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.

Tuesday, October 26, 2004

Papers Presented by Nicole and Rick Garnett at the University of St. Thomas

Last week, the University of St. Thomas School of Law was delighted to host Professor Nicole and Richard Garnett of Notre Dame (indeed their whole family of five joined us in Minneapolis) for a two-day visit and to hear from each of them at two faculty scholarship workshops. Although neither of their works-in-progress are yet in general circulation, I wanted to preview each of them for our Mirror of Justice audience so that we can keep an eye out for them as they come to publication in the coming months.

Nicole Garnett’s paper, “Relocating Disorder,” addresses the growing practice in metropolitan communities of relocating governmental, nonprofit, and religious organizations that serve disadvantaged communities, such as the homeless, to a concentrated area. The stated goal is to be coordinate and serve the needs of the population without providers being dispersed around the city. However, as Nicole Garnett explains, the cities also plainly hope to “relocate disorder,” that is, move the homeless away from downtown areas that are targeted for renewal. As her paper puts it, “[homeless campuses, exclusion zones and regulatory sweeps all seek to relocate urban disorder from one place (where it is perceived to be harmful) to another (where policymakers hope it will be more benign).” As local officials fear civil rights lawsuits challenging policing measures designed to control disorder, they are turning to land use policies – such as homeless campus concentrations – to acheive the same purpose while taking advantage of deferential standards of judicial review for land use planning. Nicole Garnett suggests, however, that these land use approaches may impose costs as significant as the order-maintenance policing schemes that have gone before. While it is impossible to summarize the entire comprehensive piece in a few words, her conclusion is that disorder-relocation land use policies raise serious concerns about economic and racial justice and, moreover, are not likely to be efficacious in terms of providing governmental human services. The risk, in her view, is that land use regulations may codify the very racial and economic injustices that have motivated opposition by civil libertarians and criminal procedure scholars to order maintenance policing. At the same time, Nicole Garnett also offers a caution to the other side of the debate as well. Legal advocates who have challenged police order maintenance policies may wish to consider the consequence of such lawsuits in pushing local government officials to turn to land use planning as a less-than-ideal alternative.

Rick Garnett presented a paper titled, “Religion, Division, and the First Amendment.” Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Burger announced that state programs or policies could “excessive[ly]” – and, therefore, unconstitutionally – “entangle” government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions, activities, and believers, but also through what he called their “divisive political potential.” His point was not simply that government actions burdened with such “potential” pose a “threat to the normal political process”and “divert attention from the myriad issues and problems that confront every level of government.” More fundamentally, the Chief Justice contended, “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” Chief Justice Burger's claim, as Rick Garnett clarifies it, was that the Constitution authorizes those charged with its interpretation to protect our “normal political process” from a particular kind of strife and to purge a particular kind of disagreement from our conversations about how best to achieve the common good. Rick Garnett’s paper provides a close and critical examination of the argument that observations, claims, or predictions about “political division along religious lines” should inform the Religion Clause’s interpretation, application, or enforcement. His examination is timely, because of the stark polarization that is widely said to characterize contemporary politics, and should also be helpful in understanding important developments in First Amendment law and theory more generally.

Greg Sisk

Monday, October 25, 2004

We're All Responsible

I read our good and gracious blog leader, Mark Sargent, as prodding us to change the subject, so I’ll make this my last post on the matter for now. I hope this message will not so depart from sensibility that another call of us “back to our senses” will be thought warranted.

Michael Perry in his recent message about my earlier posting expresses “great respect for [my] heartfelt decision--and the heartfelt decision of many other Catholics--to vote for President Bush.” I appreciate his words of appreciation, which are reciprocated. I genuinely do appreciate his thoughtful, gracious, and nuanced approach to difficult issues, not only when I agree but also when I do not. His voice for the proper and rightful role of religious conscience and expression in public life has been revolutionary and paradigm-shifting, for which all of us in the Catholic community owe a continuing debt of gratitude.

Nonetheless, although I feel somewhat churlish in saying so, I am obliged to clarify that I haven’t made the case to vote for President Bush. Instead I made the focused argument that it was seriously problematic, if perhaps not quite impossible, for a Catholic of a well-formed conscience and respect for life to cast a vote for John Kerry. The question would remain (for others to address, as I’ve said enough for now, and given Mark's hint as moderator, in other fora) whether, once having rejected John Kerry as patently unacceptable, a good Catholic then should vote for Bush or instead for none-of-the-above (or for a third-party candidate or write-in a name), alternatives of which Rob Vischer’s posting of Mark Noll’s comments serve to remind us.

In my postings, I have meant to emphasize our unique responsibility as a Catholic community, not only to struggle for the protection of innocent life but also to rebuke those who claim communion with the Church on Sunday but then set aside fundamental Church social teaching on Election Tuesday, all the while asking for our endorsement. First, I do argue that we should refuse to be counted as supporters, nose held or unheld, of the most extreme pro-abortion candidate ever to be nominated for President. Second, and more importantly, I submit that we should express our profound mortification, shame, and scandal that someone who professes communion with us in the Church has devoted his political career to waging the assault on innocent unborn life, opposing every modest effort at a ceasefire, much less a return to peace in the womb. We should be dismayed that a man with such a record would be rewarded with any Catholic support in his bid to be elevated to the nation’s highest office. We all as Catholics should be ashamed.

When one of our own, someone who claims to be one of us and in communion with us, rejects the foundation for any good society or concept of social teaching – the preeminent right to life – we have a moral duty to speak up without equivocation or apology. That duty is an inescapable and nondelegable one for each of us. As we have learned so painfully, if a priest abuses one of Christ’s little ones, we all in the Catholic communion are responsible. If the catechism of our children is so ineffective that the sanctity of human life could be misperceived by any congregant as a “doctrine of faith" to be dismissed as unimportant to public life, we all in the Catholic communion are responsible. If a professing Catholic seeks high office while repudiating the Church’s witness to life as the primordial right in any society, we all in the Catholic communion are responsible. All of us as Catholics should be ashamed.

A thoughtful law student who corresponded with me puts the point in this way: How racist would a candidate for President have to be before Catholics, even of the same political party and ideology, abandoned his campaign in disgust? I think we all know the answer to that: not very much. If John Kerry or George W. Bush were to betray even the slightest evidence of racist attitudes, suggesting that one or another ethnic group was less than equally human or lacking in equal dignity and character, good Catholics of conscience from all partisan and ideological perspectives properly would be united in condemnation. Well, then, how pro-abortion would a candidate for President have to be before Catholics similarly would be united in rejection? Sadly, as the essays and op-eds by Catholic apologists for Kerry seem to indicate, that point could never be reached. It is difficult to imagine a candidate for office who has been more addicted to the abortion license as a political issue than John Kerry, or who has served more loyally as a foot-soldier for the abortionists. And yet even he is not without those who would extend to him religious, even Catholic, cover, however much they sincerely may wish and hope they are doing otherwise. All of us as Catholics should be ashamed.

In light of those essays and op-eds, one can imagine the report made by the campaign manager to Senator Kerry and national Democratic Party officials: “See, Senator Kerry and Chairman McAullife, we told you that those so-called pro-life Democrats would come around. They always do. Oh sure, they have to go through the quadrennial ritual of assuring everyone they are holding their noses when they vote our ticket. They try to convince themselves that it makes no practical difference on the abortion issue who is elected President for the next four years (our pro-choice friends harbor no such illusions, which is why we need to be so very attentive to them – and Chief Justice Rehnquist’s newly-reported bout with cancer is further evidence that Kerry’s election promises a chance for appointments to lock up the Court in favor of abortion-on-demand for another generation and maybe get constitutionally-mandated abortion funding as well). They also argue that the best weapon against abortion is a good economic plan because the abortion rate might decline some (hey, our campaign message to pro-life Democrats could be that we at least are the party of ‘holocaust-lite’). But, in reality, these pro-life Democrats are only indulging in a little self-therapy of the conscience so that they don’t feel quite so bad when they dutifully line up behind our candidate on election day. However we get them, we always get them in the end.”

And so it goes, as it has gone before. Mondale, Dukakis, Clinton, Gore. There’s always an excuse to be made; always the hope that life issues won’t make a difference this time; always a way to claim that the balance of issues and qualifications justifies an exception for this pro-choice candidate; always a reason to surrender the principle of life on some pragmatic ground. The consequence is sadly predictable: more pro-choice candidates each campaign season, expressing ever more enthusiastically their support for the euphemistic "woman's right to choose," and ever more uniformity on the issue, even among Catholic candidates now. Indeed, there were three Catholics running for the Democratic nomination, two of whom had been eloquent advocates for life (Richard Gephardt and Dennis Kucinish), until they developed aspirations for national office and surrendered to what Father Langan calls the “unholy orthodoxy imposed by pro-choice pressure groups.” John Kerry was merely the worst on life issues among a pretty sorry lot. We all as Catholic should be ashamed.

Imagine for a moment what could happen if, instead of justifying a vote for an inexcusably repugnant record, the Catholic apologists were to expend the same energy and eloquence in explaining clearly to John Kerry and the national Democratic Party that while they want desperately to vote for him for so many reasons and because of his position on so many other issues, they simply cannot because he utterly failed the preliminary test of standing up for innocent life. Consider the impact that might follow for political campaigns and for the national culture if we all were to stand on principle and make plain that we will not apologize, we will not equivocate, we will not accommodate to intrinsic evil, we will not condone abandonment, especially by one of our own, of the most vulnerable among us. What if we all were to say, united together as Catholics in giving voice to the voiceless unborn, that we simply cannot countenance voting for anyone who has betrayed communion with our Church by persistently working to expand abortion-on-demand, undermining judicial nominations that might undo the absolute license to abortion, facilitating every request of the abortion industry, and refusing to take a courageous stand on the most fundamental issue of our time. Now that is a message worth hearing, and one that could not be ignored. Until that happens, we all as Catholics should be ashamed.

Greg Sisk

Saturday, October 23, 2004

Answering the Question About Kerry and Abortion

Yesterday, I posed the pointed question: "Can a Catholic with a well-formed conscience and respect for innocent human life look into the sepulchre of John Kerry’s putrified record of accommodating death, all the while claiming communion with the Church, and then turn away to pull the lever next to his name in the polling booth?"

Today, Michael Perry responds: "Unless Greg claims that no Catholic who chooses to vote for Kerry has 'a well-formed conscience and respect for innocent human life,' Greg must answer his own question in the affirmative. If Greg does claim that no Catholic who votes for Kerry--not Mark Roche, not Cathy Kaveny, not Peggy Steinfels, and so on--has 'a well-formed conscience and respect for innocent human life,' . . . well, I'll leave that claim for others to judge."

As I had confessed at the end of yesterday’s posting, Michael could justifiably complain that by answering with a question of my own I thereby was evading the question Michael had asked in his earlier posting, which was whether anyone truly would claim that the argument against Kerry was so iron-clad, so irrefutable, so ineluctably connected to Church teaching, etc. that a Catholic casting a vote for Kerry would thereby either be behaving irrationally or engaging in serious sin.

All right, Michael, you have me. I find myself unable in light of my own fallible human reasoning, my incompetence as being a sinner myself, and my obvious lack of any ecclesial authority to judge a fellow Catholic who proclaims fealty to the cause of life and yet casts a vote for Kerry as, on the basis of that act alone, having committed grave sin or removed him or herself from communion with the Church. Would I see such a vote as imprudent and foolish? Yes. Mendacious? Presumably no (as only God can read the heart).

But where does that lead us? How does that acknowledgment advance the discussion? To admit that a position may not be so utterly absurd as to be frivolous is not an affirmative argument in its favor. To say that someone who seriously undermines the cause of life by casting a misguided vote has not thereby sinned is no reason to fall in line behind that person.

Instead, what I’ve been trying to emphasize in my postings is that these side disputes about personalities and who is chief among sinners are distractions. The central point is that the culture of life remains under assault in this society and thus when we undertake the most fundamental act in a democracy of electing our leaders, we are called as Catholics to make very sure that we have done our homework and that we know exactly what we are doing. It is right and appropriate that we be challenged as to whether our political choices comport with Church teaching and flow from a well-formed conscience. Those who are tempted to vote for Kerry because of extreme antipathy toward Bush are obliged at least do the admittedly disturbing task of fully examining the evidence regarding Kerry's anti-life affiliations and actions. They should give solemn consideration to the potential harm, both to the political pro-life movement and to the Church’s continuing witness, that may attend the elevation of the hero of the abortion industry to the highest office held by any person, by any Catholic, in the nation.

In my experience in talking with many such persons and reading the words of more, those who say they are planning to vote for Kerry as the lesser of evils often seem ready to do so in almost willful ignorance of the full ugliness of his record, apparently because they don’t want to be troubled with stark facts that might dissuade them from that course. They want to pretend he is just another reluctantly pro-choice politician weakly unable to break from the Democratic Party line. The evidence is much more disturbing. The op-eds and essays making apologies for the reluctant Kerry supporter, to which we have been directed on this blog, are of the same nature, never forthrightly confronting full enormity of Kerry’s record.

Thus, I return to the tough and unpleasant question with which I ended my last posting and begin this one. If someone can honestly and in good conscience answer the question with a vote for Kerry, I can only shake my head and say I do not understand.

If the tragedy of a Kerry presidency does unfold, I also will have to accept my own responsibility in having failed to speak with sufficient intelligence and clarity, although I shouldn't flatter myself into thinking that my words could have made that much difference. Still, in my own small way, I will continue to work with others in bringing Kerry's record of enthusiastic accommodation of death and eager affiliation with the death-dealers out of the shadows. I hope that the truth will speak for itself and the more it is revealed the less likely that Kerry's coronation will proceed.

Greg Sisk

Friday, October 22, 2004

Michael Perry's Question and the Catholic Voter

Michael Perry refers us to two essays by Father John Langan and Margaret O'Brien Steinfels, which he describes as making the case that a conscientious Catholic legitimately could vote for John Kerry for President, despite his record on abortion. He then asks whether anyone still would still insist that a Catholic cannot vote for Senator Kerry, and, if so, asks that interlocutor to clearly explain how and why the positions taken in the two essays “are not merely arguments that you reject, but unreasonable arguments that any faithful Catholic must, in good conscience, reject.”

I don’t read either Father Langan or Ms. Steinfels as actually making the case that a conscientious Catholic could vote for John Kerry. So it is difficult to rebut that which is never quite said.

Father Langan’s essay never mentions John Kerry, much less suggests how a good Catholic should or may vote in a particular election. Instead, he offers strategic thoughts about how best to advance a culture of life and also questions whether completely outlawing abortion is a necessary and appropriate means to that end. While I find much to praise, much to dispute, and much to think about in Father Langan’s essay, it sheds little light ultimately on the peculiar John Kerry problem. Father Langan never suggests that a politician who loyally has carried water for the abortion industry is worthy of support by any Catholic. In fact, his rebuke of “Catholic politicians [who are] the more or less willing subjects of an unholy orthodoxy imposed by pro-choice pressure groups” left me thinking that he might draw the line against a professing Catholic political figure who has assiduously courted and ingratiated himself directly with the abortion industry.

Ms. Steinfels certainly does use the name “John Kerry” in her essay, but not often and not with any attention to detail or affirmative endorsement. Instead, the essence of her essay is an argument why a Catholic ought not vote for President Bush (as she devotes the lion’s share of discussion to the President’s purported flaws, with precious few words left for Senator Kerry). She concludes the essay by casting her lot with John Kerry, but she seems to do so only by default (thereby forgetting that there are more than two choices in any election). In sum, Ms. Steinfels at most makes the case for reluctantly supporting a generic candidate with vaguely pro-choice views (and wrongly assumes that John Kerry fits this bill), when the alternative choice is unpalatable.

Ms. Steinfels, like so many who insist they genuinely are pro-life but that John Kerry nonetheless is the lesser of two evils, assiduously avoids more than a glance at Senator Kerry’s complete record in all its ugliness. These reluctant Kerry supporters direct all their fire at President Bush, while giving Senator Kerry a pass by characterizing him somewhat innocuously as pro-choice or somewhat less than perfect on abortion. How can one reach the conclusion that one politician is a lesser evil than another if the respective evils are never fully explored? Why are so many ready and eager to catalog in fine detail the asserted misadventures and failings of the Bush Administration, while unwilling to scrutinize the publicly-available record of legislative votes, speeches, political rallies, endorsements, and campaign contributions made or received by Senator Kerry over the course of decades. Like so many others, Ms. Steinfels in her essay never forthrightly examines John Kerry’s depressingly miserable record on issues of life.

Indeed, Ms. Steinfels largely avoids the abortion issue as practically unimportant in this election, saying that the climate for legal abortion is unlikely to be much affected in the next four years, in either direction, regardless of the outcome of the presidential election. But consider John Kerry’s support for public funding of abortions, his promise that his first act as President will be to restore abortion funding to international organizations, his litmus test of support for Roe v. Wade for Supreme Court nominees (thereby limiting his choice to those who are publicly identified as pro-choice and thus probably strongly so), his promises to veto legislation placing any limitations on the abortion-license, etc., etc. Making the assumption that a President Kerry would not make any difference for the worse is a most dangerous gamble and a gamble with the lives of unborn thousands.

Ms. Steinfels argues that “[t]he law will only change when the culture changes and women change their minds about abortion.” If by “change,” she means a complete and final end to the tragedy of abortion (ignoring the constructive interim steps of limitations, notifications, waiting-periods, counseling, non-funding, etc.) , surely she is correct. But electing a pro-abortion Catholic who for decades has exhibited public contempt for the Church’s consistent witness to life seems an odd way to move the culture. Indeed, those of us troubled by the prospect of a President Kerry fear most greatly the potential impact upon the fragile but meaningful maturing in public understanding and respect for life that have occurred over the last several years. The scandal of the most prominent Catholic in the nation standing four-square against his own Church on the pre-eminent issue of our times, without repercussion and while holding up the cover of support by other prominent Catholics, could be devastating. The damage to the Church’s witness for life could take decades to reverse.

It is for these reasons that I simply would ask all of us to take a hard look at John Kerry’s record as a sycophantic acolyte of the abortion industry, happily accepting the donations of abortionists, eagerly joining rallies organized by those who not only advocate for abortion rights but perform the deadly deed. To be sure, during these latter days of the campaign, John Kerry has hinted that he may be personally opposed to abortion, although he cannot bring himself even to say that directly, instead engaging in such circumlocutions as saying he has respect for those who have another view or that his views on abortion are an “article of faith,” by which he means something to be utterly ignored in his public life. Even now, he has never spoken words of unequivocal condemnation of abortion, he has never agreed that abortion is an intrinsic evil (and that those performing abortions thereby are directly complicit in evil), he has never disassociated himself from his abortion industry allies and financial backers. When it comes to abortion, the words of Kate Michelman, president of the NARAL Pro-Choice America (which I’ve quoted before) linger: “Even on the most difficult issues, we’ve never had to worry about John Kerry’s position.”

In the end, can a Catholic with a well-formed conscience and respect for innocent human life look into the sepulchre of John Kerry’s putrified record of accommodating death, all the while claiming communion with the Church, and then turn away to pull the lever next to his name in the polling booth?

By leaving the question dangling, have I dodged Michael Perry's question? Well, so be it. I'm answering a question with a question.

Greg Sisk

Wednesday, October 20, 2004

Kerry and Abortion: A Look at Stark Reality Without Distractions

In her op-ed, “Rambo Catholics and John Kerry,” posted previously on this blog, Professor Cathleen Kaveny argues that the election of John Kerry as President would force his most stalwart Catholic critics either to respond with violent resistance or, as apparently would be her preference, be “reduced to silence,” having been revealed as posers. (While saying she opposes “every inflammatory thing the Rambo Catholics write,” Professor Kaveny’s own response struck me as saturated with petroleum-laced rhetoric, most egregiously by constructing and then indicting the strawman of violent threats or tendencies.) More recently, in another statement posted on this blog, Professor Kaveny qualified her earlier statements to say that she meant only to chastise Rambo Catholics who “bully” others. An appeal to the consciences of faithful Catholics and the argument that voting for Kerry would be a serious sin is thus said to be the verbal equivalent of intimidation.

By highlighting the truly remarkable extremism of Kerry on the foundational question of life and his considered choice over his entire career to affiliate himself with the very people who brutally tear unborn children from their mothers’ wombs, I don’t know whether I too will now count as a nascent violent revolutionary or as an ecclesiastical bully by Professor Kaveny’s lights. If that’s what it takes to be placed alongside Gerard Bradley and Robert George (as well as Archbishop Burke, Bishop Sheridan, Archbishop Meyers, etc.), then I must regard these as terms of endearment and ask where I too can enroll in the Catholic Rambo brigades. But it’s all mere distraction in any event, that is, a distraction from taking a clear and unvarnished look at the prospect of a pro-abortion extremist, professing a Catholic communion, being elected to the nation’s highest office.

Those who say they will hold their nose and vote for Kerry too often seem ready to close their eyes as well. John Kerry is not some misguided reluctant “pro-choice” politician who sincerely (if ineffectually) mourns the ever-growing toll of abortion on humanity. Through his career, Senator Kerry has been a calculating, premeditated pro-abortion warrior who has eagerly and warmly endorsed the abortionists themselves in his legislative votes, in his campaigns, and in his circle of political friends and colleagues.

As I’ve written in an article, Abortion, Bishops, Eucharist, and Politicians: A Question of Communion, shortly to be published in the Catholic Lawyer and available by link on this blog, the case of the Catholic communicant who holds political power but refuses to protect the life of the unborn calls upon the sensitive pastoral role of the bishop. Counseling, dialogue, and gradual formation of conscience ought to follow, with ecclesial sanctions being a last resort. At the same time, the bishop has a continuing duty to instruct the flock and protect it from harm. In that article, we offer the example of the Catholic politician who sincerely opposes abortion but has not yet developed the wisdom or summoned the the courage to stand forcefully against the culture of death. With respect to eligibility for the sacrament of Eucharist, we allowed that, while ultimately unsatisfactory and thus acceptable only as a provisional sign of gradual conversion, profession of personal opposition to abortion by a Catholic politician who combines that easily-made assertion with at least some actions to limit or reduce abortions may satisfy the interim predicates for continued admission to the altar. (Some have accused us of being too “soft” in making such an allowance for human weakness, even if regarded as a preliminary step in the road to conversion.)

However, we also emphasized that such preliminary steps toward the culture of life by a politician must be accompanied by frequent and unequivocal public condemnation of abortion and a refusal to collaborate with those performing such evils. At a minimum, we would expect that any Catholic politician claiming respect for unborn human life would turn away as tainted any political money emanating from the abortion practitioner and would refuse with disgust any invitation to appear at a convocation designed to promote the interests of the abortion industry.

Sadly, even among so-called “pro-choice” politicians, Senator Kerry has been an extreme outlier, given his opposition to even the most modest of limitations on the abortion license, his insistence that public funds be devoted to procuring abortions, his vote to permit minor girls to be taken across state lines for abortions without knowledge of their parents, and his regular, easy, friendly and approving liasons with abortionists. It is not for naught that Kate Michelman, president of the NARAL Pro-Choice America, says that “[e]ven on the most difficult issues, we’ve never had to worry about John Kerry’s position.” John Kerry’s miserable record has earned him the abortionist’s praise.

Has John Kerry ever rebuked his abortionist friends, calling upon them to renounce their daily participation in an intrinsicly evil act? Has he ever refused a single dollar of blood-money from the abortion mills and abortion practitioners? Has he ever declined an opportunity to cheer on the abortion-providers and assure them of his unswerving loyalty? Has he ever refused to participate in a rally to provide moral encouragement to the abortionists and their assistants in plying their deadly craft? Has he ever voted for any minimal restriction on abortion, even when that restriction is supported by the substantial majority of the other legislators of his own party?

The plain fact is that John Kerry is not a “pro-choice” politician. Much worse, John Kerry is the candidate of the abortion industry itself.

It is for these reasons, principled reasons far beyond those flowing from ordinary partisan politics, that I and so many others genuinely tremble at the prospect of a President Kerry. It is difficult even to contemplate the appalling spectacle of a professing Catholic who knowingly and freely and energetically gives financial and legal aid and moral comfort to those who daily add to our national holocaust. Watching the most powerful man in the country throwing his arms in a warm embrace around those who kill unborn children, while banishing from government and judicial office those who would promote life, would be heart-rendingly painful. That this same man then could claim communion with the Church of Life is astounding. Such unavoidably would be an act of fundamental dishonesty and contempt for the Church’s witness to life. The scandal that would be caused to the faithful and the injury to the Church’s credibility and voice on issues of life might reverberate for years.

In words expressed by many other bishops as well, although not targeted at Kerry in particular, Archbishop John J. Myers of Newark has explained that “Catholics who publicly dissent from the Church’s teaching on the right to life of all unborn” have thereby chosen to separate themselves from the Church and “in a significant way from the Catholic community.” He asked that such people should “honestly admit in the public forum that they are not in full union with the Church,” and that any attempt by such a person to “express ‘communion’ with Christ and His Church by the reception of the Sacrament of the Eucharist is objectively dishonest.” To emphasize the fuller meaning and the powerful meaning of communion is not bullying; it is a matter of simple integrity.

Finally, contrary to Professor Kaveny’s indictment, the prospect of a Kerry Presidency does not evoke in me any thoughts of violence or plans for revolution. Instead, if this tragedy should come to pass, my heart will be broken. Still, I would not accede to any demand that I withdraw into silence or enter into “a life of monastic prayer” (however much I value those fellow-believers with a vocation to the latter). No, I would not be quiet in my expressions of grief. And when an appropriate term of bereavement had passed, a return to hopeful action would follow. At that time, I would hope to rejoin, both in communion and in concerted action for life, those who had played a role in bringing this debacle to pass by foolishly casting a vote for a manifestly unworthy candidate. We all make mistakes.

But the time for mourning has not yet come. We still may be spared the occasion of such grief. To that end, we must continue to speak, forcefully and faithfully, the truth of life, including calling upon our fellow Catholics to consult a conscience properly formed in the teaching of the Church when casting a vote upon which the lives of the next generation of the unborn well may rest. That some seek to distract us from revealing the frailty or cowardice of politicians who deliberately accommodate evil, while cynically professing communion, is all the more reason to bear witness.

Greg Sisk

Friday, September 10, 2004

Amy Uelmen's "The Spirituality of Communion"

Several weeks ago, the “communion controversy” was the subject of several postings on the Mirror of Justice, which in turn prompted our co-blogger Rob Vischer to encourage a couple of us to further develop our thoughts into articles suitable for publication in the Catholic Lawyer later this fall. Toward this end, my University of St. Thomas colleague Chuck Reid and I prepared a piece, titled “Abortion, Bishops, Eucharist, and Politicians: A Question of Communion,” a link to which is located near my name on the Mirror of Justice.

I now want to highlight for your attention a wonderful further addition to this discussion, an essay by our co-blogger Amy Uelmen, titled “The Spirituality of Communion: A Resource for Dialogue with Catholics in Public Life.” This piece, which also will be published in the Catholic Lawyer, is also accessible by a link next to the listing of Amy’s name on the Mirror of Justice.

The communion controversy, that is, the question of whether pro-abortion politicians thereby break communion with the Church such that they should either be denied or encouraged to withhold from taking the Eucharist. A crucial element of that debate, from all perspectives, concerns the appropriate pastoral response, including dialogue between the Bishop and political leaders within the diocese. Amy’s piece thoughtfully explores how that dialogue might unfold, what it would reveal, and how it can made more fruitful. More importantly, Amy’s essay emphasizes the spiritual elements of communion and John Paul II’s call to generate a life of communion in the Mystical Body in our churches and homes. In other words, Eucharist should be appreciated as “our greatest resource on the journey” and therefore a means to nurture the efforts “to build an authentic culture of life.”

Amy’s piece is not a simplistic “I’m-Okay-You’re-Okay” approach (quite the contrary, as she appreciates the need we all feel for redemption). Nor does she mean at all to deprecate the discipline of a rigorous examination of conscience before receiving communion, including an inquiry into fidelity to the Church’s moral teaching. Rather, Amy takes things to the next step. With those fundamentals in place, how do we draw upon the “precious resource” of communion, the real presence of Christ, and thereby “move beyond and transform the polarizing and paralyzing tensions that plague not only the Church, but much of the broader political discourse.”

Greg

Friday, September 3, 2004

Religious Background as an Influence on Federal Judges (With a Look at Catholic Judges)

Although later than anticipated, my most recent article, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, is finally in print in the Ohio State Law Journal. Many on this weblog have received a copy in the mail and for anyone else interested it also is available at this link in pdf format. At the risk of shamless self-promotion, please allow me to offer a glimpse of what my co-authors (Michael Heise of Cornell and Andrew Morriss of Case Western) and I hope will be received as a valuable contribution to the empirical study of the courts. I will focus on one of two elements most pertinent to the Mirror of Justice audience (saving the second most pertinent element for another day).

To briefly summarize the purpose and design of our study, as we describe it in the article: Many thoughtful contributions (including important ones by members of this blog) have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role or instead should be constrained to rely upon and report only secular justifications for court decisions. Yet much less has been written about whether judges’ religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously. What might motivate a judge to smile upon the religious dissenter who seeks to avoid the burden of a legal requirement that conflicts with what he or she regards as the obligation of faithful belief? What experiences or attitudes might persuade a jurist to frown upon a specific example of governmental accommodation of religiously-affiliated institutions and instead insist upon a strict exclusion of what he or she regards as inappropriate sectarian elements from public life? Most poignantly, might the judge’s own religious upbringing or affiliation influence his or her evaluation of religiously-grounded claims that implicate those beliefs?

To explore those questions empirically, we conducted a comprehensive statistical study of federal court of appeals and district court judges deciding hundreds of religious liberty cases over a ten-year period, including creation and analysis of integrated models of judicial attitudes in practice toward the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. (The details of our research design, database, data collection, coding, etc. can be found in the article itself).

Based upon our study, the vitality of religious variables to a more complete understanding of judicial decisionmaking seems abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking in our study was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior.

While the study reports many findings on a variety of variables, let me focus here on one that would be of particular interest to those reading the Mirror of Justice: In certain instances, Catholic judges (who accounted for 25.9 percent or 385 of the 1484 observations) were significantly more likely to take a favorable approach toward religion, what we called the Pro-Religion Model (positive outcomes on Free Exercise Clause (and related statutory) accommodation claims and negative outcomes on Establishment Clause claims).

When the Pro-Religion Model was considered as a whole, the variable for Catholic judges came closest to statistical significance, rising to the 93% probability level. While this falls just below the standard significance level of 95% and thus makes us wary of pronouncing this result as a “finding,” the variable does point in the anticipated positive direction for this model—that is, being Catholic made a judge more likely to be “Pro-Religion” when interpreting the Religion Clauses.

The influence of Catholic Church membership upon judges so affiliated emerged to full significance with respect to one important dimension of the Church and State debate—education. In the context of free exercise claims in which parents or students sought exemption on religious grounds from school policies or insisted upon accommodation by school authorities of religious practices, Catholic judges were significantly more likely (at the 95% probability level) to be receptive to those religious claimants. In the context of Establishment Clause claims challenging affirmative acknowledgment of religion in a public school setting or government aid to private religious schools, Catholic judges were significantly less likely (at the 95% probability level) to sustain those challenges.

Beyond reporting these results, we did not much speculate on the possible reasons for the correlation between Catholic background for judges and what we characterized as the “Pro-Religion” approach to religious liberty issues. Why might account for this influence? Given that other variables, such as political party, race, gender, etc., were controlled for through our regression analysis, does this not suggest that some true and genuine molding of attitudes toward religious faith in public life has occurred (at least in the past) in Catholic parishes through this country? Or does it reflect the continuing effect of history, in which Catholic judges remember when a strict separationist approach, at least on the Establishment Clause side, too often was combined with an anti-Catholic attitude, or at least an antipathy to Catholic schools? These are interesting questions to ponder. I invite the thoughts of others. (In a future posting, I'll note the other element of potential interes to this audience, which is the significantly less favorable success rate for Catholic claimants in asserting free exercise accommodation claims).

Greg Sisk

Friday, June 4, 2004

Further Thoughts on Catholic Public Servants, Accountability, and Communion

In my earlier response to Father Radcliffe’s statement posted on this weblog, I quite deliberately did not take on the difficult, but perhaps unavoidable, question of whether and when the appropriate Church response to political cooperation with evil is to deny the Eucharist to those who exercise political power to faciliate that evil. My more limited purpose in that earlier posting here to the Mirror of Justice was to insist that passivity on the part of the Church about fundamental matters of immediate significance, such as the taking of unborn human life, is not a viable option. In that particular message, I intended only to challenge what I saw as Father Radcliffe’s endorsement of an “I’m-Okay-You’re-Okay” Church, in which everyone is a member of an inert family lounging around the house serenely untroubled by any words of action of the Church that might offend modern sensibilities. (As with any summary of a position, especially one extracted from a short homiletic polemic, this undoubtedly is a caricature of Father Radcliffe’s position, but I will say is the impression left not only with me but with other readers, as confirmed by my e-mail correspondece.)

In that earlier posting, I did not touch on, much less presume to advise what particular action should be taken or specific expression should be offered by the Church when those professing the name of the Church and presenting themselves for the Church’s sacraments nonetheless exercise political power to deny protection to unborn human life or otherwise transgress against fundamental natural laws. I merely wished to insist that silence or a pretense that all is well with the world cannot be the Church’s answer. Once we are agreed on that modest point – and those on this weblog appear to be in general consensus on this – the difficult question remains as to the appropriate response for each individual situation or category of situations that is both consistent with the Church’s pastoral role and faithful to its public witness.

So let me now turn to that question of appropriate action, or at least the propriety of the course of action being debated at the moment, which is withholding of the Eucharist from intransigent offenders. In doing so, I mean here to raise questions, while still refraining from offering any definitive answers (which are not ours to make anyway as the matter is reserved properly to the apostolic leaders of the Church).

The Eucharistic sacrament has multiple dimensions, as an extension by God’s grace of the real presence of Christ to his followers, as our faithful expression through partaking of our desire to be counted in the communion of saints, and as a symbol of unity within the Church. As philosophy Professor John O'Callaghan of Notre Dame reminded me by e-mail, “the question of reception of communion by anyone, politician or not, is a matter of Church discipline, not a matter of politics.” He observes that while the Church in “charitable concern for the faithful” ordinarily assumes good faith on the part of congregants and thus offers communion to all who come forward, “traditionally the Church holds out the possibility of denial of communion when because of the public character of both the reception of the Eucharist and the notoriety of the recipient, it would give grave scandal to the faithful.”

My colleague here at the University of St. Thomas and canon law expert Charles Reid further clarifies that, under canon law, material participation in the abortion of the unborn leads to automatic excommunication, not just from communion but all sacraments. This mandate flows from the unequivocal direction and urgent nature of the Church’s teaching on the preservation of unborn life. Thus, when a public official uses political power to facilitate the extermination of the unborn, the argument that Church discipline should attach – that this exercise of power is material participation in abortion – surely is a plausible (if not the only possible) interpretation of canon law. (I should note, by contrast, that however much some of us (and I include myself) might wish that political approval for, and most especially participation in, capital punishment should invoke a similar condemnation, neither Church teaching nor canon law has yet developed in a manner that would plausibly support imposition of similar discipline.)

In his e-mail to me, Professor O’Callaghan poses a hypothetical that should provoke us to consider whether the Eucharist is ever properly withheld and, if so, under what circumstances:

“Since the Mirror of Justice is a legal blog, perhaps a hypothetical is in order. I used to live in Omaha. The abortion clinic in Omaha, made famous in the Supreme Court case Stenberg v. Carhart, was across the street from a Catholic Church and its grade school. Now suppose Dr. Carhart was a Catholic. Suppose also that in his conscience he did not think that his business of performing abortions precluded him from receiving communion. So suppose further that it was his practice, perhaps from when he was a child, to regularly attend mass on a daily basis and receive communion. Suppose at lunch time, having performed any number of ‘intact dilations and extractions,’ he strolled across the street to attend mass and got in line for communion with all the other faithful, including as many children from the school who happened to be there for their weekly class mass. . . . What would the appropriate response of the pastor be? . . .

Of course this is simply an analogy. It is not at all designed to draw a moral equivalence between an abortionist who actually performs abortions, and a politician who legislatively and politically supports that abortionist. They are not equivalent, and should not be treated as equivalent. But that does not mean that they should not be treated in any similar ways. And with regard to politicians it is necessary to distinguish between those who politically and legislatively support abortion and those who tolerate it while working to eliminate it. The point of the analogy is simply to ask whether in general there is any public scandal great enough that the refusal of communion to someone is justified and consistent with . . . charitable concern for the sinner.”

Should the Catholic leader who seeks after political power and publicly promises that he would affirmatively empower the abortionist in his deathly craft be seen in the same light as the abortionist? Is the prospect of scandal to the Church and harm to the Church’s witness to human life similar? Do either warrant the exercise of disciplinary authority by the Church?

It may be tempting to avoid these questions by asking larger political ones, such as which candidate for political office given an imperfect choice is the best alternative or which partisan grab-bag of political platforms is most consistent with Catholic Social Thought as a body of thought. But that is not the immediate problem. Instead, the question is whether the Church in integrity can remain silent and inactive when an individual professes to be part of our Catholic communion, but seeks political advantage by aggressively advocating a course of action that is deeply antithetical to fundamental premises of the Church as an advocate for human life and social justice. It is the very claim of Catholic affiliation that creates the occasion of conflict from a disciplinary standpoint and makes the matter so poignant and painful as a pastoral matter.

As I’ve said, my undoubtedly frustrating point here is to raise questions rather than suggest answers, as I remain unsettled myself on the proper disposition. But I am increasingly of the view that something must be said or done, and something powerful, or the Church’s witness to the sanctity of human life will be seriously undermined. I close with the following link to a story from the Catholic News Service, which reports that Cardinal Ratzinger of the Congregation for the Doctrine of the Faith has indicated doubts about the wisdom of denying communion and has asked to meet with the United States’s bishops task force to achieve “a concerted and nuanced approach” on the question. Both the Vatican and American bishops are seeing an urgency in clarifying the issue.

Greg Sisk

Wednesday, June 2, 2004

A Response to Father Radcliffe

By questioning Father Timothy Radcliffe's statement recently posted to this blog, I fear I will be seen by some as uncharitable. After all, who could take issue with a call to love sinners or with a portrayal of the church as a home and sanctuary? And, yet, I believe that an overly indulgent and unchallenging approach to the Church’s teaching would render the Church ineffective as a vessel for sanctification and irrelevant as a witness to the truth in a troubled society.

The message of hospitality is always comforting, but the welcome extended to all by Christ’s Church cannot be divorced from the vigorous challenge offered to all by the Church’s teaching. The Church must always energetically exhort its members to live and act according to the mission, especially when the Church speaks to those possessing or seeking the political power to alter and reform society. Without that integral element of responsibility and accountability, Father Radcliffe’s statement strikes me as radically incomplete as a description either of Church or of home.

“The Church,” Father Radcliffe says, “should be a large, capacious home for all sorts of oddbods, saints and sinners, progressives and conservatives, the convinced and the searching.” Father Radcliffe protests that his statement is “not wish washy relativism.” Methinks he doth protest too much. Yes, the Church should always welcome sinners and seekers and indeed should seek them out with compassion. But the Church must also act with firm and loving correction, just as we should expect from our family members when we go astray and then later return home.

In framing his message of welcome and church as home, Father Radcliffe says that when we come to the Church, we should be left “untroubled and unafraid.” When seekers and sinners came to Jesus and after they had been greeted in love, did he not then exhort them to live as His disciples and to witness His truth to the world? Was Jesus constrained to leave those who heard him “untroubled and unafraid,” carefully choosing his words and actions with nuance and sensitivity so that no one would feel unwelcome, no would be subjected to pointed questioning, no one would be offended, no one would be left to conclude they might be in serious error, etc.? I seem to recall Jesus uttering the rather direct, arguably intolerant, words, “Get thee behind me Satan!” And, note, that this strong rebuke was directed toward a particular individual in a position of some or potential authority. Jesus’s words of correction were unequivocal, although the hope and ultimately the reality of reconciliation remained available after repetenance. Might there not be a message here for the Church today as well?

Let us further consider, could our Church be true to itself were it to receive in placid silence those who openly advocate racial segregation, those who call for extermination or the sterilization of the mentally infirm, those who advocate unrestricted license to abort the unborn, those who would undermine the institution of marriage by removing its foundation in the complementarity of the genders, etc., with speaking challenging words of truth and, yes, rebuke when merited? Does anyone really believe that the archbishop of Louisiana was reprehensively unwelcoming in 1956 when he warned Catholic legislators that they risked excommunication if they voted for a proposed law requiring separation of the races in school? Did his strong words improperly introduce conflict into the Church home? Some leaders of the Catholic Church in the Germany of the 1930s have been sharply criticized for inadequately challenging the rise of Nazi leadership in that country and for failing to exclude Nazi Party members from the Church. Would anyone today instead hold up such inaction as a model example of proper churchly tolerance?

In sum, if each individual is free to claim Catholic affiliation when it is comfortable and beneficial, while assuming a license without fear of any rebuke to emphatically and publicly reject Church teaching when expedient, then the witness of the Catholic Church to our larger society on any issue would be entirely undone.

Moreover, if we were to reconstruct the Catholic Church into a homeless shelter, housing all who seek shelter without challenge or correction, we thereby would sacrifice the very elements that empower the Church to offer the love and peace that we all seek. A gathering of people without a shared vision and purpose can never be a fellowship upon which the blessings of God's peace would be bestowed. Instead, to be a Catholic is to become one part of the worldwide Body of Christ animated by a shared belief in the Gospel and a commitment to values that are larger than any single one of us or any single parish. A community of faith is not a holding station for a disparate and dissolute group of unconnected people with no common purpose. If the Church were to devolve into an open-ended social club devoid of principled content and reluctant to exert any call upon its members, the Church simply would cease to be the Church.

I submit that this is also an impoverished view of home and family life as an analogy to the Church. A genuine familial love experienced in the home is both a balm and a rod. When we return home and are again among our most intimate family members, we can no longer get away with the pathetic excuses for failing to take responsibility that we offer to others. Nor can we avoid being called to account for the compromises of principle and affection that we make in the outside world. Our family knows from whence we came and knows what our true potential remains. To fully achieve the joy and fellowship of full membership in the Catholic Church, we likewise must accept the responsibilities that accompany that affiliation. This is no different than the accountability and sense of mutual obligation that exists among members of a family within a home.

Consider again the words of our Lord Jesus, which begin Father Radcliffe's statement: “If anyone loves me, he will keep my word, and my Father will love him, and we will come to him and make our home with him.” The promise of love is accompanied by an exhortation to keep God's word. To live in the fullness of that love, and to experience God’s peace, we must overcome sin and join our will to that of the Lord. If we do anything less, we are left far from home.

Greg

Thursday, April 15, 2004

Kerry, Kissling, and Fraud on the Church

The recent opinion piece by columnist Ellen Goodman (link here) well illustrates my fears about the potential for scandal to the faithful posed by the nomination by a major political party of a candidate for president who claims membership in the Catholic Church and yet strongly disavows central Catholic teachings on the sanctity of human life and the vitality of the family to civil society. The central and predictable theme of the Goodman column is that religious faith is but a private matter of isolated conscience, little more than a hobby, that should have no implications for public life. In other words, an individual citizen, or at least a politician, should lead a splintered life, carefully segregating matters of faith from everything that is public-regarding. That of course is bad enough.

Perhaps even more troubling is the resurrection of anti-Catholic attitudes and figures masquerading as reasonable and authentic alternative Catholic voices. While the Catholic Church is large and diverse, it is not open to everything such that it stands for nothing. Goodman’s column devotes entire paragraphs to lengthy quotations from Frances Kissling of the deceptively named Catholics for a Free Choice (CFC). Kissling is a former abortion clinic operator and head of the abortion industry trade group, and, moreover, acknowledges that she does not pray nor take Communion (so much for being Catholic). The CFC is not a membership organization and instead funded by wealthy foundations aligned with the abortion industry. Even beyond its pro-abortion line, CFC is a virulently anti-Catholic organization, with sweeping rejections of everything that is distinctly Catholic, from Church leadership to sexual teaching to any religious witness to the culture, often expressed in the most stereotypical of anti-Catholic language.

John Kerry’s nomination thus may provide respectable cover and even moral support to anti-Catholic entities like Catholics for a Free Choice, further damaging the integrity of Catholic Social Teaching as a meaningful and coherent set of teachings and subverting the witness of the Church to the world. In my view, on certain fundamental matters like human life, no public figure can call him or herself Catholic with integrity unless he acts to protect the defenseless unborn. But, at the very least, surely we can agree that Kerry is obliged to clearly and loudly acknowledge that he believes in the sanctity of unborn life as a matter of personal faith and moral teaching and that he emphatically distances himself from fraudulent and notorious anti-Catholic figures like Frances Kissling.

Greg Sisk