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, March 25, 2008

Formation of the Well-formed Conscience

            The endorsement released by Professor Doug Kmiec of Senator Obama’s candidacy is a potent reminder that each of us will soon have to make his or her own endorsement, or not, of candidates for public office within the privacy of the voting booth. When he spoke before the Greater Houston Ministerial Association in September of 1960, then Senator and Candidate John F. Kennedy (not the Catholic candidate, but the candidate of the Democratic Party who was Catholic) asserted that he would address the issues that came before him based on what his conscience informed him to be in the national interest “without regard to outside religious pressures or dictates.” While then Senator, later President, Kennedy mentioned conscience, Professor Kmiec did not; therefore, I cannot comment on his exercise of conscience, but I can on John Kennedy’s.

I think Senator Kennedy was partially right but also partially wrong when he made his statement. He was correct insofar as he acknowledged the importance and relevance of conscience; however, he was wrong insofar as he concluded that religious belief was an impermissible influence in the formation of conscience. Many, if not most, of the issues that a citizen or public official must address contain both political and moral dimensions, but to exclude the moral reasoning that religious belief can offer would be a disservice to the implementation of one’s civic duties and would dishonor the exercise of religious liberty—especially when the individual in question asserts Catholic identity.

            The objective of this posting is to provide an explanation, taking into consideration Catholic teaching, on how the Catholic—either as citizen or as holder of public office—is to form personal conscience that is well-formed and, therefore, consistent with the teachings of the Church. It is essential in addressing this matter to understand that conscience is “the most secret core and sanctuary of a person. There he is alone with God, whose voice echoes in his depths.” [Pastoral Constitution of the Church in the Modern World, N. 16]

            Conscience, its formation, and its exercise have long been important to the Church and its members. This is evident in the recent US Bishops’ statement, Forming Consciences for Faithful Citizenship—A Call to Political Responsibility. The statement reiterates the conclusion of the Second Vatican Council in the Declaration on Religious Liberty that the minds and hearts of Catholics must be formed in such a way as to promote knowledge and practice of the “whole faith”, which must necessarily include the critical, indispensable ability of Catholics to “hear, receive, and act upon the Church’s teaching in the lifelong task of forming his or her conscience.”

            The Church does not tell its members whom they should vote for or against. However, she emphasizes that a critical element of this crucial individual responsibility is that the Catholic must exercise civic duties “in light of a properly formed conscience.” Thus, local bishops have the primary duty, as apostles in union with the Pope, to inform, through their teaching responsibility, each individual’s conscience so as to assure that it is a “properly formed” one. The failure to do so would constitute an inexcusable abdication of their responsibility to the Church and those souls entrusted to their teaching authority.

            The formation of a well-formed conscience must also take into consideration the complementarity of faith and reason because it is reason, compatible with the Catholic faith, that reinforces the Church’s claim to teach and to proclaim the Gospel to the faithful and all people of good will. The well-formed conscience inexorably reflects this complementarity. But the free and well-formed conscience that accords and thinks with the Church cannot follow the problematic course of Planned Parenthood v. Casey, where personal liberty is based on the ability to define one’s own concept of existence, the meaning of the universe, and the mystery of human life. The reason should be obvious: competing conceptions of liberty and conscience will inexorably lead to a collision course even within the most democratic of societies.

            What will avoid the collision? Let me suggest these tools: patience, thought, and faith. The bishops, along with those who assist in their teaching authority, have the clear and distinct obligation to instruct the faithful in fundamental moral principles that help form consciences correctly with patience, critical reason, and faith. Those charged with this teaching duty must provide the antidote to the conundrum of exaggerated subjectivism posed by the Casey method of liberty’s role in the formation of conscience. The Church provides a transcendent and objective moral order which assists persons in making distinctions between right and wrong and forming actions based on these distinctions.

From the perspective of the exercise of the Christian, Catholic conscience, self-reliance is a problem when it is the only resource used in the formation of conscience. Fortunately, the Gospel and the Magisterium come together in an organic synthesis of faith that needs to exist in each person’s discipleship that leads to the inescapable path of objective truth whose consummation is God. This is the point at which Christ’s statement, “You will know the truth, and the truth will set you free” becomes a reality present in and of the temporal world. What a panacea this would be to the problems of our times and those that will emerge in the future that challenge our wits of civic duty.

As Americans, we place an uncompromising value on liberty, yet it is with the Church’s teachings that rely on the truth, Himself, that human conscience is expanded and liberated. For the Christian, authentic liberation comes from the fact that the individual is not truly “free” when freedom is of the sort that distances a person from the truth. When a person is free from the truth, the person often becomes enslaved either by the paralysis of exaggerated autonomy and self-centeredness or by the dictates of some external entity that is not in accord with Christ’s truth as proclaimed by the Church.

Here it is vital to take account of Fr. John Courtney Murray’s commentary on the Decree on Religious Freedom of which he was a major drafter. In his discussion of the formation of conscience, Fr. Murray observed that it would be false to conclude that a person has the “right” to do whatever his or her conscience tells the person to do “simply because my conscience tells me to do it.” Fr. Murray asserted, correctly in my view, that to follow this kind of conclusion as a proper way of proceeding would be inconsistent with Catholic teachings because it is based on “a perilous theory.” The core justification proffered by Fr. Murray is that the centrality of the peril is its reliance on the kind of subjectivism in which a person’s conscience is based on self-reliance rather than “the objective truth” which therefore determines what is right or wrong, true or false. Hence, the judge of what is right or wrong, true or false is solely the individual rather than objective certainty. This is in large part why the Congregation for the Doctrine of the Faith in 2002 noted that a well-formed Christian conscience imposes certain responsibilities on Catholic citizens to counter a vote for or support of a political program or legislation “which contradicts the fundamental contents of faith and morals.”

The CDF went on to state that the faith is “an integral unity” and it would be incomprehensible for a Catholic to justify his or her action, in the name of conscience, to support a decision that is detrimental  to the whole of Catholic teachings. In essence, then, a well-formed conscience must not vote for a candidate, support legislation, or endorse a program on the basis of one particular element of evidence that would inevitably sacrifice the whole of the Church’s teachings and the entirety of its social doctrine. As wearers of the garment of Christ that we take on a baptism, we must bear the whole cloth and not that portion which is convenient for the moment. While a candidate’s positions or a party’s platform may be quilted from many fabrics, the conscience of the well-formed Catholic citizen or official must necessarily be of the whole cloth.       RJA sj

March 25, 2008 in Araujo, Robert | Permalink | TrackBack (0)

ministerial exception

I have not yet had a chance to read Greg Kalscheur's article, but I'll just offer a quick comment. I know that is hazardous, but why should that stop me. (On March 21, 2008, the Second Circuit decided a case on this issue that appears to take the subject matter jurisdiction (smj) approach advanced in the article. Here is a link to the Second Circuit case.) I want to think this through again after reading the article, but the smj approach seems wrong. In the Second Circuit case, the plainitiff brought a Title VII claim and surely the federal courts have smj over those claims. It may be that the claim fails (e.g., because the employer doesn't have enough employees to be covered by Title VII) but that doesn't mean that the federal court didn't have smj over the Title VII claim. The claim would fail on the merits.

I am sure that Greg is making a broader point about whether the courts ought to intrude on the matters raised by the ministerial exception, but I think it confuses things (here I am speaking as a Civil Procedure teacher) to think of this as a matter of subject matter jurisdiction. The distinction between the merits and subject matter jurisdiction is common, but we shouldn't extend the confusion into an issue (ministerial exception) that is complex enough. The constitutional basis for the ministerial exception, if there is such a basis, should be front and center and we shouldn't be distracted by calling the matter one of "subject matter jurisdiction."

Richard M.

March 25, 2008 in Myers, Richard | Permalink | TrackBack (0)

Kalscheur on the Ministerial Exception

MOJ-friend and -veteran Greg Kalscheur (Boston College) has a must-read paper on SSRN, "Civil Procedure and the Establishment Clause:  Exploring the Ministerial Exception, Subject Matter Jurisdiction, and the Freedom of the Church."  Here is the abstract:

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper understanding of the role that the ministerial exception plays as a constitutional protection for the religious freedom of churches and other religious institutions. The Article explores the ministerial exception to antidiscrimination law as a case study of the extent to which the U.S. Constitution adequately protects the freedom of the church. The ministerial exception is best understood as a subject matter jurisdiction defense, and getting the right answer to this civil procedure question is not just a matter of citing the right procedural rule in the defendant's motion to dismiss. Instead, careful attention to this question leads to a better understanding of the foundations of our constitutional order. When courts clearly and consistently treat the ministerial exception as a limitation on their subject matter jurisdiction, they make a powerful statement about the foundations of limited government - they affirm the penultimacy of the state. Yet, even though the jurisdictional approach to the ministerial exception does provide crucial protection for one dimension of institutional religious freedom, the Article suggests that the jurisdictional approach alone cannot provide an adequate constitutional foundation for robust protection of the freedom of the church.

As MOJ readers know, I believe the questions Fr. Kalscheur is asking are at the heart of the religious-freedom conversation.  Any reactions to the paper?

March 25, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Boycott the Olympics?

Should political communities committed to what my friend Michael Perry calls "the morality of human rights" boycott the 2008 Summer Olympics in China?  If not, why not?  Some thoughts here.

March 25, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Martin Marty on Jeremiah Wright

The Chronicle Review
issue dated April 11, 2008

Prophet and Pastor

To his former professor, congregant, and friend, Jeremiah Wright has been both

Through the decades, the Rev. Jeremiah A. Wright Jr. has called me teacher, reminding me of the years when he earned a master's degree in theology and ministry at the University of Chicago — and friend. My wife and I and our guests have worshiped at Trinity United Church of Christ in Chicago, where he recently completed a 36-year ministry.

Images of Wright's strident sermons, and his anger at the treatment of black people in the United States, appear constantly on the Internet and cable television, part of the latest controversy in our political-campaign season. His critics call Wright anti-American. Critics of his critics charge that the clips we hear and see have been taken out of context. But it is not the context of particular sermons that the public needs, as that of Trinity church, and, above all, its pastor.

In the early 1960s, at a time when many young people were being radicalized by the Vietnam War, Wright left college and volunteered to join the United States Marine Corps. After three years as a marine, he chose to serve three more as a naval medical technician, during which time he received several White House commendations. He came to Chicago to study not long after Martin Luther King Jr.'s murder in 1968, the U.S. bombing campaign in Cambodia in 1969, and the shooting of students at Kent State University in 1970.

Wright, like the gifted cohort of his fellow black students, was not content to blend into the academic woodwork. Then the associate dean of the Divinity School, I was informally delegated to talk to the black caucus. We learned that what Wright and his peers wanted was the intense academic and practical preparation for vocations that would make a difference, whether they chose to pursue a Ph.D. or the pastorate. Chicago's Divinity School focuses on what it calls "public ministry," which includes both conventional pastoral roles and carrying the message and work of the church to the public arena. Wright has since picked up numerous honorary doctorates, and served as an adjunct faculty member at several seminaries. But after divinity school, he accepted a call to serve then-struggling Trinity.

Trinity focuses on biblical teaching and preaching. It is a church where music stuns and uplifts, a church given to hospitality and promoting physical and spiritual healing, devoted to education, active in Chicago life, and one that keeps the world church in mind, with a special accent on African Christianity. The four S's charged against Wright — segregation, separatism, sectarianism, and superiority — don't stand up, as countless visitors can attest. I wish those whose vision has been distorted by sermon clips could have experienced what we and our white guests did when we worshiped there: feeling instantly at home.

Yes, while Trinity is "unapologetically Christian," as the second clause in its motto affirms, it is also, as the other clause announces, "unashamedly black." From its beginning, the church has made strenuous efforts to help black Christians overcome the shame they had so long been conditioned to experience. That its members and pastor are, in their own term, "Africentric" should not be more offensive than that synagogues should be "Judeocentric" or that Chicago's Irish parishes be "Celtic-centric." Wright and colleagues insist that no hierarchy of races is involved. People do not leave Trinity ready to beat up on white people; they are charged to make peace.

To the 10,000 members of Trinity, Jeremiah Wright was, until just a few months ago, "Pastor Wright." Metaphorically, pastor means shepherd. Like members of all congregations, the Trinity flock welcomes strong leadership for organization, prayer, and preaching. One-on-one ministry is not easy with thousands in the flock and when the pastor has national responsibilities, but the forms of worship make each participant feel recognized. Responding to the pastoral call to stand and be honored on Mother's Day, for instance, grandmothers, single mothers, stepmothers, foster mothers, gay-and-lesbian couples, all mothers stood when we visited. Wright asked how many believed that they were alive because of the church's health fairs. The members of the large pastoral staff know many hundreds of names, while hundreds of lay people share the ministry.

Now, for the hard business: the sermons, which have been mercilessly chipped into for wearying television clips. While Wright's sermons were pastoral — my wife and I have always been awed to hear the Christian Gospel parsed for our personal lives — they were also prophetic. At the university, we used to remark, half lightheartedly, that this Jeremiah was trying to live up to his namesake, the seventh-century B.C. prophet. Though Jeremiah of old did not "curse" his people of Israel, Wright, as a biblical scholar, could point out that the prophets Hosea and Micah did. But the Book of Jeremiah, written by numbers of authors, is so full of blasts and quasi curses — what biblical scholars call "imprecatory topoi" — that New England preachers invented a sermonic form called "the jeremiad," a style revived in some Wrightian shouts.

In the end, however, Jeremiah was the prophet of hope, and that note of hope is what attracts the multiclass membership at Trinity and significant television audiences. Both Jeremiahs gave the people work to do: to advance the missions of social justice and mercy that improve the lot of the suffering. For a sample, read Jeremiah 29, where the prophet's letter to the exiles in Babylon exhorts them to settle down and "seek the peace and prosperity of the city to which I have carried you into exile." Or listen to many a Jeremiah Wright sermon.

One may properly ask whether or how Jeremiah Wright — or anyone else — experiences a prophetic call. Back when American radicals wanted to be called prophets, I heard Saul Bellow say (and, I think, later saw it in writing): "Being a prophet is nice work if you can get it, but sooner or later you have to mention God." Wright mentioned God sooner. My wife and I recall but a single overtly political pitch. Wright wanted 2,000 letters of protest sent to the Chicago mayor's office about a public-library policy. Of course, if we had gone more often, in times of profound tumult, we would have heard much more. The United Church of Christ is a denomination that has taken raps for being liberal — for example for its 50th anniversary "God is still speaking" campaign and its pledge to be open and affirming to all, including gay people. In its lineage are Jonathan Edwards and Reinhold and Richard Niebuhr, America's three most-noted theologians; the Rev. King was much at home there.

Friendship develops through many gestures and shared delights (in the Marty case, stops for sinfully rich barbecue after evening services), and people across the economic spectrum can attest to the generosity of the Wright family.

It would be unfair to Wright to gloss over his abrasive — to say the least — edges, so, in the "Nobody's Perfect" column, I'll register some criticisms. To me, Trinity's honoring of Minister Louis Farrakhan was abhorrent and indefensible, and Wright's fantasies about the U.S. government's role in spreading AIDS distracting and harmful. He, himself, is also aware of the now-standard charge by some African-American clergy who say he is a victim of cultural lag, overinfluenced by the terrible racial situation when he was formed.

Having said that, and reserving the right to offer more criticisms, I've been too impressed by the way Wright preaches the Christian Gospel to break with him. Those who were part of his ministry for years — school superintendents, nurses, legislators, teachers, laborers, the unemployed, the previously shunned and shamed, the anxious — are not going to turn their backs on their pastor and prophet.

Martin E. Marty is a professor emeritus at the University of Chicago Divinity School. His most recent book is The Christian World: A Global History (Modern Library, 2008).

March 25, 2008 in Perry, Michael | Permalink | TrackBack (0)

Kmiec Endorses Obama

Doug Kmiec's interest in Barack Obama's candidacy has already been the subject of discussion here on MoJ, but now he's made it official, endorsing Obama for President.

March 25, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Monday, March 24, 2008

The Corrupting and Incendiary Danger of Words of Racial Enmity

I appreciate Eduardo Peñalver’s posting on a version of black liberation theology, which I agree provides about as good of a defense of Dr. James Cone’s rhetorical choices as could be made (while thoughtfully acknowledging that he may be needlessly inflammatory). As with others who have expressed concern here on the Mirror of Justice about recent racially-charged statements in the public square, I have been aware that some advocates of black liberation theology liberally invoke terms of violence and hatred against white people, which they then insist should be understand to refer not to human beings of a particular ethnic background but instead as proxies for opposition to oppression. But I don’t think we can give people a pass when they deliberately choose words of hate, especially in the context of race, even if they try to distance themselves from the force of those words by qualifying and explaining. Humpty-Dumpty’s claim that words may be redefined to mean whatever the speaker wishes is always a doubtful proposition, because words belong to an entire community. But the claim of facile redefinition is especially dubious when the words are used in an incendiary manner, not to be more precise in categorization, but to be provocative and confrontational.

If a person regularly speaks about the evils of “white people” and the need to work for “the destruction of the white enemy,” he or she cannot legitimately plead innocence when the words are taken in their plain meaning. In fact, I’m not convinced that every one of these speakers are really all that surprised or upset when their words are taken so plainly. In any event, a person who uses such hateful rhetoric, even if he or she begins the journey by redefining terms in a particular way, may find that resort to such language is corrupting of attitude. Let’s look again at the words by Dr. Cone that I quoted: “Black theology refuses to accept a God who is not identified totally with the goals of the black community. If God is not for us and against white people, then he is a murderer, and we had better kill him. . . . . Black theology will accept only the love of God which participates in the destruction of the white enemy.” Dr. Cone did not speak here about “whiteness” as some generic representation of an oppressive system, although the presentation as a whole spoke of oppressors (without suggesting a more narrow definition than "white people"). He spoke of opposing “white people” and then followed up by characterizing them as the “white enemy.” Whatever may have been originally intended when the theological terms were being defined in the quiet of an academic office, such rhetoric cannot be contained, especially when introduced to the public.

Moreover, am I being unfair if I worry that the explanation of precise redefinition offered to justify shocking words of hate toward “white people” may be, at least on occasion, something of a sly wink by people who are well aware of how their words are being received by the audience? Despite having said on a number of occasions that his critics have no standing because they haven’t carefully read the black liberation theology of Dr. Cone and others with the diligence he has devoted, Rev. Jeremiah Wright appears to have understood the message quite plainly, quite crudely in fact, without any clever qualifications. Pronouncing himself a serious discipline of black liberation theology, Rev. Wright then chose to rant about AIDS being created by government scientists to kill black people and white supremacist government conspiring to sell drugs in black neighborhoods to oppress minorities. If the linguistic manipulations of this version of black liberation theology lend themselves so readily to this extremist nonsense, even by a supposedly sophisticated and well-educated church leader, doesn’t that suggest this approach is dangerously irresponsible?

Greg Sisk

March 24, 2008 in Sisk, Greg | Permalink | TrackBack (0)

"The Abstinence Teacher"

Although I haven't read Tom Perrotta's novels Little Children and The Election, both made for excellent films (Tracy Flick for vice president!).  So Perrotta's new book The Abstinence Teacher, whose plot-instigating device is a high-school sex-ed controversy, might well be worth a read.


March 24, 2008 in Berg, Thomas | Permalink | TrackBack (0)

"The Many Shapes of Personhood"

I rarely let myself click on YouTube videos, because the temptation to spend hours and hours on detours through that pit of inane, but utterly captivating, amusements is too great.  But here's one you should NOT miss.  I'm even presenting it in a format, though an article from Wired.com linked here, that doesn't directly expose you to all the browsing temptations of YouTube.

The article features Amanda Baggs, a young woman with autism.  Her video first shows a few minutes of her interactions with her environment, and then provides a "translation" of her interactions, though the aid of an augmentative communications devices that lets her type (which she does at 120 words a minute) and then speaks the typed words for her.  Her commentary on how "we" judge intelligence and personhood is haunting.  Her closing words are:  "Only when the many shapes of personhood are recognized will justice and human rights be possible."

March 24, 2008 in Schiltz, Elizabeth | Permalink | TrackBack (0)

Law and Religion ... Summer ... Tuscany

That's what the University of Siena's annual International Law and Religion Summer School offers.  I taught there two summers ago, enjoyed spending the week with faculty and students from throughout Europe, and highly recommend the program and the city (including the marvelous frescoes "The Allegories of Good and Bad Government" in the medieval city hall).  From this year's notice:

[T]he International Summer School in Law and Religion will take place in Siena, Italy, from June the 18th to June the 22nd 2008.  For full information (speakers, registration, fees, deadlines) please report to the official website of the School.  This year we will be concentrating on "Women in Law and Religion". Given the importance of the subject in our times and within the international context I hope you will be interested in the event, and inform anyone you deem could be interested.

Tom B.

March 24, 2008 in Berg, Thomas | Permalink | TrackBack (0)