Many people who venerate the name of Thomas Becket (and/or love the movie with Richard Burton and Peter O’Toole that carries his name) likely do not understand the cause for which he was martyred, and if they did learn it, would likely be scandalized given our current presuppositions concerning the prerogatives of the omnipotent State as opposed to those of the relatively impotent Church.
For you see, one of the major points-of-contention between King Henry II and Archbishop Becket was the attempt by the king to bring “criminous clerics” under the immediate jurisdiction of the royal courts rather than the ecclesiastical courts. Becket himself had no desire to be lenient with these priests—quite the contrary—but he suspected (rightly, as it turns out) that the king would use the coercive power of the royal courts to threaten church officials with punishment in order to bring them more and more under his control.
“St. Thomas seems all along to have suspected Henry of a design to strike at the independence of what the king regarded as a too powerful Church,” the Catholic Encyclopedia tells us.
With this in view, Henry summoned the bishops at Westminster (1 October, 1163) to sanction certain as yet unspecified articles which he called his grandfather’s customs (avitæ consuetudines), one of the known objects of which was to bring clerics guilty of crimes under the jurisdiction of the secular courts. The other bishops, as the demand was still vague, showed a willingness to submit.
It may be that the king was honestly intent on a scheme of judicial reform, and that he found that the growing jurisdiction of the ecclesiastical courts (the publication of the “Decretum Gratiani” and the increased study of the canon law had made them very popular) was an obstacle in his way. But Becket, who knew him well, suspected that Henry was deliberately striking at the privileges of the Church….
Becket was right to be suspicious, as it turns out, for in fact, when the substance of these vague “customs” was at last revealed, it turned out that Henry had crafted them to transfer all sorts of causes—many regarding Church property rights, for example—from the jurisdiction of the ecclesiastical courts to that of the King’s Courts. So too, appeals to Rome were limited, excommunication of the king’s officers and great vassals largely prohibited, and appropriation by the king of the revenues of bishoprics and abbeys sanctioned.
Does this start to ring a bell? The secular powers of the state begin a juridical process saying they merely want to punish “criminous clerics”—and of course, who could be opposed in principle to that? But as events unfold, the same laws are eventually used to dispossess the Church of its money, property, and traditional rights and privileges.
Do people now begin to understand why the New York Times and the Boston Globe (both owned by the same huge media corporation) trumpeted the pedophile scandal with stories daily. Have they followed up with an equal number of stories about the problems of pedophilia in public schools and in the general population? Not even close. Why do you suppose that is? Might it be because certain institutional powers have an interest in diminishing the authority of the Catholic Church, especially when it comes to issues such as abortion, euthanasia, and gay marriage?
Interesting, is it not, that several years hence, the only group in America that actually seems to still oppose sexual relations between adults and emerging adult teens is the Catholic Church. If both parties consent, it is increasingly argued, what’s the big deal?
I have no desire whatsoever to defend the clerics guilty of violating their sacred vows before God let alone the laws of the land. They have a serious Judge to face—one who insisted that “whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened around his neck and to be drowned in the depth of the sea” (Mt 18:6). And yet, by the same token, these men, as all human persons, deserve due process of law. So it is that one must distinguish clearly between efforts designed to bring real justice in accord with the truth, and those which are mere pretenses designed primarily to weaken the Church, the institution most likely to oppose the omnipotent claims to power of the State apparatus.
Most of us in the modern world can’t even imagine a legal system not under the complete control of the state—indeed, increasingly, under the jurisdiction of the federal government and especially federal judges. Law, Americans increasingly assume, following the guidance of the so-called “legal realists” who dominate the law schools, is simply what judges do. Maybe we need a broader perspective—not only that of the founders (for whom federal power was always meant to be balanced by that of state and local jurisdictions), but also that of Becket, for whom “lawfulness” wasn’t merely a function of the commands of the state.
Canon Law and Due Process
In an earlier article in Crisis, in which I argued that we needed more well-trained canon lawyers and staff to work on diocesan tribunals, I made the following comment:
It is not sufficiently appreciated, for example, that the scandal of pedophile priests was in many ways a failure of bishops to use their tribunals properly. There were canonically prescribed processes in place to have each of those cases adjudicated before a tribunal. But many bishops chose instead to replace centuries of pastoral wisdom and canon law with the latest fads coming out of the psychological schools. Talk about selling one’s birthright for a mess of pottage. If each of those accusations of priestly misconduct had been properly adjudicated before a tribunal, as they were supposed to have been, rather than bypassing the process so that the bishop could handle things “quietly,” “on the down-low,” “unofficially,” we may have seen a very different outcome.
Many of us have probably had experience with this problem in other professional settings. An institution with a perfectly reasonable process for dealing with conflicts or accusations of harassment gains an administrator who anoints him- or herself as wiser and more sensitive than the rest and thus better able to “handle the problem” than those duly appointed to the task. The sad results usually reveal once again the wisdom of the common law tradition that demands twelve persons on a jury rather than one, just as it reveals the reasons why we put more trust in the due process of law rather than simply taking our conflicts for summary judgment before the throne of a king: the passions and prejudices of an individual need be checked and balanced by the judgments of others.
For the record, there are canonical regulations governing accusations against priests, and they are not at all unclear or obscured by legal jargon. Furthermore, provisions of Canon 1620 A stipulate that a sentence suffers from a “defect of irremediable nullity” (that is to say, it should be judged null and void) if “it was rendered by an absolutely incompetent judge” (thus the need, as I have argued, for capable, well-trained canon lawyers, who have experience judging difficult cases such as these) or “the right of defense was denied to one or the other party.” How many accused priests are currently being provided adequate representation and defense? How many are being afforded the due process set down by canonical law?
It will not do to complain, as I suspect someone will, by asking: “What about the rights of the victim?” Clearly guilty priests should be punished; there is no question about that, just as guilty rapists should be punished. The question we are asking now is whether the person accused is in fact guilty, and what is the best way to determine this fact? I am going to suggest below that bishops should not simply “wash their hands of the problem” in either of two ways: by passing the judgment off to a psychological therapist (as was done before) or by passing the judgment off to a secular tribunal (as is being done now).
But before we concern ourselves with the accused-who-are-not-yet-proven-guilty, there is something else that needs to be said—as unpopular as this will be—even with regard to those found guilty of some fault. According to Canon 1350, a priest still has a right to those things which are necessary for a decent living. Ecclesiastical authorities cannot simply cast a priest aside, abandoning him to his own devices for fear of appearing to keep company with those now deemed to be like the proverbial “tax collectors and sinners.”
Due Process, Justice, and Truth
Make no mistake: sin is sin, and should be judged rightly; indeed few institutions have been more unstinting in insisting on the guilt of sin, mostly against enormous opposition from a society steeped in emotivism and relativism, than the Catholic Church. But observing the rules of due process is not “legalistic”; it is essential both for discovering the truth of what actually happened and for determining guilt. Casting aside these proven principles of right order, crafted to bring the passions of the mob as well as the coercive powers of the state into a calm obedience to the truth, is to take as one’s model not someone like Becket, but rather that charlatan judge Pontius Pilate, whose cynicism was so great that it led him to throw up his hands in disdain at the crucial moment and ask: “Truth? What is that?” Justice is rarely achieved by turning accused men over to the soldiers and to the mob with the resigned cry of “Okay, you decide!”
Showing publically that one respects the rule of law—that as John Adams once put it, we have “a government of laws, not of men”; that is, that we are subject to an ordered and predictable rule of law rather than merely the whims of powerful men—is crucially important for restoring the credibility that has been squandered. Consider Bishop Thomas Paprocki of Springfield, Illinois, who in a statement supporting the denial of communion to stanchly pro-abortion Senator Dick Durban of Illinois stated: “Senator Durbin was informed several years ago that he was not permitted to receive Holy Communion per canon 915 of the Code of Canon Law.” Adding this last little bit shows that this isn’t personal. This isn’t just one bishop’s “little snit” with an individual member of his diocese. This is a legal sanction in accord with the canons of the Church. Bishop Paprocki has a duty to perform, and he did it.
And yet, to take the reverse case, when the former Archbishop of Los Angeles Roger Mahoney claims as he did in an open letter, that: “Nothing in my own background or education equipped me to deal with this grave problem,” he is making a comment that is both disingenuous (step 1 in dealing with sin: you stop it) and revealing. Every bishop has on his shelf a copy of the Code of Canon Law. In it, he would have found everything he needed procedurally to deal with each case. It was his choice to ignore those canonical statutes in favor of just winging it.
But what if the bishop didn’t trust his tribunal to make such a judgment? Well, if a bishop can’t trust his tribunal to make a serious judgment of this sort, then how dare he force couples seeking judgments of nullity to take their cases before the same tribunal in which he himself puts no trust? If a bishop had reason to be unsure of his own tribunal, he should have fixed it. He should have gotten together the best canon lawyers and pastors in the country to engage in the kind of serious deliberations the severity of the situation warranted. And he should have invited them to meet each and every year thereafter to exchange ideas and discuss their approach to the resolution of cases.
Instead the problem was often dumped on the desk of some lower-level bureaucrat without the necessary authority to discipline the priests involved (let alone the authority to remove his faculties), or the bishop himself would just try to muddle-through guided only by his sense of his own spiritual sensitivity and the advice of one or two local psychologists peddling the latest psychological snake-oil therapies out of the universities.
Learning Not to Repeat Past Mistakes
Please understand, the current generation of bishops is not at fault for what happened in the 1960s and 1970s. Indeed, the current appeal to secular authorities arose precisely because certain bishops in the past acted not only irresponsibly, but also contrary to canon law. The result was that a later generation of bishops has been left scrambling trying to restore their credibility even though most of them did not cause the problem. And yet doubts remain that current bishops can be trusted either. This is unfortunate, but understandable. Actions speak louder than words.
The right approach now should be: “Let’s learn from the mistakes of the past and get back on the right track by establishing an ecclesiastical court system that can be trusted.” Restoring the proper role of the tribunals would clearly and publically separate these judgments from any personal animus or bias on the part of the bishop either in favor or in opposition to the accused, while not simply turning our priests immediately over to the whims of the secular court system with its politically ambitious prosecutors and highly-paid litigators who push for every-higher damages to line their own pockets.
You don’t regain credibility either with your priests or with the public-at-large by letting the secular courts handle all the complicated details of these matters, any more than a university would regain credibility if after a few highly-publicized cases of rape by several of their football players, they said: “In the future, we’ll just let the police handle these matters. But until the prosecutor presses charges or unless the kid is convicted in court, we’ll let him play.” University officials that don’t set out to make their own orderly, lawful determination of the facts of the case are generally thought to be covering up something. Deciding not to decide is to make a decision; it says “I don’t think this is important enough for me to spend time thinking about.” Consider how people judged Joe Paterno at the end, even though he turned everything he knew over to the proper authorities at his university. Right or wrong, most people didn’t seem to think simply “turning the matter over to the proper authorities” was sufficient.
When the Church shows that they have an orderly process—a very orderly and thorough, legal due process—for dealing with these claims of abuse, only then will the public once again have reason to trust the Church, and only then will bishops have a serious defense in the secular courts against those seeking to empty their “deep pockets” by suing them for “not doing enough.”
Remaining Faithful to the Laws of God and of His Church
So, to be clear: I agree that some bishops from the 1960s and 70s were tragically unfaithful. What I have tried to show is what they should have done if they had set out to be faithful. Like nearly everyone else, I judge that some bishops failed horribly to live up to their responsibilities and sinned gravely. The difference here is that I have a canonical standard against which to judge them, not merely the usual self-righteous indignation at a few horrible cases, without any sense of what could have been done differently. Many people suffer from the misconception that the bishops could have (or should have) just “thrown the trash out” after a summary judgment. That’s not justice. What they should have done was to have these cases properly adjudicated before an appropriately constituted ecclesiastical court. The problem is that some current bishops are also failing to live up to this standard and choosing to simply throw their priests to the legal wolves in the secular courts.
The question we must ask now is whether some bishops in the U.S. and elsewhere have under the current pressures from the secular authorities become like those who gave in to England’s King Henry II, assuming (as did their predecessors) that all legal functions properly belong to the state, and given this view, who are increasingly willing to turn over to secular authorities all determinations not only about guilt or innocence, but about, say, whether a couple is married or not, whether things like abortion and euthanasia are wrong, and whether marriage is something between a man and a woman. Too many in the Church seem to assume that if the state says something is a marriage, it is, and if the state dissolves it, it’s dissolved.
Perhaps some need to be reminded who was given the power “to bind and to loosen.” And then they need to spend some time in prayer at the shrine of Thomas Becket, considering very seriously the cause for which he was willing to sacrifice his life.