of you today? … She asks of you only liberty, the liberty to believe and to preach her faith, the freedom to love her God and serve Him, the freedom to live and to bring to men her message of life. Do not fear her. She is made after the image of her Master, whose mysterious action does not interfere with your prerogatives but heals everything human of its fatal weakness, transfigures it and fills it with hope, truth and beauty. Allow Christ to exercise His purifying action on society. Do not crucify Him anew. This would be a sacrilege for He is the Son of God. This would be suicide for He is the Son of man. And we, His humble ministers, allow us to spread everywhere without hindrance the Gospel of peace on which we have meditated during this council. Of it, your peoples will be the first beneficiaries, since the Church forms for you loyal citizens, friends of social peace and progress.

A blessed Independence (and interdependence) Day to one and all.

 

RJA sj

 

Thursday, June 28, 2012

Justice Ginsburg (and Justices Sotomayor, Breyer, and Kagan) on the Affordable Health-care Act

By Robert John Araujo, SJ

 

Today’s Supreme Court decision in National Federation of Independent Business v. Sebelius, etc. will be the subject of much discussion and debate for years to come. As we at the Mirror of Justice focus on many important issues that concentrate on the intersection of law and religion, the following observation of Justice Ginsburg and her colleagues in their partial concurrence and dissent might suggest that the debate and probably the litigation involving the legality of this legislation will continue for some time to come. As she says about the provisions of the Constitution that exist to check Congressional overreaching:

A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

While all of these topics identified by Justice Ginsburg are of vital concern, the one addressing interference with the free exercise of religion should be of particular interest to the contributors and readers of the Mirror of Justice. It may be too early to address with particularity how the concern shared by these Justices on “Congressional overreaching” will play out, but it would appear that this subject which Justice Ginsburg, and those who agree with her, has identified may well be in the courts in the not-too-distant future.

 

RJA sj

 

 

Thursday, June 21, 2012

What’s Truth Got to Do with It?

By Robert John Araujo, SJ

 

This past Monday, June 18, The Guardian [here] published Professor Lisa Sowle Cahill’s defense of Sister Margaret Farley, R.S.M. and her book Just Love—A Framework for Christian Sexual Ethics. Our friend and fellow MOJ contributor, Michael Scaperlanda [here], recently commented about Sister Farley’s receipt of the notification of the Congregation for the Doctrine of the Faith regarding this book. [here] Professor Cahill, who teaches theology at Boston College, suggests that the Church has directed a “misguided attack” on Farley’s theology; moreover, the “misguided attack” is “not only authoritarian” but is also “out of touch with American Catholic opinion.”

I think that a robust and truthful exchange in the academy, the public square, and the media is a good thing; moreover, these exchanges are an important part of American culture, political institutions, and the law. I also realize that whenever one speaks in the public square, he or she may think the position being advanced is an accurate presentation and truthful statement of the position asserted. In the context of Vatican dicasteries, media presentations, and authors’ perspectives, the truth of the matter is surely of critical concern to informing the public opinion on matters of importance to the res publica and the common good.

Along with many others, I agree that the matters surrounding Sister Farley’s book and the notification she received are of vital concern to Catholics and the public at large. However, I do not think that Professor Cahill’s presentation of the CDF Notification of Sister Farley’s book is an accurate one. A truthful presentation of critical facts surrounding this important matter is absent from her article that is intended to influence and has likely influenced a large readership. In the law: the truth, the whole truth, and nothing but the truth—so help us, God—is something with which the contributors of the Mirror of Justice, Catholics, and the American public in general are familiar. So, what is the basis of my objections to Professor Cahill? Put simply, what is true and what is not about l’affaire Farley presented by Professor Cahill?

In the first place, Professor Cahill begins with an assertion that the notification of Sister Farley’s book is the “latest instance of the Vatican’s censure of American nuns.” There is no censure, to my knowledge, as she characterizes it. Rather there is a doctrinal assessment [here] of the Leadership Conference of Women Religious. The truth of the matter demonstrates that the assessment “acknowledges with gratitude the great contribution of women Religious to the Church in the United States.” To allege and argue that there is an ongoing series of Vatican censures of American nuns is not the truth. What is the truth of the matter, as the doctrinal assessment states, is what the LCWR has done, not what American nuns have done. This is a crucial distinction not found in the Cahill position. It is the words and deeds of the LCWR that are the grounds for the assessment—and as I have argued before, not the actions of all the sisters who belong to the congregations and institutes which are members of the LCWR. This important element of the truth is glossed over by Professor Cahill and many media reports which have discussed the doctrinal assessment.

Second, on several occasions Professor Cahill chastises Rome for being out of touch with “modern US Catholic mainstream.” What constitutes this body of persons and how any study was conducted in the context of Sister Farley’s book are not explained. In the hypothetical, if a majority of Catholics were in favor of military interventions against the Baathist regime or Osama bin Laden, how would Professor Cahill express her nuanced positions? And if Amazon and New York Times sales are an indicator of Professor Farley’s status, are the purchases of her book evidence for agreement with her positions or are they evidence of the fact that readers are interested in the sensational? Perhaps both? Perhaps the sensational? For example, other notable best seller lists of recent decades indicate increased sales for books, sometimes sensational, by: Glen Beck, Mark Rubio, Bill O’Reilly, Colin Powell, Ron Paul, Ronald Reagan, Sean Hannity, Ann Coulter, and going back a little more, Richard Nixon. What do the increases in sales of works by these authors indicate about the acceptance of the positions of the authors? Professor Cahill more than suggests that there is a connection between the positions Sister Farley advances in Just Love and reader support when she asserts that recent book-sale “statistics tell the truth.” I, however, disagree. The increase in sales of this book indicate there is public interest, but the nature of why the public is interested cannot be determined by Farley's popularity or, for that matter, Richard Nixon's.

I agree with Professor Cahill that Sister Farley emphasizes the role of personal (or “lived”) experience in Just Love over the Catholic tradition of natural law reasoning. But I do not share Professor Cahill’s apparent agreement with Sister Farley that lived experience trumps the objective formulation of norms and moral precepts based on reliance on the natural law. In the context of sexual morality, Professor Cahill, and by Cahill’s implication Sister Farley, misstate that the Catholic tradition can be relied upon to justify the position that “any truly loving relationship will meet the test of justice” which can then be supported and endorsed by the Church. I have read Sister Farley’s book Just Love, and I do not agree with Professor Cahill that the Farley definition of justice is a correct one given the context of sexual mores, i.e., what is right and what is wrong in consenting sexual activity. Furthermore, I must disagree with Cahill that the subjective standards upon which these two individuals rely is not the tradition of the Catholic Church. The CDF appears to agree with my last statement.

A third important point about the Cahill article needs to be addressed here. Professor Cahill indicates that “the condemnation of [Farley’s] book was predetermined and the investigation [of Just Love] a mere formality.” However, this contention is refuted not only by the CDF but by Sister Farley as well. Looking at the CDF’s refutation, the CDF concerns about Just Love were made known to the author several years ago; consequently, in March of 2010, the CDF wrote the author seeking clarification of the positions expressed in the book. Sister Farley responded in October of 2010, but the CDF found her responses insufficient. But the discussion did not stop here. The discourse among the CDF, Sister Farley, and the sister’s religious superiors continued into 2011. From Sister’s Farley’s viewpoint, none of this extended engagement is denied; moreover, Sister Farley expressed her appreciation of the efforts made by the CDF and its consultors over several years to evaluate her positions as presented in Just Love. From this evidence, the conclusion that “the condemnation…was predetermined” and “the investigation a mere formality” are unwarranted. Sister Farley does allege that the CDF’s Notification did not consider the arguments for her positions. Yet, considering the dialogue that took place between her and the CDF, it does appear that the CDF did consider them. What the CDF did not do was to accept Farley’s justifications as the truth of the matters asserted. As with all due process, arguments and evidence must be heard, but this does not lead to the inevitable conclusion that they must be accepted. In this case, the arguments and evidence submitted by Sister Farley, while considered, were deemed insufficient to convince the CDF.

More can and should be said about Professor Cahill’s Guardian article, but this is enough for one day.

 

RJA sj

 

 

Saturday, June 9, 2012

Catholic Identity Once Again

By Robert John Araujo, SJ

 

As the Mirror of Justice is a web log dedicated to the development of Catholic legal theory, it is probably a good idea to take stock of what being Catholic means from time to time. As a contributor to this page for seven years, I am confident that my fellow contributors and I consider the meaning of Catholic identity on a regular basis. This does not mean that we always agree on every point, but for the most part we are united in the central role this identity must exercise in our common enterprise.

Of course, not everyone who uses the term Catholic always does the same. For instance, I just read an interesting essay by Joe Orso dated June 8, 2012 entitled “Power of the dying hierarchy is an illusion” in the National Catholic Reporter (online) HERE. This title suggests that the bishops may be a breed on the verge of extinction. The title also indicates that, notwithstanding the gist of the first assertion, the authority the bishops wield is not. Mr. Orso has some intriguing notions about what it means to be Catholic. He uses the template of the visitation and doctrinal assessment of the Leadership Conference of Women Religious and the report of the Congregation for the Doctrine of the Faith to argue his case. The tenor of his article pits the “nuns” and faithful Catholics against the hierarchy. This “we versus them” mentality is not apt for explaining what is the Church, her essence, or her nature. By way of short digression, there is nothing in Mr. Orso’s essay to suggest that it may very well have been women religious themselves who asked for the visitation and doctrinal assessment. I think this not only possible but probable. The explanation of the visitation and doctrinal assessment that it is the Vatican and bishops versus the poor nuns is inept and erroneous. A reading of the CDF report, moreover, is clear in its respect for the work of women religious in the United States. It is also clear that there are problems within the leadership of this particular conference.

Mr. Orso quotes an unnamed sister who claims that the Eucharist “will live only if we find a way for it to live outside of the Mass.” Who the “we” are in this contention is not clear. This is a strange appeal to make. He then offers the remark of another anonymous woman religious who contends that, “the hierarchy is like a dying dragon, breathing fire on those around it as it flails through its final collapse. But don’t worry… it is dying and someday something else will resurrect.” The author then expresses his agreement with both statements. In his estimation, the “Vatican” used “bad manners,” relied on “hypocrisy,” but he expects “such behavior.” His critique continues by declaring the hierarchy is “like a senile old man, babbling, impotent and chastising anyone within earshot.” Elsewhere, he describes the hierarchy as a “fading ghost.” They are, he concludes, “disappearing beneath [their] own silliness.” In addition, he insists that their actions are “absurd.” The hierarchy does not understand the pressing issues of the day such as “ecological balance” and “biodiversity.”

Two quick comments are needed at this point. The first is that, with regard to his concerns about the environment, Mr. Orso might wish to read this, this, this, and this along with NN. 166, 180, 299, 319, 340, 345, 359, 360, 458, 461, 465, 466, 467, 472, 473, and 486 of the Compendium of the Social Doctrine of the Church for starters. The second is this: is it really the hierarchy who is dying? They seem to be doing well going about God’s and the Church’s business in a world that is not always welcoming of evangelization. Many of them know that much of the world is hostile to the Gospel, but most of them don’t seem to be deterred by that. There is good news, too, about the rapid growth of women religious in the congregations affiliated with the Council of Major Superiors of Women Religious. It is, when all is said, the congregations affiliated with the LCWR that seem to be in difficulty not only with “the hierarchy,” but also with the future and survival. This is something that Mr. Orso and many others who are criticizing the visitation and doctrinal assessment avoid discussing.

Elsewhere he declares that he has “shed the institutional Mass as a weekly practice.” While others may not consider him a Catholic, he identifies as Catholic and his “strongest experience of Catholicism has been with the good sisters and those who gather around them.”

I hope that I can help those who are attracted to Catholicism to better understand what it is and what it is not about in the context of who and what the Church is. I would recommend them to read the Dogmatic Constitution on the Church, Lumen Gentium, and the complementary texts on the bishops, priests, laity, and members of religious and consecrated life formulated by the Second Vatican Council.

In a nutshell, the Church—Catholicism—is this:

Lumen Gentium, without doubt, is the foundational text of the Council. Among all the documents issued, it establishes the framework for explaining the Church and who she is. In particular it is the following sections of the Dogmatic Constitution that are vital to my response to Mr. Orso: (1) the people of God; (2) the hierarchical structure of the Church, with special reference to the bishops and priests as their collaborators; (3) the laity; and (4) persons in religious life.

Chapter II of the Dogmatic Constitution discusses the Church as the People of God. While God, throughout human history and across all races, loves those who fear Him and do what is right and avoid what is wrong, His salvation is directed both to individuals and to the body of them as one people—a body that acknowledges God truth and serves Him in holiness. The covenant with God, ratified in Christ, brings together Jew (old) and gentile (new) in one Spirit. This unification by covenant is the People of God (N. 9). An area that has been a source of confusion for many is the concept of priesthood that intersects the People of God. Mr. Orso might find this treatment illuminating.

Chapter III of the Dogmatic Constitution discusses the hierarchical structure of the Church and the special emphasis on the bishops. Understanding the structure that is crucial to the nature of the Church proceeds from recognition of “the variety of ministries” that exists within Her to which allusion has already been made. This is a point often overlooked by those, like Mr. Orso, who are critical of the Church as a hierarchical institution. The Council acknowledged that the Church’s bishops are the successors of the Apostles and, therefore, are the shepherds of the Church. (N. 18) Their vital unifying force is the Roman Pontiff, the successor of Peter, the permanent and visible source and foundation of the unity of faith and communion. The pope is fortified in his office by the teachings of the Church, the perpetuity of the institution, the meaning and reasoning of the primacy of his office, and the infallible magisterium. (N. 18) As the Council Fathers stated, “this Council is resolved to declare and proclaim before all men the doctrine concerning bishops, the successors of the apostles, who together with the successor of Peter, the Vicar of Christ, the visible Head of the whole Church, govern the house of the living God.” (N. 18)

Bishops must be always mindful of the fact that, fortified by the Holy Spirit, they have been given great responsibilities rather than privileges. The bishops, in order to complete the tasks of their ministry, have the clear authority and office of teaching within and governance of the Church that “can be exercised only in hierarchical communion with the head and the members of the college.” (N. 21) Thus, if there is no communion with the pope, the authority of teaching and governance is lacking. As the Council acknowledged, “the college or body of bishops has no authority unless it is understood together with the Roman Pontiff, the successor of Peter as its head. The pope’s power of primacy over all, both pastors and faithful, remains whole and intact. In virtue of his office, i.e., as Vicar of Christ and pastor of the whole Church, the Roman Pontiff has full, supreme and universal power over the Church. And he is always free to exercise this power.” (N. 22) In essence, the bishops remain subject to the supreme power of the pope who is entrusted with the authority of Peter over the universal Church. While the bishops are leaders of the local flocks, the pope is shepherd of the entire flock—for he, Peter, expresses the unity of the flock in and of Christ. (N. 21)

As I have already implied, hierarchy does not mean or necessitate entitlement to perks for the office of bishop is not a conferral of privilege or prerogative but is a commission for service with the authority of an Apostle—that is diakonia or ministry. (N. 24) Inherent in these responsibilities is the further duty to combat errors that may or do threaten the souls entrusted to their care. In the twenty-first century we witness on several fronts—clerical, religious, and laity—sources of error which become the responsibility of bishops to address with charity, wisdom, and authority. This is a point that has particular application to the issues raised by Mr. Orso. Here, a critical passage of Lumen Gentium must be considered: “In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent. This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff, even when he is not speaking ex cathedra; that is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will. His mind and will in the matter may be known either from the character of the documents, from his frequent repetition of the same doctrine, or from his manner of speaking.” (N. 25)

Every legitimate celebration of the Eucharist is under the tutelage of the local bishop. (N. 26) I don’t think Mr. Orso shares this principle. While the authority of bishops is extensive and relates to the office of the Roman Pontiff, their exercise of authority is not in their name but in that of Christ. While the pope is the Vicar of Christ, bishops are not the vicar of the Roman Pontiff because they exercise their authority that is proper to them as holders of a particular office in the hierarchical Church. (N. 27)

The Council’s explanation of priesthood states that, “Though they differ from one another in essence and not only in degree, the common priesthood of the faithful and the ministerial or hierarchical priesthood are nonetheless interrelated: each of them in its own special way is a participation in the one priesthood of Christ.” (N. 10) Importantly, the ministerial priest, i.e., a member of the presbyteral order, by operation of his “sacred power,” has a specific role to teach and rule the priestly people as he acts in the person of Christ. (N. 10) The priesthood of faithful laity, on the other hand, exits in their joining in the offering of the Eucharist and by their participation in the Church’s sacramental life and prayer. (N. 10) Mr. Orso has stated that he has removed himself from the “institutional Mass” but pines for the Eucharist. To have the latter, he needs the former.

In addition, the lay faithful have active responsibilities, too, particularly in the temporal order of the world. Mr. Orso doesn’t say much about this. The laity have a responsibility, as branches engrafted on the vine of Christ, to spread and defend the faith by word and deed as “true witnesses of Christ.” (N. 11) While there are differences, there is also a unity in the different roles attributed to the nature of those in the presbyterate and those in the laity through Holy Communion in the Body of Christ. Again, the inextricable connection between Mass and the Eucharist is clear.

The universal dimension of the People of God must never be forgotten. Regardless of the nation of which one is a member, the universality “which adorns the people of God” exists to bring all members of the human family back to its source and head who is Christ. (N. 13) This fact demonstrates the “catholicity” of the Church. This universality consists of different ranks based either on the duties of individuals such as “sacred ministry” or on one’s condition and state of life such as family or religious life. Another important point about the “particular Churches” is that while they may have their own traditions, they must not oppose the primacy of the Chair of Peter. (N. 13) This is something which critics of the “hierarchy” must consider. The pope has a crucial role that must be exercised in the Church’s true nature.

The Church, through all of its members, has been given the responsibility to go out to the world and preach the Good News. (N. 17) In doing so, she must assist those who may otherwise be prone to falling into doctrinal error. This is a problem with and for the LCWR. However, these are the obligations of every disciple who follows Christ. (N. 17) Here the Council Fathers saw need to explicate the specific duties of the various members of the Church taking stock of her “hierarchical structure.” But it is this very structure that is the cause of problems for Mr. Orso and perhaps not a few others. His concentration is on the “good sisters.” So let’s spend some time considering what the Church asks of and gives to the religious.

Chapter VI of Lumen Gentium begins by concentrating on the evangelical counsels of poverty, chastity, and obedience that have long been the cornerstone of religious life in the Church. The faithful are reminded that the counsels are not a burden but a gift from God and afford the stable foundation for religious life in men’s and women’s communities. (N. 43) As a member of one religious institute, I, too, need to ponder the significance of this point intentionally when I find temptations that lure me away from the life to which I and many others have committed ourselves. Moreover, the counsels provide the structure for vigorous apostolic and contemplative life that serves the welfare of the entire Body of Christ, the Church.

The Council fathers were clear that religious life is not some middle ground or hybrid entity between lay and clerical life; rather, it draws from both of these groups to serve as witness of the gift of the evangelical counsels in the prayer and work of the Church and by a special bond to God. (N. 43) In short, the life of the evangelical counsels consecrates the person fully in service to and for the welfare of the Church and God’s people. (N. 44) The use of the coordinating conjunction “and” is crucial.

Today there is much evidence that some members of religious institutes by word and deed distance themselves and their activities from the competent ecclesiastical authorities. This seems to be the reason why the visitation and doctrinal assessment were called for. The Council fathers emphasized that it is the proper duty of the ecclesiastical hierarchy to regulate the practice of the evangelical counsels and those who profess vows or similar pledges to them. (N. 45) Neither Mr. Orso or other defenders of the LCWR appear to take stock of this. While the rules of the religious institutes are presented to the hierarchy, the latter have the solemn responsibility and authority to approve and adjust them. (N. 45) In this way, the competent ecclesiastical authorities have the further obligation to insure that the religious institutes remain faithful to the plan of the orders’ founders. This element is, I contend, a major concern in the visitation and doctrinal assessment.

Members of the religious institutes are also obliged to “show reverence and obedience to bishops” because of the latter’s pastoral authority in the local churches where the religious institutes work and pray for the “need for unity and harmony in the apostolate.” (N. 45) It is relevant to note that the Council saw religious institutes not as a parallel ecclesiastical structure but as an element of the one universal Church for the members of these institutes are called to a life to assist in the “increased holiness of the Church, for the greater glory of the one and undivided Trinity, which in and through Christ is the fount and the source of all holiness.” (N. 47) Complementing these fundamental principles is the Decree on Religious Life.

This decree acknowledges how the Church profits from the diversity of experiences, charisms, and talents which each of the religious institutes and communities presents to the People of God. (N. 1) For these gifts to flourish within the Church, it is essential that the wide variety of communities of men and women religious remain faithful to the original spirit of their institutes as appropriately adapted to the “changed conditions” of the modern world. (N. 2)

While the Council urged renewal of religious institutes that would include abandoning out-dated laws and customs (N. 3), it was also noted that the approval of the Holy See to this process was essential. (N. 4) I think that this is an element of the charge given to Archbishop Sartain as he begins his work with the LCWR. Renewal does not mean compromising the faith and the moral life that must accompany the faith. Daily prayer and the Eucharist are essential to the vitality of religious life as they cultivate a stronger bond with the universal Church’s mission. (N. 6) Mr. Orso appears to have some difficulty with this.

So, this is a little bit about the nature of the Church and Catholicism of which all of us who are interested in Catholicism or claim to be Catholics need to recall and study. I am sure that Mr. Orso means well in coming to the defense of the LCWR, but he and, most likely, many others who criticize the nature of the Church need to do some homework. In the meantime, my own homework continues.

 

RJA sj

 

Saturday, June 2, 2012

Commencement and the Road not Taken

By Robert John Araujo, SJ

On Friday night I had the honor to be the graduation speaker at a coeducational Catholic high school in the Archdiocese of Minneapolis/St. Paul. I had many weeks to think about what I ought to say to the young men and women, most of whom will be attending college later this summer. As I prepared my words, I thougth it prudent to relate the lives of these young and energetic people to those who have preceded them in faith and wisdom. Although the students have accomplished much, they really are just beginning to learn about life, its meaning, and who and what they are. The same questions are suited for law students as they graduate. The same can issues apply to the rest of us as well. As I mentioned in the address, these questions form a part of who the human person is, for they never go away. For those who might be interested in the full address, here it is:  Download Graduation Address at St Agnes .

A blessed Trinity Sunday to one and all.

 

RJA sj

 

Sunday, May 20, 2012

Apostolic Apathy

By Robert John Araujo, SJ

 

Over the past several weeks, some of my friends and colleagues here at the Mirror of Justice and contributors on other weblogs have been addressing issues dealing with the matter of Georgetown University inviting HHS Secretary Kathleen Sebelius to be the speaker at a commencement-related event. The Washington Post has chimed in [here] as has the President of Georgetown, Dr. Jack DeGoia [here]. With respect to the positions of both the Post and Dr. DeGoia, they get it wrong, not right as the Post claims, regarding the matters of “academic freedom” and whether the University did or did not honor Secretary Sebelius by inviting her as a speaker. Professor Patrick Deneen has done a careful analysis of these claims proffered by the newspaper and the University and has ably demonstrated why they are inadequate [here]. I do not intend to repeat Professor Deneen’s accurate explanation of the matter and evolving misfortune at Georgetown and other institutions that claim the moniker “Catholic”.

However, I want to use his critique and the defenses offered by the Post and the University to recall and revisit an important topic we often address here at the Mirror of Justice: that is, the reason for Catholic education (including legal education) and the nature of the Catholic institution of higher education.

During Eastertide, we recall the teaching of Jesus Christ in his farewell discourse that he is the vine and we are the branches. Our Lord builds upon this theme by reminding his disciples that the branches which do not bear fruit but wither are collected and burned. John 15:1-11. But before the withered branches are removed for incineration, they are pruned in a good-faith effort to revive them. This is the imagery which I think Archbishop Michael Miller had in mind when he spoke at Notre Dame in 2005 (and then later, Boston College in 2006) and used the image of “evangelical pruning” that necessitate positive institutional changes by an educational institution if it is to remain faithful to the institution’s Catholic mission and identity [here]. However, if the pruning is unable to remedy the problems, it is reasonable to conclude that the institution is not an asset but an obstacle to the Church’s mission of education where the faith and reason are complementary and essential partners.

Georgetown is my alma mater, and I have many fond memories of the college at which I matriculated almost fifty years ago. I had many fine Jesuit and lay teachers (amongst the latter, not all were Catholic but understood, respected, and celebrated the institution’s mission and identity as a Catholic and Jesuit center of learning) who helped me simultaneously cultivate my mind and soul. I don’t think I would have the same experience today if I were matriculating in the present day.

Why? Was the decision to change the soul of the institution intentional? Probably not. But change has happened through decisions that persons responsible for the nature and soul of Georgetown have made freely over the years. The evidence of the withering of the Catholic soul has grown during the passage of time. I cannot say if there is still time for Georgetown, and other schools pursuing the same path, to self-prune, but I pray for this. Being an optimist, I want to say there may well be a final opportunity, but the time is growing short, very short, for this to happen.

Almost twenty-two years have passed since Blessed John Paul II issued his apostolic constitution Ex Corde Ecclesiae addressing many important matters concerning Catholic universities, their mission, and their identity. Some of the institutions which claim the modifier “Catholic” have taken the counsel of JPII to heart, but others have not. Georgetown is in the latter category, so it appears, judging from all the currently available evidence. Today I join the appeal of Professor Deneen and others acknowledging that much will be lost when this, the oldest Catholic university in the United States, takes that final step that severs itself from the Vine of Christ. As I said, there may still be time, and if there is, it is preciously little. The bonfire that may result is not one of vanity but of a soul. With the soul gone, the vanity will remain.

 

RJA sj

 

Saturday, May 12, 2012

Politics and Religion/Church and State

By Robert John Araujo, SJ

 

With the recent tippings of the hands of the Vice President and President (by relying on his Christian faith) to support the initiative to legalize same-sex marriage (a matter traditionally within the jurisdiction of the states), former Speaker of the House, Representative Nancy Pelosi [HERE], has thrown her support in favor of this “evolving” concept. Not only did she endorse the President’s views and embrace his rationale, she offered her own perspective in response to the related questions, “Do you believe that religion and the idea that you can support gay marriage should be separated? And how do you grapple with the idea that you support gay marriage as a Catholic?”, by stating that,

My religion compels me, and I love it for it, to be against discrimination of any kind in our country. And I consider this a form of discrimination. I think it is unconstitutional on top of that. So, I think that yesterday was a great day for America because the President in a very personal, as well as presidential way, made history.

Once again, with the greatest respect to the representative and her leadership post in Congress, I suggest that she does not understand very well what her religion—which happens to be mine as well—says about discrimination.

The first point is that the Church to which she and I belong does not condemn “discrimination of any kind” but, rather, it condemns unjust discrimination. If I interpret her statement correctly, she asserts that the Church is “against discrimination of any kind.” As she says, her religion “compels her” to be “against discrimination of any kind.” But even Rep. Pelosi discriminates, and her discriminations for the most part are probably not unjust—some may even be objectively reasonable and, therefore, perfectly acceptable and be in accordance with American and Christian values. For example, when she chooses a clothing ensemble, by selecting a red, or blue, or tan outfit, she discriminates. When she contrasts the policies and platform of her party and distinguishes them from the opposition party, she discriminates. When she is at a fundraiser and selects one beverage or no beverage, she discriminates. When she calls upon one questioner at a press conference when time is running out but there are many hands in the air or many voices calling out, she discriminates. Surely all these forms of discrimination, while understandable and widely practiced, are not unjust.

Of course, some who claim the office of theologian say that the Church and her bishops are wrong on the issue of same-sex marriage initiatives by opposing them and argue that the Church’s position on this subject is “not really an argument that has theological justification.” [HERE] Really? How remarkably astonishing! What is all the more surprising is that one of the theologians quoted in the link just cited argues that the bishops “are misrepresenting ‘Catholic teaching,’” and are “trying to present their idiosyncratic minority views as the ‘Catholic position,’ and it is not.” To ask again: Really? The justification upon which this person relies seems to be polls as he indicates by referring to “most Catholic theologians”, so if fifty-one percent of the Catholics in this country were ready to bring back slavery or mandatory sterilization of “imbeciles”, would that make the Church’s teachings against these policies additional “idiosyncratic minority” views? Another theologian who is quoted in the previous link claims that the Church’s position on marriage and the institution of civil marriage are distinct (but he fails to acknowledge that Catholic priests and deacons perform marriages which are recognized by the civil authorities), so the Church should declare: “It’s none of our business.” But if it is not any of the Church’s business, why does this Catholic theologian have on or around his office door (at a Catholic university) posters endorsing same-sex marriage? He might argue that this is his personal view. But if it is, why is he, who has influence over the intellectual and moral formation of young Catholics, underscoring his support to his students and anyone else who passes by his office at a Catholic university? Maybe that’s one reason why younger people who claim to be Catholic are increasingly inclined to support same-sex marriage: they haven’t been exposed to reasoned views to the contrary in institutions which claim the moniker “Catholic”.

But I must return to Representative Pelosi’s position before concluding this post. When people discriminate about who can marry whom, the discrimination that results need not be unjust and, therefore, not contrary to the religion of Rep. Pelosi. When the civil law (and the Church) prohibit minors from marriage, the discrimination is not unjust. When the civil law (and the Church) prevent marriages within certain degrees of consanguinity, the discrimination is not unjust. When the civil law (and the Church) do not permit marriages of several partners, the discrimination is not unjust.

Now that the President and Representative Pelosi have brought religion into the realm of the state vis-à-vis the question of marriage and what constitutes marriage, I wonder if we shall see Americans United for Separation of Church and State launching their latest legal crusade against such unconstitutional establishment, knowing that if Bishop Jenky should not bring religion into public policy issues, why should public officials be permitted to do this without objection?

 

RJA sj

 

Sunday, May 6, 2012

The University as the Classroom of Life

By Robert John Araujo, SJ

At the outset of this posting, I thank Lisa for her thoughtful postings giving MOJ contributors and readers news about the Religiously Affiliated Law Schools biennial conference just concluded at the Touro Law. I hope in the context of this posting to offer several of the thoughts I presented on Friday morning at the final session dedicated to ethics and bringing religion into the classroom. I also thank Robby and Patrick for their postings of today and yesterday, for their respective thoughts have a bearing on what I shall attempt to address today, viz., the university as the classroom of human life.

Today’s world of higher education in the United States—and perhaps most of the rest of the world—is geared to success. Now, there is nothing wrong with that per se depending on how the word success is defined, understood, and sought. There is evidence, however, that success means personal success with little regard for the welfare of others. It is not that this concept of success is directed to destroying, marginalizing, or reducing others, but it is not really designed to take stock of others and how the positions and needs of others relate to the subject. In spite of the ever-present rhetoric of “diversity” and “pluralism,” these and other buzzwords that frequent and are typical of the vocabulary of the academy of today are a disguise for a particular way of thinking that is designed to “empower” (another axiom of the contemporary academy) the individual. What the objective of this “empowerment” is usually is unclear. If one is empowered, what is it that one is to do other than whatever it is that one likes to do?

While public service is often heralded and promoted in “service learning” that has become another feature of contemporary education, the nature and extent of what constitutes public service is often determined by the autonomous individual (usually director who has some kind of “expertise”) who has been empowered, through leading and living “an extraordinary life,” to decide what the public needs regardless of whether this is beneficial or detrimental to the common good.

What is missing from all of these shaping factors of the “good education” are crucial elements of Catholic social thought whose benefits are not restricted to Catholic thinking and institutions: (1) the inviolability of the human dignity that belongs to everyone; (2) the common good as defined by the inextricable connection of the righteous life well-lived by everyone (and I do mean everyone) in cooperation with the destiny of everyone to do the same; (3) the idea of solidarity which underscores the common good; and (4) the cultivation of the cardinal virtues of justice, fortitude or courage, prudence, and temperance or forbearance. Unfortunately, too many members of the mainstream contemporary academy respond to these elements as I have proposed them as old fashioned. The fact that these elements also undergird much of the development of western law and legal theory is oft forgotten in most law school—to say nothing of undergraduate—education of the present day.

I suggest that a fundamental problem that challenges education today, regardless of the level and the subject matter, is the way in which thinking is encouraged and directed. The method of objective and authentically critical reasoning that has been indispensable to legal thinking in the past is being pushed aside by the subjective methodology endorsed by the “mystery of life” passage from Casey v. Planned Parenthood and largely endorsed in the larger view that education must be tailored for the “unique mind.”

In the context of the law and legal education, the objective that the “is” of the current moment is preferred to the “ought” of universal truth can then lead to the further subjective approach which confuses the “ought” with the “is.” For the subjective mind, the “is” becomes the only reality with which any person need be concerned. This subjective reality, moreover, is not the objective reality that must be sought, understood, and comprehended; but, this does not matter because the emphasis of education founded on autonomy and “empowerment” and little else will spend little if any time searching for something which may well be not only objective reality but also objective truth.

While thinking is pertinent to all disciplines, it is crucial to legal reasoning. The method of thinking critical to the law needs to be objective, and it must be formed by two important factors. The first is that the human being is an intelligent being. The second follows: human intelligence is capable of comprehending the intelligible reality that surrounds us which then leads to wise, prudent, and just decision-making. This does not mean that a perfect understanding will necessarily result nor will the best decision follow, but it does mean that the understanding that follows will be objective thereby getting the society involved closer to the truth of the matter and justice that is required.

I think that there is another problem about subjectivity that is deleterious to the education process but which is typically used today as the standard for determining who teaches and who speaks at institutions of higher learning in the present age. While there are many ways of explaining this standard (such as “liberal,” “progressive,” “contemporary,” etc.), it seems to follow whatever currency is strongest in the contemporary culture. So when contemporary culture endorses certain views regarding important matters that deal with human sexuality, the meaning of human existence, and the authentic nature of the human person, any view that does not correspond to the standard of the contemporary culture is either dismissed as irrelevant or branded as madness.

One more problem is the collaborative approach to education so frequently encountered today in educational institutions of many levels. I hasten to add that collaboration is important in human existence and must therefore be learned and perfected, for collaboration is necessary for achieving the common good. However, collaboration has largely come to mean in educational contexts the need to arrive at a consensus. Since the dominant milieu in the university of the current age is one that holds and promotes the view that all positions are equally meritorious (even though they are not), collaboration is the name given to determining what the lowest common denominator is in order to reach a conclusion and decision. When this is the reality of collaboration, then the ability to recognize and foster the truth, the beautiful, and the good is often the unknown victim of the sacrifice necessary for collaboration, that is, consensus, to be the goal.

RJA sj

Tuesday, May 1, 2012

Another Take on Cadenzas

By Robert John Araujo, SJ

I am most grateful to Marc for his posting about Professor Dan Farber’s Constitutional Cadenzas. I think that Marc has the better interpretative take by using the musical parallel of appoggiaturas rather than cadenzas. My remarks will concentrate on the Farberian concept of Constitutional improvisation in interpretation, for that is his point. I appreciate the reference to cadenzas for I was once a musician of sorts—first French hornist in high school, and second French hornist in college. However, legal interpretation is vastly different from musical interpretation which may include the improvisation permitted by the cadenza. Does law permit improvisation via the analogy of the cadenza? No, not by the interpreter. The maker of the law is the composer. The maker has the authority to amend; to revoke; or to start afresh. The interpreter has a different function: to explain the law, not to improvise upon it.

Both musical and legal interpretations are more art than science, but they differ greatly in other ways as my negative response would indicate in response to the suggestion that legal interpretation can accommodate improvisation. (Now, writing MOJ posts is a form of composing, is it not? Surely the allusion may apply as long as what results is symphonic, not cacophonic, but I digress…) So I return to the subject under investigation:

First of all, the device of the cadenza is a proper vehicle for improvisation, but the same cannot be said of any portion of the Constitution. The creative thesis proffered by Professor Farber is that the mechanisms for using cadenzas in Constitutional interpretation are to be found in the Ninth and Fourteenth Amendments. Interestingly, he does not mention Article V of the Constitution which does not authorize the legal text equivalent of cadenza improvisation but is the mechanism for amending the Constitution—the musical score, if you will.

If there is a need to alter the Constitutional score (the text), there is a specific, formal, and Constitutional mechanism for doing so. To follow the example of cadenza improvisation in Constitutional interpretation is, I think, an ultra vires act that is not without considerable problems—be the interpretation on grand or modest themes—which are antithetical to the rest of the text.

My concern intensifies when the objective of the Constitutional cadenza is the defining or discovery of new, un-enumerated rights. I very much appreciate Professor Farber’s nuanced discussion of rights and duties of the claimant, but I am concerned when he moves too quickly in the field of “absolute rights”. I think there is such a thing, but how one defines them is not through the device of the virtuoso’s subjective improvisation. It is through careful interpretation which does not stray from the “melody” as Marc accurately states. In this regard, the reference to John Adams’s thought “that a lawyer ought never to be without a volume of natural or public law, or moral philosophy, on his table or in his pocket” provides an important point of reference useful for understanding the distinction I am presenting. Adams understood that improvisational virtuosity can be a perilous course when the interpreter’s subjective perspective is all that is considered.

This brings me to a further point about methodology in legal interpretation. While it is more art than science as I stated earlier, it is not without proper mechanisms to anchor the interpretative product in rooted objectivity rather than improvisational subjectivity which is the hallmark of the virtuoso’s cadenza. I think this is why Marc’s concept that the appoggiatura is a good one because it, unlike the cadenza, cannot stray from the text of the score of the Constitution. Unlike musical scores and the composer’s notation that a cadenza is permissible, the score of the Constituion means something to the composer’s intention underlying the drafting of the text. A grace note in interpretation may be acceptable if it complements the intention of the composer; but a textual improvisation that strays from the melody of the text is a dramatic overhaul of the composition that is tantamount to writing a new text with new and dramatically different meaning.

Professor Farber seems to acknowledge this when he states that “[g]ood constitutional decisions are neither the mechanical application of formal rules nor the freewheeling world of pure politics. They rely instead on judgment and discretion, which by definition incorporate both flexibility and constraints.” Farber then goes on to charter his outline for a methodology of accomplishing “good” interpretation, and I shall offer a few thoughts about my own.

I agree with Professor Farber that fundamental rights are of vital importance, and they ought not to be left to human caprice or the whimsy of the lawmaker. Moreover, as I have stated on these pages before, basic rights are something that come with the human person; they are not the gift of the state. If they were, the state could retrieve whatever it gives, and that would undermine the essential concept of basic rights. That is why the art of legal interpretation concerning rights and their meaning is the crucial business of the lawyer’s trade. When addressing matters dealing with fundamental rights, the lawyer must realize that he or she is addressing the common good—the good of each person entails the good of all, the good being the communal right for each to flourish. The good interpreter of them realizes that rights and duties must never be separated from one another. Even fundamental rights thus carry the obligation of responsibility to others. This is why Catholic social thought always ties the two together, not because it is a theological precept but because it is a principle of objective reason that makes sense out of laws that address freedom not as unrestrained license but as ordered liberty. The structure of law does encounter gaps from time to time, so the question becomes: how are they to be filled by the interpreter?

As I said, texts are important to legal interpretation for they are the starting point. With gratitude to Judge Noonan’s translation of Alexis de Tocqueville’s sister Angélique, she made a good point when she said in rhetorical fashion: “perhaps the words of the constitution were like those of many hoary documents, verbiage without vitality in them.”

But law is verbiage with vitality. Again, these normative texts mean something that has or can have an impact on everyone’s life. Be it the text of the Constitution or that of a statute, the text is the work of the interpreter; it is not the point of departure to an untethered improvisation. Most of the time the text—its plain meaning—will suffice when its meaning is sought. But there are occasions when it does not, for the text of the law by itself presents ambiguity that needs clarification, not improvisation.

For example, I use with my students in interpretative methodology classes the case of a municipal ordinance which “bans all gay demonstrations.” The illustration provokes certain reactions which are now predictable in this time of the second decade of the twenty-first century. So I ask students who display some measure of outrage to the hypothetical whether we ought to consider when the ordinance was enacted. A typical and frequent response is: why does that matter?

Well, it matters a great deal when the plain meaning is, after all, not plain at all. When I mention that the ordinance was enacted in the late nineteenth century to prohibit the display of the latest fashionable attire (“The Gay Nineties”) some students recognize the point, which has to do with the intention of the drafters and the objective they were trying to achieve through the text they wrote and the language they selected. If it’s worth saying once, it’s worth repeating again: texts mean something, and they mean something essential to the law when the interpreter is grounded in the reasons for the law’s existence by searching the context of its promulgation. It is in this context that the discussions of the drafters and the purpose they sought to achieve can become clear to the interpreter who chooses to place himself or herself in the shoes of the drafters.

My reluctance to embrace the cadenza approach to legal interpretation should become clear. The virtuoso makes his or her own composition by improvising on what has preceded; the legal interpreter does not. The legal interpreter out of necessity must remain rooted in the text and the objectives that the drafters sought. If the interpreter persists on the road of improvisation, he or she is not interpreting law but is making it. If the legal exegetist is frustrated by the limits of the text and the project of objective interpretation, he or she has access to the legislature to make new law. When the Constitution is the text that is the subject of interpretation, its drafters foresaw the day when the text’s language cannot be stretched without limit—like a rubber band, it will break when stretched too far. That is why Article V was included by the Framers to fill in the gaps that emerge after the Constitution’s promulgation.

RJA sj

Wednesday, April 25, 2012

Some thoughts about Church and State

By Robert John Araujo, SJ

Over the past several weeks, questions of interest to the Mirror of Justice community dealing with the relation between Church and State have been occupying many discussions. As a consequence, I have been rereading a number of items regarding this topic. One of them is John Courtney Murray, S.J.’s 1966 article in Theological Studies where the author makes an important connection between two of the documents of the Second Vatican Council, i.e., the Declaration on Religious Freedom (Dignitatis Humanae) and the Pastoral Constitution on the Church in the Modern World (Gaudium et Spes) regarding Church-State matters. While noting that only religious freedom, per se, was addressed by the Council, Murray demonstrated in his important essay the obvious link with matters of Church and State relations that are very much with us at the present moment—and will be for the future.

While noting that Church and State matters in modern times were addressed by Leo XIII, the issues in the relationship dramatically changed as the twentieth century progressed. During Leo’s reign, the identity of State and Society were very close; however, as time progressed, the distinctions grew. If the Church and Society had a relationship, it too got distanced from the State. This separation of State and Society had an impact on the relation between the Church and the State.

At the root of the common ground formerly shared by Church, State, and Society was the idea of the human person. What is he or she? But with the passage of time, the State saw the person in a vast array of ways. For the Church and some elements of Society, there was a greater understanding of the notion about the dignity of the human person and the idea that there is one human family. Many States did not see or accept these understandings. Politicians and civil leaders may have offered lip service to both, but Christians tended to have a better understanding of why changes were occurring and why the Church had a clear, positive, and crucial role in all these matters dealing with dignity and rights. Why?

The State, through its civil functionaries, had varying views of the human person—quid est homo—but the Church had a universal understanding. While some civil authorities may have spoken about human rights and the dignity of the human person, the Church offered a deeper and unified understanding that went beyond serving the political interests of the moment. Murray saw the distinction first emerging in 1892 when Leo wrote his encyclical dealing with the emerging laicité in France. By the time the Second Council was in session, the insights first captured by Leo XIII were more clearly cognizable in the first half of the 1960s by Christians including the Council Fathers. To offer a counterpoint to the growing totalitarian or monolithic sense of “human rights” by States in the twentieth century, the Church saw the need to concentrate on freedom in two ways: that of the individual, and that of the community of individuals. In an ecclesial context, this meant (1) the freedom of the individual person who simultaneously has obligations and duties to all others and (2) the freedom of the community which is the Church. In furtherance of his thesis, Murray recognized that these two freedoms—these two non-derogable rights—are inextricably related.

Murray also understood that when the Council ended and Paul VI gave his exhortation to the civil authorities of the world, the Council acknowledged this twinning. As Pope Paul said in his remarks to the temporal powers, the Church “asks of you nothing but freedom—freedom to believe and to preach her faith, freedom to love God and to serve Him, freedom to live and to bring to men her message of life.”
I think that this passage of the pope is crucial to the present day examinations, discussions, and debates about religious freedom and the proper relationship between the Church and State. The fact that the Church and State are different and distinct does not necessarily imply that they cannot have a relationship. Moreover, separation is not synonymous with indifference. Why? Both the Church and the State have a critical interest in the common good and its furtherance. The American State talks about the general welfare; the Church relies on other words, but the interests, if not the same, largely overlap. It is in the interest of republican democracy, which we claim to have in the United States, to understand and embrace the differences between the Church and State but simultaneously to respect and support their common or mutual objectives.

I am not sure this is particularly well understood today as a read the ongoing discourse about Church and State matters. Murray noted that the Church sees her mission in the world of temporal affairs concentrating on the realization of human dignity, the advancement of authentic human rights, the promotion of unity within the human family, and “the sanctification of the secular activities of this world.” The transcendence of the human person, which is of major importance to the Church, is not in this particular equation for the State. So if it is not, why should the secular State (and its citizens who are of the secular persuasion) then mind having a relationship with the Church as the Council developed the concept of relationship and freedom?

 

RJA sj

 

 

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