I expect to hear crazy calls for the IRS to investigate the U.S. Conference of Catholic Bishops for making their views known regarding the Stupak amendment. I don't really expect to hear them from sitting members of Congress. Representative Lynn Woolsey, displaying both political intolerance and ignorance of the law, laments:
When I visit churches in my district, we are very careful to keep everything “non-political” to protect their tax-exempt status.
The IRS is less restrictive about church involvement in efforts to influence legislation than it is about involvement in campaigns and elections.
Given the political behavior of USCCB in this case, maybe it shouldn’t be.
MoJ reader Robert King offers some thoughts on our conversation about the Catholic voter and conscience:
While in the process of investigating, the individual should give the benefit of the doubt to the Church; and only when every avenue of research has been exhausted can one claim to act contrary to Church teaching in following one's conscience. The Catechism says (1790) that our obligation is to obey the "certain judgment" of our conscience. While our conscience remains uncertain, our obligation is to seek correction of our ignorance.
The less well-formed one's conscience is, the less is one's responsibility for one's actions -- to the good or to the evil. But one action for which one will always be fully responsible is to seek ever-fuller formation of one's conscience. In short, it is not so much that one "is only obligated to follow a well-formed conscience," but that only a well-formed (i.e., certain) conscience obliges one "against the requirement of ecclesiastical authority."
I'm not sure that equating "well-formed" with "certain" is consistent with Fr. Araujo's interpretation. There are many instances where one can imagine a Catholic voter feeling certain about the moral truth of her conviction even when it conflicts with Church teaching. At that point, it seems, we must either defer to conscience or to ecclesiastical authority. For example, if a Catholic voter in the 18th century, after prayerful reflection and study of relevant teachings, became certain that religious liberty is a fundamental element of a just society, should she have advocated (and voted, if given the opportunity) for religious liberty, or should she have deferred to Church teaching (at the time) against religious liberty? My understanding of Robert's position is that she should act pursuant to her conscience; my understanding of Fr. Araujo's position is that she should defer to Church teaching.
We've talked about conscience and the Catholic voter before on MoJ, but it's worth revisiting in the context of the Maine same-sex marriage vote. The notion that a person is only obligated to follow a well-formed conscience is in some tension with significant strands of the Catholic tradition, including the writings of St. Paul, Thomas Aquinas, Peter Abelard, and Albert the Great. In the estimation of these and other leading figures, the culpability lies in the poor formation, not in obeying the conscience that results from the poor formation. Besides running counter to much that has come before in our faith tradition, framing the Catholic voter's obligation as a duty to disregard her own conscience in the voting booth, rather than a duty to prayerfully and intentionally seek to form her conscience in the light of Church teaching, also raises tension with democratic notions of citizenship.
UPDATE: Greg Kalscheur brings to my attention this quote from Cardinal Ratzinger's Commentary on section 16 of Vatican II's Pastoral Constitution on the Church in the Modern World:
Over the pope as the expression of the binding claim of ecclesiastical authority there still stands one's own conscience, which must be obeyed before all else, if necessary even against the requirement of ecclesiastical authority. [The conscience of the individual] confronts him with a supreme and ultimate tribunal[,] which in the last resort is beyond the claim of external social groups, even of the official church.
Even in his first post, Bob Hockett has contributed significantly to the Catholic legal theory project. There is a lot to explore along the lines of his Franciscan worldview and its implications for our understanding of lawyers and the work they do. I write only to note my admiration for his progression from Augustinian to Thomist to Franciscan. More often, I think, we start out as Franciscans and move in an Augustinian direction -- filled with wonder and awe for the particulars of creation when we're young, then gradually overtaken by the reality of sin, retreating into a defensive, or at least wary, posture toward creation. I know I could benefit from having a few more daily "Thou" encounters with my surroundings. Maintaining a sense of the sacred in our everyday encounters, despite our familiarity with the sinfulness that is never far from the surface of those encounters, seems to be an especially pressing challenge for lawyers. Can legal educators play a role in helping lawyers meet this challenge?
Do claims for negligent hiring, retention, and supervision against the Catholic Church stemming from clergy abuse violate the First Amendment? A federal court says not necessarily.
Anne Alstott has posted a new paper, Private Tragedies? Family Law as Social Insurance, that may be of interest to MoJ readers. From the abstract:
In this essay, I suggest that family law constitutes a form of social insurance, supplementing public programs that address life risks including poverty, unemployment, and disability. Both family law and social insurance recognize some relationships (and not others) and protect against some risks (and not others). Further, both systems of law can be understood as distributing risks ex ante - rather than simply addressing failure ex post.
To make the discussion concrete, I focus on two cases, one involving spousal support and disability, and the other involving child support for multiple families. The cases illustrate the interdependence of financial entitlements in family law and in social welfare and demonstrate that a range of changes in family law, social insurance rules, or other elements of law could alter the distribution of life’s risks - and thus the likelihood and consequences of apparently “private” tragedies.
The essay also builds on these examples to outline a larger project. Today, large-scale social insurance programs shield individuals against disruptions in working life, including retirement, disability, and unemployment. And yet disruptions in affective life - a divorce, a breakup, a parent’s exit, even living without a family - can impose equally severe shocks on individual lives. While at first it may seem uncomfortable to consider personal relationships a matter for state concern, I suggest that the normative theories and analytical tools used in structuring conventional social insurance can also be brought to bear in considering the possibility of insurance for disruptions in affective life.
The thesis has some potentially disturbing statist implications for how we understand "family," but I won't comment further until I actually read the paper.
The AP reports on a speech given by Justice Alito yesterday in which he expressed frustration regarding persistent questions about having six Catholics on the Supreme Court. Our own Rick Garnett is quoted in the article expressing support for Alito's conviction that Catholic justices can be trusted to do their jobs. Rick says, "It's not the calling of a Catholic judge to enforce the teachings of the faith. It's the calling of a Catholic judge, as well as he or she can, to interpret and apply the laws of the political community." I agree with Rick's view, but I don't think everyone does. Roy Moore, Robert Cover, and Antonin Scalia (at least on the death penalty) come to mind.
Regarding Steve's response, if a state where the death penalty is legal looked to hire an executioner, would an applicant who is conscientiously opposed to the death penalty have a legitimate claim to that job? Requiring the waiver of the applicant's freedom of conscience wouldn't be an unconstitutional condition in that scenario, would it? The object of the applicant's conscience claim is too wrapped up with the central duties of the job. Maybe the unconstitutional condition analysis would work with Louisiana justices of the peace, who (I think) have a fairly broad set of responsibilities, but what about Massachusetts, where (I think) justices of the peace are primarily charged with performing marriages? Isn't the justice of the peace applicant who refuses to perform same-sex marriages a lot closer to the state executioner applicant who refuses to participate in the death penalty?
I probably should be concerned that Steve Shiffrin and Robby George are united in disagreeing with my assertion that liberty of conscience should not empower a justice of the peace to refuse to marry a same-sex couple in a state where such marriages are legal. So I'll take it from a different angle: to what extent is your support of the justice of the peace's right of conscience in this scenario freestanding and absolute, and to what extent does your willingness to recogize the right of conscience flow from the fact that the rules of the game have changed while the person is already on the job? Suppose that Massachusetts advertises for justice of the peace openings by notifying applicants that
"Justices of the Peace have the duty to solemnize the marriages of all applicants who meet the statutorily prescribed criteria for marriage. This includes same-sex couples."
Should I be deemed qualified to serve as justice of the peace even if I state my categorical refusal to marry same-sex couples? In other words, when does the liberty of conscience become a license to rewrite one's job description?
And Robby is correct that SSM laws are certain to affect individuals and groups beyond the participants in those marriages. Those who insist otherwise are being naive or disingenuous. That's why strong religious liberty protections are so crucial, but I do draw a line between protections that eviscerate the state's ability to effectuate its laws through its designated agents, and protections that prevent the state from effectively designating all market providers as its agents.
To answer Michael's question about the Louisiana justice of the peace who refuses to marry interracial couples: No, I do not believe that he should be legally empowered to exercise his conscience in this way, regardless of how many justices of the peace stand ready to pick up the slack. He is a public official, not a private actor. By "public," I do not mean a market actor who sells goods or services to members of the public, I mean a representative of the state whose job is to perform state functions. (A marketplace provider who is licensed by the state is also not "public" in this sense.) I would reach the same conclusion about a justice of the peace in Massachusetts who objects to same-sex marriage. If the state changes the legal definition of marriage, and if my job as a public official is to provide legal services, including the solemnization of marriage, then I must either perform same-sex marriages when requested or find another line of work.
