Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, March 28, 2010

Thoughts on the Clergy Abuse Scandal

By Michael Scaperlanda

My good friend and former student, Fr. Jim Goins wrote the following:

Celibacy only works when the celibate submerges sexual desire into a deeper desire for union with the Divine. Sexual repression, on the other hand, is lethal and corrupting of the entire community. The abuse scandal still swirling around the priesthood is a failure on many levels, including priestly formation. Candidates for priesthood must be taught to be men and not kept at the emotional level of an eighth grade boy. The vast majority of priests are able to move from boyhood into manhood and perform well as celibate priests. Still, the widespread instances of abuse suggest a systemic failure within our seminary system.

Even though most priests overcome the challenges of celibacy, mandatory celibacy is, in my opinion, an increasingly unproductive law of the Church. We must be allowed to ask if the discipline of mandatory celibacy is now sending the wrong sign to the world: a sign of sexual isolation and nefarious behavior. A married clergy is not without its own problems but would signal the intention of the Church to bring its clergy into the rich life of our moral center: the family.

What follows is not meant as an excuse for the actions of the Church. Rather, I hope to simply point out the reality of how society once treated sins and crimes against children.

Secrecy was not invented by the Roman Church. Until the mid 70's, the standard response to revelations of child abuse was to keep the matter private. It was believed the child would be seen as 'damaged goods' and the family shamed beyond repair. Catholic Bishops kept these secrets because they were taught that secrecy was in the best interests of the child. Shocking now, I concede, but, at the time, all institutions within society conspired with the silence.

The Church's habit of sending offenders to treatment rather than turning them over to the law now strikes us as odious. However, for years the best minds of psychology taught that such disorders could be treated and the men safely rehabilitated. As it turns out, the advice was absolutely wrong. Until the late 80's or early 90's, Bishops believed they were acting 'progressively' by spending small fortunes on men who 'suffered' from attractions to children. Would that they have acted counter culturally.

Finally, we must acknowledge that, despite the extreme damage done by the Church's failures, real progress has been made to keep children safe in Catholic parishes and schools. We are currently doing more background checks, more training, more monitoring than any other institution. Out of the ashes of this scandal, something good is emerging. Let us pray it is not too late.

Saturday, March 27, 2010

Understand?

By Patrick McKinley Brennan

In 1949, Wittgenstein wrote the following:" The older I grow the more I realize how terribly difficult it is for people to understand each other, and I think that what misleads one is the fact that they all look so much like each other.  If some people looked like elephants and others like cats, or fish, one wouldn't expect tem to understand each other and things would look much more like what they really are."  When I read this the other day, it really got my attention.  I'll grant that understanding one another can be work, sometimes (but not necessarily always) very hard work.  I think here of Longergan and what he says about the task of fidelity to the transcendental precepts: Be attentive, be intelligent, be reasonable, be responsible!  But Longergan also holds that sometimes love floods our hearts, and when it does the usual order by which we come to understand is reversed.  Setting Lonergan aside for now, though, the question I'm pondering is what our Catholic faith teaches about our capacity to understand one another.  Is the task of interpersonal understanding (necessarily?) as fraught with difficulty as communication between, say, cats and fishes?  Obviously, the answer to this question has serious ramifications for the possible success of communicative theories of law (and the competing non-communicative theories of law).        

Media Attention to Sex Abuse Crisis

By Susan Stabile

Several of our recent MOJ posts have addressed the recent media coverage of the sex abuse crisis.  Although I agree with Rick that John Allen's piece does a good job in helping us keep perspective, I am far less persuaded than he is with the value of the Elizabeth Lev piece.  Lev ignores the fact that the greatest anger and protest now is not with the abuse itself (which is why claims that only a small minority of priests have committed abuse or "we're not the only ones who have been guilty of abuse" are beside the point), but with how the Church handled the abuse.  There are some who portray all such reporting as anti-Catholic, which ignores that many of those who are angry and protesting the Church's behavior are Catholics.

I, for one, think E.J. Dionne's Washington Post piece makes some important points.  Regarding Dionne's closing note, Rick focuses on the portion of Dionne's statement suggesting that the Church cast aside its lawyers.  Rick is, of course, right that one can not cast off one's lawyers when one is being sued.  However, I do think Dionne is right to suggest that what is needed here is "institutional self-examination, painful but liberating public honesty, and true contrition."  I share the sense of many that there has been far too little evidence of the first and the second and, while some contrition has been expressed, it has been largely expressed as sorrow for the abuse itself rather than how the abuse was dealt with.

Mirror of Justice: Back to Basics

By Rick Garnett

My previous post, regarding the anniversary of Pope John Paul II's death, got me interested in digging even further back into the vault.  Here is Mark Sargent's inaugural "welcome" post, that went up on Feb. 3, 2004:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.

2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.

5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)

6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!

And, here is my first substantive post, on "Law and Moral Anthropology":

One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).

In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy." And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?

Comments are open!

Pope John Paul II

By Rick Garnett

We are approaching the fifth anniversary of the death of Pope John Paul II (the late Holy Father died on April 2, 2005).  I was thinking about this, and so went back and read a bunch of our posts from that time, including this one of mine ("John Paul II and the Law:  A First Try") which I put up on April 3:

I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example.  It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory.  A few thoughts:

First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth.  His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life.  We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural.  And, he recognized, law both shapes and is shaped by culture.

Second, the Pope returned again and again to the theme of freedom.  Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner.  It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.

Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives.  This proposal seems particularly powerful when it comes to the matter of religious freedom.

Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.

There's a lot more to say, of course.  I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.

Comments are open (as they were not, five years ago).  By the way . . . it seems weird to be talking and thinking about five-year-old blog-posts.  In any event, since many of us have written about the matter, it might be nice other MOJ-ers shared (or perhaps, as I have done, just re-posted) some anniversary reflections on the CST work and legacy of John Paul II and its connections to the Catholic legal theory project.

John Allen on Benedict and Clerical-Abuse Scandal

By Rick Garnett

John Allen -- who occupies the regrettably lonely but richly deserved (not the lonely part) position as "journalist on things Catholic who seems to be respected by everyone, even those who seem to disagree about everythign else" -- has this piece, "Keeping the Record Straight on Benedict and the Crisis", in the National Catholic Reporter.  A bit:

. . . Despite complaints in some quarters that all this is about wounding the pope and/or the church, raising these questions is entirely legitimate. Anyone involved in church leadership at the most senior levels for as long as Benedict XVI inevitably bears some responsibility for the present mess. My newspaper, the National Catholic Reporter, today called editorially for full disclosure about the pope's record, and it now seems abundantly clear that only such transparency can resolve the hard questions facing Benedict.

Yet as always, the first casualty of any crisis is perspective. There are at least three aspects of Benedict's record on the sexual abuse crisis which are being misconstrued, or at least sloppily characterized, in today's discussion. Bringing clarity to these points is not a matter of excusing the pope, but rather of trying to understand accurately how we got where we are. . . .

Health Care Reform (5): Future Scenarios

By Greg Sisk

[This is the last in a series.   You can view the full series on one page here.]

The Congressional Budget Office reports that President Obama’s budgets will push the national debt to 90 percent of Gross National Product.  Former CBO director Holtz-Eakin concludes that the health care legislation will raise the deficit by half a trillion more, not reduce deficits as the CBO reported based on Obama administration assumptions.  The Treasury Department may lose the AAA rating for U.S. Bonds (here).  Foreign creditors are unlikely to keep buying American debt (here).

Something’s got to give.  And health care will hardly be exempt from the financial crisis and economic dislocation ahead.  The Obama-Democratic health care plan is neither economically viable nor political sustainable in the years ahead.

So where do we go from here?


The Most Pleasant But Least Likely Scenario

The most pleasant, if least likely, scenario is that the Patient Protection and Affordable Care Act of 2010 will afford universal health care coverage, ensure quality and secure health care for all Americans, and reduce the national debt – all at the same time, just as promised by President Obama, Speaker Pelosi, and Majority Leader Reid.  We can all join hands, sing “Kumbaya,” and skip joyfully into the promised land of milk and honey.

My grim forecasts of burgeoning government, national insolvency, eroding individual freedom, and declining health care – the subjects of my posts all this week – will be shown up as the depressing interjections of a foolish pessmist.  But, to quote an Eagles song from the 1970s, “I could be wrong.  But I’m not.”


The Most Likely and Most Unsatisfactory Alternative Scenarios

If over the next few years, the costs of the new universal health care entitlements prove to be as high as I anticipate and the savings turn out to be as illusory as I believe, then it is unlikely that Congress will or can allow President Obama’s health care program to proceed to full operation as planned.  At the very least, Congress likely will choose to trim back on the more ambitious elements of the Patient Protection and Affordable Care Act of 2010.  As the debt piles ever higher and the economy fails to meet its full potential because of competitive from government borrowing and the drag of higher taxes, Congress will conclude that the country simply cannot afford the liberal Democratic dream carried through to a slender congressional majority this past week.

Indeed, if irresponsible spending (see here) leads us to brink of national insolvency, as some western European nations are experiencing and as we have seen at the state level in California, implementation of the program may be truly impossible.  After the CBO predicted far higher deficits over the next decade than the White House had been saying, Obama’s own budget director acknowledged that the national debt burden on the economy “would not be sustainable.”

In this event, two alternative options may be presented, neither of them palatable.  First, and sadly most likely, Congress will abandon the most expensive of the provisions, that which extends government-run health care to tens of millions of the uninsured.  As we’ve seen before, when liberals overreach and put too much faith in government as a solution, whether it be in education, housing, urban planning, or now health care, the most vulnerable in our society suffer the most when the house of cards collapses.

Continue reading

"Crying Wolf": A Response

By Rick Garnett

For a response to the claims contained in the Commonweal editorial ("Crying Wolf") to which Michael P. linked, go here. 

To be sure, our friends are right to warn about the wages of "crying wolf".  And, there is no denying -- not that there is any need to deny -- that many of those who are critics of the new law's abortion-related provisions and effects also think the law is a bad one (for reasons that Greg Sisk and others have outlined).  So, as the editors note, it was never likely, despite the then-candidate Obama's endorsement of, and promises regarding, the "Freedom of Choice Act", that the Act (as such) would actually pass.  In pointing this out, though, they (and we) should not think that the Administration has not, in fact, taken many steps to increase "access" to, and reduce restrictions on, abortion.  It was not crying wolf to predict this before, and it is fair to lament it now. 

An initial response to Michael's correspondent

By Rick Garnett

Michael P. quotes a correspondent who writes, with respect to E.J. Dionne's recent Washington Post piece:

"A question that should be put to every participant of the MOJ blog, to which no one should not respond if MOJ intends to have any credibility at all outside Catholic circles:  How does Catholic Social Theory respond to this?  I can't think of any more pressing socio-theological-legal issue confronting Catholics (including American Catholics) right now or in the future..."

I am assuming that Michael's correspondent is a new reader -- welcome! -- because my sense has been that, over the last six years, we have hardly neglected the questions and problems that clerical sexual abuse and its mishandling by Bishops, lawyers, and courts.  So, I'm not inclined to think that MOJ's credibility on this or any other matter should reasonably be seen as in jeaopardy.  That said, the issues that Dionne writes about are, of course, important, challenging, and (regrettably) timely.

First, Dionne asks, "[h]ow in the name of God can the Roman Catholic Church put the pedophilia scandal behind it?"  I would have preferred that Dionne -- a well regarded journalist and long-time observer of things Catholic -- had avoided using the term "pedophilia" which, as he knows, is both particularly inflammatory and misdescribes most (nearly all?) of the sexual-abuse and sexual-misconduct wrongs -- and to be sure, that these wrongs were not all "pedophilia" does not make them any less "wrongs".  Does this matter?  I think so.  We should, of course, demand that the Church be truthful, but we should take care that we not demand the Church confess what to what is not true.

Dionne also writes:

The church's problem is, above all, theological and religious. Its core difficulty is that rather than drawing on its Christian resources, the church has acted almost entirely on the basis of this world's imperatives and standards.

It has worried about lawsuits. It has worried about its image. It has worried about itself as an institution and about protecting its leaders from public scandal. In so doing, it has made millions of Catholics righteously furious and aggravated every one of its problems.

I am inclined to share the view that, in many instances, those Bishops who mishandled (badly) sexual-abuse cases (and, we should remember, that most did not) did so in part because of fears about scandal, about liability, and on the advise of lawyers.  At the same time, it is the reality (isn't it?) that, for the past decade, the problem has not been so much with dealing with, and preventing, new allegations of abuse, but with litigation.  (The number of alleged incidents of abuse since the early 1990s is, thank God, very small.)  I am not sure it is possible for Bishops -- even Bishops intent on faithful, charitable, and total adherence to the Gospel -- to put aside the reality that they are in litigation.  (My former colleage Patrick Schiltz's work and experience is helpful here.)  Bishops were right (weren't they?) to worry about efforts in some cases to bankrupt dioceses, to liquidiate schools, to supervise the training and selection of clergy, etc.  Does this worry excuse bad or dishonest actions?  Of course not.  But it certainly more than excuses -- it justifies, and demands -- appropriate legal defenses.  In saying this, I am not suggesting, in Dionne's words, that "defensiveness" is a Gospel value.  But it is not always "defensive" to, well, defend. 

Dionne writes, in closing, that:

The church needs to cast aside the lawyers, the PR specialists and its own worst instincts, which are human instincts. Benedict could go down as one of the greatest popes in history if he were willing to risk all in the name of institutional self-examination, painful but liberating public honesty, and true contrition.

Again, it does not seem helpful to me to call for the casting aside of lawyers, when one is being sued, aggresively and often, and where one has obligations not only to the Church's mission and resources, but to those who might be falsely accused.  Is it a good thing for the Church's response to the problems of clerical sex abuse and episcopal mishandling (or worse!) to be handled by lawyers and PR specialists?  No, of course not.  But, there is no getting around the need (in my view) for these types, given all the givens.

To his credit, Dionne recognizes that what he calls for would not be "easy", and that enemies of the church will use this scandal to discredit the institution no matter what the Vatican does. Many in the hierarchy thought they were doing the right thing, however wrong their decisions were. And the church is not alone in facing problems of this sort."  It is certainly not alone; indeed, the government, other religious institutions, and non-profit organizations of many stripes face even more serious problems of this sort.  But, those whom Dionne calls "enemies of the church" tend not to be interested in these problems.  Obviously, that the Church is being singled out does not make her wrongs any less wrong.  But, it seems to me that the realities that Dionne acknowledges in this passage complicate seriously his call for the Pope to "risk all". 

Epistemology and Politics, Part II

By Rick Garnett

Michael P. is quite right to call our attention to the pervasive problem of the distorting effect that political loyalty can have on one's acceptance and appreciation of the facts.  (That this problem is a real one makes it all the more unfortunate, of course, that political leaders and partisans so often misrepresent those facts to their partisan advantage.)  In my experience, almost all engaged and intelligent people are aware of this problem, and yet are tempted (understandably) to imagine that it only besets those with whom they disagree.  And so it goes . . .

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