Wednesday, January 5, 2011
A few weeks ago our friend and colleague, Richard Myers, posted on the subject of recent developments in the St. Joseph Hospital (Phoenix) abortion case. [here] As we know from Richard and other sources, Bishop Olmstead of Phoenix has, under his proper canonical and ecclesiastical authority, decertified St. Joseph’s Hospital as a Catholic institution. At the time of his original posting, Richard also raised an important and pressing question about the connection of the canonical issues between the Phoenix hospital case and the use of the term “Catholic” in describing a college or university. I followed up with a brief posting citing what I believe is a relevant Church document source from the Second Vatican Council, i.e., the Decree on the Laity, that has a bearing on the ability of some institutions to hold themselves out as Catholic foundations. [here]
During the Christmastide break, I have given further thought to these interrelated issues of what happened at St. Joseph’s Hospital and what could happen or has happened at Catholic colleges and universities. A catalyst for this additional consideration was my recalling how, within recent times, several institutions of higher education (e.g., Marist College, Marymount Manhattan College, Saint John Fisher College, Webster University, Nazareth College, and Manhattanville College) are no longer Catholic institutions of higher learning. The path taken by each of these institutions toward their current status is not the same; however, the result in the context of their institutional soul is. And it is this last point that intensifies the significance of the point raised by Richard. Why?
First of all, Bishop Olsmstead has acknowledged the connection between actions pursued by St. Joseph’s Hospital and at least one member of the theology faculty at Marquette University. Other commentators have noted that some Catholic institutions, when engaged in morally problematic or questionable activities that conflict with Church teachings, are shopping for those academics who will provide the institution with ethical justifications for the actions that may be taken or are taken but which, nonetheless, conflict with Catholic teachings.
This in itself is testing for at least two reasons. The first reason centers on the conscious search undertaken by a “Catholic” institution for a “Catholic authority” that departs from Catholic teachings. The second materializes when someone asserts that the justification offered and relied upon departs from authoritative Catholic teaching. In this latter context, the position is sometimes expressed that the authoritative teachings of the Church are simply one view on a complex issue, e.g., abortion. This very position was purportedly advanced by one of the senior administrators at St. Joseph’s hospital who was attributed with making the statement that “many knowledgeable moral theologians have reviewed this case and reached a range of conclusions.” When pressed by Bishop Olmstead, the same administrator contended that “this is a complex matter on which the best minds disagree.”
The ensuing conflict between the bishop who holds and exercises ecclesiastical jurisdiction over the region in which the problematic activity has occurred at a Catholic institution and those responsible for the activity has led Anne Hendershott to address the circumstances where bishops have “little effect on the culture and curriculum” of Catholic colleges and universities in her recent article published in The Wall Street Journal. [here] Ms. Henderson further notes that the same tension existed when the U.S. bishops and many academics took different stands on the final legislation that became controversial health-care law passed by the Congress last year. Ms. Hendershott has labeled this disagreement as the product of “an alternative magisterium.” Elsewhere I have used a similar moniker: the shadow magisterium.
I may be proven wrong, but it seems that it is this alternative or shadow magisterium will be the source of future problems and conflicts between bishops and the academy that currently uses the modifier “Catholic.” In addition, I wonder if the list of formerly Catholic colleges and universities will continue to grow. Pope John Paul II seems to have agreed with some of the concerns expressed in my claim when he said in Veritatis Splendor, N. 113,
Moral theologians, who have accepted the charge of teaching the Church’s doctrine, thus have a grave duty to train the faithful to make this moral discernment, to be committed to the true good and to have confident recourse to God’s grace. While exchanges and conflicts of opinion may constitute normal expressions of public life in a representative democracy, moral teaching certainly cannot depend simply upon respect for a process: indeed, it is in no way established by following the rules and deliberative procedures typical of a democracy. Dissent, in the form of carefully orchestrated protests and polemics carried on in the media, is opposed to ecclesial communion and to a correct understanding of the hierarchical constitution of the People of God. Opposition to the teaching of the Church’s Pastors cannot be seen as a legitimate expression either of Christian freedom or of the diversity of the Spirit’s gifts. When this happens, the Church’s Pastors have the duty to act in conformity with their apostolic mission, insisting that the right of the faithful to receive Catholic doctrine in its purity and integrity must always be respected. “Never forgetting that he too is a member of the People of God, the theologian must be respectful of them, and be committed to offering them a teaching which in no way does harm to the doctrine of the faith”. (Quoting from the CDF’s “Instruction on the Ecclesial Vocation of the Theologian Donum Veritatis, May 24, 1990)
Time will tell whether the tension between some Catholic academics and ecclesiastical authorities will grow and whether the list of formerly Catholic colleges and universities will expand or not. While some may argue that it is too late to maintain the size of this list to its current number, I have hope that people of good will who labor in this part of the Lord’s vineyard will come to recognize the great treasure that will be lost forever if the list does indeed expand.
RJA sj
And is it not the bitterer to think
That, disengage our hands and thou wilt sink
Although thy love was love in every deed?
Last night I had one more little thought about Judge Reinhardt's explanation for his decision not to recuse himself (opinion here). On four occasions in the decision, Judge Reinhardt states forcefully that his wife is an "independent woman" or an "independent person" or that she has "independent views."
Since it seemed to me that the judge was attempting not only to describe the actual nature of his marriage but also to explain what a reasonable or ordinary contemporary (and therefore, not "outmoded") observer would think about the relationship of a married couple, something he had to do for purposes of the recusal standard, I began to wonder about the emphasis on the idea of the independence of spouses.
It is certainly true that in many ways spouses are independent. They will have different occupations and careers, different interests, different tastes, different friends, different views, and so on. Much of their lives will be independent. Sometimes one hears that to be married is to "sacrifice" one's independence -- no more hogging the closet, no more going out drinking with your buddies whenever you want to, or lying on the couch all day just because you feel like it.
But I've always thought that dependence is a reason to want to be married, an important boon of marriage, not a sacrifice. In at least some happy marriages, to be dependent is to be supported, to be cared for, to enjoy the goods of intimate trust and loyalty. I enjoy greatly my dependency on my wife, because in addition to making possible the attainment of certain goods to which I otherwise wouldn't have access, it is an intrinsic solace and a comfort to rely deeply on another person.
To be sure, as feminists have pointed out to great effect, dependence (and especially marital dependence) can go horribly wrong -- it can be abused by one or both of the parties, as it was by the husband in Browning's lovely poem ("Any Wife To Any Husband"). In criminal law, one sees that marital dependence can breed all sorts of horrors -- wives who cannot leave their abusive husbands, mothers who cannot report abusive fathers.
But for all that, dependence seems to me something which couples who are contemplating marriage might relish and look forward to with excitement. Dependence is the natural state of many thriving marriages. It is so powerful a bond that it somehow persists even when a marriage is in disrepair -- as Browning says, dependence becomes "bitter" after betrayal, just as it was sweet before the fall.
Tuesday, January 4, 2011
One of the reasons I am enjoying the judicial recusal debates is that, in their technical way, they unexpectedly touch on various deep questions. One of those is the nature of marriage today. Readers may be interested to look over Judge Reinhardt's explanation, issued today, for his earlier refusal to grant the motion to recuse in the Perry litigation. For what it's worth, I think Judge Reinhardt makes a plausible case not to recuse himself in this matter. In an earlier post, I wrote that it is not reasonable automatically to treat spouses as a political or ideological unit, and Judge Reinhardt spends a good deal of the memorandum making this point.
But it seems to me that he goes further, with this:
Proponents' contention that I should recuse myself due to my wife's opinions is based upon an outmoded conception of the relationship between spouses . . . . In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them . . . . Because my wife is an independent woman, I cannot accept Proponents' position that my impartiality might reasonably be questioned under [section] 455(a) because of her opinions or the organization that she heads.
Judge Reinhardt adds a footnote to the co-authored book by James Carville and Mary Matalin, All's Fair: Love, War, and Running for President.
I don't think it was necessary for Judge Reinhardt to go this far, and I think it weakens the opinion that he does so. As I said, it is wrong automatically to impute ideological identity as between spouses for recusal purposes. But it rings false, at least to me, to describe the relationship of a husband and wife as one in which "fundamental interests" are "shared." I share fundamental interests with lots of people -- my friends, people I go to church with, the guy across the street who got a "Slow, Children" sign put up close to our house, maybe even a law professor or two (given my views, probably not many more than that). I share fundamental interests with people I don't know: lovers of Italian poetry, or of French cuisine and Bordeaux grands crus (not fundamental enough? I cannot agree). It seems to me that most people think that spouses are united by more than common interests, even fundamental ones. Here's only a partial list off the top of my head: bonds of love, of loyalty, of sentiment, of respect and admiration, of duty, and of fidelity.
Now, it's certainly true that not all married couples share these bonds. But (I suspect in order to make his opinion appear more powerful) Judge Reinhardt seems to want to make a stronger point about what modern marriage is all about -- about each of the spouses' "independence" aside from whatever interests they share. The trouble is that since the recusal standards rely very much on public appearances, they also trade on ideas of what ordinary people think -- and in this case, what an ordinary person might think about the nature of the relationship of a married couple. Is it really "outmoded" or the vestige of some horribly atavic, chauvinistic conception of marriage to think that a spouse, for reasons of love, respect, familial congeniality, and so on, would at least consider the feelings of the other spouse in deciding on any given course of action?
But maybe it is I that misunderstands the sorts of bonds that marriage today -- at least as an ideal -- generally suggests. It might be true that the bonds I list above -- or any others that you can think of which somehow exceed "share[d]" "interests" -- are generally perceived to be "outmoded." It certainly isn't the first time I would have been called outmoded.
Here: "This is the paradox of America’s unborn. No life is so desperately sought after, so hungrily desired, so carefully nurtured. And yet no life is so legally unprotected, and so frequently destroyed."
Monday, January 3, 2011
Here, at Public Discourse, is the latest (I think!) installment in the ongoing conversation between George, Anderson, and Girgis (on the one hand) and their interlocutors / critics (on the other) about the meaning of marriage, and the implications of that meaning for law and policy.
I propose that Robby put up the next few installments of the conversation exclusively here, at MOJ, so we can reap the huge benefits of the web-traffic attending it. (Ed.: You do realize, Rick, that MOJ makes no money, right?).
John Witte and Frank Alexander are the editors of (yet another!) helpful and interesting collection of essays -- this one, just out from Cambridge University Press, is on "Christianity and Human Rights." (I contributed a chapter on religious liberty and church autonomy, but -- don't worry! -- the book includes chapters by others whose work MOJ readers will actually want to read, including Kent Greenawalt, Jeremy Waldron, and Nick Wolterstorff). Here's the description of the book:
Combining Jewish, Greek, and Roman teachings with the radical new teachings of Christ and St. Paul, Christianity helped to cultivate the cardinal ideas of dignity, equality, liberty and democracy that ground the modern human rights paradigm. Christianity also helped shape the law of public, private, penal, and procedural rights that anchor modern legal systems in the West and beyond. This collection of essays explores these Christian contributions to human rights through the perspectives of jurisprudence, theology, philosophy and history, and Christian contributions to the special rights claims of women, children, nature and the environment. The authors also address the church's own problems and failings with maintaining human rights ideals. With contributions from leading scholars, including a foreword by Archbishop Desmond Tutu, this book provides an authoritative treatment of how Christianity shaped human rights in the past, and how Christianity and human rights continue to challenge each other in modern times.
"Secularists should recognize that the Pope's fight is their fight," says Daniel Henninger in this op-ed. He's right, I think. A taste:
For some, the Vatican's efforts on behalf of Christian minorities in Islamic countries or among China's population of 1.3 billion is regarded as worthy and admirable, but only a footnote against the grand sweep of current geopolitical concerns. Iran's bomb, China's economic importance and all that. This is a mistake. In these times, the pope's agenda is the civilized world's agenda. The pope's agenda is individual freedom. . . .
It has been odd in recent years to see prominent atheists make so much effort to diminish Judeo-Christian belief. In the modern world, and certainly in the U.S. from the Pilgrims onward to the Bill of Rights, religious practice has been bound up in the idea—now the principle—of individual freedom. I don't think secularist arguments alone for individual freedoms have sufficient strength and fiber to stand against their current opposition. Benedict's fight for freedom and that of recent Nobel Peace Prize winner Liu Xiaobo are the same. Wojtyla and Walesa proved that once already.
The remake of the great John Wayne film, "True Grit", has been getting a lot of positive buzz. I liked this review essay, by Stanley Fish, "Narrative and the Grace of God":
The new “True Grit” is that rare thing — a truly religious movie. In the John Wayne version religiosity is just an occasional flourish not to be taken seriously. In this movie it is everything, not despite but because of its refusal to resolve or soften the dilemmas the narrative delivers up.
