Mirror of Justice contributors and readers will recall some recent exchanges on this site concerning the statement of 26 Catholic leaders, theologians, and scholars (hereinafter “the 26”). After taking some considerable time reflect on the words of their statement, I have reached a conclusion that the statement misrepresents Governor Sebelius’s record and should not be relied upon by the Catholic faithful in forming their views concerning the Governor’s fidelity to her faith. While I may not fall into the enviable ranks of being a leader, scholar, or theologian, I am a Catholic who works diligently at discerning what the Church asks of me and all who claim to be her faithful members.
In that context, I make the same claim as the 26 that I am, or strive to be, a faithful Catholic, but unlike the 26 I cannot offer support to the governor’s nomination to be Secretary of the Department of Health and Human Services. I have no reason at this time to doubt the assertion of the 26 that the governor is “a woman of deep faith” [but as the 26 note, she does have issues with the Church’s leadership] who participates in “a proud family history of public service.” I am skeptical about the claim posed by the 26 that the governor is responsible for “significantly reducing the abortion rate in Kansas.” In expressing my skepticism, I am not using the governor’s faith or my faith to attack anyone, and this is not to say that by critiquing the governor’s stance on abortion-related public policy issues I am being “partisan” or “divisive.” As a Catholic I understand what the Church teaches regarding the role of Catholics, in general, and Catholic public officials, in particular, when addressing the legal status of abortion. As both Pope John Paul II noted in his encyclical letter Evangelium Vitae (N. 73) and the Congregation for the Doctrine of the Faith explained in its 2002 Doctrinal Note on some questions regarding The Participation of Catholics in Political Life (N. 4), “an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality.” It might be argued by some that the governor has followed this instruction, but in order to assess this claim it is essential to take further stock of what action she has pursued regarding proposed legislation that addresses abortion. I shall come back to this point in a moment.
But here it is important to acknowledge what the 26 cite as important accomplishments on other fronts and to respond objectively and fairly to these other assertions. The first is that the governor “signed” a bill which funds “support services for pregnant women and alternatives to abortion.” The initial legislation establishing this program was enacted in 2000 prior to Kathleen Sebelius becoming governor. In 2004, she did take negative action on this program by exercising her line item veto on May 24, 2004 to eliminate in its entirety the state’s funding for the Pregnancy Maintenance Initiative (PMI) as this proposal was then called. It is true that on April 15, 2005 she signed HB 2301, the Stan Clark Pregnancy Maintenance Act, which was named in honor of the recently killed state legislator who had tried unsuccessfully to override the governor’s 2004 veto of the PMI; however the amount of the funding was less than before. But, on the same day, April 15, 2005, she also vetoed HB 2503 which attempted to establish medical standards in abortion clinics. In her veto, she stated,
“Once again in 2005, the Legislature has chosen pure politics over good policy, has rejected uniform standards for all procedures, and has instead chosen to regulate only one procedure—abortion. As the number of outpatient surgeries grow rapidly in Kansas and throughout the country, it is wise to update our regulatory oversight to ensure the best possible treatment for all patients. Unfortunately, HB 2503 falls far short of meeting this basic standard of care. I have stated repeatedly that I will sign this law when it includes all surgical procedures and all surgical centers to ensure the safety of all Kansans. For these reasons, I veto HB 2503. I strongly urge the Legislature, upon its return, to endorse the appropriate clinic standards that the Board of Healing Arts is currently putting into place. We should encourage physicians and other health care professionals to work through the Board of Healing Arts for the speedy development of standards that apply to all surgical clinics and protect the health of every patient. There is no justifiable reason to do less.”
But, in fact, there was a justifiable reason for this in that lax or few standards were being followed in some abortion clinics unlike other medical facilities that did not perform abortions. The last word to date concerning the PMI program is that Governor Sebelius has eliminated the Stan Clark PMI program from the 2010 budget (see pages 94 and 280 of the January 12, 2009 FYI budget, HERE.
While it is correct as the 26 state that the governor signed, without comment, Alexa’s Law, which recognizes the murder or injury of an unborn child as a crime, we must recognize that Kathleen Sebelius has expressed particular personal views on the status of nascent human life in the womb. Here is what Representative Kathleen Sebelius said in 1989 on this subject:
As St. Ignatius reminds us, it is proper to put the best interpretation on what the other person does or says until contrary evidence is provided. So, keeping in mind his wisdom, I could assume that as Governor, Kathleen Sebelius might have regard for the protection of nascent human life; however, as a state representative, it is clear that when she specifically addressed the issue, her view was to the contrary. If she has indeed changed the position she held when she served as a state representative, I would heartily welcome the abandonment of her previous view.
The 26 have stated clearly that the governor “has had disagreements over public policy with leaders in her Church. Yet their disagreement has never been over the morality of abortion, but over what prudential policy is best in dealing with abortion in Kansas.” But is this in fact the case when we look at her gubernatorial veto of several pieces of legislation designed to protect fetal life or to regulate abortion providers?
Here it is best to let her record speak for itself. I have already addressed her 2005 veto of legislation geared to regulating the standards of abortion clinics. On May 19, 2006, she vetoed other legislation, SB 528, which was designed to regulate late term abortions of viable fetuses, to collect statistical information about these procedures, and to have physicians elaborate on their findings about late term abortions that were conducted under the “mental health” exception. The bill was also designed to ascertain if disabled women were being targeted for abortion because some abortion proponents view them as being unsuitable parents. The bill was also designed to ensure that physicians performing abortions had to comply with the steps of caring for a child who survived the abortion, i.e., a “born alive infant”. In her veto message, the governor asserted that her “Catholic faith teaches me that life is sacred. Personally, I believe abortion is wrong.” In her view, SB 528 would “do nothing to reduce abortion in Kansas. Instead, it will force women to provide intimate, sensitive health information to the government. Privacy is a fundamental concern to all Kansans.” Indeed, privacy is important, but protecting human life is far more important.
In the Omnibus Budget Bill signed into law on May 21, 2007, the governor line item vetoed the funding for the Kansas Department of Health appropriation for the reporting of performed abortions. In her view, this vetoed provision would violate the “medical privacy” of patients. As she said, “All Kansans also want our laws upheld, including laws protecting the privacy of our personal medical records.” Again, privacy is important, but protecting human life is far more important.
On April 21, 2008, the governor vetoed SB 389, the Comprehensive Abortion Reform Act, which would have strengthened restrictions on, but not eliminated, late term abortions; the bill was also designed to prevent “coerced abortions” especially involving mothers who are minors. The legislation would have further required officials to collect information regarding the medical justifications given for late term abortions; moreover, it had a provision for enabling families to bring civil suits against abortion providers planning late term abortions against a member of that family if the late term abortion violated Kansas law. But in her veto, she said,
“Kansans are proud of the progress we’ve made lowering the abortion rate and lifting our economy. It’s time for legislators to recognize that progress and focus on the things that continue to move us forward. I am concerned about a number of provisions in SB 389. The United States Supreme Court decisions make clear that any law regulating abortion must contain exceptions for pregnancies which endanger the woman’s life or health. [Araujo: And the bill allows for this] However, SB 389 allows a variety of individuals to seek a court order preventing a woman from obtaining an abortion, even where it may be necessary to save her life. I am concerned that the bill is likely unconstitutional or even worse, endangers the lives of women. The bill contains unprecedented expansions of legal proceedings which would likely encourage extensive litigation and also unnecessarily jeopardizes the privacy of Kansas women’s confidential medical records. As Governor, nothing is more important to me than the safety, health and privacy rights of our citizens. I am vetoing SB 389 because it endangers the health of women and is likely to be found in violation the United States Constitution and the Constitution of the State of Kansas.”
In her message, she did not comment on the effect her veto would have on the health and safety of the unborn.
I find that the governor’s record on doing what the faithful Catholic should do regarding “limiting the harm done by” abortion laws and at “lessening [their] negative consequences” to be insufficient given the present evidence contained in her several substantive or budgetary vetoes over the past several years. Therefore I find it impossible to share the sentiments of the 26 regarding her fidelity to what the Church asks of her as a public official.
While the question of marriage has not been a part of the discussion regarding the governor’s nomination to be Secretary of Health and Human Services, it is relevant to point out that while she has so far expressed her resistance to same-sex marriage, she also opposed the April 2005 Constitutional amendment enacted in Kansas defining marriage as the union of one man and one woman. While she did not actively campaign on the measure, she nevertheless expressed the view that existing state law was sufficient to preserve marriage rights. As she said, “I don’t think we need a constitutional amendment, and particularly a constitutional amendment that goes far beyond the bounds of that law.” Of course it would be prudent for her to take account of other states which also have statutory laws but no constitutional provisions defining marriage; some of them are facing or have faced legal challenges to statutory laws that were not reflected in constitutional provisions.
It is time to bring this post to a conclusion—and the conclusion here is that the 26 have failed to convince me that Governor Sebelius’s public service record on abortion questions demonstrates that she, as a public official, is faithful to what the Church asks of her on this critical issue.
RJA sj
Sunday, March 8, 2009
On this past Friday, March 6, 2009, a bill was introduced into the Connecticut General Assembly, Raised Bill No. 1098, that would modify corporate laws relating to certain religious corporations. The bill can be viewed HERE . The title of the bill is somewhat misleading in that this proposal concerns only the Roman Catholic Church. This becomes clear when the statement of purpose of the bill is examined: “To revise the corporate governance provisions applicable to the Roman Catholic Church and provide for the investigation of the misappropriation of funds by religious (i.e., Catholic) corporations.” In a nutshell, I do not believe that the Connecticut General Assembly nor, for that matter, any other civil or secular authority has the competence to make, let alone revise, the governance, corporate or otherwise, of the Roman Catholic Church.
In past postings on the Mirror of Justice, I have addressed efforts by the Massachusetts legislature to pressure the Church. Although those efforts have subsided and not materialized in legislative regulation of the Church, for the time being, the Judiciary Committee of the Connecticut General Assembly has decided to amend legislation that currently enables a corporation to be established in any parish or congregation thereby leading, in my estimation, to the ability to pressure the Church in Connecticut. While the purposes of such a corporation under the existing law, Section 33-279, are not specified, it is clear the bishop, the vicar-general, and the pastor of the parish are ex officio members of the corporation as the law now currently reads. In turn, they appoint annually two lay members of the corporation, candidates being taken from the lay members of the parish or congregation. Of these five members, three constitute a quorum, and a quorum must include at least one of the two lay members.
The new bill would dramatically alter the constitution of the corporation which a bishop may decide is the proper organization for a particular parish or congregation. First of all, it would establish a board of directors consisting of no less than seven and no more than thirteen lay members. These directors would be elected by the lay members of the parish at an annual meeting. The bishop, but not the vicar-general or the pastor, would serve as an ex officio member of the board of directors without a right to vote. The pastor and vicar-general would not be able to serve on the board and would have no voice in the activities of the board. The board created by the revised legislation would owe a fiduciary duty to the corporation and the members of the congregation but not to the bishop. The new legislation would drive a wedge between the pastor and bishop by requiring the pastor to report to the corporation, not the bishop, on matters financial and administrative since the board rather than the pastor or bishop would control budgets, manage assets, and oversee all financial affairs. In short, the Connecticut legislative proposal does not take account of provisions of Part II, Section II, Title III, Chapter VI of the Code of Canon Law; moreover, it is clear that the Connecticut bill would potentially conflict with a number of substantive provisions of the Church’s law regarding the relationship between pastors and parishes with the office of bishop. Another problematic element of the bill would authorize the board to develop “outreach programs and other services to be provided to the community” without any mention that such activities must comport to Catholic teachings.
It has been suggested by some commentators that this legislative proposal is in response to misappropriation of parish assets by members of the clergy without mentioning theft by non-ordained religious and members of the laity. However, I wonder if this is the intention of this bill given the fact that clergy, religious, and laity who have been responsible for the wrongful conversion of church assets in the past are currently subject to the existing laws that address these abuses. One reason for my stating this is the bill’s incorporation of Section 33-1036 conferring on the lay directors the expansive general powers of corporations that include buying and selling properties (which can constitute an alienation of property regulated by Canon 1291 and other provisions of the Code of Canon Law) and entering into contracts (which is governed by the Code of Canon Law including Canon 1290). Section 33-1306 authorizes many other activities of a civil corporation which have the realistic potential for conflicting with other provisions of the Code of Canon Law since the authorization conferred by this bill would enable the lay directors of the incorporated congregation or parish to:
· enter a wide variety of financial ventures;
· enter into various enterprises and relationships with secular entities;
· transact “any lawful activity that will aid government policy” [which presumably could include activities that conflict with Church teachings];
· establish conditions for admission of members, admitting members, and regulating membership in the parish [this is a serious challenge to the rites of Christian initiation and regulation of the sacraments by competent Church authorities];
· and the list goes on…
From my perspective, the bill possesses the objective, whether intended or not, of interfering with Church governance as the Church requires it under its own law. Another objective may well be one designed to put pressure on the Church by one or a small group of individuals. For example, new section 3 of the bill would empower anyone—meaning even those who did not contribute the gift and those who have nothing to do with the parish—who has “reason to believe that monetary contributions to a corporation… (i.e., parish or congregation) are being misappropriated and not being used for the purpose for which they were given may report that belief to the Attorney General.” Of course, the Attorney General is authorized to investigate and take whatever action is deemed necessary by the AG.
I doubt whether this legislation could pass the Constitutional muster of the First Amendment since it contains many provisions that would interfere with the free exercise of Catholicism. But my more fundamental question concentrates on who is responsible for this bill and what are their objectives for promoting it? Regarding the latter part of the second question, I wonder if the objective is to destroy the Church and this proposal is a trial canter to see how proposals of this nature will fare.
RJA sj
Tuesday, February 24, 2009
On Friday, March 13, Brigham Young University and Boston College (through their respective law schools) will host a one day symposium on the Jurisprudence of Marriage. The symposium will be convened at the Newton Campus of Boston College where the Law School is located. The program promises to be an interesting and timely one, and it is expected that the contributors will offer diverse perspectives on the topic of marriage. The details of the symposium are HERE. Mirror of Justice friend Professor Scott FitzGibbon is one of the convenors. MOJ contributor Richard Stith will be presenting a paper, and I will be offering one regarding the question of equality. I hope that the symposium will attract contributors and readers of the Mirror of Justice who may be in the area on that day to attend at least some of the presentations.
RJA sj
Friday, February 20, 2009
I begin by thanking Steve Shiffrin, Rick Garnett, and Richard Stith for their thoughtful comments on the place of religion in matters Constitutional. I had written Steve privately to thank him for his fine reporting and insights. I would tend to think that it is difficult when all is said and done to prove that a law is based on religious beliefs rather than beliefs which religious persons and groups share with others whose perspectives are not based on religious belief. In short, I think that Dean Stone would have great difficulty in proving his contention. And, if the religious perspective that he critiques is shared with others whose views are not based on religion, Dean Stone would not be able to convince me that he is correct in his assertions.
I am inclined to think that most critics of religious influence in the law will not be bothered if the religious perspective concurs with his or her view (e.g., civil rights and environmental issues); however, if there is conflict (e.g., in the pressing issues of the day regarding human reproduction or marriage), then it is easy for the critic to claim that the opposing view is religiously based and, therefore, unconstitutional.
I have been pointing this out for some time. I recall back in the early 1990s in a commentary I offered on Justice Stevens’s separate opinion in Webster v. Reproductive Health Services that Justice Stevens was critical of the Catholic position on abortion. He contended that if the Catholic view were reflected in a law addressing abortion, this law would be unconstitutional. As he said, “I have no doubt that this Court would promptly conclude that such an endorsement of a particular religious tenet is violative of the Establishment Clause.” Interestingly, he then went on to assert in his footnote 16 that there were other religious perspectives differing with the Catholic view and coincidentally agreeing with the position he took in the case. I am at a loss to understand why he would not find those religious views that coincided with his perspective equally problematic. Perhaps I am doing both Justice Stevens and Dean Stone a service by pointing out the problem in their similar contentions.
RJA sj
Monday, February 16, 2009
Knowing that matters Spanish have received some considerable attention on the Mirror of Justice over the past several weeks, I would like to draw the attention of the contributors and the MOJ readership to the address given by Cardinal Tarcisio Bertone, the Vatican Secretary of State, in Spain on February 5, 2009 commemorating the sixtieth anniversary of the Universal Declaration of Human Rights.
Although the Cardinal’s address was given to a gathering of the country’s episcopal conference, one should not conclude that the intended audience was solely the episcopacy of Spain. The Secretary of State’s words have profound meaning for the world which includes those of us pursuing the development of Catholic legal theory. The Cardinal opened his address (HERE in Spanish, only) by noting that the Declaration must be considered as a “moment of fundamental importance for the development of the moral conscience of humanity.” In this regard, Cardinal Bertone specified that Catholics must be committed to the defense and promotion of the fundamental rights of the human person as they essential to the dignity of each. As I have noted elsewhere on these pages, the dignity of the human person is that which is due each—the suum cuiqe—because he or she is human—regardless of age, size, color, etc.
The address emphasizes a point long made by the Church and the Holy See that the human person needs to be at the center of concern when laws, the workings of society, the development of culture, and the advances of science are under consideration. In his endeavor to explain this, the Cardinal’s address provides nine points to consider and a conclusion.
His first point deals with the contributions of Christianity and the social teachings of the Church to the concept of human rights. While human history is replete with instances in which some denied the rights of others, it becomes evident from the Cardinal’s words that the Church was a harbinger of proclaiming these rights with the advent of modern times during the papacy of Leo XIII. Pope Leo’s work was solidified by Paul VI in 1965 and John Paul II in 1979 and 1995 when they addressed the General Assembly of the United Nations, the body that adopted and approved the Universal Declaration. In this context, the words of John Paul II in his 1995 intervention are most pertinent:
…there are indeed universal human rights, rooted in the nature of the person, rights which reflect the objective and inviolable demands of a universal moral law. These are not abstract points; rather, these rights tell us something important about the actual life of every individual and of every social group. They also remind us that we do not live in an irrational or meaningless world. On the contrary, there is a moral logic which is built into human life and which makes possible dialogue between individuals and peoples.
Most recently, Benedict XVI during his April 2008 address to the General Assembly emphasized the juridical—the legal—role that enables peoples of diverse cultures to acknowledge that regardless of the differences they possess, human rights constitute “the common language” which unites into one human family the pluralism of God’s creative design. If human rights are removed from this context, they acquire a relativistic nature the inevitably supplies the path to their destruction.
The second point offered by Cardinal Bertone considers the Universal Declaration itself. Here the Secretary of State recalls the world’s conditions that set the basis for bringing together delegates from all societies who were charged to address the serious concerns of rights denial during and after the Second World War. With a shared moral awareness, the drafters and their advisors proceeded to consider issues, debate approaches, and craft language that would draw attention to those shared attributes of the human person that must never be forfeited. A genuine human right is not the request for a favor but a demand for recognition that a non-derogable claim is due each human by virtue of his or her being human. It is this point that makes human rights natural, innate, inviolable, and inalienable. In essence, they are the birthmark of everyone who bears the image of the Creator because He, not the State or some other human society, created the person to whom He gave these natural rights. The Cardinal specifies that an essential trait of the Universal Declaration is that it was founded on the law of nations—the jus gentium—which are the laws of humanity and the dictates of public conscience. The Universal Declaration, moreover, reflects the foundation of justice because it establishes what is constitutive of right relationships between and among all peoples.
His third point is a brief discourse on the natural law itself. A number of MOJ contributors have tackled different issues over the years dealing with the natural law and the natural moral law. The Secretary of State (I wonder if he reads the MOJ?) reiterates the natural law’s significant role in identifying and protecting human rights. It is not human consensus or human, i.e., positive, law that formulates and defines human rights. Their origin is the transcendent and objective moral order established by the One who made us all—the natural moral law.
Cardinal Bertone’s fourth point concerns the dignity of the human person. Both the prologue and the first substantive article of the Universal Declaration speak of “human dignity.” But what is it? It is not, in essence, a right, but it is the medium which brings them together through the being and nature of every person that is common and essential to one and all. The Cardinal identifies human dignity as the cornerstone upon which the rest of the edifice of human rights is built. Inherent to human dignity are authentic freedom, justice, and peace. Without these central concepts, the pursuit of human rights can be the quest of each individual in pursuit of what he or she desires without taking stock of what is due everyone else. The Church’s role in the pursuit and protection of human dignity is to exercise the duty “to awaken in society moral and spiritual strength, helping to open wills to the authentic demands of the good.”
His fifth point focusing on the universality, indivisibility, and protection of human rights follows. Even though the Universal Declaration was not itself a binding juridical instrument imposing legal obligations on individuals, states, and international organizations, it has become “the main inspiration” for the movements that have established legal obligations identifying and protecting authentic rights. A major objective of the Universal Declaration must be to serve as the “proper conception of human rights” as understood to be those claims that belong to each solely in virtue of his or her humanity. The rights identified in the Universal Declaration are “indivisible” because they cannot be applied or considered in piecemeal fashion. In other words, it is not logical or coherent to consider some rights while ignoring others. While each State is obliged to protect the rights of those situated in its territory, the international community must be prepared to step in where they are not or cannot be enforced by the proper local authority.
Realizing that in today’s world, some have placed the mantle of human rights on dubious claims, the Secretary of State spends time in his sixth point by addressing the rights that are to be recognized by the Universal Declaration. He notes that there is “an ongoing, radical process of redefining human rights” that affects such crucial themes as the nature of the family, matrimony, and children. Once again, the guiding influence in assessing truth from falsehood about human rights claims is by having and exercising an objective understanding of authentic human nature. It is proper to the effort of the human rights advocate to understand and acknowledge the reality of this nature. Otherwise, falsehood can masquerade as truth and the truth of the nature of the human person can be ignored or even eradicated.
His seventh point dealing with the right to life reinforces his sixth point. Human rights become meaningless unless the right to life and continued natural existence are acknowledged and protected without compromise. The dignity of the human person becomes compromised when the life given to everyone becomes a pawn that can be easily or readily negotiated away by others. To think otherwise is to participate in a deception that compromises the protection of the genuine rights which are due to all. The threats to the right to life can be manifested in a variety of ways; however, their common denominator is the ability to eviscerate all other rights. If the dignity of the person is the cornerstone of human rights, the right to life is the keystone which keeps all others in place. Without this right being guaranteed to everyone as the Universal Declaration exhorts, the edifice constructed by Mrs. Roosevelt and the other drafters is subject to compromise by the caprice of whatever political power happens to be in office.
This brings us to the eighth point of the Cardinal’s address which deals with the family and education. The Universal Declaration acknowledges that the family is the basic unit or cell of society. Without a healthy and proper understanding of what the family is and what it is not, the health and strength of society are subject to forfeit. It is within this basic social unit that the essentials of education and the wisdom garnered by humans over the millennia are conveyed to our posterity. It is in this vital cell that the individual good and the common good are simultaneously nurtured. Of course, the Secretary of State emphasizes that the family and the life it promotes must be founded on the marriage of one man and one woman who enter a bond—a new being—that is freely entered and open to the conveyance of life to succeeding generations. In spite of the challenges that may confront this basic unit of society, this family has the essential task of conveying love—caritas—to its members and to the succeeding generations that it will produce. The Secretary of State surely had in mind the thoughts of the Universal Declaration’s drafters who were aware of what the totalitarian state attempted in its redefinition of the family and the education that was to be provided for the succeeding generations.
This brings us to the Cardinal’s ninth and final point concerning religious freedom and the Church’s relations with the political community. This is a freedom recognized by Universal Declaration and protected as a non-derogable right in one of its progeny, the International Covenant on Civil and Political Rights. The Universal Declaration acknowledges that religious freedom is a primary and inalienable right that individually and communally sustains other essential rights. The Secretary of State hastened to add that the Church also has her freedom that must be protected since her mission is to convey the truth taught by God that is essential to the survival and salvation of humanity. The Church has the duty to teach, and the subject of her teaching must be God’s truth, not the “truth” imposed by the State or the political party to the peril of what is genuine about the human person and human nature. He warns that to “try to impose, as secularism does, a practice of faith or religion that is strictly private, is to make a caricature of what the practice of religion actually is.” By peaceful means, the religious person, religious communities, and, therefore, the Church have the right as well as the responsibility to proclaim the truth that will set us free from whatever restrains the human person and the human community from their proper destiny. To silence their voices and to repress their actions is contrary to the flourishing of authentic human rights. It is clear that the religious person and the Church must respect the proper role of the temporal authorities; however, the temporal authorities must likewise respect and protect their voices and independent missions that serve as an important complement to the rights of all members of the human family.
In his conclusion, Cardinal Bertone reiterates that the Universal Declaration expresses the fundamental principles on which the law of nations is established and the dictates of public conscience are implemented. But there remains much work to be done that the author of human life expects from those who are dedicated to the proposition that fundamental human rights exist and must be protected. While the Church rejoices in the efforts that have been made in this regard, she must remain a participant in the both the debate and the work that will ensure the “protection of human rights, which belong to each person in virtue of his or her natural dignity, from the very moment of conception… to natural death.”
RJA sj
Wednesday, January 21, 2009
I sincerely thank the many authors who have contributed to our discussion over the past couple of days. I am personally indebted to Steve for his raising a number of important issues that help me identify and address the two questions that I have posed in the title of this posting. It may appear to some that I am taking on particular members of the MOJ contributors in writing this post, but that is not my objective or intention. I am, however, responding to the invitation to dialogue that Steve Shiffrin, in particular, has extended. I find that a number of his thoughts challenge me but also provoke a response in me after reflection on what he and others have presented.
I begin by considering the first question in this posting’s title: what does it mean to be Catholic? Surely there are some issues, e.g., capital punishment, on which Catholics who adhere to the Magisterium (and, as Steve sometimes says, “the institutional church”). Many months ago I addressed this issue which was an effort to build upon the thoughts of Avery Cardinal Dulles concerning the Church’s teachings on this issue. In my reflection, I explained why capital punishment was wrong by attaching a short unpublished essay I had written. I wonder if this makes me a “liberal” or a “progressive”? At the same time, I realized that other faithful Catholics could disagree with the position I had advanced. I wonder if that makes them “conservative”? For those who may not have read what I said, here is the link Download Araujo on Death Penalty to my brief essay.
Steve has also asked if God is a liberal? I don’t think we can attribute human inclinations or perspectives to God. God is neither liberal, nor conservative, nor anything in between. God is God. I think that Steve and I are mostly in agreement on this based on what he says regarding any human effort to “unravel the mystery of God.” But can we know God? Steve seems to suggest otherwise, but I think we can through prayer and through the tradition of revelation that some have encountered and related to the rest of us as the Church teaches. I agree with Steve that Christians, if they are faithful to their discipleship, are called to assist in the divine plan. I suspect that he and I may differ on what that means on particular issues in which Catholics and other believers have been immersed over time. Indeed, Steve is on to something when he suggests that we “must ask what God expects of” us. We have to “discern to the best of [our] ability God’s vision of justice.”
But I do not conduct my discernment alone. If I were to pursue this path, I am confident that my view of Christian justice would be skewed by subjectivism. I know that I must turn not only to the prayerful experience of others, but I must take stock of what Steve calls the Magisterium or “institutional church” for I believe that Jesus Christ gave to Peter and the first apostles authority to define what Christian justice is and what it is not. So, I do and must turn to others—not just those with whom I am comfortable. But, in doing so I must also turn to those who have been commissioned by Jesus Christ and their successors. I am most grateful to Elizabeth Schiltz for her wise counsel concerning debate; however, since the Mirror of Justice exists to explore the meaning of Catholic legal theory, it will be necessary to do just that—debate—on occasion. To remain silent on these grave matters may be safe but it is not a luxury that can be easily afforded. So, as Steve suggests, there are risks not only in searching for “what we want to see in God” but also to engage one another in respectful and civil discourse.
As I pursue this course of engagement through discussion and, yes, debate, it appears that I will disagree with Steve, but not, as he says, on immigration, the environment, “and the like,” but on those very matters that divide deeplly members of the Church and of our nation, e.g., sexual morality, marriage, contraception, and abortion. If I am in doubt as to what the Church expects of me or anyone else regarding these high profile issues, I do not have far to look to find answers. Our Church’s teachings and the justifications for her teachings are within easy reach. They are accessible to me and anyone else who wishes to inquire. It is not simply what is inscribed on my heart and mind but also on the hearts and minds of others—including especially those who have been commissioned to teach in her name throughout the Church’s history.
As a priest, without modifier liberal/conservative or orthodox/heterodox, I, too must counsel those who seek my pastoral advice. Moreover, I must be satisfied that the advice and teaching I relate is sound. It cannot be what I think or feel is right. In providing this ministry, I must think with the Church, and explain, as best I can, what she teaches with mercy and tenderness, surely, but also with clarity. To be “truly diverse” is not the question about what is needed for God’s people. What is truly needed is objective and moral truth that is not mine or yours but God’s which can be known and conveyed with prayer, with discernment, and with union with the Church in thinking with rather than against her. I will not call someone else sexist, homophobic, or corrupt knowing that I, too, am a sinner who seeks fidelity for me and for others and God’s mercy and forgiveness. But I must not be paralyzed in failing to convey what the Church teaches and why it teaches when my responsibilities as priest, teacher, and disciple are exercised. This is the challenge of discipleship that is not open to some but to all in occasions appropriate to their calling as followers of Jesus Christ. However, if “progressives” conclude that they do not need the Roman Catholic Church to be Catholic and seek my response to what they have concluded, I will accept the summons and argue respectfully why the Church considers such conclusions erroneous.
Steve and I agree that those who depart from these important moral teachings register dissent from what the Church (or, to be mindful of Steve’s perspective, “the institutional church”) asks from her members. So I come to his pertinent question why should these dissenters not be protestant or something else or nothing else? Steve suggests the question is a fair one, and the answer he offers is that belief in the sacraments, participation in theological discourse, and eschewing Protestant individualism preserve the dissenter’s Catholicism. But many Protestants celebrate some or all the sacraments; many Protestants engage in theological discourse; and some Protestants proclaim the common good over exaggerated individualism. That is why Steve resorts to other traits of what it means to be Catholic: an emphasis on grace rather than on evil (a trait of Protestantism according to Steve). Surely the Church teaches abundantly the nature and presence of grace in our lives—Deo gratias! But I think she also reminds us constantly of the presence of evil and of sin. Pius XI in Non Abbiamo Bisogno and Mit Brennender Sorge and John Paul II in Veritatis Splendor, Evangelium Vitae, and Centesimus Annus (to mention just a few elements of the Magisterium) address at length the presence of evil in the world of modern and contemporary times. And St. Paul in his letter to the Romans reminds us that Christ’s disciples are exhorted not to be overcome by evil but are commissioned to overcome evil with good.
These are some considerations that I present in response to Steve’s kind invitation regarding what it means to be Catholic. And it is this understanding of being Catholic—thinking with, not against, the Church—that is important to development of Catholic legal theory. Otherwise, one who is attracted to and relies upon the dissenting view may have some wonderful things to say about legal theory, but are they really Catholic? If one’s thinking is rooted other than in the Church, I do not see how it is possible to argue that one’s legal theory is in the Church when that theory is in conflict rather than in communion with her teachings. Fidelity to her teaching does not sacrifice discussion, debate, intellectual stimulation, richness, civility, or humility.
Last of all on another matter raised by Steve, I found what Kerry Kennedy has to say about “Being Catholic Now” moving, but I do not think I was moved the same way that Steve suggests. Thus, I wonder if I am in the circle of “rare human beings” to which Steve refers or not. Well, I’ll reserve that for another discussion another time.
RJA sj
