Tuesday, May 10, 2005
COMMONWEAL
May 20, 2005
EDITORIAL
Scandal at 'America'
The Editors
American Catholics, including
most regular churchgoers, get their news about the church from the
secular media, not from church spokespersons or official
pronouncements. Most Catholics read about papal encyclicals in the
papers; they don’t read encyclicals. It therefore behooves the
hierarchy, if it wants to communicate with the faithful (or
re-evangelize them), to act in a way that does not lend credence to the
still-widespread impression that the Catholic Church is a
backward-looking, essentially authoritarian, institution run by men who
are afraid of open debate and intellectual inquiry. It is safe to say
that the Vatican’s shocking dismissal of Rev. Thomas Reese as editor of
the Jesuit magazine America has left precisely such an impression with millions of Americans, Catholic and non-Catholic alike.
It is hard to judge what is more appalling, the flimsy
case made by the Congregation for the Doctrine of the Faith
(CDF)--apparently at the instigation of some American bishops--against
Reese’s orthodoxy and stewardship of America, or
the senselessness of silencing perhaps the most visible, and certainly
one of the most knowledgeable, fair-minded, and intelligent public
voices the church has in this country. As a political scientist who has
written extensively on how the church’s hierarchy works, Reese has for
years been a much-relied-on source for the mass media in its coverage
of Catholic issues. During the recent conclave, his visibility
increased exponentially, with millions of television viewers being
introduced to him on PBS, CNN, and other networks. Not surprisingly, he
showed himself to be lucid, succinct, and nonideological. In a church
with a more confident and magnanimous hierarchy, Reese’s prominence
would be seen as a great asset, not a threat. Instead, Reese’s
dismissal, following so closely his increased exposure during the
conclave, has become front-page news. As a consequence, the first thing
many Americans are now likely to associate with Pope Benedict XVI’s
papacy will be yet another act of Vatican repression. Does this mean
that the zeal with which then-Cardinal Ratzinger harried theologians
while head of the CDF will continue during his papacy?
For those who had hoped that the pastoral challenges of
his new office might broaden Benedict’s sympathies, this is a time of
indignation, disappointment, and increased apprehension. For those who
know Reese and his work, the injustice of the CDF’s action is
transparent. No intellectually honest person could possibly claim that
Reese’s America has been in the business of undermining church teaching. If the moderate views expressed in America,
views widely shared by the vast majority of lay Catholics, are judged
suspect by the CDF, how is the average Catholic to assess his or her
own relationship to the church?
It is even more troubling to learn that the CDF
insisted on Reese’s removal despite his compliance with the
congregation’s own demands that America publish
articles of a more apologetic nature defending controverted magisterial
teachings. In 2003, apparently, the CDF informed Reese that he had
indeed corrected whatever imbalance it had detected in the magazine’s
content. According to news stories, more recent articles in America
questioning the church’s position on same-sex marriage and the status
of prochoice U.S. Catholic politicians precipitated the latest CDF
action. Both of the articles cited, however, were in response to other
pieces in America defending magisterial teaching.
Evidently, the CDF insists that any church-sponsored publication aimed
at the educated faithful confine its activities to catechesis.
The reaction to the CDF’s removal of Reese has been
widespread and impassioned among the Jesuits and in the Catholic
academic world. Certainly the church’s reputation has been badly
damaged, especially among those in the secular media who knew and had
every reason to respect Reese. As a consequence, it will be even harder
for the church’s views to get a fair hearing. Those who love and
cherish the Catholic priesthood are equally appalled, seeing how
callously someone like Reese, who has devoted his life and contributed
his enormous talents to the church, is treated. It is possible to
ascribe the incredibly maladroit timing and handling of this decision
to Vatican incompetence, arrogance, or obliviousness. More worrisome,
however, is the suspicion that Reese’s dismissal was carried out in
precisely this way to send an unmistakable message. If that is the
case, then the self-defeating demand for unwavering docility coming
from those now in charge in Rome--and increasingly from members of the
American episcopate--is only exceeded by their insensitivity and
recklessness.
The audience for intellectually serious Catholic publications like America,
where theological, ethical, political, and aesthetic questions are
explored and debated, is shockingly small: some estimate not more than
200,000 potential readers among the nation’s 65 million Catholics. Why
are Catholics so incurious about the intellectual challenges and
satisfactions of their faith? Certainly one reason is that the church
has historically taken a dim view of the questioning intellect, and
especially of the public expression of such questions. Another reason
is because the demand of bishops for editorial control deprives much of
the Catholic press of credibility. Forty years after the Second Vatican
Council, which did so much to enfranchise lay Catholics and to
encourage their engagement with the great intellectual resources of the
church, it is inexcusable that the CDF would censor a magazine as
respectful and responsive to the church’s tradition as America.
At a time when elites are as polarized as they are now in the American
church, Reese’s dismissal will embolden those eager to purge
“dissenters,” while making it nearly impossible for a reasoned critique
of the agenda of church reformers to be heard by those who need most to
hear it.
Those calling for the strict regulation of Catholic
discourse argue that public dissent from church doctrine creates
scandal, confusing or misleading the “simple faithful.” What really
gives scandal to people in the pews, however, is the arbitrary and
self-serving exercise of ecclesiastical authority. What the CDF has
done to Thomas Reese and America is the scandal. Is it possible that not one bishop has the courage to say so? That too is a scandal.
Over at the Religion Clause blog, Professor Friedman is reporting on two recent state-court decisions, rejecting church-autonomy claims in the context of sex-abuse lawsuits. I have not yet studied carefully these decisions, but I'd welcome reactions from readers on one of the cases in particular: In Fortin v. Roman Catholic Bishop of Portland, the Maine Supreme Judicial Court concluded that, because of a special relationship between the abuse victim and the Church -- the boy was a student in the parish school and an altar boy -- there was a fiduciary relationship owed by the Diocese to the boy, giving rise to a duty that was violated by placing the boy in contact with a priest suspected of having engaged in abusive contact. And, the Court ruled, allowing the case to go forward would not violate the Free Exercise Clause. The Court reserved, for another day, the possibility that the case could unconstitutionally "entangle" the courts and the Church, if the case required the court to immerse itself in doctrinal questions, etc.
Thoughts?
Rick
A few days ago, I posted a link to, and some thoughts about, an essay by Professors Alan Brownstein and Vik Amar concerning H.R. 27, the "Job Training Improvement Act", which would allow religious organizations that receive federal funding to provide social services to the needy to "discriminate" (Amar-and-Brownstein's word) on the basis of religion in hiring employees to staff these federally-funded programs. In my post, I noted -- among other things -- my frustration with the term "discrimination" in this context, noting that while "discrimination" almost always carries with it the implied modifier, "invidious", it is not obvious to me that there is anything "bad" about religious institutions to engage in religious-mission-sensitive hiring.
Professor Brownstein was kind enough to e-mail me with some reactions. He writes (and I reprint this with his permission):
You suggest in your post that we are equating religious discrimination in hiring with invidious
discrimination. We don't say that and if we implied it, we certainly did not intend to. . . . Of course, anyone, whether they are religious or not, who is given the power to discriminate on the basis of religion, may act for invidious reasons -- but that general truism about human nature is very different than the suggestion that these religion based hiring decisions are intrinsically or necessarily invidious. . . . I would like to get a sense whether you think sincerely held religious beliefs or religiously motivated conduct can ever be invidious in nature, and properly characterized as such -- and if they can, how does one distinguish an invidious religious belief from a non invidious religious belief. Are Protestant attitudes toward Catholics from 100 to 200 years ago properly characterized as invidious? or Catholic attitudes towards Jews during the same period? I think that misunderstandings about what the term invidious means in the context of religion makes it hard for people to talk to each other. . . .
I replied:
. . . I *do* think that "religious" or "religiously motivated" behavior can be morally objectionable, notwithstanding it's "religious"-ness. (Since I think, pretty much, that Smith is right, I guess I have to concede that religious motivations do not exempt behavior from scrutiny). That said, (a) I'm leery, given political realities, to give too much room for the liberal order to draw lines between "good" and "bad" religiously-motivated behavior; and (b) I do not think that, generally speaking, hiring decisions motivated by a desire for preserve institutional identity and clarity of message are going to be "invidious.". . .
Rick
Monday, May 9, 2005
As a non-Catholic, I speak with some trepidation here, but ... I very much agree with Richard's comments about Catholic legal education. Of direct relevance to recent discussions here are his comments that "the community [at a Catholic law school] must contain many Catholics, particularly on its faculty. These Catholics ought to be people who embrace their identity as faithful sons and daughters of the Church, and in particular who embrace the Catholic intellectual tradition. It is certainly not enough that the school have a few Catholics like this, or Harvard would be a Catholic law school because Mary Ann Glendon is on the faculty there." Also Richard's comment that "[n]on-Catholics would be welcome of course, but as Ex Corde states they would be expected to understand and respect the Catholic identity of the school."
I endorse what Richard says. (My dispute with Jason Adkins at The Seventh Age has been over his implications that the University of St. Thomas School of Law doesn't have many such Catholics and doesn't make the Catholic intellectual tradition central, which are suggestions that I assert are demonstrably false.) There can be debates over what precisely constitutes "many," and the precise line for defining "faithful," but everyone should agree with Richard that a small percentage of faithful Catholics will find it hard to set the course for the institution. (That's in no way meant to denigrate the fine efforts of Mark Sargent and others to bolster Catholic identity at their institutions incrementally, which is the only possible way under many circumstances.)
To turn to another issue that may be of general interest. In continuing to criticize St. Thomas Law for speaking of its "inclusiveness," Jason asks:
Doesn't Catholic mean integrated and universal, that is, inclusive? Contrary to Tom Berg's comments, if the school wasn't worried about how people perceive labels or believe people perceive buzzwords in characteristic ways (as I suggested), then it wouldn't need those qualifying phrases in the first place.
Yes, "catholic" surely means universal, but that does not necessarily translate over to the big-C "Catholic" institution(s), and certainly not necessarily over to societal understanding of those institutions. There are plainly widespread perceptions in society about the Church's non-inclusivity and "narrowness." Many people with those perceptions are simply not open to the Church's insights in any good-faith way, but many others may be otherwise open to many aspects of Catholic intellectual and social thought. Some of the perceptions about "narrowness" are accurate, and of course in many cases "narrowness" is good because that term is just a pejorative label for clear truth-telling (note also the good deal of discussion these days about whether the Church in fact needs to be more "sectarian" and "pure").
But other perceptions about Catholic "narrowness" are unfounded. When I tell people I teach at a seriously Catholic law school, I frequently am asked: "Do you allow non-Catholics there?" This is the sorry state of understanding in the culture. There is nothing weak-kneed or dishonorable about correcting such misimpressions: nothing weak-kneed or dishonorable in being concerned about "how people perceive labels," if those perceptions and labels are inaccurate. Such misperceptions, if left unaddressed, may seriously and unfairly impede the ability of the institution to reach the culture with its true Catholic-based mission.
Tom B.
Rick nicely answered Rob's question to me about seeing state law schools as mediating structures. My concern is to avoid adopting a construction of "academic freedom" or "associational rights" for state universities that undercuts the well established constitutional prohibitions on a state university discriminating by viewpoint against student groups (Widmar v. Vincent) and perhaps other entities (which might include recruiters; that's a separate question). Again, while state institutions have a number of features of mediating institutions, they are different from private mediating institutions in that they are preferentially funded by compulsory taxes, giving them a state-enforced competitive position in the marketplace. Thus, state institutions shouldn't simply be (and usually aren't) equated with private institutions, which is what the Third Circuit did.
Tom
This is a belated comment on some of the recent exchanges.
I agree wholeheartedly with John Breen's article on Jesuit legal education. I think it is beyond argument that some law schools affiliated with universities that were founded by Catholic religious orders or Catholic dioceses can not honestly claim to be offering something distinctive. That is, they are indistinguishable from their secular counterparts.
Possible remedies for this situtation--if one assumed that this state of affairs was a problem and that one wanted to foster a Catholic identity (by complying with Ex Corde Ecclesiae, for example)--are extremely difficult to implement. A law school with only one or two Catholics on its faculty, for example, is going to have a very hard time trying to do this in any serious way. I have some ideas about this but I think it is profitable to think about what a Catholic law school might look like if one had the freedom to begin from scratch. Due to God's providence, I and several colleagues were blessed to be in that situation a few years ago. Here are a few thoughts about what we at Ave Maria tried to do, although I don't want to suggest by any means that what we've done is the only way to build a Catholic law school.
We began with Ex Corde Ecclesiae, and I think that is the place to start. The school ought to view itself as "born from the heart of the Church." It should not be thought of as a bridge between the Church and legal education more generally. An important part of this is that the school ought to be an "authentic human community animated by the spirit of Christ." Of necessity, that community must contain many Catholics, particularly on its faculty. These Catholics ought to be people who embrace their identity as faithful sons and daughters of the Church, and in particular who embrace the Catholic intellectual tradition. It is certainly not enough that the school have a few Catholics like this, or Harvard would be a Catholic law school because Mary Ann Glendon is on the faculty there. It is not enough to have a few Catholics to add to the pluralistic conversation in the law school. It bears noting, I think, that most law schools are not terribly diverse. When I taught at a secular law school that was pretty typical of US law schools I was the only regular member of the faculty who would, for example, defend the pro-life side in public discussions of abortion or euthanasia.
The school ought to have a rich liturgical life--daily Masses, frequent Confession, Eucharistic Adoration, the Rosary, etc.
Non-Catholics would be welcome of course, but as Ex Corde states they would be expected to understand and respect the Catholic identity of the school.
A Catholic law school ought to be distinctive in the types of conferences it sponsors, the speakers it brings to campus, and the persons upon whom it bestows honorary degrees.
With regard to the curriculum, I think that the faculty in general ought to be scholars who reject the "dictatorship of relativism" that Pope Benedict warned about. There ought to be certain distinctive courses so that students would encounter the richness of Catholic social thought. At Ave Maria, we do this in several required courses. These courses include Moral Foundations of the Law (a first year course that emphasizes the connection between law and morality), Jurisprudence (a course that we expect will acquaint students with a knowledge of the natural law tradition), and Law, Ethics, and Public Policy (a third year course in which students examine in detail a current issue in light of Catholic social thought). But perhaps just as importantly students ought to encounter Catholic social thought throughout the curriculum. So, for example, a Constitutional Law class might consider Veritatis Splendor and Evangelium Vitae when the students considered the concept of freedom articulated in Casey and Lawrence.
There is a lot more that could be said, but this sketch of a few ideas is probably already too long. I only wanted to add that I agree that Catholic law schools ought not strive to be "conservative" or "liberal." They ought to be faithful to the vision expressed in Ex Corde.
Richard
Rob asks, w/r/t the Solomon Amendment case, "[s]ince we're talking about state law schools, isn't it vital that they be given the space to function as bodies that mediate between the citizens of a particular state and the federal government?" He addes, "[i]f every government entity is equated with all other government entities, haven't we forsaken much of society's mediating capacity?"
Certainly, Rob makes a great point; after all, much of the normative (and practical) appeal of "our Federalism" stems from the "laboratories of democracy" idea, which seems some imply at least some distinctiveness and difference between and among the various laboratories. That said, I would regard it as "vital" that we not equate state-run and private institutions, particularly educational institutions. Subsidiarity, as I understand it (and, I'm sure, as Rob does too), is about more than diffusion and mediation. Especially when it comes to education, it is -- as Tom's post suggests -- important that the sources of value and formation not all be governments.
To anticipate an objection: My point is not offered as simply a "government is bad" assertion. Still, the project of "state control over education" is not an ideologically neutral one, and is not one that we who endorse subsidiarity for reasons rooted in Catholic Social Thought should too quickly embrace. So, we should, I think, worry more about preserving the independence and distinctiveness of private law schools, even as we also worry, too, about federally imposed homogeneity among government-run schools.
Rick
Sunday, May 8, 2005
Just a quick response to Tom Berg's helpful post on the Solomon Amendment case: from the standpoint of subsidiarity, I'm not sure why there should be a different outcome afforded the public law school and private law school plaintiffs. Since we're talking about state law schools, isn't it vital that they be given the space to function as bodies that mediate between the citizens of a particular state and the federal government? If every government entity is equated with all other government entities, haven't we forsaken much of society's mediating capacity?
Rob
