f/k/a archives . . . real opinions & real haiku

The Vatican made it official in an Instruction issued this week that its ban on new

gay priests would go beyond those who do not remain celibate, but would reach

men who “present deep-seated homosexual tendencies” or support the “gay culture.”  

[PBS News Hour, “Catholic Church Restricts Gays from Priesthood,” Nov. 29, 2005]

As I have said previously, this message seems to me to be hateful and not the least

bit ‘Christlike’.” (see Beliefnet, “A Source of Scandal,”  by “Fr. Gerard Thomas”)

 

Although I’m neither gay nor (for the past several decades) Catholic, I believe 

the Church’s position on gay priests is quite important: it illustrates some of the 

reasons why I am skeptical of the appropriateness of “faith-based” law schools

and of the usefulness of so-called Catholic Legal Theory (CLT). 

 

Just over a year ago, in a lengthy post called “religious law schools offer no salvation“,

I noted:

Steve Bainbridge asserts that there is “something distinctive and useful

about a faith-based legal education,” and he trumpets a “revivial of serious

Catholic legal education,” that is (quoting Villanova’s law dean, Mark Sargent) 

“unapologetically and actively committed to discerning and expressing

distinctively Catholic approaches to law and lawyering.”  

And, I opined:

If one law school thinks judges must apply the truths its believers find in

the Bible, and another thinks that an infallible Pope can interpret truth in

all matters of Faith, we are no longer talking about a Nation of Laws or a

legal system that is accountable to the Constitution or the People. That

should worry lawyers and all American citizens.

As to “distinctively Catholic” law schools in particular, I wondered what the Church

could teach American lawyers, when — due to its reading of Truth and morality — it

has structured its own government as an absolute monarchy, with no right to free

expression, no admission of women to its leadership positions, and (as with priest

pedophilia) the use of coverups to preserve its image and authority, rather than trans-

parency.  We now can add to that list the creation of an underclass of Church members,

prevented from serving as ministers (and therefore as leaders) due to their God-given

“tendencies,” rather than their actions .   [In addition, far from having inalienable rights,

members (and all humans), are considered by this Church to be born in a state of

original sin.]

Also, although Dean Mengler of St. Thomas Law School has tried to

reassure critics of his school’s “dedication to academic freedom,” saying

 “‘[I]t is the honor and responsibility of a Catholic university to consecrate

itself without reserve to the cause of truth’,” our post asks what the search

for “truth” can mean to members of a Church that insists it has been given

all the Truth, and who therefore cannot accept contradictions that come from

other Christian faiths.

In response to the Instruction on gay priests, there has been a very interesting debate/

discussion this week at Mirror of Justice — with contributions by Steve Shiffrin, Susan Stabile,

Eduardo Penalver, Michael Scaperlanda, Patrick Brennan, Rob Vischer, and more.  In

addition, Prof. Bainbridge posted at his own site and MOJ a piece asking “To what extent is

it proper for a Catholic to dissent from non-infallible but presumably magisterial teaching?” 

 

I’ve been trying to figure out, however, how the Instruction, and the professors’ commentary

about it, might fit into the role of a Catholic law school, into a law school class — other than

canon law, or into an attempt to influence the American legal system through Catholic Legal

Theory.  For example, I’ve been considering the thoughts of Fr. Joseph Fessio, Provost of Ave

Maria University and Professor of Theology there.  Fr. Fessio believes that Catholic educational

institutions should be “places where the fullness of Catholic truth is joyfully and vigorously taught,

defended, and proclaimed.” (emphasis added)  Is the role of a Catholic law school, then, to defend

and proclaim the reasoning and conclusions of this Instruction?   Does the Instruction help inform

Catholic Legal Theory as it attempts to shape our legal system?

 

 

Fr. Fessio appeared on the PBS News Hour on November, 29, 2005, to explain and defend the

Instruction on gay priests.  Asked why the Church should care whether a celibate priest was

heterosexual or homosexual, Fr. Fessio first pointed out that homosexuality is a psychological

disorder, and then explained:

“[T]he document at the very beginning says that when a man is ordained, he

doesn’t just perform the functions of a priest. He actually becomes united with

Christ, the bridegroom of the Church, and, therefore, to have a relationship to the

Church’s bride, which is an ordered relationship, you have to have someone who

has got that kind of affective maturity who also has an ordered relationship as a

man to the bride which is his Church. So those are the fundamental reasons for it.”

With all due respect, I do not believe that this mixture of metaphor, mysticism and mystery can

in any way help create better lawyers, or has anything to offer legal thinkers — except, perhaps

as the sort of extra-legal personal beliefs that ought not to be brought into either legislation or

adjudication. In response, Patrick Brennan would surely point out to me — as he said at MOJ —  

that the question of who can become a priest is not a matter of law or legal theory, but is a

matter of “theology,” and “sources of officia and munera.”   That simply doesn’t wash.  The

Church surely has much to “teach” the American legal system and its lawyers by example,

when it is deciding on the rights of its members, the selection of leaders, or the due process

to be afforded in deciding the status of individuals.  These subjects are surely “distinctively

Catholic” applications of Truth and morality. 

 

                                                                                                                            

 

Are they irrelevant to law school curricula and legal theory in America, because they are so out

of sync with American values and rights?  If so, the very folk who rail against Cafeteria Catholics

would seem to be making their own highly selective choices of what to ignore and what to em-

phasize in their Faith.  Mike Scaperlanda stated this week at MOJ that 

“In developing Catholic Legal Theory, a Catholic worldview (including its theology

and philosophy) are brought to interact with the law and legal institutions.”  

Explaining the concept of Catholic Legal Theory earlier this year, Scaperlanda said: 

“[CLT] is an ongoing project of Catholic law professors, legal philosophers and

others to participate in drawing on the Catholic intellectual tradition to build a

culture that values the dignity of the human person, sees the community as

indispensable for human flourishing, and seeks authentic freedom for the person

within the community.”

Similarly, Rick Garnett has stated that Catholic Social Thought provides “a set of prin-

ciples that, if implemented, should create a context within which human flourishing can and does

take place.”   He stressed that Catholic Legal Theory goes even further than merely “applying

CST to policy questions or legal enactments,” but also includes other “Catholic resources,”

including the “possibility of actual knowledge about reality, the nature of the human person, etc.”   

 

I submit that the Vatican’s Instruction on gay priests tells us a lot about how the Church

views “human flourishing,” “authentic freedom,” and “the nature of the human person.”  And,

no matter how it is viewed within the Church’s hierarchy and  membership, what it says should

be ignored by American law schools, its legal scholars and broader legal community.

 

Last February, the value of Catholic Legal Thought was debated a bit at MOJ.  As Rob Vischer

summarized: 

“Steve [Bainbridge] asks whether we gain anything by viewing legal questions

through the lens of Catholic social thought given that the range of resulting perspec-

tives often seems to mirror the views held by those who do not bother with the CST

lens in the first place. In other words, does the “Catholic legal theory” label simply

provide a noble cover slogan for debates that, at their essence, can be found through-

out the surrounding legal culture?”

My reaction to CLT so far is that it has little to offer that is distinctive from other existing 

value systems and legal philosophies — not even the current focus on a “culture of life” is

unique to Catholicism (and the desire to affect legislation and constitutional analysis on

the topic is really more an issue of social policy and values than of legal theory).    Unless

those in the CLT movement can somehow make Americans believe that the Church’s views

on gay priests, and many other issues, are consistent with basic American values and rights,

flying the banner of “Catholic Legal Theory” doesn’t seem to help their cause.  Unless they

can convince other legal thinkers that the Church’s positions on topics such as gay priests

do not taint whatever guidance it can give on other topics, CLT advocates are going to have

a hard time being taken seriously for having a unique, coherent and useful legal philosophy.  

 

If CLT ends up being (or being seen) as a group of legal professionals espousing nice social

theories about how to help the poor and help individuals flourish, it would almost surely be more

effective dropping the “Catholic” and working within broader social and academic groups with

similar interests — infiltrating, cooperating, rather than preaching. It is a conceit to believe that

others do not have an equal commitment to those causes. 

 

 

Similarly, “Catholic” law schools are kidding themselves if they believe they have some kind

of special monopoly of values and morals.  If they follow Fr. Fessio’s plan and see their role

as defending and proclaiming Catholic “truth” within the classroom, they will be doing a dis-

service to their students and society.   Using a “distinctively Catholic” atmosphere as a

branding tool for attracting students might be successful; but using it as a tool for “improving”

society seems to be a quixotic goal, at best.    As I said last year: 

I have a lot of respect for the values of the Judeo-Christian tradition (and of other religions

of the world), and try to adhere to them, but I do not believe that we need law schools

that emphasize the dogma or “truth” of any particular religious sect in order to create

a better profession or society. 

CLT and Catholic law schools might be great vehicles for creating relationships and fraternity in

the law.  But endowing either movement with a sense of moral superiority and uniqueness

— or being identified with the Church’s stance on gay priests — seems a sure way to fragment

rather than augment the work of people of good will and sound values in our society.   

 

 

 

 

today even the pigeon
says a prayer…
first winter rain

 

a hot bath
a prayer
then cherry blossoms!

Kobayashi Issa,

translated by David G. Lanoue