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.

Friday, August 28, 2009

Interested in the debate about health care reform? [UPDATED]

Who among us isn't?!  Well, then, read this informative, interesting story about the bishops and the debate, which appears on the front page of this morning's New York Times, here.

And, you may be interested in the comments on the article, over at dotCommonweal, here.

August 28, 2009 | Permalink | TrackBack (0)

Is it possible to protect our kids and human dignity?

The story of Jaycee Dougard is heart-breaking and, especially for parents of young children, a source of intense anxiety.  It also will shape the debate over how we treat convicted sex offenders.  This morning I saw one law enforcement expert appear on television to demand a "one strike and you're out" policy, presumably meaning that one-time sex offenders should be locked up forever.  As a parent, I sympathize with the "lock 'em up forever" sentiment, and undoubtedly there is something troubling about a convicted kidnapper/rapist being freed to do his despicable acts again.  At the same time, I'm not sure how a commitment to human dignity comports with such a draconian measure.  And the increasingly popular chemical castration option may be even worse.  On that front, be sure to check out John Stinneford's excellent article.  There are many layers to this story, even beyond criminal law -- e.g., what does it say about our society that three girls could be raised in a back yard for many years without anyone noticing?

August 28, 2009 in Vischer, Rob | Permalink | TrackBack (0)

On not idolatrousizing the magisterium

The fundamental issue is not whether rejecting the teaching will lead to some un-weaving--even of magisterial authority--but whether the teaching is true or false.  In my judgment, the teaching is false.  Here's a citation I compiled several years ago (much has been written since):  Brian K. Blount, “Reading and Understanding the New Testament on Homosexuality,” in Choon-Leong Seow, ed., Homosexuality and Christian Community 28 (1996); Victor Paul Furnish, “The Bible and Homosexuality:  Reading the Texts in Context,” in Jeffrey S. Siker, ed., Homosexuality in the Church 18 (1994); Daniel A. Helminiak, “The Bible on Homosexuality:  Ethically Neutral,” in John Corvino, ed., Same Sex 81 (1999); Patricia Beattie Jung & Ralph S. Smith, The Bible and Heterosexism,” in Patricia Beattie Jung & Ralph S. Smith, Heterosexism:  An Ethical Challenge 61 (1993); Bruce J. Malina, “The New Testament and Homosexuality,” in Patricia Beattie Jung, with Joseph Andrew Coray, eds., Sexual Diversity and Catholicism:  Toward the Development of Moral Theology 150 (2001); Choon-Leong Seow, “A Heterosexual Perspective,” in Choon-Leong Seow, ed., Homosexuality and Christian Community 14 (1996); Jeffrey S. Siker, “Homosexual Christians, the Bible, and Gentile Inclusion:  Confessions of a Repenting Heterosexist,” in Jeffrey S. Siker, ed., Homosexuality in the Church 178 (1994).

August 28, 2009 | Permalink | TrackBack (0)

Thursday, August 27, 2009

Another Reader's Thoughts on Church Teaching, Christian Doctrine, and Sexual Morality

Another Mirror of Justice reader, active in Catholic Church work, responds on this thread and in particular response to my post, which I had concluded by asking:  "Might the surgery necessary to excise moral teaching on sexual relationships from the rest of the body of Christian tradition prove to be so radical that the patient cannot survive?"

Here are this reader's thoughts:

"I have been following the exchange on the Mirror of Justice blog on homosexuality and church teaching and I think your analogy to a patient is most apt.

The physician may view a patient as a sum of the individual's parts, but from a personalist perspective, the patient is a whole person.

Isn't the wholeness even more so with church teaching?  Isn't a fundamental principle of the Catholic faith that Revelation, including the moral teaching, is a whole?

The fact that we, with our less than perfect reason, categorize, divide, and specialize various teachings does not mean that they are, in truth, divisible.

We may not be able to empirically show that excising one teaching unravels the rest.  However, as Catholics, don't we start with the understanding that severing one teaching damages the whole?  

It seems, therefore, the Catholic social scientist should always work with the understanding that the teaching is not divisible and seek to discover how removing one teaching has consequences.  The fact that it is not discoverable by us at this time and place does not mean that consequences do not exist and does not give us liberty to disregard a part of the church's teaching."

August 27, 2009 in Sisk, Greg | Permalink | TrackBack (0)

Is religious liberty about inclusion by the state or competition with the state?

Toronto law profs Ayelet Shachar and Ran Hirschi have posted their paper, "The New Wall of Separation: Permitting Diversity, Restricting Competition."  From the abstract:

In recent years, the specter of litigants turning to religious or customary sources of law as authoritative guides to regulate their behavior, alongside or in lieu of secular norms, has risen to the forefront of politics in many countries worldwide. In this essay, we draw upon citizenship theory and comparative constitutional jurisprudence to identify two different categories of judicial response to religious-based claims for recognition, accommodation, and exemption: 1) 'diversity as inclusion;' and 2) 'non-state law as competition.'

As long as legal claims for accommodation are not seen by courts as challenging the lexical superiority of the constitutional religion itself ('diversity as inclusion'), they stand a fair chance of success. Contrast that with the unyielding reluctance of legislatures and judiciaries to accept as binding or even cognizable any potentially competing legal order that originates in sacred or customary sources of identity and authority. This pattern of clamping down and refusing to accept any alternative sources of regulation becomes particularly visible where the legal challenge at issue is interpreted as raising doubts regarding which set of norms and institutions, or what set of high priests, should have the final word in authoritatively resolving legal disputes within a given society ('non-state law as competition'). This is a challenge that no secular legal order, no matter how tolerant and otherwise open to providing exemptions and accommodations to religious believers, can accept with indifference. For what perceived to be at stake here is the very authority and source of legitimacy of the accepted civil religion.

Is this "wall of separation" one that Catholic legal theory would support?  I have not read the paper, so I'm not entirely clear when the secular legal order's recognition of the binding nature of other normative claims on particular segments of the citizenry constitutes  "inclusion" or represents "competition."  The Church would support foundational rule of law concepts, but obviously insists on space in which citizens can live out their allegiance to claims that do not emanate from the state.  So is this framework helpful for navigating any of the tensions in American law, or just in societies grappling with more explicit questions of political pluralism, such as Canada and South Africa, both of which are discussed in the paper?  (It must be helpful for something, since it received Solum's seal of approval.)

August 27, 2009 in Vischer, Rob | Permalink | TrackBack (0)

Wednesday, August 26, 2009

A Response to Susan’s Post



I take this occasion to respond to Susan’s post entitled “Another Response on Homosexuality and Church Teaching.” I appreciate her bringing to the attention of Mirror of Justice readers and contributors the thoughts of her close friend who is in a committed homosexual relationship and who is a former priest. My perspective on many of the points raised by the thoughts and position of her friend as she presented them disagrees with his. While Susan did not specify this in her post earlier today, I am assuming that her friend was formerly a priest in the Catholic Church. While it is implied that he was, no precise identification is made. He does speak of his Christian faith, but so could the Baptist preacher to whom he refers.

But, let me proceed to point out my disagreements with what was presented. I shall assume for the rest of this posting that Susan’s friend was a priest in the Catholic Church—a priest in communion with Rome and the Pope. I, too, am a Catholic priest, so my assumption that Susan’s friend was also a Catholic priest would mean that he and I have or had voluntarily committed ourselves to a vow or promise of chastity with anyone, with anything. The vow or promise does not discriminate and permit some sexual relations but not others. Susan’s friend has indirectly stated that he could not enjoy his sexual relationship and remain in good standing in the priesthood; therefore, he properly left the state of holy orders. I have exercised my free will to continue fidelity to my promises by observing the vows of poverty, chastity, and obedience. Furthermore, as a finally incorporated religious in the least Society of Jesus, I have vowed a further promise of special obedience to the sovereign pontiff in regard to the missions that accord with the apostolic letters and the Constitutions of the same Society. This last vow means obedience in everything which the sovereign pontiff commands and wheresoever he sends one. These are my vows to which I continue to pledge myself seeking God’s help to remain in them with fidelity.

The fact that the ground on which any of us stand may be shifting and roiling is not an excuse not to remain faithful to what one has pledged—the turbulence of our times, or any other time, is not a pretext for not “hanging tight.” Holding on is an option, and it is viable in spite of the challenges that have been presented in the past and continue to be present today and will likely continue in the future. Fidelity is an option for priests, for husbands and wives, and for vowed religious. The fact that challenges exist and are known by the person who remains faithful to what he or she has pledged does not imply that that person is an unthinking, unreflective individual. To the contrary, I believe with the utmost conviction that it takes authentic knowledge and it takes serious reflection to hold on to the belief in Christ and his Church and what she asks of all her members. For some, this is not possible; for others, it is not only possible, it is imperative in spite of the challenges, in spite of the roiling terrain, in spite of what the culture suggests or dictates or forces. To succumb to whatever temptations the present age may offer as a lure is not the option for some who are committed to their vows (as priests, as religious, as married husbands and wives), to their Church, to their faith, or to one another. It would be wrong to assume that only the present age has experienced “cultural transformation.” This transformation—this roiling—has been going on since the beginning of human history. For those who place stock in the doctrine of original sin as I do, cultural transformation has gone on since Eden and continues to the present age. But, cultural transformation is not an excuse, not a justification, not a permission to abandon what a person has vowed in faith, with knowledge, and with reflection. I think God has very much to do with the fidelity of which I speak and little to do with the cultural transformation of which Susan’s friend speaks.

I now come to the Church’s teaching on sexual morality that Susan’s friend also addresses. He asserts “truthfully” that he fails to see “any imperative between core Christian doctrine and its moral teaching.” I am not quite sure what Susan’s friend is getting at here. But I believe he is suggesting that there is no necessary connection between “core Christian doctrine” and the Church’s moral teachings. If this is not his point, I welcome correction so that I may properly address the contention he offers. But if this is his point, allow me to continue. I question the use of the phrase “core Christian doctrine.” Christian doctrine, that is, Christian teaching is Christian teaching that is the teachings of Christ and his Church. To suggest that some of his teachings and those of his Church are essential but others are not is problematic. Christ taught and Christ established his Church—that is what the Church teaches. To argue that some of this body is “core” but other elements of these teachings are not is untenable. It may be tenable for some Episcopalians, for some Anglicans, for some Lutherans, for some Baptists, for some... and this list goes on. But, it is not tenable for the members of the holy, Catholic, and apostolic Church that Christ established and to which he appointed Peter to lead.

Susan’s friend appears to challenge the teaching authority of Peter when he asserts the “compelling philosophical case” he could present against the Magisterium “to infallibly define any moral teaching...” Well, this is an offer for a recipe for chaos. But even more, it is a roadmap to substitute the proper authority of the Church with human caprice. Indeed, Susan’s friend states that individual persons are autonomous moral subjects. Sure, of course they are. But this does not make each person a competent moral authority who possesses solely the ability to determine what is always right and what is always wrong. This is an implementation of the knotty recipe of Casey that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” This is a formula not for morality and moral authority but for disorder and exaggerated autonomy. Making arguments from the moral authority of the Church holds much interest for me, even if it does not for Susan’s friend, because in her (the Church’s) moral teachings the Church shows us the way forward to promote the common good and to avoid the disasters to which Casey’s “heart of liberty” will lead.

I am saddened by Susan’s friend’s remarks about tradition. Indeed, there exist traditions that ought to change, e.g., hazing that goes on in schools. But, there are traditions that are the product of thought, of critical examination, of intense reflection, and of the test of time. If we move away from orthodoxy and tradition, what are the justifications for the move? Susan’s friend suggests that it would be some hope for what happened at Vatican II. Well, what happened at Vatican II is easily accessible by any of us. Many of us often hear about the “spirit of Vatican II.” The spirit of Vatican II is also accessible in what the Council gave us—its texts. While the texts may be reasonably interpreted, the texts remain and they cannot bear many of the interpretations that are offered in the “spirit of Vatican II.” These interpretations of the “spirit” are and will remain unintended and, therefore, unacceptable corruptions of the work of the Council. I periodically reread the main documents of the Council such as Lumen Gentium and Gaudium et Spes and Dignitatis Humane Personae to remind myself of what the Council actually did and say. May I recommend this procedure to others?

Finally, Susan’s friend returns to the issues of moral teaching on sexual issues and suggests that this is a flashpoint of “the profound cultural transformation in whose wake we live.” He and I have already talked about “cultural transformation.” But, when all is said, should sexual morality be determined by passionate appetite? Where is the intellect in this? Where is the reason? Where is the reflection? Where is the thinking? From what Susan’s friend states, these important attributes of the human person are unimportant or irrelevant or secondary since “it’s all about sex, after all.” Is it really? Is that the ultimate function, the final attribute, the quintessence of the human person? I thought it was about destiny with God, seeing Him one day.

Susan’s friend confesses his offense to the suggestion that anything dealing with his relationship with his partner or “even his delight in the male physique” is antithetical to his Christian faith. Well, he and I disagree on this. But, it is clear he and I also share a common ground. We are both sinners—for we are all sinners. Our faith informs us of this, our faith that he is willing to concede on some fronts but dismiss on others. But our faith in Christ, in God, in the Holy Spirit, in the Church also leads us to redemption. And so I end this posting today with the wisdom of Christ from the Gospel of Saint John. When Jesus met the woman who sinned and who was about to be stoned to death, Jesus intervened. Why? He intervened because he saw the opportunity for redemption of both the woman who had sinned and the crowd that was intent on stoning her to death. No one condemned her, and neither did Jesus—the one who could. But that is not the end of the lesson, for our Lord reminded the woman to go without condemnation but to go and sin no more.

So be it with her; so be it with us. May we ask our merciful God for openness to His guidance and the accompaniment of the Holy Spirit to labor, with His grace, to sin no more.


RJA sj

August 26, 2009 in Araujo, Robert | Permalink | TrackBack (0)

Vatican II—Type People (including politicians [including Presidents])


Like Rick, I am not sure what a Vatican II—type politician, including the President, is. I think the rich teachings of the Church give us ample material from which the correct portrait of the public official who follows right reason emerges. When it comes to some of the pressing issues of the day, this element of the Pastoral Constitution of the Church in the Modern World (N. 27) provides essential attributes:


Furthermore, whatever is opposed to life itself, such as any type of murder, genocide, abortion, euthanasia or wilful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are supreme dishonor to the Creator.


It would seem that this authoritative guidance of a Vatican II—type person applies to anyone, be one the holder of public office or the private citizen. It is hard to imagine how anyone who advocates abortion “rights” or “death-with-dignity” (i.e., euthanasia) could be considered a Vatican II—type politician.


RJA sj

August 26, 2009 in Araujo, Robert | Permalink | TrackBack (0)

A response to McBrien, and a question for Michael

In a recent op-ed (to which Michael P. linked recently), Fr. Richard McBrien suggests, Michael says, that President Obama is a "Vatican II President."  (Actually, McBrien quotes church historian John O'Malley, S.J., who used that phrase.)  I'm not sure what this characterization means, though, so it's hard for me to know whether it fits.  According to McBrien, it is primarily a matter of "style", the style that "Vatican II called for when it changed the way that the Catholic Church does business in its relationships with its own members, with other Christians, with other religions, and with the world community at large."  So, is the claim that President Obama deals with the Church and others in the way that, at Vatican II, the Church proposed to "do[] business"?  Maybe.  Some might wonder, though, whether this style is more accurately characterized as "Chicago-style" than "Vatican II-style".  We'll see.

McBrien also writes:

that the Pope's new encyclical shows that President Obama is in accord with most of Catholic social teaching.

Indeed, Barack Obama is more in accord with that teaching and with the substantial message of Caritas in Veritate than the many politically conservative Catholics who berated the University of Notre Dame and its president, Holy Cross Father John Jenkins, for inviting Obama to deliver this year's graduation address and receive an honorary degree.

It is obvious to me that "many politically conservative Catholics" hold views and support policies that do not cohere well with the heart and fullness of Catholic social teaching.  It is also obvious to me, though, that it is not a particularly useful way to decide whether or not a politicians is "in accord with . . . Catholic social teaching" merely to ask whether some, or many, of his or her policies match up with those that (in the view of the person speaking) seem to follow most naturally from that teaching.  Catholic social teaching is not a litany of policy proposals, or even an unconnected grab-bag of principles.  At the heart of Caritas (as I wrote in more detail here) is a vision of the human person, and the person's nature, destiny, and worth:

 The document is not about the recent American elections or the stimulus package.  It's about authentic, integral human development and flourishing and, therefore, it is a call to take seriously what the truth is -- there is a truth -- about the human person, namely, that he is made in the image of God and loved by Him.  It is certainly not a document with which someone who thinks such questions are "above [his] pay grade" (or, indeed, any of us, including me) should feel too comfortable.

Finally, I am not sure what Michael means by "evangelical" and "Vatican II" bloggers, but I'm all ears!

August 26, 2009 in Garnett, Rick | Permalink | TrackBack (0)

A Catholic position on health-care reform?

Re the editorial in the Aug. 15 issue of the [London] International Catholic Weekly, is there anyone out there who doesn't agree with this editorial? It seems abundantly clear to me that, regardless of one's position on other public issues, this is one issue on which all Catholics (indeed all Christians) should agree. Christ taught us to love others. That implies caring for others. Doesn't Christ want those of us with greater means to provide opportunities for access to basic health-care services for those with less means? We can reasonably debate the particulars of how best to implement this Christian duty, but how can we possibly deny that the extant system does not do so and that major reform is necessary. I'm genuinely curious to hear if others think I'm missing something.

August 26, 2009 | Permalink | TrackBack (0)

Another Response on Homosexuality and Church Teaching

I asked a close friend of mine who is in a committed homosexual relationship and who is a former priest what he thought of the exchanges between Greg and me on the issue of homosexuality and Christian teaching (here, here, here, here and here). After reading the various posts, here is what he wrote to me:

“Greg asks whether ‘a departure from traditional Christian teaching on sexual morality [might] set the stage for a broader disintegration, not only of church structure and world-wide communion, but of basic Christian doctrine?’ Like it or not, the ground on which we stand is shifting, roiling. Hanging tight isn’t a viable option. Perhaps it shouldn’t even be an option – at least among reflective, thinking individuals. We are in the midst of a profound and thorough cultural transformation. Do you think God might even have something to do with it? It took the Magisterium a couple of centuries to adjust to Newtonian physics. We haven’t seen anything yet! I don’t even know the quarks and scientific constructs (e.g., astronomy) and the new synthesis the Church’s tradition needs to incorporate.

“Greg also asks ‘what Christian group of any significance size and venerability has accepted a revision of traditional church teaching on sexual morality, thereby setting aside the complementarity of male and female as a guiding principle for sexual relationships, while still maintaining orthodox beliefs on the incarnation, death, and resurrection of Christ, on His Church, and on the Scriptures?’ Truthfully, I fail to see any imperative between core Christian doctrine and its moral teaching. Twenty years ago I could have made a pretty compelling philosophical case that it would be virtually impossible for the Magisterium (which I take to include a robust appreciation for the sensus fidelium) to infallibly define any moral teaching because morality by definition includes human behavior by autonomous moral subjects. Today, making such an argument simply holds little interest for me. As an old Baptist preacher was heard to say: ‘Sometimes your religion can be so heavenly minded it’s no earthly good.’

“Greg also asks whether it might ‘be that an assault on that dimension of the magisterial authority addressing sexual relationships is so revolutionary as to place the magisterial authority itself and generally at risk, so as to lead to an inevitable post-modern retreat from tradition…’, observing that ‘some on and off this list might welcome such a diminution of magisterial authority and a movement away from orthodoxy and tradition.’ I admit it. I’m one of them and thought it would happen with Vatican II. It seems from what we are seeing now that the principle historians describe about social revolution is true – there will be a last, gasping Conservative resurgence before it all breaks open. It’s been 500 years since the Reformation. My sense is that the current resurgence of rigidity and “restoration” in the Roman Catholic Church is simply building up pressure for the next Reformation – and this will be the work of the Spirit of God.

“Greg lastly suggests, ‘In sum, might the surgery necessary to excise moral teaching on sexual relationships from the rest of the body of Christian tradition prove to be so radical that the patient cannot survive?’ Moral teaching on sexual matters is simply one of the most neuralgic (it’s about sex, after all) flash points of the profound cultural transformation in whose wake we live. That is exciting and it not something I fear. Greg needs to be careful not to confuse or conflate “the Church” with “the body of Christian tradition”, or at least those threads of the tradition Greg deems to include or defend.

“Finally, about your post from one of your readers: I am not surprised by the survey results about the level of religious activity of homosexuals. I believe religious practice is quite high among gays and lesbians. Sadly, I suspect some of it might be based on fear or guilt (best little boy in the world syndrome). On a personal level, I guess I take offense at the implication that anything about my relationship with my partner or even my delight in the male physique is antithetical to my Christian faith, inconsistent with my religious practice or “displeases” God. I know I was a better priest and pastor precisely because I am gay. Others, in numerous ministerial contexts have affirmed this – mostly coming from women or anyone else on the margins of society or who knows life on the underside/outside of power structures. I will conclude with one of my favorite quotes from Flannery O’Connor: ‘You know, most of us come to the Church by means the Church wouldn’t allow.’”

August 26, 2009 in Stabile, Susan | Permalink | TrackBack (0)