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, July 20, 2010

The Scope of the Bishops' Teaching Authority

I noticed this article in NCR and had meant to post something on it.  I continue to think it odd that the Vatican would be upset that the sisters supported health care reform based on their own understanding of what the law would do vis-a-vis abortion rather than deferring to the USCCB's predictions about the likely impact of the legislation.  They did not, after all, question the Church's teaching on abortion.  They simply disagreed with the bishops over what this particular piece of legislation would mean.  And the competence required for interpreting a highly complex piece of legislation hardly seem to be the exclusive province of the bishops or their legal advisors.

Anyway, I wanted to post something about this, but never found the time.  Luckily, the editors at Commonweal beat me to the punch, writing a post that basically makes the same basic point I wanted to make, but more colorfully and in the context of their response to criticism by law prof Helen Alvare of an article in Commonweal by law prof Timothy Jost, the latter of which argued that the law would not provide federal funding of abortion. 

Alvaré thinks our disagreement with the bishops conference shows us to be ”both arrogant and naive,” but as Richard R. Gaillardetz has pointed out, neither the bishops nor their lay advisers have an exclusive claim to competence when it comes to the technical evaluation of public policy. Nor can the bishops conference, despite its consistent and often heroic efforts on behalf of the unborn, fairly claim ownership of prolife principles. Professor Jost does not have less credibility as a prolifer because he is not a Catholic, or because he sometimes disagrees with the bishops conference about other issues. It is unbecoming of Alvaré and the editors of Public Discourse, a nonsectarian outfit, to try to turn this dispute into an ecclesial turf war.  It is possible for Mennonites — or Mormons or Zoroastrians — to construe a piece of legislation correctly and for Catholic bishops to misconstrue it.

(Prof. Jost provides his own response to Alvare here.)  I would have thought this a relatively uncontroversial position among Catholic conservatives.  Indeed, it seems to me the same "prudential judgment" move that economically conservative Catholic commentators frequently make when explaining why they do not feel compelled to defer to the bishops' teachings on economic policy.  Here's Stephen Bainbridge, quoting Charles Rice, on why he was not obligated to support an increase in the minimum wage, even though the bishops supported it:

specific policy statements, such as those found in the Bishops' pastoral letter [Economic Justice for All], are properly viewed as prudential judgments about how Catholic social teaching applies to the question at hand. Faithful Catholics are free to question such judgments, because the "bishops, as bishops, have no greater insight into policy matters than anyone else."

Here's what the bishops say in Economic Justice for All:

As bishops, we do not claim to make these prudential judgments with the same kind of authority that marks our declarations of principle. But, we feel obliged to teach by example how Christians can undertake concrete analysis and make specific judgments on economic issues. The Church's teachings cannot be left at the level of appealing generalities.

My own thought is that the bishops are entitled to some deference on policy questions -- certainly not none, as Bainbridge (quoting Rice) suggested (wrongly in my view) in the context of economics, when he said that the bishops have no greater insight than anyone else on policy matters.  But I hardly think it is somehow inappropriate to carefully consider the alternative interpretations provided by legal experts like Jost and come to the conclusion that the bishops are ultimately mistaken.  Of course, there might be situations where the evidence is so clear that to take the contrary position is a sign of bad faith.  But that is hardly the case here.



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