During the holy season of Advent Christians, but especially Catholics, are reminded of the role of prophecy in faith as we read or hear many of the daily readings that are taken from the prophecy of Isaiah. Prophecy has a multi-faceted role for people of faith. One dimension of prophecy’s function is to foretell of things that are to happen in the future, but another is to ask the believer if the tenets of faith have been forgotten, put aside, or intentionally ignored when evidence suggests that these precepts are not a part of the believer’s life.
During Advent, we Christians often hear readings from Isaiah’s prophecy, and the several functions of prophecy come into play. Thus, we are reminded of the coming of Christ. But why should this happen? The answer is clear to the believer: because I have sinned—I have turned intentionally from God and what He has asked of me. But there is hope for rectification of this. And this is where the dimension of gift comes into play.
Christ is the gift of God Himself for the remission of sins and for the salvation of many—the many who hear the voice of the prophet and acknowledge that there is something amiss in one’s life because the believer has turned from God and His ways. In essence, the Giver is the gift because as Saint John’s Gospel reminds us, God so loved that world that He gave His only son so that we might live with God forever.
As we progress through Christmastide, we are continuously reminded of this inextricably related prophecy and gift. We are also simultaneously reminded of the many gifts we have received in our lives, in spite of the disappointments and difficulties which confront us, and the need to thank God and the many kind people He sends our way to help shoulder the burdens of disappointment and difficulty.
In this regard I thank the many kind people who have written to me informing me of their prayers in view of the health complications which I have been facing—lymphoma and its metastasizing in the central nervous system. But even in this difficulty I find the reminder of prophecy and gift and take hope knowing that both apply to me, too, if I take the time to acknowledge this. Of course, we all face the same destiny in our human existence: this life will assuredly come to an end so that the eternal one may begin. I have come to realize that my own recognition of this inevitable and universal human destiny has a bearing on what each one of us who are believers does in his or her earthly life. In this regard, I pray that God will offer me some time to attempt to offer a few simple and humble thoughts that have a bearing on what we at the Mirror of Justice do in our human lives as teachers and as promoters/developers of Catholic legal theory. Of course, it probably need not be said, but I shall say it nevertheless: these two earthly tasks have a relationship with God’s prophecy and the gift that He has given us.
From literature, television, film,
and music, authors, originators, and producers have used the theme of “the
enemy within” to describe problems within an institution, organization, or
society caused by its own members rather than by externs. This is not to say
that in all cases, the “the enemy within” was malicious or a traitor, but it
was an opponent to something of importance that was associated with and held by
the community with which it, the “enemy,” chose to associate itself. I am using
the term “enemy” as it is defined by the OED as “one who opposes” something.
The Church has found herself across salvation history to be such a community in
which persons claiming to be members have challenged core beliefs of the Church
arguing that these principles of faith were outdated, wrong, or flawed and in
need of abandonment. The Church in the United States, which is a local church
of the Universal Church, has been the target of such persons, the “enemy”
(i.e., those who are opposed) for some time. Evidence of this is particularly palpable
during the election seasons of the last several decades. The fact that I
disagree with certain views expressed by others who use the descriptor “Catholic”
to describe themselves does not mean that I hate them or want to fight them: it
means that I disagree with them and am opposed to their views on issues where
we have different, perhaps even diametrically opposite views.
There is for many of us a
correlation between principles of Catholicism and matters that are at the
forefront of public policy debates and disagreements of the day. Like those
with whom I disagree on these matters, it is important to offer the
perspectives I hold for the benefit and consideration of others. That is why I
write today to express a difference of opinion with two fellow Catholics, one
whom I know and one whom I do not. For purposes of my discussion, identity is
not essential to my posting (although it will be known by anyone who chooses to
click the hyperlink), but the positions they advance are. My disagreement is
not personal; rather, my opposition is to their perspectives and contentions
which I believe are flawed because their justifications for both are deficient
and miss something that objective reason would indicate to be otherwise. So,
here goes…
The first view [here] takes issue
with those bishops who took a strong and public stand on various initiatives
regarding the meaning of marriage and the legislative or other initiatives to
recognize same-sex marriage. The fact that individual bishops, episcopal
conferences, and the Holy See have “weighed in” on the matter and opposed these
initiatives and pointed out that these initiatives, if successful, will lead to
other problematic initiatives down the line does not make the bishops who made
statements along these lines “sarcastic.” The use of analogy is important in
public policy debate, and it is certainly an important element of practical
legal reasoning. The issues raised by the bishops were done with serious intent
in mind; they were not an attempt to be sarcastic. To consider the basis of
this contention in a legal context, who would have thought that Griswold would have led to Eisentadt; who would have thought that Roe would have led to abortion-on-demand?
To have raised the prospect of where landmark case progeny would travel might
have also been viewed as “sarcastic,” but look what happened. If this author
upon whose posting I am commenting had investigated further, he would know that
there are proponents of other forms of marriage who are preparing to advance
their causes once same-sex marriage takes deeper root.
Furthermore, to take to task
Catholics who are opposed to the same-sex marriage initiatives by arguing that
these persons are using precious resources “to combat marriage equality” gives
a meaning to the important word “equality” that is not sustainable or durable.
As I pointed out in my last posting a few days ago, there are profound reasons
for agreeing that same-sex relations that might be called marriage are not the
equal of opposite-sex relations. Yet, we live and toil in an age where the
simple mention of the term “equality” is all that one needs to do to make his
or her argument stick, or so it seems. Nonetheless, objective reason that is
constituted by clear, careful, and critical thinking will demonstrate that the
use of the term “equality” to advance to acceptability of same-sex marriage is a
mistaken use of the term’s meaning. To argue that bishops and other members of
society are engaged in problematic “combat” that will undermine “equality” is unreasonable.
To argue that these members of the Church should abandon what some term as “culture
war politics” does not grasp the reality of the situation nor the matters which
are at stake. The sound bite culture may find attractive such a phrase to
describe a position with which they disagree and which they wish to see
eliminated from the public debate, but the phrase “culture war politics” does
grave disservice to the robust duties that accompany the responsibilities and
rights of citizenship.
The further justification offered
by this writer that the efforts of bishops and many Catholics to oppose
same-sex marriage will “push[] younger generations of Catholics out of the
church [sic]” needs to be evaluated. This statement presupposes that “younger
generations of Catholics” understand and accept the first principles of the
faith with which they are associated. In fact, many, perhaps most, do not for
reasons I explained in my last post:
more and more young people are
being subjected to teachings which use the moniker “Catholic” but, in fact, are
not. As the “More than a Monologue” initiative partly sponsored by Fordham and
Fairfield Universities illustrated and which I have previously discussed on
these pages, nominally Catholic institutions of higher education, which have an
extraordinary influence on the young, are not teaching what the Church teaches;
moreover, these institutions are not exploring why the Church teaches what she
teaches in spite of assertions to the contrary. For the most part at many
institutions that claim the moniker “Catholic”, students are being exposed to a
shadow magisterium which is a corruption of rather than intellectual fidelity
to Church teachings on the neuralgic issues of the day including marriage.
While these young may be receiving a great deal of education, they are not
receiving the wisdom of the Church; hence, their knowledge of what the Church
teaches and why she teaches what she does is being eviscerated.
So, I don’t think it is the bishops
and those faithful to the Magisterium who are pushing the younger generations
of Catholics out of the Church.
The source relied upon by this
author to make his point insists that “Younger Catholics don’t want our faith
known for its involvement in divisive culture wars.” This assertion/justification
is also in need of careful evaluation. What do these young people understand
our faith to be about? If it is all about social justice as the strongest
voices of contemporary culture explain that loaded term, something crucial is
missing. Our faith certainly includes corporal works of mercy that are designed
to serve “the poor and marginalized,” but first and last it is about salvation
and repentance of sins. I think too many Catholics today, and not just the
young, have little or no clue about this core tenet. If they young are being “push[ed]…out
of the church,” the source for this has been misidentified.
I now come to the second
perspective [here] that requires a response. It begins by stating that the U.S.
Catholic bishops “took a beating at the polls” in last week’s election. I was
surprised to learn that they were on any ballot as part of a legislative
initiative or as candidates. It would be accurate to say that bishops supported
various initiatives that were parts of closely contested contests in which the
bishops had strong support amongst tens of millions of voters. I took solace in
the fact that this perspective acknowledged the Constitutional rights of all
persons (including bishops, priests, religious, and the lay faithful) to
participate in the political process and to debate the issues even when it
appears that one party or one candidate might favor particular issues and the
other party or candidate may not. When all is said and done, it is the issues
that are in the forefront; what the candidates support and do not support
follows.
The critique of this second
perspective was not the Constitutional right of the bishops and other Catholics
but rather what is effective and prudent about the tactics or strategies the
bishops and the allied faithful take. Considerations of prudence and
effectiveness are always important considerations for those who participate in
public life, but so is the truth and ensuring that the truth about the matter
under discussion is not sacrificed. To suggest that those bishops who remained
silent on the neuralgic issues for presumed reasons of prudence and
effectiveness and those who spoke out as being “political bishops” does a grave
disservice to the office of bishop. If we could ask him today, I think John Fisher
would agree with my take.
One also has to ask the honest
question: who is pushing the issues (e.g., abortion, same-sex marriage, euthanasia,
etc.) that are being pushed? Is it the bishops, or is it those lobbies and
political organizations that have taken on the crusade of making dramatic
changes to society and its institutions? The truth of the matter is that the
bishops have spoken out on many issues of great importance, including those
dear to many Americans. However, when the bishops don’t concur with powerful
political forces about particular issues, the shepherds are incorrectly labeled
as “political”, i.e., meaning wrong, imprudent, and ineffective. While this
writer asserted that he was not “challenging church teaching” but “questioning
political strategy,” the rest of us have to consider the implications well
understood by Thomas More of the legal expression “qui tacet consentire”—silence gives consent. By remaining silent
(or prudent, if you prefer), would it appear to many fellow citizens that the
bishops were condoning or approving positions on crucial issues that are, in
fact, in manifest opposition to first principles of the faith? They need only
look at the example of Cardinal Innitzer of Vienna in the late 1930s to answer
the question.
To argue that parishes should be “free
of partisan politics” inaccurately captures what is at stake: fidelity to
Christ, His holy Church, and enduring principles of the faith. If the parish is
only a gathering place for “social justice” and doing good on certain issues
but not those bearing some controversy, the faith of such a parish is thin. The
bishops who disagree with this proponent are chided as not listening; but, to
whom should they be listening, to what should they be paying attention? I think
they are listening, and I think they are paying attention. Moreover, they
realize what is at stake, and a sufficient number of them have indicated their
acceptance of the responsibilities of their teaching office so that they are
speaking out and in a clear manner that is understandable by their fellow
Americans and fellow Catholics.
The second writer seems to argue
that if something is legal, e.g., abortion or same-sex marriage, the bishops
should leave it alone and move on. Our nation and our world have experienced
too many situations in which something was declared legal but was morally
flawed and contrary to the first principles of the faith. This is why Martin
Luther King, Jr. stated that he:
would agree with St. Augustine that
“an unjust law is no law at all.” Now, what is the difference between the two?
How does one determine whether a law is just or unjust? A just law is a man-made
code that squares with the moral law or the law of God. An unjust law is a code
that is out of harmony with the moral law. To put it in the terms of St. Thomas
Aquinas: An unjust law is a human law that is not rooted in eternal law and
natural law. Any law that uplifts human personality is just. Any law that degrades
human personality is unjust. All segregation statutes are unjust because
segregation distorts the soul and damages the personality.
Should Archbishop Rummel have left
alone what was legal when he confronted the evils of segregation that were
legal, at least for a while? Surely bishops, clergy, religious, and the lay
faithful must reasonably expect that their actions or tactics may “enrage their
opponents,” and in Archbishop Rummel’s circumstance that was the case as it was
with Dr. King. But neither of these witnesses to Christ let threats of public
officials or the rage of some Catholics or other believers stop them from doing
what the faith required. The fact that the bishops of Massachusetts opposed the
move in that state to legalize same-sex marriage should not make us overlook
the revenge taken by advocates for SSM who, as this author suggested, “fought
exempting Catholic foster care and adoption services” on the grounds of “political
payback.” It was revenge for being Catholic and fidelity to the faith that led
to these consequences; moreover, the “political payback” was in reality
intimidation designed to remove the Church from its proper role in the realm of
matters dealing with public morality.
This is how tyrants operate; but
tyranny should not stop any of the faithful from the call to and the
responsibilities of discipleship. There fact that there are divisions within
society should not preclude the truth about important matters from being
spoken. The argument that there is no truth or different kinds of truth about
the same issue is no argument at all; rather it is an exercise of a will
unhitched from objective reason that wants to avoid truth and its objectivity
and its beneficial meaning for the common good.
I beg to differ with this author
when he suggested that the positions of the bishops on neuralgic issues “are so
weak that they cannot allow students to hear their opponents.” Frankly this is
not the issue. I don’t think any bishop would mind a program on a Catholic
campus or at some other Catholic institution, such as a parish, where the
faithful were fully informed of the issues and were given an accurate
presentation of what the Church teaches and why she teaches what she teaches in
opposition to the contrary positions of the day. Unfortunately we now live in a
culture where all too often positions that are opposed to core Catholic beliefs
are disguised as acceptable Catholic positions when, in fact, they are not.
Bishops, pastors, Catholic educators, and any other person who is faithful to
the Magisterium would see this as the case.
Finally, this second perspective
argues for a different “political strategy” by the bishops. If that means that
the bishops and any other faithful Catholic must sacrifice core teachings or
remain silent, this is not a strategy but a capitulation to the first
principles of Catholicism. While capitulation may be the safer course of action
for the near future, it is not the faithful course; rather, fidelity to Christ
and the teachings of His Church are.
As the dust settles from Tuesday’s
election, various pundits are seeking the ambo to proclaim that the results are
consistent with Catholic teaching or not. One illustration of this is from a
faculty member at the Jesuit theologate and school of theology at Berkeley, CA
[HERE]. She begins her dotCommonweal contribution by proclaiming that Tuesday’s
results in four states were historic for advancing the cause of same-sex
marriage.
The professor/author argues that
the increasing support for same-sex marriage is a “generational issue,” and by
this I think she means that, with the passage of time, more and more Americans
will agree that opposition to same-sex marriage, for whatever reason, puts one “on
the wrong side of history” as she quotes a member of a California-based
organization which favors the recognition of same-sex marriage.
The professor/author appears to be
in favor of the changes reflecting this “generational issue” and does not want
to be “on the wrong side of history” when she asserts that some Catholics “are
hanging on to the good news of Catholic Social Teaching, at least as they see
it” by claiming that Catholics for “pro-gay marriage” justify their position on
“centuries of Catholic social teaching” which is based on “Christ’s primary
message… of love.”
The professor/author is critical of
Magisterial teaching to the contrary which she considers limited and faulty.
She concludes that Tuesday’s approvals of same-sex marriage in various legal
redefinitions of marriage demonstrate that “Catholics voting for marriage
equality are showing that they have indeed learned the lessons of Catholic
teaching, both the social teaching of the equal dignity of all people and our
own rich heritage on marriage.”
I am not sure where she gets her
support to substantiate these conclusions, and her views necessitate a response
on several fronts.
I can see how she contends that
increasing Catholic support is becoming a “generational issue” because more and
more young people are being subjected to teachings which use the moniker “Catholic”
but, in fact, are not. As the “More than a Monologue” initiative partly
sponsored by Fordham and Fairfield Universities illustrated and which I have
previously discussed on these pages, nominally Catholic institutions of higher
education, which have an extraordinary influence on the young, are not teaching
what the Church teachers; moreover, these institutions are not exploring why
the Church teaches what she teaches in spite of assertions to the contrary. For
the most part at many institutions that claim the moniker “Catholic”, students
are being exposed to a shadow magisterium which is a corruption of rather than
intellectual fidelity to Church teachings on the neuralgic issues of the day
including marriage. While these young may be receiving a great deal of
education, they are not receiving the wisdom of the Church; hence, their
knowledge of what the Church teaches and why she teaches what she does is being
eviscerated. In addition, both catechesis and evangelization are suffering
rather than prospering as a result of false doctrine being disseminated by a
growing number of teachers who are employed at the once-traditional but
now-nominally Catholic institutions.
But more needs to be said about the
professor/author’s dotCommonweal
posting. My next point concerns her contentions about centuries of Catholic
social teaching supporting the generational shift that erroneously believes
that Catholic social doctrine is in favor of same-sex marriage. A brief
excursion through applicable papal encyclicals, dicastery documents, Conciliar
documents, the Catechism of the Catholic Church, and the Compendium of the
Social Doctrine of the Church will rectify her contentions about advocacy for
same-sex marriage and the positions of those she favorably quotes in this
regard which she believes accurately reflect “the equal dignity of all people”
as advanced by Catholic social thought.
This brings me to her understanding
of the meaning of equality. John Courtney Murray was on to something when he
explained that norm making consistent with the natural moral law process that
undergirds our federal republic is founded on objective human intelligence
comprehending objective reality. I have, both here and elsewhere, delved into
the equality argument for same-sex marriage. But in brief, let me demonstrate
why her equality argument falters by illustrating with one argument the truth that
same-sex marriage is not equal to opposite-sex marriage: let us consider that
two planets similar to earth, alpha and beta, are being colonized by humans.
Opposite-sex couples are sent to alpha; same-sex couples are sent to beta.
Neither planet will have the capacity to rely on technology-assisted reproduction.
In one hundred years, more earthlings go to planets alpha and beta. What will
they find? They will find that alpha is still populated with humans but beta
will not be. Her equality argument fails because the claims upon which it is
based are false.
Another point requiring some
attention here is the professor/author’s claim that “Christ’s primary message
is one of love.” Is it really? There is no question that our Lord taught and
lived love, but I submit that his primary message was about salvation when he exhorted
us to avoid sin and its near occasion. Moreover, the Lord came to remind us
that we have free will that ought to be exercised in the direction of virtue
and away from vice and sin. As he told the woman who sinned: go and sin no
more. And, when one turns from sin toward seeking forgiveness, redemption is at
hand as the prodigal son discovered. Regrettably, the professor/author’s
misunderstanding of Christ’s “primary message” can be used to lead people away
from salvation and into sin and the loss of salvation. Should a professor of
moral theology really be exhorting such a thing?
This brings me to my final point
for today, a point that I have previously made here at the Mirror of Justice and elsewhere but a point requiring repetition
once again. This point is founded on another of Christ’s teachings: he is the
vine, and we are the branches. Our Lord reminded us that we, as vines, can
prosper and bear fruit if we remain faithful to him. But, if we so choose, we
can sever our relation with him and with what God asks of us; when we do, we
shall wither. When the latter occurs, we can be bound up and consigned to a
status in which we are permanently removed from him and what God promises. In
the context of Catholic higher education, we might recall Archbishop Michael
Miller’s reliance on this very theme from Saint John’s Gospel (the vine and the
branches) when he developed the notion of evangelical pruning of educational
institutions which claim to be Catholic but, in fact, are not. If I may borrow
from a tack taken by the professor/author, might this be a moment when
Catholics need to understand what Catholic social teaching really is and, if
necessary, relearn it in order to avoid withering on the vine of Christ?
By way of complement to other
postings of today on this site, it is important for the project of Catholic
legal theory and Catholic citizenship to embrace the challenge of democracy: it
is hard work, a toil involving love, dedication, determination, and fidelity.
To borrow from Lord Acton, the freedom we cherish in this country—for the time
being—is not to do that what we want to do but, rather, to do that what we
ought to do.
In this context, the twice told
theme proposed by Blessed John Paul II is wise guidance for the Catholic practitioner
of democracy:
“As history demonstrates, a democracy
without values easily turns into an open or thinly disguised totalitarianism.” Centesimus Annus, N. 46, 1991
“[D]emocracy, contradicting its own
principles, effectively moves towards a form of totalitarianism. The State is
no longer the ‘common home’ where all can live together on the basis of
principles of fundamental equality, but is transformed into a tyrant State, which
arrogates to itself the right to dispose of the life of the weakest and most
defenseless members, from the unborn child to the elderly, in the name of a
public interest which is really nothing but the interest of one part.” Evangelium Vitae, N. 20, 1995; “No less
critical in the formation of conscience is the recovery of the necessary link
between freedom and truth. As I have frequently stated, when freedom is
detached from objective truth it becomes impossible to establish personal
rights on a firm rational basis; and the ground is laid for society to be at
the mercy of the unrestrained will of individuals or the oppressive totalitarianism
of public authority.” Evangelium Vitae,
N. 96, 1995
Our duty is to demonstrate to our
fellow citizens why this wisdom is the guidance not for what we want to do but
for what we ought to do as fellow citizens of a great democracy faced with great challenges. With such sagacity directing our thoughts and actions,
change for the common good is not only possible but probable.
Over the past months, perhaps two
or three years, people of good will and the faithful have been praying for our
country and the world. Now that the most recent quadrennial exercise of
electioneering is over, what prayer might remind the faithful and others of
good will that we remain citizens of two cities? The words of Samuel remain as
one durable and applicable prayer of reminder, contemplation, and formation:
“Now that you are old, and your sons do not
follow your example, appoint a king over us, like all the nations, to rule us.”
Samuel was displeased when they said, “Give us a king to rule us.” But he
prayed to the LORD. The LORD said: Listen to whatever the people say. You are
not the one they are rejecting. They are rejecting me as their king. They are
acting toward you just as they have acted from the day I brought them up from
Egypt to this very day, deserting me to serve other gods. Now listen to them;
but at the same time, give them a solemn warning and inform them of the rights
of the king who will rule them. 1 Samuel
8:5-9
First of all, welcome back,
Michael, to these pages, and thank you for posting the abstract of Frederick
Mark Gedicks’s abstract. I look forward to reading the full essay soon, and
that effort may prompt some further reflections from this scribe. But I think
it important, given the significance of the matters which Professor Gedicks
addresses in his abstract and the impact his general thoughts will have on
certain events associated with next Tuesday, November 6, to offer these
thoughts on his major contentions now.
There is no question that the
Patient Protection and Affordable Care Act of 2010 (the Act) poses questions
about religious liberty. The Act and its regulatory scheme have served as a
catalyst of a good number of employers who are demonstrating in existing
litigation why there Constitutionally protected freedoms are under
impermissible attack. Whether the Act poses questions about Supreme Court and
other judicial decisions is another matter. As Justice Ginsburg stated in her
concurring and dissenting opinion in National
Federation of Independent Business v. Sebelius, “A mandate to purchase a
particular product would be unconstitutional if…the edict…interfered with the
free exercise of religion…”
The so-called “contraception mandate”
is a two-edged sword. Without it, those people who want artificial
contraception paid for by health insurance consider themselves denied an
entitlement which is not mentioned in the Constitution but is mentioned in the
Act. With it, those people who, because of their religious convictions which
are protected by the Constitution, must sacrifice their Constitutionally
protected right to a right generated by legislation and regulation. The issue
is this, and it is starkly simple.
But the abstract suggests that it
is more complicated. Is the issue solely one of the state excusing a religious
believer from complying with a statutory/regulatory scheme that imposes on the
liberty of the person who wishes to have free artificial contraception, or as
Professor Gedicks argues, “by imposing on [those who want subsidized
contraception paid for by the objecting religious believer] the costs and
consequences of religious beliefs that they do not share?”
One thought in response to his
contention is that Congress could have done a better job in protecting both
claims, the Constitutional one and the statutory/regulatory one, but it did
not. Nevertheless, the abstract suggests that the Constitutional claim is
inferior to the statutory/regulatory one of the Act. Professor Gedicks emphasizes
this perspective by stating that the Constitutional right does not permit the
holder to “interfere with the liberty of others”; thus, “religious liberty may
not be used by a religious employer to force employees to pay the costs of
anti-contraception beliefs that they do not share.”
The First Amendment jurisprudence
does not address the specific facts of this matter, but the text of the First
Amendment does: “Congress shall make no law… prohibiting the free exercise [of
religion].” Did not Justice Ginsburg make this point in her concurrence/dissent
as I have already pointed out? There is a contention in the abstract that the
liberty which emerges from a statutory/regulatory scheme is not only the
equivalent of the Constitutional claim but might even surpass it when “fundamental”
access to contraception is challenged. This contention is on shaky ground
because the Constitutionally protected right that is asserted by religious
employers is not prohibiting all access to contraception; rather, the argument
is contending that this access must not be underwritten by the person who
objects to paying for it on a Constitutional right that will otherwise be
compromised—a compromise which violates an unambiguous Constitutional claim.
The further arguments advanced by the
abstract about the advancement of women, the spacing of pregnancies, the
enhancing of health including the new-born, and access to participation in the
workplace are not what are at issue and should not be used to camouflage what
is really at stake: the unambiguous Constitutional right of the free exercise
of religion.
It may be that Professor Gedicks
develops a response to this concern in the full essay, but I am troubled by the
statement in the abstract that the financial obstacle for low or no-income
women to have to pay for contraception is not restricted to women who are
married. I think this intensifies rather than diminishes the religious freedom
concern if the religious believer is asked to subsidize sexual promiscuity to
which the believer also objects on religious grounds. This statement as it
appears in the abstract should make us realize that the “right” to underwritten
protection against the consequences of sexual license is the wake of Eisenstadt v. Baird. And I don’t think
that Eisenstadt supports that
proposition that anyone has a Constitutional right to contraception that must
be paid for one who objects on First Amendment grounds.
As Mike picked up on the Peppard
op-ed piece in today’s New York Times
(I wonder if the Times would be
interested in publishing Mike’s posting as another op-ed?), there is need to
comment on the lead editorial which appeared in the same edition of this
journal. [HERE]
The Times continues to show little understanding of or respect for
views with which it disagrees. In the context of this editorial, the editors
conjure up the imaginary horribles that would emerge if Roe v. Wade “goes.” The editorial asserts that since Governor
Romney and Congressman Ryan are “opponents of abortion rights,” supporters of
this “right” should be worried. It was kind of the editors to suggest that the
Republican nominees have a view that “depart[s] slightly from the extremist
Republican Party platform.” But this editorial fails to consider that it is the
other party which may now have and push the extremist platform. I offer this
suggestion in view of the fact that the ability to seek an abortion is
considered a “human right” by the Times.
To reinforce its position, the sagacity of the Guttmacher Institute and the
Center for Reproductive Rights is relied upon along the good works of the “invaluable
family-planning group” Planned Parenthood. The editorial concludes by retelling
the tragedy of a young woman who died from the complications of an illegal
abortion. This is a tragedy without question, but the Times fails to consider that she might have also died from a legal
abortion. Would that have not been a tragedy? Moreover, the Times disregards the statistic that
since Roe was decided, almost fifty-million young Americans have died as a
result of “legal abortions” performed in the United States since 1973. This is
a tragedy of enormous proportion, yet the Times
is silent about it.
If the Times were genuinely interested in all the tragedies that can be
avoided by honoring all authentic human rights considerations, the worries
about Roe’s fate could disappear from
its opinion pages forever. How might this occur? Back in October of 2007, I
offered some thoughts on the matter regarding the disappearance of Roe and the consideration of
alternatives to criminalization, which troubles the Times. Here is the relevant portion of what I said then:
Let us first begin by considering the duties of the
law-maker (for us in the US, this means state legislatures, Congress, judges,
and administrative agencies) that relate to abortion. The law-maker can make a
law that criminalizes abortion, legalizes abortion, or regulates abortion. The
law-maker may say nothing about morality in positing the law (statute, judicial
decision, or regulation) made on the subject.
Moreover, the law-maker may be urged to conclude by the
lobbyist or the litigant that the law made must be divorced from moral
considerations. This argument has run a thread throughout jurisprudential
debate for some time. Two examples would be the Hart-Fuller debates and the
disagreements between the Kelsen school and the Rommen/Voeglin schools. Yet,
when all is said and done, there frequently are discussions about morality and
its nexus with the law and law-making when debates about tax laws, labor laws,
education laws, environmental laws, and criminal laws (just to mention a few)
occur. The Guttmacher Institute mentions, by the way, on its website that it
executes its mission, in part, by “testifying
before federal and state legislative bodies and in court cases.” Well, this is
participating in the law-making process, and we can readily see what their
aspirations are for law-making outcomes regarding abortion and where moral
considerations don’t fit into the process.
And what about Catholic legal theory? There is nothing wrong
or unusual with introducing moral considerations into debates that occur when
law is being made. But, for the Catholic legal theorist I think this would be
not only expected but would be compulsory. Moreover, I am confident that
Catholic legal theory would have much to offer the law-maker who is positing
law addressing the legality or regulation of abortion. And what might this be?
The moral considerations underpinning Catholic legal theory
would enable the law-maker to consider more or all rather than some of the
issues that must inevitably intersect abortion laws. Today so much of the law
in this country pertaining to abortion permits abortion—with few
restrictions—and bases the justification on Constitutional requirement (which I
submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the
argument from equality. The focus of abortion law seems to be on the welfare of
the mother only. This becomes patent when judges, state and Federal, scrutinize
legislation and regulation looking for the “essential” health exception clause
to protect the mother only.
Catholic legal theory, in contrast, begins to look at other
welfares, too. The mother’s health and welfare are surely important; but so is
the health and welfare of the child whose life will be snuffed out should the
abortion proceed. But it is also vital to recognize that the mother has other
issues that are often ignored or dismissed as long as she can be allowed to
terminate her pregnancy. What might these issues be? Well, informed consent is
a place to start. Does she really know what is about to happen? Does she really
understand what is inside her womb? Would she want to have an abortion if she
could see her child? (Ultrasound imaging would provide her with this critical
information.) Has she been provided with education about effective parenting
skills? Is pre and post-natal care available for her and her child to ensure
good health for both? Catholic legal theory would also provide for the welfare
of the father? Where is he? Should provision not also be made for encouraging
his responsibility for the life he helped promote by developing among other
things his parenting skills? It seems that the law-maker is not restrained from
including these provisions relating to these matters as well. Cannot the
law-maker provide for orphanages, foster care, and adoption services for
children whose birth parents will not or cannot properly care for the raising
of the child?
Indeed, the law-maker can provide for all these things and
more.
But the critic may well argue that the additional elements
will cost money. The Catholic legal theorist can respond by reminding the
critic that laws addressing defense, environment safeguards, historical
preservation, criminal justice, wildlife protection, etc. (all of which have
moral considerations) also cost money. But in spite of their cost, laws are
made to advance these interests and protections. Why can the law not do the
same to preserve young human life and the lives of those responsible for its conception?
This is the response of one Catholic legal theorist.
I think these points still have
merit today in 2012. I also am confident that they will have merit in the long
term, too.
If the Times, Planned Parenthood, and the Center for Reproductive were
truly concerned about human rights and human life, the death of the young woman
who died from consequences of the illegal abortion won’t be repeated in the
future and neither will the deaths of the tens of millions of children whose
lives have been snuffed out by so-called legal abortions. It is clear that Roe and its progeny remain a problem,
but it is a problem that can be remedied by laws which respect the dignity of a
woman who may face any abortion and the dignity of the young children whom the Times, Planned Parenthood, and the
Center for Reproductive Rights disregard.
This week we celebrate
the opening of the Second Vatican Council. Since that time, the Church’s
faithful and others have encountered diverse, sometimes conflicting
explanations about the Council’s work. In some instances the diversity is
well-founded because it is based on reasonable interpretations of the texts
produced by the Council’s labors. However, other descriptions of the Council’s
work are problematic because they reinvent or revise the history of the Council
and the fruits of its labor; moreover, the accompanying interpretations
produced by this second category of descriptions of the Conciliar documents are
flawed because the interpretation fails to take stock of all the documents that
concern related issues. As one trained in the law, I have come to understand
the importance of texts and their meaning which are essential to an objective
comprehension of what they signify and what they do not. The significance of
texts is important to both theology, philosophy, literature, history and the law.
One of the major disagreements over the work of the Council concerns the
nature of the Church and how her members are to interact with and to relate to
one another. What is essential to minimizing or eliminating this conflict is to
read together the several documents issued by the Council that address this
subject.
The Council heralded the dignity of the human person and the
societies to which the individual person belongs in several of its documents—texts
which reveal the intent, objectives, and contexts of the Council’s work. In the
Pastoral Constitution on the Church in the Modern World, Gaudium et Spes (GS), the Council Fathers offered an important
expression relevant to this posting, i.e., it is the dignity of the human
person that establishes the foundation for relationship—relationship with
others, with the world, and with the Church. The crucial theme of relationship,
and therefore the nature of the Church, is reflected in Jesus’s exhortation
found in John 15:5, “I am the
vine; you are the branches. If a man remains in me and I in him, he will bear
much fruit; apart from me you can do nothing.” John 15:5
Regarding the Church’s nature, the Council Fathers agreed that the
Church is a family constituted by Christ to be a society that is established on
relationships and is directed to the purposes just mentioned in the temporal
and eternal spheres. Again, the image of the vine and its branches suitably
explains this. As a leaven for the “soul for human society,” the Church relies
on the “talents and industry” of her individual members. How she does this is
explained in the several documents explaining the relationships amongst the
clergy (including the bishops), men and women religious and consecrated, and
the laity.
Many questions about what the Conciliar documents mean
must be addressed by objectively reading the texts individually and, then,
together. This seems to be an obvious and promising approach, but all too often
texts, and the common or related themes that they address, are read and,
therefore, understood in a fragmented fashion. Consequently, their authentic
meanings can be lost as a result of this fragmentation. In the final analysis,
all relevant documents of the Council are critical to the task is seeking the
best possible understanding of what the Council said and what it did not say. When
this approach consisting of a careful reading and consideration of the relevant
documents has been neglected, understandings of the Council’s work product are
flawed. This becomes acutely patent when the nature of the Church is the
question under investigation.
It has been almost a
half century since the Council concluded its work on December 8, 1965. Since
then, Catholics have encountered explanations of the meaning of the Council by
fellow Catholics and others which are based less on the texts of the Council
and more on the ambiguous spirit of
Vatican II. The documents which the Council fathers produced are, in fact, the
authentic source of the spirit of the Council because they are the product of
the Council that was presented to Pope Paul VI for his approval. Still, there
are occasions when some opinions argue that the spirit of the counsel is
elsewhere. It might be in the notes of certain bishops or the journals of periti and other documentation that are
extrinsic to the Constitutions, Declarations, and Decrees issued by the Council
and approved by the pope. These arguments are problematic when the “spirit”
they project constitute a revision of the fruits of the Council as recorded in
the official texts and a reading-together of all the texts that address the
same subject matter.
When the Church’s nature
is the topic of discussion or investigation, the documents which must be
examined together are: the Dogmatic Constitution on the Church, (Lumen Gentium); the document on the bishops
(Christus Dominus); the texts on
priests (Presbyterorum Ordinis) and
priestly formation (Optatam Totius);
the document on religious and consecrated life (Perfectae Caritatis); and, the text on the laity (Apostolicam Actuositatem).
While these texts when viewed individually demonstrate something
about the diversity of the Church’s members, reading them together demonstrates
that the Church is a unity of holiness. This means that each class (clerical,
religious, or lay) has and exercises different responsibilities. Nonetheless,
the call to holiness requires that all disciples—clerical, religious, or
lay—must seek the virtue of love and perfect it. Living a well-grounded life
based on the sacraments is an important step in responding to the call to
holiness, in being faithful to one’s discipleship, and in nurturing and
defending the nature of the Church.
The Church and her members also need
a requisite measure of freedom to accept and exercise these rights and duties.
Here we must turn to the Declaration on Religious Liberty, Dignitatis Humane Personae (DH), to understand as best we can the
role of freedom in the nature of the Church which is the means by which her
members exercise their prudent judgment to seek the truth and justice by which
the Church exists in the temporal world. Significantly, it is this text which
asserts that “the one true religion subsists in the Catholic and Apostolic
Church” by which God spreads this religion among all people. But the freedom of
which the Council Fathers spoke is not simply individual, it must also be a
freedom of the Community—the Church, the People of God, the Body of Christ. The
freedom, then, that properly belongs to the Church is not private, rather, it
is one that must be exercised in public for the individual believer and for the
community of believers, i.e., the Church. It would be contrary to the nature of
the Church if one or some of her members take and defend a position, internally
or externally to the community of believers, that brings harm to the rest of
the community or any of its members. This would not be an exercise of freedom
or conscience, but it would be a threat that undermines the Body of Christ and
antithetical to the nature of the Church.
The law and politics are frequent
companions even though they are not the same entity. Throughout the history of
human made law, politics have often influenced what this law contains, says,
and does. While human law is not immune from politics, the natural moral law
is. Still, the natural moral law also influences or can influence the human law,
and this principle is a part of Catholic social thought, something very much in
the news these days. Of course, Catholic social thought also intersects the
history of religious freedom. Both elevate human consciousness about the moral
implications of issues which are at the center of today’s legal and political
discourses, disagreements, and debates.
It is sensible and commendable that
the First Amendment of the United States Constitution acknowledges the natural
right of religious freedom and the additional natural rights of peaceful
assembly and speech. I acknowledge that those with whom I disagree still have
the same rights of religion, speech, and assembly which I claim. In a
particular case, I also disagree with some of the content of the “On Our
Shoulders” statement to which Rick referred earlier today. But still, I
acknowledge their right to express their views even though I disagree with them
on several bases that are founded on the Church’s teachings. But “On Our Shoulders”
is not the only group that is active these days in proclaiming their take on
religious freedom through acts of speech.
Another organization, Catholics
United has once again become active in this election year. After reviewing many
of their latest postings at www.catholics-united.org
, I conclude that they are not committed to the same First Amendment principles
that I am.
I have on previous occasions
discussed the ability of Catholics, including ecclesiastical officials, to
exercise their rights and responsibilities in educating the faithful about the
moral teachings of the Church. HERE is one illustration from July of this year;
here is ANOTHER from October of 2008. As I understand Constitutional law and
Catholic social thought, it is crucial to the vitality of the natural rights
that the First Amendment acknowledges that these folks with whom I disagree can
offer their views on the important issues of the day. However, it is essential
that other views that are grounded on objective reason and the teachings of the
Church also be welcome in the public square. But some, like Catholics United,
do not agree with my position as I have just explained it.
But today’s posting does not end
here. Catholic United have initiated as one of their current campaigns the
project to “Keep Politics Out of Our Pulpits”, and they have circulated an
accompanying pledge seeking support for this project. The pledge is a simple
but misdirected appeal to “protect the sacredness of our sanctuaries” “from
partisan activity.” While the campaign acknowledges the “moral obligation” of
Christians to engage in important public debates, it asserts that this public
witness “must not involve using Church assets to expressly support or oppose
candidates for elective office.” Well, that is what the law states, but I do
not think that is what Catholics United are really concerned about anyone
violated the Internal Revenue Code and accompanying regulations. As one looks
beyond the pledge campaign of Catholics United and investigates their press
releases, it becomes clear that this organization does not care for the
teachings of the Church on neuralgic issues or for ecclesiastical officials posting
reminders of Church teachings on an archdiocesan website. One of these
neuralgic issues concerns the efforts to redefine marriage. Catholics United
characterized one ecclesiastical official’s statements on the marriage issue as
“far right politics” that “are driving an increasing number of Catholics away
from the faith.” There is no mention in this strong critique of the bishop that
he has a distinct responsibility to teach the faithful about these teachings
and why the Church teaches what she teaches. The disdain which Catholics United
has for those who disagree with them is patent. But I return to the pledge to
keep politics out of the pulpit.
What would they say about the
abolitionist preachers of the ante-bellum United States? What would they say
about the Catholic clergy in Germany and the German-occupied states of Europe
who preached against the rounding up of Jews prior to and during the Second
World War? What would they say about Martin Luther King, Jr.’s sermons on issues
dealing with civil rights? These were all matters dealing with political and
legal issues of the day that were addressed in a Christian context by clergy. Perhaps
Catholics United would respond to this history by stating that these statements
were necessary and that is why Catholics United agree with the positions
presented from the pulpit. Well, so is it necessary for Church officials to
remind the faithful about today’s neuralgic issues, too. I wonder if Catholics
United object to Church officials addressing issues from positions with which they,
Catholics United, disagree? Perhaps that is why such speakers should be banned
from the pulpit? If this is the case, the natural rights of freedom of
religion, speech, and assembly must mean little or nothing to Catholics United.
Is it conceivable that Catholics United might be contemplating yet another
campaign? If so, might it be called: Rights for Me, but Not for Thee? But as
you can see, this campaign was initiated during the last election, four years
ago.
Over the past several days,
influential journals of opinion and web newsites [here, here, here, here, here, here, and here] have
taken to task the Catholic Church, particularly members of the hierarchy, for
doing what she, the Church, must do: teach the truth of God and the Church.
Some of these journals of opinion and boggers have argued that the Church’s
presentations have been inflammatory, not because of the rhetoric but because
of the positions taken and advanced. However, when one actually reads the
Church texts that are cited or watches the video of their presentation, the
modifier “inflammatory” does not come to mind, but reasoned discourse does. If
one is interested in seeing “inflammatory” language, a better source to satisfy
the appetite may be to see how these journals themselves present their
perspective on the news. If one searches further, you will find that many
journals of opinion and bloggers today refer unforgivingly to those with whom
they disagree. It is difficult to comprehend why do some of these journals and
bloggers castigate officials of the Church and those who agree with Church
teachings when they express respectful disagreement with words and deeds that
are contrary to Church teachings and the natural moral law? It may be in part
because the critics find these words, as Gospel (John 6:60) reminds us, hard to
accept.
Of course, it is clear that some
members of our society disagree with the content or at least elements of the
Church’s teachings. That is their prerogative; however, this prerogative does
not make them or their opinions correct. By the same token, the Church has the
same right to speak and teach her Teachings that are protected by the same
rights guaranteed by the First Amendment.
Over the last several years, some
opponents of the Church’s teachings (including some folks who identify
themselves as Catholics) have argued that the Church has overstepped boundaries
in what is permissible for the Church (and voices that agree with her) to do in
the public square and what is not.
A common theme of many the critical
opinions is that the Church’s teachings can be divisive; therefore, they ought
not to be conveyed so as to minimize division. I doubt that the intention of
the Church is to spread division. But I am confident that the intention is to
propose God’s truth to the faithful and other people of good will. This is
something which rubs against some elements of American and other western
societies today. It is clear that the journals of opinion and bloggers that I
have cited above (a modest sampling) treasure their right to speak. And they
must be protected in their right. But at the same time, so must the Church’s
voice be protected. Moreover, anyone who disagrees can express his or her or
its opinion, but theirs is not the right to silence the voice with which they
disagree.
As the only resident cleric of the Mirror of Justice community, I will be
celebrating the Eucharist this coming weekend at a Chicago area parish where I
regularly assist. If you check the readings for this Sunday, the 27th
Sunday of Ordinary Time (cycle B), you will see that the Old Testament and
Gospel texts are about marriage. I intend to preach about marriage and the
vital role it exercises in the Church and in civil society. I will principally
address the nature of the human person and the complementarity of the sexes
acknowledged by the scripture. I suppose there may be some who will accuse me
of mixing politics with religion. Really? But I have a reply to any criticism
arguing that I am doing something from the pulpit that is “divisive.”
There is a part of my response
which focuses on the First Amendment protections to point out something that an
objective understanding of human nature concurs with the complementarity of the
sexes argument mentioned in the Old and New Testament readings. Another part of
my response is in the form of a question about why should there be inequity of
treatment of what can be presented in a public forum between the views of the
Church and those voices which disagree with the Church’s teachings? A recent
illustration comes to mind.
Two weeks ago I had the occasion to
be in the Twin Cities to deliver a paper at the St. Thomas University
conference on Vatican II. As I stayed at the Midwest Jesuit novitiate nearby, I
walked to the conference venue as it was a pleasant early fall day. On my
journey, I passed a number of houses of worship which displayed a version of
the poster “Vote No: Don’t Limit the Freedom to Marry” which has been displayed
by folks and institutions that do not want to limit legal marriage in Minnesota
to a union of one man and one woman. As you may recall, Minnesota has a state
referendum concerning the definition of marriage. During my walk, I noticed that
several houses of worship had the sign “Vote No” but added to the standard
poster “People of Faith Vote No: Don’t Limit the Freedom to Marry.” Some other
houses of worship did not display this sign. I wondered if they might have a
congregation which largely holds the view that one should vote “yes” on the marriage
amendment, but for some reason they did not think that they should express
their view on this important public and moral issue. If they did have a reason
for refraining from having a “Vote Yes” sign placed on their house of worship,
I further wondered if it might emerge from a fear about offering a contrasting
view on a matter of public policy where there is great and deep division on the
question of the definition and meaning of marriage.
On Sunday, I shall preach on the
scripture readings from Genesis and Saint Mark’s Gospel and relate them to the
Church’s teachings. I shall also touch upon the role of the faithful as
disciples of Christ who are also citizens of the City of Man and who have a
voice in public policy debates. Will I receive complaints about what I may say
from the pulpit? Will I be accused of doing something “divisive” by preaching
in concert with the Church’s teachings as revealed in sacred scripture?
Totalitarian regimes have tried to
snuff out the truth from the pulpit, but surely it would be unbecoming of and
antithetical for a democracy to do the same.
