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.

Wednesday, July 21, 2010

Alvare and Commonweal

Robby is right that I did not intend to weigh in on the Alvare, Commonweal debate.  I was primarily interested in the question raised in the editors' post and was relying on their characterization of Alvare's argument (which I have not yet read).  I do think, though, that the position (which I'm glad to see Robby agrees with) that the bishops' legal interpretations or empirical policy predictions are not entitled to uncritical deference is not wholly uncontroversial.  In a different NCR article, John Allen reported on the "gap" that has emerged between the USCCB and the Catholic Health Association over health care reform.  The article included this back and forth between Cardinal George and the CHA:

CHA officials also insist that their rift with the bishops was narrow.

"We did not differ on the moral question, or the teaching authority of the bishops," Keehan said.

George, however, isn't so sure.

"This may be a narrow disagreement, but it has exposed a very large principle," he said.

The principle is ecclesiological: Who speaks for the church on matters of faith and morals, including how morality is translated into law?

"If the bishops have a right and a duty to teach that killing the unborn is immoral, they also have to teach that laws which permit and fund abortion are immoral," George said. "It seems that what some people are saying is that the bishops can't, or shouldn't, speak to the moral content of the law, that we should remain on the level of abstract principles."

That's a point, George argued, with implications across the board.

"For example, it affects our discussion of immigration," he said. "Are we supposed to just say that the present situation is morally unjustified, or do we have the right and the duty to make moral judgments about whatever legislation comes down the line?"

The challenge of navigating those two outlooks has already complicated one effort at reconciliation.

George (the Cardinal, not Robby) seems to be suggesting -- though he's far from clear on this point -- that the bishops' authority to teach about faith and morals, if it's to be effective, must also include authority to determine the moral valence of a particular piece of legislation.  Now, his words might be simply mean that the bishops are entitled to weigh in on the question.  If so, they would be consistent with the point of my original post.  But that is not at least how Allen seems to have interpreted Cardinal George's comments, because otherwise the back-and-forth he sets up between CHA and the bishops (indeed, the entire "gap" referenced in the article) collapses.  No one, as far as I know, is saying that the bishops are not entitled to take a position on the consequences of legislation.  CHA (and the sisters) are just saying its ok for Catholics to disagree with the bishops' prediction of those consequences, as long as they don't simultaneously reject the Church's position on the underlying moral principles.  

In the same article, Allen also reports this statement by Bishop Lynch, of St. Petersburg:

"I've been associated in one way or another with the episcopal conference of the United States since 1972," said Bishop Robert Lynch of St. Petersburg, Fla. "I have never before this year heard the theory that we enjoy the same primacy of respect for legislative interpretation as we do for interpretation of the moral law."  Lynch, who sits on the CHA Board of Trustees, spoke in a June 13 interview with NCR on the margins of the Denver conference.

Again, this comment, though a bit opaque, suggests that Bishop Lynch has, for the first time this year, heard people (bishops? someone else?) argue that bishops enjoy some sort of "primacy" with respect to "legislative interpretation."  This is consistent with the more expansive reading of Cardinal George's comments, and inconsistent with the notion that the position I am arguing for remains uncontroversial, at least in some circles.


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I agree that Catholics can make a general distinction between "policy" and "principle" and by affirming the idea that "neither the bishops nor their lay advisers have an exclusive claim to competence when it comes to the technical evaluation of public policy." At the same time, principles in moral theology have inherent practical applications. Catholics can and should, consistently, hold that some policy decisions are so inherently related to an underlying intrinsic principle that exposition on the principle not only includes authority to teach on a particular policy application, but is inherently included in that authority. Consider that in Evangelium Vitae (and in the universal teaching of the Bishops in agreement with EV), the Church teaches not only that abortion is intrinsically evil, but that abortion must be illegal, as Aquinas said some evils can never be legal including murder. There are any number of policies that if they were offered in various circumstances would plainly violate the principle of abortion being evil and of not being allowed to be made legal. Kenya comes to mind at the moment. If the principle-policy distinction is drawn so broadly so as to deny episcopal authority to pronounce on any actual law, it would negate the authority to teach on moral principle itself. It would also fail to recognize that any policy can be described in a propagandistic manner as being unclear, confusing, or actually consistent with a directly contrary Catholic principle. The fact that abortion itself must be illegal under Catholic teaching indicates that it is even worse, and even more clearly a violation of principle, to advance government payment for it, or or its coverage availability, or facilitation of it within the practice of medicine and insurance, or violation of conscience related to it.

Posted by: Matt Bowman | Jul 21, 2010 3:53:16 PM

I agree that CHA is entitled to its own legal interpretation of the legislation. The question in this context is whether it is more important for CHA to (i) be right on a disputed question of legal interpretation and cause division in the Church, or (ii) be wrong on a disputed question of legal interpretation but maintain unity in the Church. CHA obviously made its choice and the result is that we got public division in the Church.

What is most troubling to me is that Sr. Keehan did not show (by her actions) any remorse about the public division she and her CHA colleagues caused by disagreeing with the Bishops. At the very least, she should have had enough awareness of the hurt she caused within the Church not to go to the signing ceremony and accept one of the pens from Obama.

Posted by: BMW | Jul 21, 2010 4:04:46 PM

I think this comment simply expands the scope of the principle in question to include some legal facts within its auspices. But I'm not sure that, even accepting this expansion (which I agree is supported by EV), the comment justifies special deference to the bishops in this area with respect to the question what a particular piece of legislation means vis-a-vis that principle. I.e., does the law in fact do this thing that the bishops say it does (in this case "advance government payment for [abortion]," etc.)?

Posted by: Eduardo Penalver | Jul 21, 2010 4:10:35 PM

In my view there needs to be at least a "reasonableness" level of deference owed to the Bishops on the question of "what does this law practically do?" Otherwise, people who might have malicious motives could trump every episcopal exposition of principle by simply denying that the actual law in question does what it does, no matter how implausible their denial is.

Posted by: Matt Bowman | Jul 21, 2010 4:16:02 PM

Good discussion. Matt, I don't think that Eduardo would deny, based upon what he has thus far written, that the bishops *are* owed "at least a 'reasonableness' level of deference"; but as soon as you limit deference to a criteria of "reasonableness," it seems to me you are opening the door for reasonable disagreement, which is precisely what CHA and Commonweal are claiming in their dissent from the USCCB. The "special deference" referred to by Eduardo and gestured toward by (Cardinal) George seems to be a deference pertaining to the charism proper to the episcopacy itself, and thus to be somewhat stronger than the standard of "reasonableness." Of course, even granting bishops deference on the weaker, "reasonableness," standard must assume that all parties are operating in good faith, otherwise the scenario you sketch in your last comment could arise there as well.

Posted by: WJ | Jul 21, 2010 4:39:30 PM

This comment is not relevant to the topic at hand, so I am going to delete it.

Posted by: Eduardo Penalver | Jul 21, 2010 6:44:25 PM

I think one has to distinguish between individuals disagreeing with the bishops and organizations run by the Church (and thus under the supervision of the bishops) disagreeing with the bishops. As Cardinal George pointed out, when the CHA opposed the bishops assessment of the situation, it allowed Pelosi and others (at least one NY Times columnist) to insinuate that the "real" Catholic Church supported the bill, creating a "parallel magisterium" that confused and misled the public and the faithful from the truth, that the Catholic Church officially opposed the bill. That was a decision only the Bishops Conference was qualified to make.

Posted by: Mike Redinger | Jul 21, 2010 7:16:22 PM

WJ, I think people do say they can reasonably disagree on PPACA. But I am not sure if the liberal Catholics would concede that Bishops get to define what crosses the line as being a reasonable disagreement and what is instead an unreasonable interpretation of morally tinged policy. Interestingly, many of the Bishops statements saying their teaching isn't binding because it's policy-related were statements in the context of issues involving non-intrinsic evil that were not striking at the heart of a moral principle. They don't say that stuff on core abortion issues, because they are core and they involve clear Church teaching against the legality of abortion (so even more do they condemn government advancement of abortion). And interestingly you don't see Commonweal criticizing things like Cardinal Mahoney's comments on the Arizona immigration law as exceeding his competence.

In this health insurance debate, it can be easy to look at the massive bill and say it's all so complicated there must be room for reasonable disagreement. But the Bishops were saying that when you take one issue at a time, the pro-PPACA positions were not reasonably consistent with Church teaching, and adding all those up produced a bill that presented a compounded problem.

My guess, though Prof. Penalver can offer his own opinion, is that the liberal Catholic position being proposed by Commonweal would not be willing to concede anything (on abortion) but episcopal authority to teach moral principle defined very narrowly and on only a purely theoretical level (which is rather an oxymoron, purely theoretical moral principle). Otherwise the scorecard of this administration that they support becomes very bad, very fast, very authoritatively.

Posted by: Matt Bowman | Jul 22, 2010 2:15:49 PM

2 thoughts to Matt: (1) I think you are confusing the intrinsic nature of evil with its gravity or "core" quality, a pet peeve of mine. Something can be intrinsically evil and not extremely grave (e.g., a minor lie) or contingently evil but very serious (e.g., killing in an unjust war). So I don't think the special context of abortion justifies a broader penumbra for the bishops' competence. That said, (2), I don't agree that Commonweal is criticizing the bishops for taking a position on health care reform; I understand their objection to be aimed solely at creating space where Catholics can disagree with the bishops on the grounds of the bishops' legal interpretations/predictions without having their faithfulness called into question. That latter desire is consistent with giving some deference to the bishops' legal interpretation (whether it be reasonableness or whatever you want to call it).

Posted by: Eduardo Penalver | Jul 22, 2010 2:29:12 PM

Thanks Prof. Penalver. I recognize the distinction between intrinsic and grave evils but like the US Bishops in their recent voting guide, I don't think the two categorizations are wholly independent in practice. All the issues that have caused liberal objections to the authoritative claims of the Bishops have been both intrisically and gravely evil. In part because of the intrinsic and grave nature of those evils, he Bishops' teachings on such principles are more likely to have broader mandatory policy-related requirements as a matter of Catholic teaching. When the stakes are higher, a higher percentage of the possible policies that could be proposed will promote evil in an unacceptable and more intense way. Whether and how much space exists for disagreement will ultimately depend on the issue at hand. I agree that the folks at Commonweal are willing to give some degree of deference to the Bishops, but I think they are proposing that they ultimately get to decide what degree of deference is owed and whether they have given that degree in a particular instance. I think that if the Bishops don't have the authority to ultimately say whether the disagreeing person is being reasonable and indeed faithful to the principle and its important applications, then the Bishops don't really have authority to expound a moral principle at all. Such Bishops wouldn't even have the authority to call propagandists like "Catholics for Free Choice" unfaithful, because the disagreeing people themselves would have ultimate say over whether they are CFFC Catholics or Commonweal Catholics and where the line exists exactly on a particular issue.

Posted by: Matt Bowman | Jul 22, 2010 3:22:00 PM

I am unaware of any moral arguments the Bishops were making. It seems to me the fundamental principle upon which all their arguments were based was that everything to do with health care reform must be consistent with the Hyde Amendment. That is not a moral argument. And in any case, no Catholic "dissenters" disagreed with that. The argument was over whether PPACA was or was not consistent with the Hyde Amendment. The USCCB believed it was not, and CHA (and Commonweal) believed it was.

Posted by: David Nickol | Jul 22, 2010 5:32:56 PM