First of all, I would very much like to thank Patrick (who initiated the thread), Rick, Steve, and Susan for their earlier thoughts and reflections on the Pope’s address delivered to Catholic educators last week. I would like to offer a few additional thoughts about academic freedom in the context of the Catholic university—including its law school, should it have one—and the search for truth, which is ultimately God, for the Catholic educator in the Catholic academic institution and the kind of freedom with which he or she should be concerned.
For any institution to call itself Catholic, it must think with, not against, the universal Church. It must be an institution where the teachings of Christ and his Church (the Body of Christ) provide the guiding influences on how its members are to conduct their affairs in relation to one another and all others. It is crucial in this regard to understand where humanism plays a role—for “humanism” is often a guise that leads the work of the academy astray. In this task, reason and faith are crucial. That is why Benedict said, “It is important therefore to recall that the truths of faith and of reason never contradict one another.” It is the Catholic dimension of the search for truth, in an authentically humanistic environment, which focuses the lens through which Christian humanism is taught, learned, and lived. And the reason for exercising this form of humanism is to seek that which is true and to know that which is false. In this regard the Holy Father noted, “Education is integral to the mission of the Church to proclaim the Good News” because he also exhorted that, “Only through faith can we freely give our assent to God’s testimony and acknowledge him as the transcendent guarantor of the truth he reveals.”
Christian humanism—rather than some other variety of humanism—must be the project of the Catholic college and university and, therefore, be imbued with the understanding and appreciation of the great deposit of the Church’s teachings. The sources of these teachings are, of course, scripture and doctrine as developed over the history of the Church. It should necessarily follow that the community of scholars, who are aligned with this long Catholic tradition of seeking the truth rather than falsehood (which masquerades as truth), must be aware of God’s existence and what He teaches and embrace both if the college or university that calls itself “Catholic” is to be authentic to its Catholic identity.
The particulars of the endeavor of studying and living Christian humanism in a Catholic context provide the members of the university with the deeper insight into authentic human nature that is essential to the survival of the world. This insight enables the unique individual who bears God’s image to encounter the magnificence of all God’s creation as relayed in the teachings of Christ and further taught over the centuries by his Church. This encounter inexorably connects the individual with the other, who is God and who is also the neighbor. This is the most fundamental teaching of Christ, the Great Commandment—two elements conflated in one directive of right relationship: love God and your neighbor as yourself. It is the Great Commandment, so understood, that is at the core of the faith and the promotion of the just world with which the Catholic academy is inextricably connected. I question whether this is the enterprise of even the greatest universities in the world who make no effort to assert that they possess something in their nature which identifies them as “Catholic.”
Having said this, what is the particular role of the Catholic university in forming its members as those who are called upon to live and implement this basic tenet of life, the Great Commandment? It is seeking the wisdom of God rather than some passing fancy or fad or currently popular theory that is here today and gone tomorrow. This is a point emphasized by Pope Benedict when he said,
With regard to the educational forum, the diakonia of truth takes on a heightened significance in societies where secularist ideology drives a wedge between truth and faith. This division has led to a tendency to equate truth with knowledge and to adopt a positivistic mentality which, in rejecting metaphysics, denies the foundations of faith and rejects the need for a moral vision. Truth means more than knowledge: knowing the truth leads us to discover the good. Truth speaks to the individual in his or her entirety, inviting us to respond with our whole being. This optimistic vision is found in our Christian faith because such faith has been granted the vision of the Logos, God’s creative Reason, which in the Incarnation, is revealed as Goodness itself. Far from being just a communication of factual data—“informative”—the loving truth of the Gospel is creative and life-changing—“performative”... With confidence, Christian educators can liberate the young from the limits of positivism and awaken receptivity to the truth, to God and his goodness. In this way you will also help to form their conscience which, enriched by faith, opens a sure path to inner peace and to respect for others.
The charge of the Catholic intellectual inquiry, therefore, is to understand better one’s self and one’s world not from any narrow or individualized perspective but, as best as the human being and human community can, i.e., to understand it from God’s perspective. In a Catholic context, our learning, our seeking must be simultaneously humble [I/we do not know it all] and uplifting [seeking through prayerful relationship union with God]. Gerard Manley Hopkins once commented that, “The world is charged with the grandeur of God.” It is the Catholic intellectual, academic tradition which seeks to better understand the world not for itself but with the grandeur of God in mind. And this search requires freedom. But, freedom essential to the academic enterprise is not well-understood. As the Pope observed in this context, the notion of academic freedom is the object of distortion. In must not be the means to “opt out” but, rather, the desire to “opt in”—to participate “in Being itself.” Pope Benedict observed that “authentic freedom can never be attained by turning away from God. Such a choice would ultimately disregard the very truth we need in order to understand ourselves.”
It seems evident that the university—including the Catholic one—is a place of liberty and free inquiry. Without fetter, the inquiring mind must be free to search for what is true. But, in the Catholic context, how is the freedom essential to this task to be understood? This was a question asked and answered by Benedict. What follows is intended to complement what he said about the need to turn to God in the exercise of this genuine freedom.
Freedom is often viewed as the independence of the sovereign, autonomous individual from regulation or control. So, without any external restraint, the mind can wander without inhibition. By itself, this may be viewed as desirable because it enables the person to proceed unconstrained by the control of some external force. But is this the only kind of freedom with which we of the Catholic university are to be concerned? I would like to suggest that there is another dimension of freedom that is more important to the inquiry of the Catholic intellectual tradition, and that is the freedom for the truth, the truth which is God. And why is this link between God and the truth to be pursued by Catholic educational institutions so critical? Benedict gives us the answer: “Once their passion for the fullness and unity of truth has been awakened, young people will surely relish the discovery that the question of what they can know opens up the vast adventure of what they ought to do. Here they will experience ‘in what’ and ‘in whom’ it is possible to hope, and be inspired to contribute to society in a way that engenders hope in others.”
It is often said that universities exist so that their members may pursue the truth. In the context of the American university, it is further said that the greatest academic freedom is essential for the pursuit of this truth. However, this freedom is essentially viewed as freedom from control external to the investigator. By contrast, it is the particular role of the Catholic university, inspired by Christian humanism, to ensure that the pursuit of the truth is God’s truth rather than the truth that is simply human. This is where the greatest of freedoms is needed—the freedom for. Freedom from is inadequate to learn about the other or the beyond as accurately as possible. The freedom for God’s truth that is simultaneously transcendent, moral, and objective is essential to the work of the Catholic university if it is to be faithful to its mission. Freedom from insulates, whereas freedom for liberates thereby enabling the inquiring person to pursue this truth who is God. As Benedict argued, “Set against personal struggles, moral confusion and fragmentation of knowledge, the noble goals of scholarship and education, founded on the unity of truth and in service of the person and the community, become an especially powerful instrument of hope.”
It is this freedom for the greatest truth that enables those persons associated with Catholic higher education to bring such education that imbues the Good News to those not only near but those whom we do not see but with whom we assuredly do exist. It is faith in the Gospel of Christ, our common savior, that enables us to live the justice of the greatest commandment—to be in right relation with all others, our God and our neighbor. It is our Catholic faith that enables us to be the people who act justly, love tenderly, and live humbly with our God and one another. As the prophet Micah reminds us, this is the one thing that God asks of every person. This is the truth that we can come to know and the truth, as St. John proclaims about the freedom for discipleship, “you will know the truth, and the truth will make you free.” [John 8:32] Again, what is that truth?
It is the way of and to God. It is the way that Jesus taught for the salvation of all. It is the realization that the exclusively subjective leads to forgetting not only the needs of others but also that we are bound with them—and this is crucial to Catholic legal theory. It is, in the context of the objective of the Catholic university, the pursuit of the transcendent and objective moral order that enables the fulfillment of the Great Commandment. Does this mean that Catholic institutions can talk about the views of those whose perspectives conflict with Catholic teaching? Of course it does. But, in doing so the members of the Catholic academy must not forget who they are, what is constitutive of their identity, and where the Truth exists. Once they forget, they will be like any university, famous and otherwise. And should they simply identify themselves as “just like any other academic institution,” the truth and the light of God will be simply be one possible course that can be discarded in favor of some other avenue of investigation. But the desire to pursue God’s rather than merely human, subjective “truth” is not censorship; rather, it becomes the quest of authentic precision about who we are, what we are about, and where we are going as beings who bear God’s divine image.RJA sj
I would like to thank Michael P. for his kindly making us aware of Fr. Thomas Reese’s essay in Commonweal Magazine entitled “What the Church Can Learn from Other Institutions.” I’ll be addressing Fr. Reese’s six points for reform in a moment, but there is some need to consider his introductory passage that “throughout its history the Vatican has often imitated the organization of secular political institutions.” Fr. Reese does not offer any particular illustrations, so I am not sure what imitations and adoptions he has in mind. But from the perspective of who adopts from whom, I think those of us interested in Catholic Legal Theory need to be mindful that it was the Church’s legal institutions that often contributed to the foundation of western legal and juridical institutions. Harold Berman’s great work Law and Revolution is but one examination of this argument. Ample evidence exists demonstrating that the secular authority often drew from the Church’s legal and juridical institutions. I think we all need to be mindful that contemporary technologies have enabled the transmission of information in fractions of seconds, and this has had a tendency to reinforce the centralization of authority of academic institutions, corporations, national governments, and other organizations. I would caution against the “Vatican’s” (does Fr. Reese really mean the Holy See?) adopting “practices of the secular political world.” The Church and the Holy See are not political institutions even though some of their governance responsibilities have congruence in the legal and political works of the state, and this is a point that Fr. Reese concedes when he states, “All of these [activities] had parallels in secular society.” But substantive distinctions remain. The Church is the Body of Christ, the People of God. It is an institution in this world but not of it. I don’t think the same can be said of secular political institutions.
Before he begins his presentation of the six topics for reform, Fr. Reese engages in a discussion about Church-State relations particularly in the context of the selection of bishops. While he seems to wish that the selection could be conducted at the more local level rather than by the Holy Father and the Congregation for Bishops, Fr. Reese acknowledges the shortcomings of his desire. First of all, he acknowledges that the faithful do not always speak with one voice. Moreover, is it not possible that certain factions within the Church could stifle the voice of other factions? A lot would depend on who is present and who is not to cheer or jeer the candidate. I question the soundness of a selection process that is subject to the heckler’s veto. In addition, Fr. Reese admits the difficulties presented by the participation of the secular temporal authorities. This is of real and great concern. In the early twentieth century, for example, Cardinal Rampolla’s election to the papacy was frustrated in 1903 by the veto authority reserved and exercised by the Austrian emperor. Today, the People’s Republic of China, officially an atheistic (and totalitarian) government, has forced its views on the appointment of bishops who will serve within its sovereign territory. I think that Fr. Reese is mistaken in relegating to times past the temporal interference in Church matters. As I have stated here, today the Chinese state is not adverse to such interference; moreover, I have discussed in previous postings on Mirror of Justice the efforts by American politicians to saddle the Church with questionable regulation including financially accountability to secular authorities. These acts of temporal authorities, be they in China or the U.S., pose grave challenges to libertas ecclesiae.
Fr. Reese continues his historical study by noting that with the decline of the authority and presence of Catholic monarchs in Europe, the papacy consolidated and centralized the episcopal appointment mechanism. But should there not be a strong bond between Peter and the other apostles? This question was amply addressed at the Second Vatican Council in the Dogmatic Constitution on the Church, Lumen Gentium, and the Decree on the Bishops’ Pastoral Office in the Church. In these texts, the Second Vatican Council underscored the vital principle that the bishops serve in communion with and under the authority of the Supreme Pontiff. I don’t think this was so much a mere “consolidation of power” as Fr. Reese suggests but an amplification of the principle taught by Jesus found in Saint John’s Gospel regarding the essential relationship between the vine, the branches, and the fruit that is borne. While it has many members, the Body of Christ is one.
And now, on to Fr. Reese’s six “possible reforms.”
At the outset, I suggest that what constitutes “best practices” for secular institutions of limited government (i.e., the “servant state”) must be carefully evaluated before being applied to a divine institution, viz. the Church.
His first recommendation is to make the Vatican a bureaucracy rather than a court. Having dealt with officials of the Holy See curial offices as well as Federal and state administrators, legislatures and their committees, my experience allows me to question what appears to be Fr. Reese’s assumption that Vatican offices are more difficult to approach or to make appeal to than are those of secular temporal authorities. This is not always or often the case. In addition, I don’t think cardinals and bishops particularly think of themselves as “princes” or “nobles” but as persons charged with the responsibility of executing as sons of the Church the duties of their office with fidelity to their commissions. If deference is given to them, it is because of the authority of their office. But we citizens also defer to the authority of our administrative, legislative, and judicial officials. I am certain that the experience of the American republic has revealed that some temporal office holders in the U.S. have exercised their authority in ways that would remind us of the methods not of a servant official but of a tyrant. On his first recommendation, Fr. Reese concludes that elements of the Vatican bureaucracy need to be reminded that as servants of the pope they are not “part of the Magisterium.” What Fr. Reese forgets is that the Vatican bureaucracy serves the pope and produces work which he or someone to whom he has delegated the authority subsequently approves and appropriates thereby making its work his and therefore a part of the Magisterium.
His second point calls for the institution of democratic legislative structures. I do not think his proposal acknowledges several important facts that would blunt the force of this suggestion. First of all, the Roman dicasteries, some of which were established by the work of the Second Vatican Council and some of which precede it by many years (in some cases centuries), today have members and consultors (clerical and lay; men and women) who provide the Holy Father with recommendations that he typically and frequently adopts. When we think about law making in the United States, the system of the Holy See has a parallel with the executive signing into law the work of the legislature before it becomes law. In both cases, there is the mechanism for an “executive veto.” In the case of the Holy See, there is no mechanism for a legislative override, but that is not needed when the dicasteries return to their work leading to new recommendations or other work product submitted to the Holy Father. The fact that the Holy See relies today on all modern means of communication would put into perspective Fr. Reese’s clarion that there be an “ecumenical council at least once every generation.” When modern means of rapid communication did not exist, his suggestion would be more attractive. But one must ask is it necessary to have a meeting when the same work can be accomplished through almost instantaneous global communication.
His third recommendation calls for the conversion of the current dicasteries into “synodal committees.” As I have already mentioned, the Roman curia today (which includes Congregations, Councils, Tribunals, Academies, and other offices) is comprised of members, staff, and consultors from around the world. His conversion recommendation offers little in the way of substantive change but appears to be largely cosmetic.
The fourth suggestion concentrates on legislative oversight of the bureaucracy. I find this recommendation fails to take account of the fact that here in the United States, there is little ability of Congress or state legislatures to exercise oversight over a professional bureaucracy that is protected by the civil service system. Indeed, the highest offices of the bureaucracy are typically filled with political appointments, many of whom are subject to legislative scrutiny, confirmation, and oversight. But the vast majority of the civil temporal bureaucracy is protected from the oversight authority that Fr. Reese considers essential for the Church’s bureaucracy. Fr. Reese correctly notes that in some countries such as the United States there is an independent judiciary. But I wonder what makes him think that the Holy Father does not defer to the judgments and expertise of the several tribunals in Rome and those of the local churches that exercise the juridical duties of the Church? To the best of my knowledge, no pope in modern times ever considered a court packing plan or legislative or executive overrides of judicial decisions. I disagree with Fr. Reese’s contention that the protection of due process is not afforded to theologians who are investigated by the Congregation for the Doctrine of the Faith. The scandal he imagines may exist in legend but not in reality.
While I have already addressed some of his concerns about episcopal appointments, his fifth suggestion, fails to acknowledge that the papal nuncios (or in countries where there is no nuncio, the apostolic delegate), who are one of the Church’s principal bodies involved in the appointment of bishops, rely on recommendations and information supplied by clerical and lay members of the local churches regarding potential episcopal nominations. The dossiers compiled on those priests being considered for nominations reflect the abundant sources of information and opinions collected by the nuncios or apostolic delegates who then submit short lists to the Congregation for Bishops and, subsequently, to the Holy Father. The conclusion that the participation of the local churches is excluded in the episcopal appointments process is mistaken.
His final suggestion is a call to strengthen episcopal conferences by making them councils that would make the decisions otherwise made “by a centralized government.” While Fr. Reese relies on church teachings pertaining to subsidiarity, he fails to acknowledge that local churches already do this in many areas. But they do so in communion with Peter, the Vicar of Christ. In this context, we cannot forget the principles to which I have already referred that are from Lumen Gentium and the Decree on the Bishops’ Pastoral Office. Subsidiarity in the Church as well as its practice in the civil government of the United States is a good thing, but it exists in a reality where certain universal questions must ultimately be addressed by the highest authority, ecclesial or temporal. Subsidiarity that fails to complement solidarity leads to unnecessary friction and, then, fraction, and this is counterproductive to the flourishing of the vine and the branches—the one Body of Christ.
I look forward to reading the more detailed discussion which will appear in Fr. Reese’s chapters in the forthcoming book. For the time being, I have attempted to respond to the substance of what he has thoughtfully put forward in his article that Michael has kindly brought to our attention. Like Fr. Reese and so many others, including the Holy Father Benedict XVI, I remain a person of hope—hope in the one who came to save us all and who is represented by the Vicar of Christ and those whom he has called to assist him in his divinely mandated commission from our Savior.RJA sj
I thank Rick for his April 9th posting on the contribution to the First Things web log recently authored by Chris Kaczor. While his invitation was primarily directed to Rob, I should like take this opportunity to offer a few thoughts on this matter of conscience that I have addressed in this web blog over the past several years. Should readers and contributors be interested in my past ruminations, they might click on my name under the categories menu and search for the word “conscience.”
The essence of the American College of Obstetricians and Gynecologists (ACOG) in its published Committee Opinion N. 385, at best, pays lip service to conscience. In reality, it sacrifices the conscience of physicians who choose not to associate themselves in any manner with abortion in the nominal “balancing” of interests. Ultimately, their balancing of interests protects without question or limitation “the safe, timely, and financially feasible access to reproductive health care that all women deserve.” The ACOG opinion, in essence, only protects abortion rights while it dismisses the vital right of conscience that confers several crucial protections: the first is to the doctor; the second is to the unborn child whose fate is eclipsed by the reproductive health “rights” of the mother. In short, there is, in fact, no meaningful balancing in spite of the ACOG’s assertion to the contrary.
Why is this so? Organizations such as the ACOG are able to convince the state (which is also the licensing authority of physicians) that the important exercise of conscience which will maximize the protection of human life is no more important than the exaggerated autonomy of persons who elect to terminate human life other than their own. The conscience that is being sacrificed here is not one that is subjectively determined (like the autonomy intrinsic to “reproductive health rights”) but one that is designed to advance an objectively determined moral order. The ACOG perspective relies on the shaky foundation of the infamous Casey decision that the personal liberty of reproductive health rights is premised on “the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” With tragic consequences, the ACOG opinion rests on questionable jurisprudence that threatens the lives of the unborn—the posterity of the human family.
If our society would approve of the doctor who, in the exercise of his conscience, refused to conduct some scientific experiment upon an unwilling subject that is encouraged or required by the law of the state, why would that same society disapprove of the doctor who, also in the exercise of conscience, refused to terminate a human life in its early stages? Put simply, the action of this society would be guided by subjective whim and caprice. It would, notwithstanding its democratic claims, be a totalitarian society. As Pope John Paul II said in his encyclical letter Evangelium Vitae, “the value of democracy stands or falls with the values which it embodies and promotes.” What values are being promoted by the ACOG “balancing” effort? Are the values advanced by ACOG truly consistent with the principle of the right to conscience? If some are prepared to cheer the physician depicted in the film “The Cider House Rules” who, in the exercise of his ether-molded “conscience,” would abort the babies of young, unwed mothers who came to him for “help,” why could they not also commend the physician who, in the exercise of her conscience, refuses to associate herself with such actions?
Perhaps because, as Dr. Edmund Pellegrino has cautioned, the first context offers an “immediate utopianism of a man-made heaven on earth” where there is nothing beyond the present moment. In his view, the approach of this utopianism determines the material society’s choices about what is permitted and what is not. In the context of abortion and reproductive health care, there are physicians willing to comply with the expectations for services to which other doctors object based on their formation of well-formed conscience that is objectively based. There is no need to coerce all physicians with state sanction (imprisonment, denial of licenses, or fines) to perform acts to which they object in good conscience, based not on “feeling” but on sound and reasoned views of rightness and wrongness. For those who may be interested in a more detailed explanation of my views on these issues, they may wish to read my recent article Conscience, Totalitarianism and the Positivist Mind just published in volume 77 of the Mississippi Law Journal (2008).RJA sj
In yesterday, April 7th’s The New York Times, Eduardo Porter, the paper’s Editorial Observer, published a brief opinion piece entitled “The Vatican and Globalization: Tinkering with Sin.” [HERE] Out of the starting gate, the author declares that it is “hard to erect rules to last forever.” Well, maybe for members of the human race and The New York Times, but is it “hard” for God? Mr. Porter relies on a remark attributed to an official of the Holy See that globalization and modernity have given rise to sins different from those dating from medieval times; therefore, in Mr. Porter’s view, the world is a changing place in which attention must be given to revamping norms “encoded hundreds of years ago” that guided human behavior in a small-scale agrarian society. Porter cites as evidence pollution of the environment, drug trafficking, genetic manipulation, and causations of social inequity.
I think most would agree that it has only been in recent years that scientists have been able to acknowledge that human genetic manipulation is possible, but we must recall that in the mid-19th century Abbot Gregor Mendel’s hybrid experimentation of plants was taking place. I am not suggesting that Abbot Mendel was engaged in sinful activity, but it is necessary to place Mr. Porter’s allegation in its proper context. But it is necessary to assess whether his assertions about environmental degradation, drug trafficking, and taking actions that promote social inequity are really all that new.
For example, the ancients were quite aware that salting the agricultural earth of an enemy was an effective means of environmental degradation that would have devastating consequences for many years. We are reminded of this when Abimelech razed a city and sowed it with salt, Judges 9:45. This occurrence was about a thousand years before Christ. The idea of environmental degradation is not new. Nor is the trafficking of drugs and other dangerous contraband. Nor is social inequity something since prophets like Amos (8:4-6), Jeremiah (7:5-6; 22:13), Ezekiel (18:7), and Isaiah (1:17; 3:14-15; 10:1-2) preached against it.
A major point of the Porter opinion article seems designed to address the Church’s teachings on sexual mores; hence, he attempts to argue that “new sinful behavior” is “more relevant to many contemporary Catholics than contraception.” He wants his readers to believe that the Church is struggling with the definition of sin in the world of today when he states,
Sin, however, doesn’t take well to tinkering. Many Catholic thinkers reacted strongly against the idea that new sins were needed to complement, or supplement, the classical canon. They accused the press of exaggerating Monsignor Girotti’s [the Holy See’s official quoted by Mr. Porter] words. Their reaction underscored how tough it is for the church to manage a moral code grounded in eternal verities at a time of furious change. The Vatican has long been riven by this tension between dogma and the outside world. Yet it could apply to any religion: it’s hard to rejigger the rules when truth is meant to be fixed forever.
But it is Mr. Porter who is “riven” to the idea that the Church is somehow mired in the past. But is it? I believe that the Church has recognized that throughout human history people have figured out ways of straying off the moral path to God and engineering methods of bringing harm to their neighbor and therefore offending God. He also misunderstands the requirements of the Great Commandment to love God and the neighbor as one’s self when he draws a parallel between discipleship and membership in a club or other social organization by stating that,
The core benefits of religions, unlike other, worldly institutions, often relate to the afterlife. Some social scientists argue, however, that many benefits of church membership are to be had this side of death. The gains are not unlike the advantages of a club of like-minded people. Religions provide rules to live by, solace in times of trouble and a sense of community. Some economic studies suggest that this can promote higher levels of education and income, more marriage and less divorce. Such a club needs strong, believable rules. Like marriage, membership will be more valuable the more committed the other participants are to the common cause. Demanding rules — say celibacy, or avoiding meat during Lent — help enhance the level of commitment.
But he is critical of “strict rules” when he asserts that religions “relax the rules at their own peril”; therefore they have an investment in the status quo. I think Mr. Porter misconstrues the concept of sin and why the Church teaches what it does and why it does when sinful activity is in issue. The Church acknowledges that the exercise of free will has led people throughout the millennia to lead lives that disrespect wise moral norms. While the methods used to commit sin may be new and reflect contemporary human capabilities, sin is not.
Mr. Porter finds it necessary to point out that Catholicism “has lost traction” on these matters because the number of those raised as Catholics in the western world does not correlate with those who now identify themselves as Catholics. Well, Mr. Porter has discovered something about the exercise of free will by humans, but he suggests that the problem is brought on by the tension between weakening versus maintaining “strictures.” But, in fact, it’s not really about “strictures” as it is about people choosing to follow or not the moral norms that have constituted the Church’s teachings for centuries. In this context we might recall the discussion between Abraham and the Angel of God (and God) on the Road to Sodom—God would spare the sinful if even a small fraction of the population were righteous. Mr. Porter is correct in one thing, his final point, that Pope Benedict teaches the truth, the truth of God that has been around for a long time. The need to update sins is not the point, as Mr. Porter would have us believe. Teaching about right and wrong, regardless of the temporal context is—and this is something at which Pope Benedict XVI is skilled. The Vatican is not tinkering with sin. Rather, we humans find new ways of doing old things that we never should do. RJA sj
The endorsement released by Professor Doug Kmiec of Senator Obama’s candidacy is a potent reminder that each of us will soon have to make his or her own endorsement, or not, of candidates for public office within the privacy of the voting booth. When he spoke before the Greater Houston Ministerial Association in September of 1960, then Senator and Candidate John F. Kennedy (not the Catholic candidate, but the candidate of the Democratic Party who was Catholic) asserted that he would address the issues that came before him based on what his conscience informed him to be in the national interest “without regard to outside religious pressures or dictates.” While then Senator, later President, Kennedy mentioned conscience, Professor Kmiec did not; therefore, I cannot comment on his exercise of conscience, but I can on John Kennedy’s.
I think Senator Kennedy was partially right but also partially wrong when he made his statement. He was correct insofar as he acknowledged the importance and relevance of conscience; however, he was wrong insofar as he concluded that religious belief was an impermissible influence in the formation of conscience. Many, if not most, of the issues that a citizen or public official must address contain both political and moral dimensions, but to exclude the moral reasoning that religious belief can offer would be a disservice to the implementation of one’s civic duties and would dishonor the exercise of religious liberty—especially when the individual in question asserts Catholic identity.
The objective of this posting is to provide an explanation, taking into consideration Catholic teaching, on how the Catholic—either as citizen or as holder of public office—is to form personal conscience that is well-formed and, therefore, consistent with the teachings of the Church. It is essential in addressing this matter to understand that conscience is “the most secret core and sanctuary of a person. There he is alone with God, whose voice echoes in his depths.” [Pastoral Constitution of the Church in the Modern World, N. 16]
Conscience, its formation, and its exercise have long been important to the Church and its members. This is evident in the recent US Bishops’ statement, Forming Consciences for Faithful Citizenship—A Call to Political Responsibility. The statement reiterates the conclusion of the Second Vatican Council in the Declaration on Religious Liberty that the minds and hearts of Catholics must be formed in such a way as to promote knowledge and practice of the “whole faith”, which must necessarily include the critical, indispensable ability of Catholics to “hear, receive, and act upon the Church’s teaching in the lifelong task of forming his or her conscience.”
The Church does not tell its members whom they should vote for or against. However, she emphasizes that a critical element of this crucial individual responsibility is that the Catholic must exercise civic duties “in light of a properly formed conscience.” Thus, local bishops have the primary duty, as apostles in union with the Pope, to inform, through their teaching responsibility, each individual’s conscience so as to assure that it is a “properly formed” one. The failure to do so would constitute an inexcusable abdication of their responsibility to the Church and those souls entrusted to their teaching authority.
The formation of a well-formed conscience must also take into consideration the complementarity of faith and reason because it is reason, compatible with the Catholic faith, that reinforces the Church’s claim to teach and to proclaim the Gospel to the faithful and all people of good will. The well-formed conscience inexorably reflects this complementarity. But the free and well-formed conscience that accords and thinks with the Church cannot follow the problematic course of Planned Parenthood v. Casey, where personal liberty is based on the ability to define one’s own concept of existence, the meaning of the universe, and the mystery of human life. The reason should be obvious: competing conceptions of liberty and conscience will inexorably lead to a collision course even within the most democratic of societies.
What will avoid the collision? Let me suggest these tools: patience, thought, and faith. The bishops, along with those who assist in their teaching authority, have the clear and distinct obligation to instruct the faithful in fundamental moral principles that help form consciences correctly with patience, critical reason, and faith. Those charged with this teaching duty must provide the antidote to the conundrum of exaggerated subjectivism posed by the Casey method of liberty’s role in the formation of conscience. The Church provides a transcendent and objective moral order which assists persons in making distinctions between right and wrong and forming actions based on these distinctions.
From the perspective of the exercise of the Christian, Catholic conscience, self-reliance is a problem when it is the only resource used in the formation of conscience. Fortunately, the Gospel and the Magisterium come together in an organic synthesis of faith that needs to exist in each person’s discipleship that leads to the inescapable path of objective truth whose consummation is God. This is the point at which Christ’s statement, “You will know the truth, and the truth will set you free” becomes a reality present in and of the temporal world. What a panacea this would be to the problems of our times and those that will emerge in the future that challenge our wits of civic duty.
As Americans, we place an uncompromising value on liberty, yet it is with the Church’s teachings that rely on the truth, Himself, that human conscience is expanded and liberated. For the Christian, authentic liberation comes from the fact that the individual is not truly “free” when freedom is of the sort that distances a person from the truth. When a person is free from the truth, the person often becomes enslaved either by the paralysis of exaggerated autonomy and self-centeredness or by the dictates of some external entity that is not in accord with Christ’s truth as proclaimed by the Church.
Here it is vital to take account of Fr. John Courtney Murray’s commentary on the Decree on Religious Freedom of which he was a major drafter. In his discussion of the formation of conscience, Fr. Murray observed that it would be false to conclude that a person has the “right” to do whatever his or her conscience tells the person to do “simply because my conscience tells me to do it.” Fr. Murray asserted, correctly in my view, that to follow this kind of conclusion as a proper way of proceeding would be inconsistent with Catholic teachings because it is based on “a perilous theory.” The core justification proffered by Fr. Murray is that the centrality of the peril is its reliance on the kind of subjectivism in which a person’s conscience is based on self-reliance rather than “the objective truth” which therefore determines what is right or wrong, true or false. Hence, the judge of what is right or wrong, true or false is solely the individual rather than objective certainty. This is in large part why the Congregation for the Doctrine of the Faith in 2002 noted that a well-formed Christian conscience imposes certain responsibilities on Catholic citizens to counter a vote for or support of a political program or legislation “which contradicts the fundamental contents of faith and morals.”
The CDF went on to state that the faith is “an integral unity” and it would be incomprehensible for a Catholic to justify his or her action, in the name of conscience, to support a decision that is detrimentalto the whole of Catholic teachings. In essence, then, a well-formed conscience must not vote for a candidate, support legislation, or endorse a program on the basis of one particular element of evidence that would inevitably sacrifice the whole of the Church’s teachings and the entirety of its social doctrine. As wearers of the garment of Christ that we take on a baptism, we must bear the whole cloth and not that portion which is convenient for the moment. While a candidate’s positions or a party’s platform may be quilted from many fabrics, the conscience of the well-formed Catholic citizen or official must necessarily be of the whole cloth. RJA sj
Early in the New Year of 2008 I posed several questions about our project of Catholic Legal Theory and end times—end times not in the context of final world conflagration, but in the sense of the destiny of the human being. In short, my posting [HERE] was designed to raise questions and a potential discussion about the role that Catholic Legal Theory may play in matters eschatological and soteriological. At that time, I mentioned that I would not be offering answers, and no one else came forward with any thoughts in response to my posting. Now that we are at the beginning of the Easter Triduum, I thought I would provide readers with a few thoughts on the matters that I raised in my January post.
I would like to begin with the question Pilate poses to Jesus: “What is truth?” (John 18:38) It would appear that truth and the law have something in common in that witnesses called to testify pledge that they will bear witness to the truth, the whole truth, and nothing but the truth (so help them God). Jesus reminds us that he is the way, the truth, and the life—and no one goes to the Father except through Jesus. (John 14:6) Somehow, the truth of human existence and human destiny is that God sent His only son so that we who believe in Him will be saved and be granted eternal life. (John 3:16-18) Disciples are called to testify to this truth, and I suppose this would include we who call ourselves Catholic Legal Theorists.
During these next several days, we have an abundance of rich opportunities to reflect on the meaning of these passages from the Gospel of St. John in the context of our lives as people of faith, as disciples of Christ, and as those who have some opportunity through our calling to assist others in considering God’s truth about human destiny. I am not suggesting that it is the role of Catholic Legal Theorists to advocate for theocratic governance, but I am proposing that Catholic Legal Theorists, through their writing, teaching, and lecturing, can exercise a role in which the law that is enacted, enforced, and adjudicated might be disposed to complementing this truth about human nature and human destiny. While an imperfect institution, the law nevertheless can be a means by which more members of the human family have the opportunity to meet this truth and to fulfill the corresponding destiny that accompanies it—even if the only truth that can be realized is partial, i.e., there is something beyond the present moment toward which civil society can properly attempt.
In particular, we Catholic Legal Theorists might consider how our positions, callings, and responsibilities in life enable us to assist those with whom we work—be they students, colleagues, practitioners, jurists, legislators, administrators, or citizens (to mention a few pertinent categories)—in acknowledging that there just might be something beyond the present moment in which a purer form of justice—right relation with one another and right relation with God—is an objective worth seeking through the mechanisms of the law that we help shape and implement.
Considering the holy season in which we find ourselves and our belief in the one who came to save us all, might we be resolved to assist ourselves and others in the pursuit of this truth that is of God and His son? And if this be our resolution, surely the one whom we commemorate and celebrate in the event of Easter may well be disposed to take care of the rest so that the hope and promise of this season is fulfilled and the truth He is will be accepted by more of our fellow pilgrims in this world as we await and prepare for the next.
In August of 2005 in an earlier posting I commented on the attempt in the Massachusetts legislature to impose financial reporting obligations on churches which the Commonwealth’s attorney general would have the authority to investigate. [HERE] In my earlier posting, I suggested a parallel between Old England (during the time of King Henry VIII) and New England recalling the various pressures put on the Church to toe the line imposed by King Henry regarding his divorce and the Act of Succession and the oath required under that act. The 2005 Massachusetts legislative effort to impose this obligation fortunately did not take place since the legislation was not enacted. However, new legislation has been reintroduced in the current legislative term to duplicate the previous effort to pressure the Church. The Massachusetts Catholic Conference has testified against the refiled legislation. [HERE] The state has also introduced other legislation that would amend the charitable immunity statutes by increasing the civil liability or eliminating the immunity of charitable institutions specifically including civil claims emerging from criminal or tortious acts involving sexual abuse of children. The Massachusetts Catholic Conference has also testified on this legislation. [HERE] In the context of the second category of legislation, the legislative efforts to increase civil liability or eliminating immunity would not apply to public education institutions which would continue to enjoy and exercise the protections of limitations and immunity.
It would appear that these legislative proposals are once again designed to target, at least in large part, the Church in the Commonwealth of Massachusetts. Sadly and tragically, in the “Cradle of Liberty” as the Commonwealth of Massachusetts is sometimes called, religious liberty and libertas ecclesiae are once again under pressure by the state, perhaps with the support of various interest groups who are not friends of the Church. For the crimes and torts committed by members of the Church in the past, the Church herself has suffered greatly. Almost every day I walk by the property that once was the former chancery, archbishop’s residence, and seminary grounds of the Archdiocese of Boston. This property was sold to pay victims of past abuse. I do not lament the fact that the Church was held responsible for the torts and crimes committed by its members. But I do lament the fact that the new legislation appears to be geared to putting pressure on the Church herself whenever someone in the Commonwealth’s government decides to pressure the Church into doing something she should not do or cannot do.RJA sj
Thanks to MOJ contributors and readers (but not the hijacking robots) for patience and understanding in the delay to follow up on my promise to respond more fully to Professor Dan Markel’s proposal about his sex education licensing proposal for minors. I am particularly grateful to Rob for his understanding as he was the one who raised the Markel proposal on this website.
So, now, let me address the Markel proposal—is teen sex like teen driving? No, it is not.
I’ll begin my elaboration of this position by reiterating points I have made earlier in other postings: does something like the Markel proposal rob children of their childhood? In my estimation, yes. If we accept the Markel proposal and offer children sex-education licenses, why not marriage licenses? Why not grant children the ability to contract? Why should the franchise be restricted to those over the age of eighteen? Why not enable the military to draft at the age of twelve, eleven, ten, or nine? After all there is precedence for this with that reprehensible practice of child soldiers. Childhood exists for a series of important developmental reasons. It is a time of learning basics about human existence; but it is not a time for them to be thrust into the thicket of human experiences that confound many adults. So why should these burdens be placed upon the shoulders of the young who should be learning first principles and having some fun as well?
My second point is this: if a young person took the family car without family authorization and legal authorization even with a license to drive, there would be problems on many fronts. Does the issuance of a license for teen sex eliminate problems? I doubt this for a number of reasons. I begin with the point I have already made: children are being denied their childhood. Second, even though they may have at earlier stages of life the bodies or bodily abilities of adults, they are still children. Have they learned what needs to be learned as a child about courtesy, graciousness, obedience to proper authority, magnanimity, charity, good citizenship, proper manners… and I hasten, the list could go on before they comprehend the intricacies of sexual relations? These young people may be highly intelligent, but do they have the experiences of and wisdom about life fitting to a young person? Highly unlikely.
If you have any doubt about my response to this last question, take a look at some of your law students who are extremely bright but have not yet learned and mastered basic principles of etiquette for inside and outside the classroom, or for that matter, proper grammar, syntax, spelling and punctuation.
If we don’t learn these first principles on other simpler matters when we are supposed to, how can we be ready to accept the responsibility of more weighty matters like appropriate sexual relations. Think of this response to a problem involving sexual involvement of a young person: “Well, I got my license, why can’t I have sex with whomever I want whenever I want wherever I want?” There is a bit more that needs to be learned about life, about human nature, and about human destiny, that’s what.
I have read and reread Professor Markel’s interesting but flawed proposal. After many readings, I just wondered if he thought that young persons are the equal of a person of his years in every regard? If so, this is a flawed assumption. This flaw is exemplified in his subsequent remark that he is “not opposed to say, gay triplets having sex (or marrying) each other, provided certain conditions are satisfied.” I wonder what “conditions” he had in mind since he does not elaborate on what they are or might be? For the time being, I shall put aside the specifics about these triplets as to whether they are identical, fraternal of the same sex, or fraternal of both sexes.
It appears that a primary motivation for his sex-education licensing proposal is to “provide a safe harbor from prosecution for relations with minors.” Well, I am sure that would be a relief to many, including members of our Church, who have been accused and convicted of child molestation. When all is said and done, does the conferral of a license by the State mean that a person of tender years is truly capable of doing something with dramatic and often drastic consequences that result from sexual relations? I realize that Professor Markel puts some limitation on his proposal, but he nevertheless suggests that we might start with children as young as 14 years old who are to receive sex education licenses. Children of this age, and older, may consent to mowing the lawn at one moment but may well rebel at the thought in the next. So what does this say about their ability to consent to sexual relations—be they with other “minors” or with adults, as Professor Markel opines?
His proposal appears to be designed to do one thing: to serve as a defense against prosecution for statutory rape—meaning sexual relations with a person under-age. In my estimation this would be a great comfort to those adults who are sexual predators of the young, but their comfort would entail the peril of our young. The fact that the child has received information about “safe sex, the risks of sexually transmitted diseases, and genetic defects arising from consanguineous relations” is not going to protect young people from themselves or from those who are very capable of preying on their vulnerability. The three conditions that Professor Markel would require may eliminate some of the abuses that I have just listed, but, as lawyers, we know that the ground is quite fertile for legal abuse on many other fronts not addressed by his conditions.
I find his “idea of requiring” the registration of a “joint consent form indicating intent to have sexual relations with a designated public official before the activity happens” fascinating but highly problematic. I begin by raising the matter about enforcement. Who will enforce such a licensing scheme? Moreover, will not civil libertarians be up in arms about the role of the State in enforcing expressions involving such personal matters? And, from a Catholic Legal Theory perspective, does the Markel proposal not drive a further wedge between the proper relations involving supervision and protection of parents or legal guardians and the children entrusted to their protection? Professor Markel raises the question regarding issues about State paternalism, but he says nothing about natural paternal duties and how they will be adversely affected if not destroyed.
His proposal then goes through a series of questions raised by students in his class where the concept of the sex education licensing presumably was raised. For example, the fact that a young person has a sex education license does not mean that he or she will be protected from the vulnerabilities of being a young person who engages in risky sexual conduct. His response begins with an analogy to driver education that prepares a young person to obtain a motor vehicle operator’s license. Motor vehicle licensing also bears its dangers, but it is more attuned to the age of a young person of sixteen or seventeen having an ability to drive a car or other specified kinds of motor vehicles. A person of this age category is being licensed to engage in an activity, i.e., driving a motor vehicle, which bears very different consequences than the consequences of having sex with anyone—male or female regardless of age. Professor Markel does not take account of these distinctions. In his estimation they are the same, but in reality they are not. Driving safely is not to be analogized with “safe sex.” Yet he seems to suggest otherwise.
The mind and mental functions determine how well or poorly a young driver, as well as any driver, operates a motor vehicle. “Hormonal impulses” have nothing to do with driving a car, but, as Professor Markel properly notes, they have a lot to do with having sex. His analogy with motor vehicle licensing must fail because of this distinction alone. Nevertheless, he asserts at this stage that the threat of prosecution for violations of either licensing can serve as a deterrent to their abuse. I am sure that the threat of prosecution for a violation of sex education licensing will be a source of comfort for many victims of rape—conventional or statutory.
Let me comment in just a few words on the analogy of the young pizza delivery server and the child pornography actor. A young person who works in the pizza parlor or in the pizza delivery vehicle is serving a pizza—not himself or herself. I am honestly consoled to know that even Professor Markel has reservations about the use of a sex education licenses to work in the pornography business. While I have my disagreements with researchers like Catherine MacKinnon on other issues, she has clearly demonstrated that those children and women co-opted into becoming pornography actors are often enslaved into a system from which escape is precarious. This may be why Professor Markel states his reluctance about carrying the sex education license to this extreme. Interestingly, he suggests an explanation for a reservation that is not given. My answer to this predicament is that there can be no explanation that would justify sex education licenses that would legitimate child pornography.
Finally, let me offer a thought on his critique of parental notification or vetoes. His position is that there should not be any requirement for parental consent in a sex education licensing scheme as he has presented it. But with the implementation of his proposal, he drives one more stake into the heart of the basic unit of society—the family. When we remove children from the supervision and control of parents that is properly theirs, where will young people turn when they finally realize they have encountered problems to which they have no answers or solutions? That they may carry a sex education license in their wallet affords little comfort and no protection.RJA sj
Professor Scott FitzGibbon of Boston College Law School, an avid reader and fan of the Mirror of Justice, has offered his thoughts on Rob’s interesting postings on the GLBT proposals for the Minneapolis public schools and requested that I share them with the MOJ community:
Professor Vischer reports that he has received literature warning about the introduction of “a controversial GLBT curriculum” into the Minneapolis public schools next year. Heasks: “As a Catholic parent, am I supposed to object to this curriculum and if so, on what basis?”He comments: “My children do not believe—nor would I want them to believe—that there are ‘wrong’ families.”
Fair enough in one way: there cannot precisely speaking be wrong families. There may be wrong actions, wrong projects, wrong intentions and dispositions to act, and wrong ways of life. Promiscuity, adultery and cohabitation with multiple partners, for example are wrong. The polyamourous households some progressives are now recommending are—if they are families at all—wrong families by a sort of analogy.The same can be said of households headed by unmarried cohabiting couples.If the central relationship is illicit, the household is poorly based. This conclusion would have to be applied, according to Catholic teachings, to any household headed by a sexually active same-sex couple.
Professor Vischer asks; “There are some family structures that are more conducive to the flourishing of children (two-parent, namely), but does that reality mean that we shouldn’t teach our children to be welcoming toward single-parent or same-sex-parent families?”
Regrettably the “GLBT curricula” which are on offer sometimes go far beyond proposing a tolerant attitude.“King and King,” a storybook presented to second graders in Lexington Massachusetts, is unmistakably celebratory, culminating in an illustration of two men kissing at their wedding. Lessons presented to eighth graders in Brookline, Massachusetts have included presentations on the joint, same-sex, use of sex toys.
Such presentations to small children and adolescents in a state of flux and uncertainty are—let us call them what they are—shameful and wrong.
Leave off the scare quotes, they are wrong, not “wrong.”Our Lady is not called the mirror of “justice.”
I thank Rob for his posting on this issue posed by the Markel article on “sex-ed license” education. I would very much like to respond to this important post of Rob’s in greater, detailed explanation. However, I find myself out on one of the
Massachusetts
islands for the week covering a parish for an ailing pastor, and I find that my internet time is quite brief. So, I shall pose a question to Rob—not so much to Rob, but to the issue he raises: “I’m not sure how to articulate all of my grounds of discomfort with this proposal…” What prevents the articulation? Let's consider Catholic teaching since we are involved in the project of developing Catholic Legal Theory.
I'll offer a preliminary shot at answering the question and situation that I have posed. Let me begin with a humble suggestion about how we should think of the matter about sex-education licensing: it is wrong; it is dangerous; moreover, what are the proponents thinking by offering this "solution"? I think in the long run that this solution to a real problem will compound the problem and will do little or nothing to solve it. I will add a follow-up to the Sunstein suggestion that “one of the government’s central roles is norm management.” Really? I am inclined to agree that the government can and does often find itself managing others' norms, but I must ask the fundamental question: how does the government develop principles essential to the norms it would like to manage; does it have any norms of its own; if so, how does it construct them; what is essential to the construction of its norms that will manage norms? I should very much like to return to this matter upon my return to the mainland during the weekend. But for the time being, let me say that I share Rob’s concerns. But I hasten to add that I think Catholic Legal Theory has a lot to say about this issue, and I would not want to restrict my understanding of the issue or my thoughts about solutions to those ideas that have demonstrated little if any sympathy to the Catholic intellectual tradition. RJA sj
