Mirror of Justice

Discrimination

By way of a first answer to the question of Michael Perry, whom I love: If the Church "ruled" that "persons of African ancestry could not be ordained," Patrick would be shocked, awed, and confused.  But, mercifully, the same Patrick doesn't and won't have to confront that crisis; the Church won't so "rule[]."  And, for the record, I have taken no position here (or elsewhere) on whether gay men (people?) are in fact called by God to the ministerial priesthood; my position is that on this question I (shall) seek to accept the answer given by the Church.  For the sake of the discussion, however:  Was there a non-discrimination norm seeking to bind Christ when he called the apostles to their priestly ministry?  Does Christ's exemplary charity entail or reveal that God cannot or does not, on account of an equality-of-equal-service norm, call some (but not others) to such (holy) office?  The Church doesn't (and, to my knowledge, never has) taught that ethnicity is part of what Christ taught about His holy priesthood.  That the Church would now -- in a world that more and more denies the essential and consequential difference between homosexuality and heterosexuality which the Church continues to affirm-- speak afresh to sexuality's part in the ministerial priesthood is as it should be.  Susan S. is of course right that the documents sounding in terms of "homosexuality" are of compartively recent genesis; whether the Church's teaching on homosexuality as such is a flash in the pan is another question, which I referenced with my observation that new wrongs call forth new declarations of (new) rights.  Returning to the question of the ministerial priesthood in particular:  "Discrimination is the wrong issue/question, as concerns the life of the Church as we're discussing it here; the sources of officia and munera are the heart of the matter, as I see it."  The Church's teaching on homosexuality should not be a cause for our surprise, whatever one may think of the teaching; the recent Instruction as it concerns the necessary conditions for admission to (the seminary leading to) ministerial priesthood is a matter that will be well debated by competent theologians in service of the Church. 

Engaging the Culture, Engaging the Church

I appreciate the humility underlying Michael S.'s conception of his role as "helping the world see through the Church's eyes," but it triggers in my mind a broader question as to what the proper scope and limits of the Catholic legal theory project are.  Is the project simply to engage the legal culture with the Church's truth claims?  Or are we also to engage the Church with truths discovered -- or at least helpfully articulated -- by the legal culture?  Maybe the eligibility requirements for the priesthood are not readily amenable to insights derived from lives in the law (other the lawyer's natural inclination to hold up the current policy to the logic of past teachings), but won't there be other areas where legal theorists will have something to say, not just from the Church, but to the Church?  I'm not just talking about prudential judgment regarding the application of theological claims to the legal system.  For example, the political theory insights of John Courtney Murray and others produced some dramatic shifts in the Church's stance on religious liberty -- shifts that encompassed the theological claims underlying religious liberty, not just the implementation of fixed theological claims in the political culture.  So while Catholic legal theorists are not necessarily equipped to enter into the ongoing theological discourse within the Church, don't claims grounded in legal theory have the potential to shift theological discourse? 

To be clear, I don't quibble with the thrust of Michael S.'s reflection, and I don't think the Catholic legal theory project should ever become the let's-make-Catholic-legal-theory-more-like-liberal-legal-theory project, but isn't the bridge we're constructing between the Church and the legal culture open to traffic in both directions?

Rob   

Christianity and the Legal Enforcement of Morality

[Another item of interest to MOJ-readers:]

Christianity and the (Modest) Rule of Law

DAVID A. SKEEL Jr.
University of Pennsylvania Law School
WILLIAM J. STUNTZ
Harvard Law School

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University of Pennsylvania Journal of Constitutional Law, Forthcoming                  
Harvard Public Law Working Paper No. 124          

Abstract:    
Conservative Christians are often accused, justifiably, of trying to impose their moral views on the rest of the population: of trying to equate God's law with man's law. In this essay, we try to answer the question whether that equation is consistent with Christianity.

It isn't. Christian doctrines of creation and the fall imply the basic protections associated with the rule of law. But the moral law as defined in the Sermon on the Mount is flatly inconsistent with those protections. The most plausible inference to draw from those two conclusions is that the moral law - God's law - is meant to play a different role than the law of code books and case reports. Good morals inspire and teach; good law governs. When the roles are confused, law ceases to rule and discretion rules in its place. That is a lesson that many of our fellow religious believers would do well to learn: Christians on the right and on the left are too quick to seek to use law to advance their particular moral visions, without taking proper account of the limits of law's capacity to shape the culture it governs. But the lesson is not only for religious believers. America's legal system purports to honor the rule of law, but in practice it is honored mostly in the breach. One reason why is the gap between law's capacity and the ambitions lawmakers and legal theorists have for it. Properly defining the bounds of law's empire is the key to ensuring that law, not discretion, rules.

[To download/print, click here.]

"We are not Protestants, After All."

Steve Bainbridge asks, in his posting below:  "To what extent is it proper for a Catholic to dissent from non-infallible but presumably magisterial teaching?  We are not Protestants, after all."

No, but neither are we mindless.  As John Noonan said,  "the record is replete with mistakes--the faithful can't just accept everything that comes from Rome as though God had authorized it."   What mistakes, you ask?  Well, you may want to begin here:  Robert McClory, Faithful Dissenters:  Stories of Men and Women Who Loved and Changed the Church (2000).

For those who, like Steve, want to think about this issue, Father Bernard Hoose's writings are a good place to begin:  Bernard Hoose, "Authority in the Church," 63 Theological Studies 1207 (2002); Bernard Hoose, Authority in Roman Catholicism (2002).  See also this collection, edited by Father Hoose:  Authority in the Roman Catholic Church (2002).
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Capital Punishment Revisited

[The following will be of interest to many MOJ-readers.]

No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty

CAROL S. STEIKER
Harvard Law School

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Stanford Law Review, Forthcoming                  
Harvard Public Law Working Paper No. 125          

Abstract:    

Cass Sunstein and Adrian Vermeule have argued that, if recent empirical studies claiming to find a substantial deterrent effect from capital punishment are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible, but actually morally required. While there is ample reason to reject this argument on the ground that the empirical studies are deeply flawed (as economists John Donohue and Justin Wolfers elaborate in a separate essay), this response directly addresses Sunstein and Vermeule's moral argument. Sunstein and Vermeule contend that recognition of the distinctive moral agency of the government and acceptance of "threshold" deontology (by which categorical prohibitions may be overridden to avoid catastrophic harm) should lead both consequentialists and deontologists to accept the necessity of capital punishment. This response demonstrates that neither premise leads to the proposed conclusion. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to non-purposeful killing), and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven; rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This response also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments, and concludes by suggesting that even consequentialists should not be convinced by the argument.

[To download/print, click here.]

Two questions

Two questions re the Congregation's recent instruction on "persons with homosexual tendencies" and the priesthood:

1. Is this to be regarded as infallible teaching? Based on my understanding of infallibility, I assume the answer is no.
2. If this is not infallible teaching, to what extent is it doctrinally licit for a Catholic to dissent? (I'm thinking here especially of Eduardo's comment that he "vigorously" dissents "from many Church teachings on sexuality, and on gay sexuality in particular.") To what extent is it proper for a Catholic to dissent from non-infallible but presumably magisterial teaching? We are not Protestants, after all.

I'm genuinely curious and interested in getting a discussion going. Rather than taking the liberty of opening the comments section here, however, I've crossposted these questions over at my personal blog and opened the comments section for discussion. Feel free to come over.

Because this is a highly sensitive issue, combining religion and sexuality, however, the usual requirements that comments be civil and relevant to the topic at hand will be enforced with special ruthlessness. In particular, the topic is not whether the Congregation made the right decision; the question is whether good Catholics can dissent from that decision and, if so, how. Thread hijacking will not be tolerated!

Benedict(s) on Usury

Andrew Sullivan is beating up on Pope Benedict, as he is wont to do:

Benedict XVI's latest enthusiasm is, apparently, the "infamy of usury". The original formal condemnation of usury - i.e. interest-bearing loans - emerged at roughly the time the Church also created the formal doctrines condemning Jews and "sodomites" in the early medieval era, so it is not surprising Benedict would seek to re-emphasize it. He recently honored the National Anti-Usury Consultancy, and described interest-bearing accounts as a "social plague," and all financial interest as something that "annihilates the life of the poor." If you are versed in the ancient anti-Semitic tropes of the medieval Church, you will be unsurprised by this language. Just so all you Catholics with 401ks and interest-bearing bank accounts: according to this pope, you are enmeshed in evil. Welcome to the club. By the way, does the Vatican earn interest?

And Mark Shea is beating up on Sullivan, as he is wont to do:

Sullivan, like so many cradle Catholics, is of course largely ignorant of Scripture and it's repeated condemnation of lending money at interest. He is also ignorant of the facts pointed out by C.S. Lewis:

There is one bit of advice given to us by the ancient heathen Greeks, and by the Jews in the Old Testament, and by the great Christian teachers of the Middle Ages, which the modern economic system has completely disobeyed. All these people told us not to lend money at interest: and lending money at interest - what we call investment - is the basis of our whole system. Now it may not absolutely follow that we are wrong. Some people say that when Moses and Aristotle and the Christians agreed in forbidding interest (or 'usury' as they called it), they could not foresee the joint stock company, and were only thinking of the private moneylender, and that, therefore, we need not bother about what they said. That is a question I cannot decide on. I am not an economist and I simply do not know whether the investment system is responsible for the state we are in or not. That is where we want the Christian economist. But I should not have been honest if I had not told you that three great civilizations had agreed (or so it seems at first sight) in condemning the very thing on which we have based our whole life. (Mere Christianity)

Sullivan could, of course, have bothered to find that out before making such an ignorant comment. But that would have interfered with his flat-footed portrayal of Benedict as a conspiracy theorist at war with International Jewish Bankers. And, of course, it would get in the way of his rhetorical linkage of "sodomites" and the Jew who (we all know) the evil FuhrerPope seeks to persecute.

In the interests of promoting light rather than heat, let me suggest that what both parties could use is a recognition of the highly nuanced and contextual history of the treatment of usury in Catholic theology.

To begin with, to answer Andrew's question "does the Vatican earn interest," we turn to the venerable Catholic Encyclopedia, where we learn:

The Holy See admits practically the lawfulness of interest on loans, even for ecclesiastical property, though it has not promulgated any doctrinal decree on the subject. See the replies of the Holy Office dated 18 August, 1830, 31 August, 1831, 17 January, 1838, 26 March, 1840, and 28 February, 1871; and that of the Sacred Penitentiary of 11 February, 1832. These replies will be found collected in "Collectio Lacensis" (Acta et decreta s. conciliorum recentiorum), VI, col. 677, Appendix to the Council of Pondicherry; and in the "Enchiridion" of Father Bucceroni.

Interestingly, that article also instructs that while an earlier pope of Benedict's name (i.e., Benedict XIV) issued an encyclical against usury, which "was promulgated after thorough examination,' that encyclical was "addressed only to the bishops of Italy, and therefore not an infallible Decree."

Some scholars contend that the Church's teaching on usury evolved over time in response to the demands of a modern capitalist economy. The section on usury in Judge John Noonan's A Church That Can and Cannot Change: The Development of Catholic Moral Teaching is a good example of this line of argument.

In a review of Noonan's book, however, Avery Cardinal Dulles cogently argues that:

The biblical strictures on usury were evidently motivated by a concern to prevent the rich from exploiting the destitution of the poor. But when capitalists of early modern times began to supply funds for ventures of industry and commerce, the situation became different. Moralists gradually learned to place limits on the ancient prohibition, so as to allow lenders fair compensation for the time and expenses of the banking business, the risks of loss, and the lenders’ inability to use for their own advantage what they had loaned out to others.

These concessions do not seem to me to be a reversal of the original teaching but rather a nuancing of it. The development, while real, may be seen as homogeneous. In view of the changed economic system the magisterium clarified rather than overturned its previous teaching. Catholic moral teaching, like contemporary criminal law, still condemns usury in the sense of the exaction of unjust or exorbitant interest.

Likewise, David Palm observes:

On what specific principles is interest-taking moral or immoral? This was at the heart of the question of usury. Eventually the morality of interest-taking came to be understood as intrinsically bound up in the nature of the thing lent and the impact (or lack thereof) on the person lending it. It is immoral to take interest on the loan of a thing that is completely consumed by its use, for which one has no other use, and for which one incurs no loss by lending it.  ...

... it became clear that money in more modern economies—with competitive markets and almost unlimited opportunities for profitable ("fruitful") investment—did not suffer from the same tendency to be "unfruitful" as it had before. In the face of this change, the Church defined what is meant by usury. Session X of the Fifth Lateran Council (1515) gave its exact meaning: "For that is the real meaning of usury: when, from its use, a thing which produces nothing is applied to the acquiring of gain and profit without any work, any expense or any risk."

... A loan that was usurious at one point in history, due to the unfruitfulness of money, is not usurious later, when the development of competitive markets has changed the nature of money itself. But this is not a change of the Church's teaching on usury. Today nearly all commercial transactions, including monetary loans at interest, do not qualify as usury. This constitutes a change only in the nature of the financial transaction itself, not in the teaching of the Church on usury. "Still she maintains dogmatically that there is such a sin as usury, and what it is, as defined in the Fifth Council of Lateran "(ibid., 263).

In sum, Benedict XVI likely was not condemning all lending of money at interest, but rather simply unjust or inequitable interest charges.

My two cents worth ...

I may be as dumb as I look--or dumber--but it seems to me that Eduardo's comments are compelling  ... and that Patrick's response doesn't touch it. Discrimination--that is, unjust discrimination, unloving discrimination, ignorant discrimination--is precisely what is at issue.  (Would Patrick say, if the magisterium ruled that persons of African ancestry could not be ordained, that "[d]iscrimination is the wrong issue/question, as concerns the life of the Church as we're discussing it here; the sources of officia and munera are the heart of the matter, as I see it.")
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Consistency and Continuity

A couple of people have made reference to the consistency or continuity of Church teaching on homosexuality.  I think it important to keep in mind the time period we are talking about.    The teachings being referenced in this thread were all written within the last 30 years, which in the life of the Church is not very long.

In thinking about the period, it may be useful to remember that prior to the 1970s, homosexuality was viewed as an illness.  It was only in 1973 that the American Psychiatric Association took homosexuality off of its list of medical disorders and in 1974 (shortly before the first of the Vatican documents cited) that the American Psychological Association took it off of its list of mental disorders.

I've already expressed  my disappointment with the most recent document.  I agree with those who thinkg it treats homosexuals as inferior.  I'm also not convinced that the document's position that all those with deep seated homosexual tendencies are thereby completely unfit for the ministry of the priesthood, regardless of their ability to lead celibate lives and regardless of their commitment to the Church's sexual teachings, is consistent with the prior documents.

Officia, munera

Eduardo's post appeared while I was drafting my last.  I have to run, but first I'd just say in haste that, in my view, the Church's unequivocal affirmations of the equal dignity of all persons are in no way undermined by her affirmation that, by divine law, natural law, or other valid law, certain (categories of) persons have (and others do not) particular offices or functions.  The fundamental and unalterable equality of persons frees us to appreciate individuals' particular (and sometimes sacred and elevated) roles in the community.  Discrimination is the wrong issue/question, as concerns the life of the Church as we're discussing it here; the sources of officia and munera are the heart of the matter, as I see it.

Reading the Instruction and its antecedents

In the post-Humanae vitae addition to his book Contraception, John Noonan said (I paraphrase, not having the book at hand):  "Now the magisterium has spoken; our task is to understand what what has been spoken means."  There was a live question in the 1960s about whether the teaching on artificial contraception would be reaffirmed; the story of the path from John XXIII to Humanae vitae, including Paul VI's personal resolution of the question that many had investigated at the instance of the Bishop of Rome, is well known.  I agree with Rich:  There should be little cause for surprise in the contents of the Congregation's recent Instruction, at least as concerns homosexuality.  Certainly, the documents adduced by Fr. Araujo show a continuity of teaching on homosexual attaction's being a "disorder."  The textual evidence does not support the claim that the teaching on homosexuality (rather than homosexual acts) is a surprise; though I have the documents here on my desk and could quote the material passages, I'm sure others will want to read and re-read them for themselves.  The adduced documents' different purposes account for varying emphases as between homosexual acts and homosexuality; no Church document affirms that homosexuality is not a disorder.  Just as violations of human dignity call for fresh declarations of human rights, so too do new assaults on the Church's teaching and work and new challenges in the life of the People of God call for new declarations of the Church's teaching.  We hear things we haven't heard before because the Church speaks to the ever-new present, but does anyone suggest that the Church's teaching on homosexuality's being a disorder is not in continuity?  The continuity is, I suggest, clear; the separate question is whether the teaching is true.  Some will answer in the negative.  That the Church's teaching develops, I do not dispute; the question is whether the development is authentic.

The Instruction's particular way of applying the Church's teaching on homosexuality to her teaching on the vocation to the ministerial priesthood was not exactly what I expected.  I'm a slow learner.  But here, at the heart of the Church where what is at issue is whom God calls to the priesthood of Jesus Christ, I feel little capacity to do more than try to learn.  The Bishops as such may not be particularly competent to pass prudential judgment on the contemporary sufficiency of alternatives to capital punishment, but they'd better be, by virtue of their office, competent to judge whom God calls to the ministerial priesthood.  The competing theologies that assign responsibility and authority for this judgment to the lay community are just that, competing theologies.  Perhaps the recent Instruction will incite more people to embrace such theologies.  Still, it is the Bishop alone who can confer priesthood. 

I agree with Michael Scaperlanda that we Catholics in the legal academy are called upon to translate, as best we can, what the Church teaches about herself to that wider world in which we the Church must make our way under the mandate to share with all the Good News.  I see that already (in my old-home diocese of Phoenix) a man has "resigned" from the priesthood on account of this Instruction.  This is very sad.  In the words of Cardinal Grocholewski referring to priests with homosexual attractions: "These priestly ordinations are valid, because we not not affirm their invalidity."  To abandon the exercise of the priestly ministry for a higher calling strikes this layman, at least, as a path not to be taken.   

   

Being Married or Being a Woman versus Being Gay

In response to Richard, I just don't see a way around the view of this document as treating gay people as an inferior class.  You and I chose to become married people, something that (under current practice) prohibits us from becoming priests, just as being married to one person prevents us from marrying another.  We can debate whether the Church (in practice) treats married people as inferior to celibate clergy, but I think you would have to concede a difference between preventing someone from becoming a priest because they made a life choice to assume an incompatible state and preventing someone from becoming a priest because they are (despite the lack of any choice in the matter) subject to "homosexual tendencies." 

The comparison to women is a trickier one.  On the one hand, women, like homosexuals, are excluded from the ministry because of who they are, not what they've chosen.  And, personally, I do think their exclusion from ordination is based upon a view of them as inferior in some ways, but I can see your argument.  (In fact, as I mentioned in my original post, there are some interesting overlaps between the arguments the Church made in this document and some of the more philosophical arguments against female priests.  Those arguments, as distinct from the arguments from the scripture and tradition, in the end boil down to an assertion of the "essential maleness" of Christ, an assertion I find to be very weird.)  I think this case is different from the case of women, however, because the Church has explicitly said that gay people are to be excluded because they suffer from an objective "disorder."  The most relevant of the definitions of "disorder" in the OED is "a disturbance of the bodily (or mental) functions; an ailment, disease."  This suggests to me that gay men are excluded from the ministry, not becasue they are essentially different in some evaluatively neutral way, as is (arguably) the Church's position with respect to women, but because they are objectively defective or morally unworthy in some way.  It's very hard to read that in a way that does not amount to treating gay people as an inferior class of persons.

The question of willingness to adhere to Church teachings is a separate one, and I'm not sure why, if that is the concern, there is not a direct focus on that issue.  Surely there are some gay men out there who are willing (enthusiastically) to tow the Church line on sexuality.  I've met some of them.  Why shouldn't they be permitted to serve as priests?  Instead, the document maligns the ability of gay people as a whole to relate to men and women in a healthy way.

For the record, I do vigorously dissent from many Church teachings on sexuality, and on gay sexuality in particular.  I think the natural law arguments that have been deployed in opposition to homosexuality (and birth control) are utterly implausible.  I'm sure that admission will lead some people to compeltely disregard my objections to this document.  That said, my confusion with this document is totally severable from my dissent.  I find this document troubling, even on the Church's own terms.  The Church on the one hand says we should not discriminate against gay people and that, in fact, people are not fundamentally gay or straight, but rather children of God.  On the other hand, however, it has authored a document that discriminates against gay people precisely by treating them as fundamentally gay and, on that basis alone, disqualifying them from the priesthood.  I have a hard time seeing how it can reconcile those two propositions.

Congregation for Catholic Education's Instruction

I am a bit surprised by the reaction to the Congregation's recent instruction on "persons with homosexual tendencies" and the priesthood. Unless people thought that the document was going to reverse the Catechism's treatment of homosexual acts and homosexual tendencies, this instruction was entirely to be expected. A couple of points.

First, no one has a right to ordination, and the Church's refusal to ordain someone does not mean that the Church regards that person as part of an "inferior class of persons." I can't be ordained because I am married. That doesn't mean that the Church thinks that married state is not a great good. Woman can't be ordained, but that is not because the Church thinks that women are an inferior class of persons. I know that some people think so, but I think that is difficult to maintain about the Church that holds up Mary as the model Christian and that recently named Saints Bridget, Teresa Benedicta (Edith Stein), and Catherine of Siena as co-patrons of Europe.

Second, I don't understand the argument that a Church that believes what the Catechism says about homosexual tendencies (that they are objectively disordered) could endorse the view that ordaining men with such tendencies is a good idea. (For a statement about homosexuality that expresses the pyschological perspective that seems to underlie the Congregation's point of view, see the Catholic Medical Association's website under the "publication" heading.) Maybe this view is wrong, but I don't think anyone expected that the Congregation was about to reverse the Catechism. 

Third, I think Amy Welborn's comments on this are well taken. Priests ought to be able to communicate the fullness of the Faith, including the Church's teaching on sexual morality. Is it likely that someone who identifies himself as a "gay" priest--and recall that this identification (this celebration) is with a condition that the Church teaches is an objective disorder--will be able to do this effectively.         

Richard

Friendly Amendment - Theology and Catholic Legal Theory

Patrick Brennan offered a friendly amendment to my posting on homosexuality and Catholic Legal Theory.  I appreciate Patrick's post, but speaking solely for myself I must in friendship decline his amendment.  I agree with Patrick that "what we face are, in the first instance, questions of theology, not of Catholic legal theory."  In developing Catholic Legal Theory, a Catholic worldview (including its theology and philosophy) are brought to interact with the law and legal institutions. 

As a lay person involved in the law, I view my vocation as attempting to bring Christ into the world within the particulars (as a law professor at a public unviversity) of my life.  To do this, I struggle to learn some theology and philosophy, and I also beg God daily for the grace to conform my life and my will to His.  (As you know, I need a lot more grace in this department).  For me, this is a full plate.

When it comes to the teachings of the Church (on issues of faith and morals), I try to understand and adhere to them to the best of my ability knowing that professionally these teachings - with a rich 2000 year history of intellectual thought and fervor addressing almost every aspect of life - provide a firm and thick launching pad for my work. 

I do not, however, have a professional vocation when it comes to the internal workings of the Church - to the development of doctrine within the Church, to debating whether particular matters are even open for development, etc.  I'll leave these internal issues to those who have been called to address them.  This does not mean that I am a wilting flower blindly deferring to priests and the institution.  More than once, I have privately (as a parishoner not as a law prof) helped our priest to become a better pastor by criticizing (sometimes severely) his behavior. 

In the end, I view my professional call as outward looking, helping the world see through the Church's eyes (as Frank Sheed once said), and not inward.  Again, I speak only for myself and my calling.   

Pax Christi,

Michael

The More Things Stay the Same...

Thanks to Fr. Araujo for passing along the cites to previous discussions of homosexuality. I was intending to post on the Cardinal’s statement (posted below) that there is nothing really new in most recent instruction. In particular, I considered the instruction’s treatment of sexual orientation as a disorder that renders homosexuals unfit for the ministry to be a new wrinkle on the Church’s previous focus on the immorality of homosexual acts (as opposed to homosexual persons). The Church, like the Supreme Court, is forever innovating and then denying that it has ever held a different view, so I’m always suspicious when it protests its consistency.

These earlier documents complicate my view to a degree, because the Church did previously describe “homosexual orientation” as a disorder, but they also provide a vivid example of the point I am making. At first, the Church adheres to a distinction between homosexual acts (which it treats as sinful) and homosexual orientation (which it views as largely artificial).  The Church gradually abandons this distinction in favor (in its most recent instruction) of outright discrimination against homosexuals as a  separate class of persons.

First, the DECLARATION ON CERTAIN QUESTIONS CONCERNING SEXUAL ETHICS (1975):

In the pastoral field, these homosexuals must certainly be treated with understanding and sustained in the hope of overcoming their personal difficulties and their inability to fit into society. Their culpability will be judged with prudence. But no pastoral method can be employed which would give moral justification to these acts on the grounds that they would be consonant with the condition of such people. For according to the objective moral order, homosexual relations are acts which lack an essential and indispensable finality. In Sacred Scripture they are condemned as a serious depravity and even presented as the sad consequence of rejecting God.[18] This judgment of Scripture does not of course permit us to conclude that all those who suffer from this anomaly are personally responsible for it, but it does attest to the fact that homosexual acts are intrinsically disordered and can in no case be approved of.

The important thing to note is that the discussion in this document is entirely focused on homosexual acts, not on homosexuals as a separate class of persons. Importantly, the document treats homosexual behavior alongside premarital sex and masturbation, actually giving it the shortest discussion of the three.

The next document is at times even more explicit in this regard, although it begins to hedge a bit. LETTER TO THE BISHOPS OF THE CATHOLIC CHURCH ON THE PASTORAL CARE OF HOMOSEXUAL PERSONS (1986):

What, then, are homosexual persons to do who seek to follow the Lord? Fundamentally, they are called to enact the will of God in their life by joining whatever sufferings and difficulties they experience in virtue of their condition to the sacrifice of the Lord's Cross. That Cross, for the believer, is a fruitful sacrifice since from that death come life and redemption. While any call to carry the cross or to understand a Christian's suffering in this way will predictably be met with bitter ridicule by some, it should be remembered that this is the way to eternal life for all who follow Christ….The human person, made in the image and likeness of God, can hardly be adequately described by a reductionist reference to his or her sexual orientation. Every one living on the face of the earth has personal problems and difficulties, but challenges to growth, strengths, talents and gifts as well. Today, the Church provides a badly needed context for the care of the human person when she refuses to consider the person as a "heterosexual" or a "homosexual" and insists that every person has a fundamental Identity: the creature of God, and by grace, his child and heir to eternal life.

The document also introduces the notion that homosexual orientation is itself a disorder, though it does not make much use of the shift:

Although the particular inclination of the homosexual person is not a sin, it is a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination itself must be seen as an objective disorder.

In other words, the Church initially focuses its attention on the sinfulness of homosexual acts and treats the concept of sexual orientation as, for the most part, artificial.  But the Church changes direction in the 1992 document, SOME CONSIDERATIONS CONCERNING THE RESPONSE TO LEGISLATIVE PROPOSALS ON THE NON-DISCRIMINATION OF HOMOSEXUAL PERSONS, and begins to focus a great deal of attention on sexual orientation as such:

"Sexual orientation" does not constitute a quality comparable to race, ethnic background, etc. in respect to non-discrimination. Unlike these, homosexual orientation is an objective disorder (cf. "Letter," No. 3) and evokes moral concern.

The most recent instruction takes this focus on “homosexual orientation” even farther. Whereas earlier documents appeared to view homosexual orientation as a “cross,” and homosexual chastity as “fruitful sacrifice,” analogous to other areas in which human beings are prone to sinfulness, this document views it as a factor that pollutes homosexuals’ relationships with other human beings to such an extent that it disqualifies them categorically from positions in the ministry. I see no way to square the Church’s most recent statement, with its treatment of homosexuals as something of an inferior class of persons, with its far more moderate and optimistic statement in the 1986 letter that the Church “refuses to consider the person as a ‘heterosexual’ or a ‘homosexual’ and insists that every person has a fundamental Identity: the creature of God, and by grace, his child and heir to eternal life.”

The Congregation for Education's Recent Text

I have read with great interest the recent postings by MOJ members on the Congregation for Education's text, and I would like to offer my own reflections. However, since several provincials (major superiors) of my religious institute have instructed our men not to offer any public comment at this time, I must honor their instruction. For those who continue this discussion, it would be helpful to keep in mind the following Church texts that have addressed elements of the issues associated with the discussion during the past 30 years: (1) the December 29, 1975 "Declaration on Certain Questions Concerning Sexual Ethics" HERE ; (2) the October 1, 1986 "Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons" HERE ; (3) the July 23, 1992 document "Some Considerations Concerning the Response to Legislative Proposals on Nondiscrimination of Homosexual Persons" HERE ; and, (4) the July 31, 2003 "Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons" HERE.    RJA sj

"The Moral Consequences of Economic Growth"

In Sunday's New York Times, Gregg Easterbrook had this review, "The Capitalist Manifesto", of Benjamin Friedman's book, "The Moral Consequences of Economic Growth."  Here is the intro:

ECONOMIC growth has gotten a bad name in recent decades - seen in many quarters as a cause of resource depletion, stress and sprawl, and as an excuse for pro-business policies that mainly benefit plutocrats. Some have described growth as a false god: after all, the spending caused by car crashes and lawsuits increases the gross domestic product. One nonprofit organization, Redefining Progress, proposes tossing out growth as the first economic yardstick and substituting a "Genuine Progress Indicator" that, among other things, weighs volunteer work as well as the output of goods and services. By this group's measure, American society peaked in 1976 and has been declining ever since. Others think ending the fascination with economic growth would make Western life less materialistic and more fulfilling. Modern families "work themselves to exhaustion to pay for stuff that sits around not being used," Thomas Naylor, a professor emeritus of economics at Duke University, has written. If economic growth were no longer the goal, there would be less anxiety and more leisurely meals.

But would there be more social justice? No, says Benjamin Friedman, a professor of economics at Harvard University, in "The Moral Consequences of Economic Growth." Friedman argues that economic growth is essential to "greater opportunity, tolerance of diversity, social mobility, commitment to fairness and dedication to democracy." During times of expansion, he writes, nations tend to liberalize - increasing rights, reducing restrictions, expanding benefits for the needy. During times of stagnation, they veer toward authoritarianism. Economic growth not only raises living standards and makes liberal social policies possible, it causes people to be optimistic about the future, which improves human happiness. "It is simply not true that moral considerations argue wholly against economic growth," Friedman contends. Instead, moral considerations argue that large-scale growth must continue at least for several generations, both in the West and the developing world.

Thoughts?

Clemency, the Death Penalty, and Reform

Here is an interesting piece:  "Death Row:  Does Personal Reform Count?"  It opens with this:

Exactly 229 death-row inmates have been granted clemency since the United States reinstated capital punishment in 1976, and the list of reasons is short. The 16 governors who have given such pardons cited just three reasons: lingering doubt about guilt, a governor's own philosophical opposition to the death penalty, and mental disability of the accused.

Starkly absent from the list - notable because of a high-profile clemency request now pending in California - is character reform of the guilty.

After discussing that California case (involving "Tookie" Williams, the founder of the Crips and a "four-time murderer"), the essay continues:

"If he goes ahead and puts to death a man who has clearly shown he has turned himself around, [and] is not the man he once was, what does that say to all other prisoners who are similarly incarcerated and are trying to reform themselves - that personal reform doesn't matter?" asks Jan Handzlik, a member of Williams's defense team.

Similarly, what message does a commuted death sentence send to prosecutors and law-enforcement officers, who daily work to fulfill the requirements of the legal system to obtain proper prosecutions? Or to victims' families and other convicts?

"It sends the worst signal to the criminal element if you commute someone," says Michael Paranzino, who runs a nonpartisan research group dedicated to crime victims and their families. "What are other criminals supposed to think ... that if you suddenly write poetry, say all the right things, and find a champion on the outside that you get a 'get out of jail free' card?"

Because of all this, "clemency is a very lonely decision," says Margaret Love, former head of the pardon office in the US Justice Department. "It is a question of how to blend mercy with justice, the human and the legal in light of all circumstances before you, with life on the line."

Putting aside (for now) questions concerning the morality or wisdom of capital punishment, and putting aside also (for now) any questions about the scope, under the relevant legal regime, of an executive's clemency power, should clemency be extended on the (sole) ground that a convict has reformed?

More on Ave Maria Town

A few weeks ago, in the Wall Street Journal, an editorial -- "Bringing a Catholic Law School Down" -- appeared about the debates going on at Ave Maria about the possibility of a move to Florida.  The editorial prompted, among other things, a ton of comments over at Volokh's blog, and also this post (with some important clarifications) by Professor Althouse.  Now, Professor Andy Morriss, at the (very interesting) blog, "St. Maximos' Hut," weighs in, and writes:

The interesting issue here - i.e. the one I haven't puzzled out yet - is why people with whom I usually find myself in agreement think it is a bad idea to move the law school into Ave Maria town independently of whether they think that moving the law school at all is a bad idea. Those who find it "creepy" (like Juan) seem to do so because they object to the closing off of the community from the wider community. The very idea of a university, however, is to some extent a place where people are to a degree sheltered from the "real world" to allow them to focus on learning. What's particularly creepy about people wanting to be in an environment free from pornography, etc.? This doesn't strike me as any different from, say, people at a law school in a rural town touting the atmosphere available from rural living. Given UPS, the internet, Amazon.com, Netflix, and so on, I don't think "Ave Maria town" is likely to be particularly more closed off from the "real world" than most small towns in rural areas are today. What will be different is that it will be a community that shares values, Catholic values as it turns out, and that, in turn, strikes me as sounding a bit like what you might find in a monastic community.

And, in response, Althouse has revisited the debate:

. . .  Morriss is missing one huge thing. There is an existing community of scholars in Ann Arbor that is not volunteering to move. They like it where they are, in a lively university town, where they've established lives for themselves and contributed to the building of an institution. (Don't believe me? Ask them!) The move is to be imposed, top-down, by one man who happens to have the money.

Now (thanks to Juan Non-Volokh for the link), the Dean of the Ave Maria School of Law, Bernard Dobranski, has weighed in with a letter to the editor of the Journal.  (The letter itself is available only to subscribers).  Here is a taste:

Ave Maria University and the Barron Collier Companies have agreed that the town will promote the traditional family values that prospective residents are seeking. We believe this can best be achieved by attracting retail establishments that share this commitment to, for example, an environment free of the degradation of women that pornography represents. Retailers who know their market can be expected to stock only those products that sell. Although restrictions on both pornography and contraception effectively will be imposed by the marketplace, it is Ave Maria's fervent hope that Catholics will shun both of these. It is an outrage that this sincere desire to help fellow Catholics live in accord with their faith invites a comparison with Jonestown's infamous Jim Jones. . . .

Ave Maria University includes . . . on its board of trustees and board of regents (advisory) such prominent clerics and Catholic intellectuals as Father Benedict Groeschel, Prof. Robert George of Princeton, Prof. Mary Ann Glendon of Harvard Law School and Michael Novak of the American Enterprise Institute. The idea that any of these people would countenance the sort of Catholic ghetto Ms. Riley imagines is patently absurd. Ave Maria seeks to be no more than mainstream Catholic; meaning, of course, unreserved fidelity to the teaching of the Catholic Church. This may be offensive to the secular left in the culture wars now raging, but it ought to be applauded even by a dissident faculty member of a Catholic law school, even if he prefers to remain in Michigan.

UPDATE:  D'oh!  I just realized that Rob already blogged about this letter.  Sorry!

ABORTION BY THE NUMBERS

[From The American Prospect online edition, Nov. 28, 2005.  Thanks to Chris Eberle for calling this to my attention.]

ABORTION BY THE NUMBERS. Over at The New Republic I have a story up about the rising numbers of repeat abortions in America (link requires free registration):

Amy's experience with multiple abortions was life-changing enough that she decided to volunteer at Exhale, a telephone hotline where women who have had abortions can speak openly about their experiences. Exhale, which calls itself "pro-voice," is part of a new approach to abortion that eschews dogmas, left and right. Through the organization, which went national in June, Amy counsels women like herself, some of whom have been through multiple abortions. Their numbers are growing. According to the Guttmacher Institute, an abortion-rights organization respected for its data collection, close to half of the 1.3 million abortions performed in the United States each year are repeat abortions, up from just 12 percent in 1973. Most repeat abortions are, like Amy's, a woman's second, yet the number of third abortions is not insubstantial. In 2000, the Centers for Disease Control (CDC) reported that 18 percent of abortions were performed on women seeking at least their third pregnancy termination. In contrast, studies have shown that rape and incest victims, the most politically sympathetic and high-profile group of abortion-seekers, account for about 1 percent of abortions.

Despite its prevalence, repeat abortion is the least discussed or researched aspect of abortion in the United States. In the past year, liberals and Democrats have increasingly focused on preventing unwanted pregnancies as a means of preventing abortion. But they have yet to address the specific needs of women who have already had abortions, partly out of fear of affirming conservative stereotypes about why women abort or how they react to an abortion....

The sad fact is that, three decades after legalization, abortion is no longer mainly a tool women use to shape their own destinies, but rather a symptom of larger social problems that ought to be addressed by policymakers.

"Talkback to TNR" writers, in the main, agreed with my policy proposals, but disliked my criticism of liberals for not talking about the still-taboo subject of repeat abortions. And yet, I think it's noteworthy that in recent months, I have hardly been the only younger, liberally-situated woman to raise questions about the way pro-choice professionals talk and think about abortion, or to suggest that pro-choice liberals could benefit from some fresh thinking. The younger set, it seems, is increasingly disturbed by our rhetorical and conceptual inheritence on this issue, even as abortion rights face greater challenges than at any time since the 1970s.

Last December, Prospect deputy editor Sarah Blustain wrote about her dislike of pro-choice rhetoric in our pages:

Ok, I’ve unlisted my phone number, changed my name, and moved to a different (red) state. Now I can safely say it: The Democratic defense of abortion makes me cringe.

It’s the stridency, the insistence, the repetition of a “woman’s right to choose.” It rubs me the wrong way -- and I’m one of those classic 30-something, northeastern, educated, pro-choice women who believes the message. I’m tormented by the idea that even as I support Democratic candidates -- and, yes, on this issue -- I’m turned off by their abortion rhetoric.

I’m not alone. Poll after poll shows that a majority, albeit a slim one, of Americans favor access to abortion. An ABC News/Washington Post poll from May of this year found that 54 percent of those asked said they thought that abortion should be legal in all or most cases. Similarly, 55 percent told a Time/CNN poll in January 2003 that they favored the Supreme Court ruling “that women have the right to have an abortion during the first three months of pregnancy.” And yet, as our most recent election made clear, some percentage of those poll respondents obviously support anti-abortion candidates. Put more precisely, fully one-third of pro-choice Americans voted for George W. Bush, according to NARAL Pro-Choice America. So the question is, how can Democrats soften their rhetoric while maintaining their support for safe, accessible abortion?

As long as I can remember, the tone of the liberal message on abortion has been defiant, sometimes even celebratory. It’s an attitude that reflects the victory of legal abortion over back-alley dangers three decades ago -- a success that many who remember it still experience with deep emotion...

Still, for those of us who came after Roe v. Wade, there is a significantly different reality. The context has changed. Back alleys and coat hangers are not part of our visceral memory. To this generation, the “choice” of a legal abortion is no longer something to celebrate. It is a decision made in crisis, and it is never one made happily.

More recently, the literate smut website Nerve.com, of all places, ran a couple of very provocative articles about abortion, including one on repeat abortions by Third Wave feminist Jennifer Baumgardner that describes an abortion clinic director who "thinks multiple abortions points to something larger than an individual snafu."

The delightful Ada Calhoun (a Nerve editor who, I might add, is also a friend of TAP Online editor Tara McKelvey's and the daughter of New Yorker art critic Peter Schjeldal, as well as one of the few people I've met in adult life who also had Mr. Tobin as her fourth grade teacher at P.S. 41) bravely laid out her very un-P.C. qualms about second-term abortions, thinking back to the time when she was in high school and her family hosted a young woman seeking a second-term abortion who was in town from upstate:

...looking at Andrea, I felt revulsion. Politically, I still felt I had to defend her right to do what she was doing, but personally and morally I felt it was wrong. Even though I was a godless, liberal native New Yorker, I saw second-term abortion as a sin. If there had been a Bible in our home, I would have thumped it.

I've never said this out loud before, that I have such reluctance about abortion past a certain point — which in my case is definitely before Andrea's five months, when the fetus kicks, has a heartbeat, and sucks its thumb. Being pro-choice with reservations is taboo. It is to wrestle with guilt and doubt and feel that you must be silent. And I understand why. Last year, my colleague Lynn Harris wrote a great essay about how she and her husband help women get access to second-term abortions. I hear and agree with everything she says. I see how it's a class issue, and I appreciate the many totally legitimate reasons why many women can't or don't get them before they're so far along. I applaud Lynn. But privately, I still can't get over this deep moral anxiety about it. And I think that's something we should talk about. At the same time, I fear that by saying such a thing I'm stoking the fire of the fundamentalists, giving comfort to a political enemy that would also restrict access to safe and effective birth control if they could.

...I do wonder if maybe we pro-choice advocates aren't more conflicted than we let on, and therefore if maybe pro-life advocates aren't as well. Maybe the deal is that pro-choicers have to say, "Allow abortion up until the ninth month! Free and on every corner!" And pro-lifers have to say, "We can never, ever allow it, even in cases of rape and incest, even if the mother might die!" That way, we meet in an awkward demilitarized zone, the first trimester, with restrictions and obstacles that hurt the poor and the young. And so we fight back and forth and make it easier this month and harder the next, so everyone's almost okay with the way things are, but no one really is.

I think Ada is quite right that it has been nearly impossible for people in public life to talk honestly about abortion, and that it can be especially difficult to do so in pro-choice circles. Indeed, there are two conversations we have about abortion in this country. There is, as Ada describes, the public confrontation between rigid ideological camps, and then there is the nuanced private conversation we have among ourselves. I am more interested in the latter, because I think that a politics that is not based on the truth of life as it is really lived is worthless. And sometimes even worse than that.

I don't expect professional political actors or activists to necessarily agree, but if the gap between the private conversation and the public one grows too wide, they may find abortion rights themselves falling into the breach.

--Garance Franke-Ruta

Cardinal Grocholewski on the instruction, teaching

A New Instruction, but Perennial Teaching
Cardinal Grocholewski Comments on Document

VATICAN CITY, NOV. 29, 2005 (Zenit.org).- The Holy See's new document on the admission of men with homosexual tendencies to seminaries and the priesthood does not contain any groundbreaking points, says a Vatican official.

Cardinal Zenon Grocholewski, the prefect of the Congregation for Catholic Education, was responsible for writing the Instruction "Concerning the Criteria for the Discernment of Vocations with Regard to Persons with Homosexual Tendencies in View of Their Admission to the Seminary and to Holy Orders."

The document, published today, confirms that it is not possible to admit to the priesthood men "who practice homosexuality, present deep-seated homosexual tendencies or support the so-called 'gay culture.'"

"The newspapers have talked about this document as if it were something extraordinary," said the Polish cardinal when presenting the text on Vatican Radio.

"But it is not strange that our congregation publishes specific documents regarding priestly formation because we have published some 20 documents since the [Second Vatican] Council concerning the different aspects of formation in seminaries," he observed.

Nothing extraordinary

"There has been a document on celibacy, on priestly chastity, talks on different impediments for the priesthood," the 66-year-old cardinal said. "Now this document has nothing extraordinary because, on the problem of homosexuality, the Congregation for the Doctrine of the Faith has pronounced itself many times.

"And it has pronounced itself many times because in this area in the world of today, there is a certain disorientation. Many defend the position according to which the homosexual condition is a normal condition of the human person, something like a third gender; instead, this absolutely contradicts human anthropology. It contradicts, according to the thought of the Church, the natural law, and what God has marked in human nature."

Cardinal Grocholewski explained that the new Instruction takes up again the distinction presented by the Catechism of the Catholic Church between "homosexual acts" and "homosexual tendencies."

"Homosexual acts are considered in sacred Scripture, both in the Old as well as the New Testament, from St. Paul and later in the whole Tradition of the Church [and] by the Councils as grave sins, contrary to the natural law," the cardinal said. "Therefore, these acts can never be approved."

Different, however, are "the inclination or deep-seated homosexual tendencies. This homosexual tendency is considered in the Catechism of the Catholic Church as an objectively disordered inclination," he added.

"Why?" asked the cardinal. "Because an inclination as such is not a sin, but it is a more or less strong tendency toward an intrinsically evil conduct from the moral point of view."

3 categories

"These persons therefore are in a situation of trial; they need understanding but must not be discriminated against in any way whatsoever," he added. "On the part of the Church they are called, as everyone, to observe the divine law although, perhaps for some of them, it will cost more."

The Vatican prefect continued: "We have adopted as principle three categories of people who cannot be admitted either to the seminary or to priestly ordination: those who practice homosexuality; those who have deep-seated homosexual tendencies, and those who support the so-called gay culture.

"In regard to people who have deep-seated homosexual tendencies, we are profoundly convinced that it is an obstacle for a correct relationship with men and women, with negative consequences for the Church's pastoral development."

"Obviously, if we speak of deep-seated tendencies, this means that there can also be transitory tendencies, which do not constitute an obstacle. But in these cases, they must have disappeared three years before diaconal ordination," specified the cardinal.

Regarding priests with homosexual tendencies, Cardinal Grocholewski clarified that "these priestly ordinations are valid, because we do not affirm their invalidity."

"A person that discovers their homosexuality after priestly ordination, must obviously live the priesthood itself, must live chastity," he observed. "Perhaps he will have greater need of spiritual help than others, but I think he must carry out the priesthood itself in the best way possible."

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More on Ave Maria

The Volokh Conspiracy reports on Dean Dobranski's response to the Wall Street Journal article on the controversy surrounding Ave Maria Law School's proposed move to Florida.

Rob

Re the Death Penalty

[A friend sent this.  Thought it would be of interest.]

citymayors.com

More than 300 cities worldwide will rally against death penalty

Rome, 27 November 2005: More than 300 cities, including Dallas and Austin from the US state of Texas, will be taking part in an initiative against the death penalty called ‘Cities for Life, Cities against the Death Penalty’. The Catholic Community of Sant'Egidio in Rome, organizer of the initiative, says it will be the largest ever mobilization against capital punishment.

The Cities for Life, Cities against the Death Penalty is an initiative staged every year by the Catholic Community of Sant'Egidio in Rome on 30 November. This year, the fourth edition, there will be 320 cities in the world taking part, including 30 national capitals. For the event, many of the cities will offer their main squares and logos dres! sed in a special way, or light up their symbolic monuments like the Coliseum in Rome, the obelisk in Buenos Aires.

The spokesman of the Community of Sant'Egidio, Mario Marazziti, says special events and shows will bring together city administrators, ordinary people and students. "Whoever wants to be there will try to think of how it is possible now to have a higher level of justice, justice without revenge and a restorative justice than never denies life," he said.

Mr. Marazziti says the execution of Stanley Tookie Williams, a double homicide convict who has become an ardent anti-gang activist on death row, is set for 13 December in California. California’s governor Schwarzenegger has been urged to stop the execution from going ahead. In addition the 1,000th execution in the history of the United States is expected in Virginia around 30 November.

The worldwide trend, Mr Marazziti said, was against imposing capital punishment. "We have 115 countries that have abo! lished the death penalty, we have about 101 countries that are either active retentionists or passive retentionists, that are de facto abolitionists but they still have the death penalty," he said. "But just 25-30 years ago we had the contrary, we had 60 countries that had abolished the death penalty."

He says he is convinced the death penalty will disappear one day, as did slavery in the past. The United States, China, India, Japan and many Arab countries are among those that impose and carry out capital punishment.

Special focus is being placed this year on Africa, which has rapidly moved from being one of the most conservative continents to the one where changes are occurring fastest. Mr. Marazziti says that Africa, racked by AIDS, civil conflicts and poverty, is moving toward abolishing the death penalty. "We had just one country that had abolished the death penalty in 1981, we have now 13 countries and we have 20 de facto abolitionist countries," he said. The la! test country to abolish the death penalty in Africa is Senegal. (Report by Sabina Castelfranco, VOA)