Last weekend, we here at the University of St. Thomas sponsored a symposium on “Understanding the Intersection of Business and Legal Ethics,” in which, among many others, our co-blogger Stephen Bainbridge made an important contribution and all presentations of which will be published in the University of St. Thomas Law Review.
During the course of that event, in which many of the speakers addressed the various scandals arising in the business world – the Savings & Loan crisis of several years ago, Enron, Martha Stewart, etc. – in which lawyers failed in their role as moral counselor, I could not help but be disturbed by the painful parallel with the recent scandals of the American Catholic Church, Inc. Of course, the Catholic Church is not, or at least should not be, a business enterprise. And indeed a large part of the priest abuse problem was that the Church often conceived of itself as such. As Ralph McInerny says, some “bishops acted like CEOs rather than shepherds.”
Given the nature of the UST symposium, which looked not only to business ethics but also to the ethics of lawyers advising businesses, my more immediate focus was on the behavior of those lawyers retained by the Church either as general counsel or to represent it with respect to lawsuits alleging sexual abuse of minors by priests. Given the nature of this weblog on Catholic Social Thought and the law, the proper role of lawyers as Catholics, that is, people of faith who are in the legal profession, in proper counseling is directly pertinent.
The report of the National Review Board appointed by the bishops issued just a couple of weeks ago. It includes a section titled “Reliance on Attorneys,” a title that is meant to indicate not something salutary but rather delineate yet another of the multiple errors made by the bishops. In other words, when the bishops sought the advice of members of our profession, they went astray. Ouch.
Consider the details of the grievous errors outlined in the National Review Board report, which, while levied against the bishops in the first instance, encompass their lawyers as well: Attorneys used “tactics [that] often were inappropriate for the Church, and which tended to compound the effects of the abuse that already had been inflicted.” These tactics included defenses that “could be construed as blaming the victim,” arguing that the Church had no responsibility for priests by claiming they were “independent contractors,” and “in general adopting an overly adversarial approach.”
Moreover, the report says that “certain lawyers recommended, and certain bishops insisted, that the victims sign confidentiality agreements, which stifled their ability to discuss their experiences openly and thwarted awareness by the laity of the problem.” In addition, lawyers counseled Church leaders not to meet with or apologize to victims, even when the abuse was clearly substantiated. Not only does the report correctly say that this approach undermined the primary pastoral mission of the bishops, but it suggests that it ultimately led to greater legal liability as many victims said they would not have filed suit had someone heard their complaints and apologized.
The report says this problem was caused by “disastrous pastoral decisions” in selecting lawyers based on “friendship [with bishops] and a misguided perception of the lawyers’ loyalty to the Church.” As a consequence, the lawyers chosen “failed to adapt their tactics to account for the unique role and responsibilities of the Church.”
To be sure, as another part of that report states, “[t]he first role of a bishop or any Church leader must be to act as a pastor to the Catholic faithful.” Thus, the bishops have primary responsibility here, and cannot avoid that responsibility by alluding to the advice of counsel. Or as the report puts it, “the Church should not hide behind its lawyers.” That much is a given.
Nonetheless, is it not sad that counsel from their lawyers is cited as a problem, rather than as one of the means toward a solution? Is it not a scandal to us in the legal profession that, rather than assisting Church leaders in finding a morally superior means of responding to the sex abuse problem, Church lawyers are said to have exacerbated it? Now I am sure there were exceptions to this sorry pattern and perhaps we may hear at some point encouraging stories about individual lawyers who were part of the solution rather than the problem. And perhaps many of these lawyers did in fact provide moral counseling but because of confidentiality expectations have not been able to so reveal it publicly (although the bishops presumably waived any such confidentiality when cooperating with the investigation by the national review board). Nonetheless, it cannot be gainsaid that, on the whole, the involvement of lawyers made this serious problem a greater disaster.
What can we learn from this about our role as lawyers? To begin with, the growing revival in professional responsibility scholarship and education of attention to the foundational role of lawyers as moral as well as legal counselors needs to be heard and emphasized just as much among the Church’s lawyers as the rest of profession. One would have thought that the Church’s own legal representatives, with the full encouragement of their clients the bishops, would have been at the forefront of the movement to enhance ethical lawyering and moral counseling. Instead, the National Review Board report suggests they were among the last to get the message. How can we help ensure that this never happens again? As the bishops now seek to restore confidence in the Church among the faithful, how can we restore confidence in lawyers of faith as committed to partnership with Church leaders in providing legal advice that serves a greater moral purpose?
Wednesday, March 3, 2004
After Super Tuesday, John Kerry has completed a near sweep of primaries and caucuses and will be the Democratic Party nominee for President; indeed by the polls of the moment (ever changeable thought they are), he is the frontrunner to be the next Chief Executive of the nation. It seems an appropriate time to cautiously and in the context of an appropriately thoughtful, faith-based, and intellectual forum raise a question or two about what this may mean for the Catholic Church in America, for Church teaching as it relates to public obligations and public policy, and for the reception of Church teaching by the faithful. Although little public attention has been drawn to his affiliation thus far, I suspect that John Kerry soon will be recognized, at least for a time, the most prominent Catholic in the country. As several of my fellow bloggers know, from off-blog discussions, I have been hesitant to raise these questions previously, for fear that it might be perceived as a partisan attack or understandably cause some of the diverse participants in this blog to bristle. (And in the interests of candor, I will confess at the outset that I will not be casting my vote for John Kerry in November). But knowing most of the participants on this blog, I am convinced that we can discuss it here in a non-partisan manner, while at the same time forthrightly addressing the potentially far-reaching implications for Catholic teaching and values as a meaningful influence within the American public square.
Forty-four years ago, another Roman Catholic was a candidate, successfully, for the nation’s highest office. In the course of the 1960 campaign, John F. Kennedy told the Greater Houston Ministerial Association: “I believe in an America where the separation of church and state is absolute -- where no Catholic prelate would tell the president (should he be Catholic) how to act.” He later quipped that the Pope wouldn’t seek his advice on religion, and he wouldn’t seek the Pope’s advice on politics. As many have discussed in many contexts, scholarly and otherwise, Kennedy thereby effectively promised that his Catholic faith would be irrelevant to his public life. As Father George Rutler has described it, people may “think that Kennedy made it possible for a Catholic to become president, when he only made it possible for a Catholic who behaves like a modern Episcopalian to become president.”
John Kerry, at first, might appear to fall into the same mold as Kennedy, but in actuality, Kerry bring the matter to the next level further by actively opposing, not simply ignoring, fundamental Catholic teaching and values and by coming into direct conflict with Church leaders. In language parallel to Kennedy’s, Kerry has told the Boston Herald: "It is important not to have the church instructing politicians. That is an inappropriate crossing of the line for this country.” That Kennedyesque viewpoint is troubling enough.
But while Catholic teaching may have been irrelevant to Kennedy, Kennedy was not publicly on record in firm opposition to Catholic teaching nor was Kennedy ever refused the sacraments by the Church. Kerry, however, has been a visible proponent of the abortion license to the most radical extreme, not even willing to draw the line at partial-birth abortion, supporting public funding of abortion, insisting that he will impose a litmus test for Supreme Court justice to preclude the possibility that any state in the future may ever provide protection to unborn human life. On same-sex marriage, his position has been more ambiguous, saying that he opposes it while supporting homosexual civil unions and standing squarely against any meaningful effort to defend traditional marriage (not only by opposing any federal constitutional amendment but also being among the tiny minority of federal legislators that opposed the Defense Against Marriage Act signed by President Clinton).
Kerry’s own bishop in Boston has asked pro-abortion elected officials to voluntarily refrain from taking Communion. (While stopping short of actually banning priests from conferring the sacrament upon pro-abortion politicians, Archbishop O’Malley’s words have been most forceful: “These politicians should know that if they're not voting correctly on these life issues that they shouldn't dare come to Communion.”) When Kerry was campaigning in the Missouri primary last month, the archbishop of St. Louis went a step further and told the St. Louis Post-Dispatch that Kerry would not be permitted to take Communion in that diocese. Kerry’s response in an interview in St. Louis was that “what I believe personally as a Catholic as an article of faith is an article of faith,” but that he would refuse to legislate his “personal religious beliefs for the rest of the country.” (Despite this indirect suggestion that he might accept Church teaching on abortion as a matter of personal faith, I have never heard John Kerry express any public qualm about abortion, much less condemning it as immoral, or offer any encouragement for various non-political movements to discourage abortion and offer alternatives to women, while instead he has eagerly sought out the acclaim of and regularly associated himself with the most pro-abortion elements of the pro-choice movement in the country; if I am wrong in this understanding, I hope I will be corrected.)
Let me interject here by acknowledging that the other major party candidate, President George W. Bush, is perceived by many as holding views contrary to Catholic teaching as well. That might be a great subject for discussion on the blog as well, that is, which of the candidates as a package of viewpoints is most or least compatible with Catholic social and moral teaching. But it is a different subject from the topic that I am introducing here, which has to do with the particular implications flowing from a Catholic public leader who departs from the Church and the Church’s responsibilities thereto. In other words, from a CST perspective, Bush may not be orthodox either, but then again Bush is not a Catholic, Bush has not presented himself to the public as a person of the Catholic faith, Bush is not making claims about what it means and does not mean to be a Catholic who is also a civil servant, and Bush’s position will not be portrayed as a direct challenge to Church teaching.
Herewith the questions: How much harm to the Church’s moral witness on abortion and other matters might result from such a high-profile Catholic emphatically rejecting the Church’s teaching? What obligation do the bishops and faithful Catholics have to contravene such a concerted and visible effort to divorce social and moral teaching from public policy? In other words, if a Catholic public official openly rejects the obligation of every faithful Catholic on certain fundamental public-regarding matters, should it have any public consequence? Does the responsibility of the Church and its leaders to make a public statement or take firm action become greater if the politician in question were actually to succeed in attaining election to the nation’s highest office? In the least, if a politician who has separated him or herself from the Church by public deed were then nonetheless to present him or herself to the public as a practicing Catholic (thus attempting to obtain political advantage from an affiliation with the Church), would not the Church then be obliged as a matter of integrity to dissociate itself from that politician? And, as a pragmatic matter, how can the Church and its faithful people respond in a manner that is not in either in substance or in reasonable perception partisan in nature?
