Curran, Dissent, & Rome: A Symposium

Little has been said of potential legal developments relating to the present controversy over Fr. Charles Curran. Bishop William H. Hughes, Chairman of USCC’s Committee of Bishops and Catholic College and University Presidents, was quoted in NC News (November 21) as saying that he was in possession of two “legal briefs” on the matter, which he would not release. Fr. Curran, in an NC News item of March 13, said that he is prepared to go to court to keep his post as professor of moral theology at Catholic University and that an attorney (unnamed) has volunteered free legal service to him in that endeavor. Fr. Curran, too, seemed not ready to disclose the legal weaponry that would enable him not merely to go to court but to come out of court a winner.

It is not my intention in this brief space to forecast all the legal theories upon which Fr. Curran might try to proceed or to describe the legal responses that would be appropriate in the face of those theories. Rather (especially in light of the fact that no litigation is yet underway), I feel it might be profitable to have a look at two law-related themes that keep recurring in comments on the controversy. One concerns the academic freedom of Catholic institutions of higher education. The other relates to government aid to those institutions. The two are made to appear interdependent. A thesis with plausible ring may be constructed out of the public statements that some Catholic leaders have made. It comes to this: If the Congregation For the Doctrine of the Faith terminates Fr. Curran’s license to teach as a theologian at Catholic University and insists upon observance of the Congregation’s norms, the legitimate academic freedom, not only of the University, but by implication of all Catholic colleges, will be severely injured. The very existence of such institutions will then be mortally threatened since they will lose governmental aid, and suffer an exodus of faculty. That, in turn, will severely damage the Catholic Church.

Running through the fabric of this thesis are conspicuous strands of fear: worry over image, dread of controversy, anxiety over possible confrontations — worry, indeed, over much else than the integrity of the faith and the needs of the faithful. Thus one Catholic leader viewed implementation of the norms as “risky” and warned: “We are not in a friendly climate as regards Catholic education.” Another cautioned the bishops against placing themselves “in an adversarial position towards Catholic colleges.” Still another saw the Vatican’s action as attempted control by an “outside authority in a form unacceptable by American standards of academic freedom.” And, as though the destruction by the Church itself were threatened by that action, another prominent leader said: “If this goes through, we could really lose many of our colleges and universities.”

In light of these expressed fears, two comments may be in order.

The Non-Issue of Academic Freedom

The Curran affair poses no question of academic freedom; it poses only a question of church freedom. If a Catholic college desires to hold itself out to the public as “Catholic,” is not the definition of “Catholic” of some importance? Certainly it would seem to be, at least, in terms of the consumer market of students and parents. If that is so, then who shall supply the definition of “Catholic”? The Curran supporters appear to say that that is essentially the institution’s function. Certainly, they insist, it is not the Vatican’s function. Hence it would seem that attempting to make distinctions, in the definition, between “non- infallible” Church teachings and “fallible” Church teachings is beside the point. Their real point is that the Vatican lacks authority to define what is “Catholic” and may in no way intrude upon the putative higher value of academic freedom.

That view is, however, inherently contradictory: it says that the Church, which is the embodiment of the term “Catholic,” may not, through its magisterium, say what is “Catholic” and what is not. If the American hierarchy would agree with that limitation upon their office, they should ponder the fact that by thus recognizing a doctrinal pluralism of Catholicisms they would set a precedent of enormous consequence whose widening circles will reach far beyond higher education. However, in terms of their rights under the American Constitution, the bishops need recognize no such limitation and are free to define “Catholic,” to do that very publicly, and to identify institutions that do or do not meet that definition. They are also legally able to exert the discipline of firing in those institutions, such as Catholic University, which do not have independent corporate structures.

The above-mentioned right to say, for example, that a given institution that holds itself up as “Catholic” is not really Catholic is amply protected by the free speech guarantees of the Constitution. The above-mentioned right to exert discipline in institutions of the Church has been long recognized by the Supreme Court. Justice Frankfurter, in a famous opinion in Kedroff v. St. Nicholas Cathedral, confirmed the power of churches under the First Amendment “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” He but echoed what the Supreme Court has held for more than a century respecting hierarchical churches. As the Court said 104 years ago in Watson v. Jones:

“. . . [W]henever the questions of discipline or of faith, or ecclesiastical rule, custom or law have been decided by the highest of these church judicatories in which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them. . . .”

Even more significantly, the Court pointed to the consent of church governance, which is to be implied from church membership:

All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of judicial cognizance, subject only to such appeals as the organism itself provides for.

Happily, then, churches in America may not be punished or restricted by our civil courts for defining themselves or for exercising self-governance. The issue really posed in the Curran matter is not one of academic freedom. It is rather whether those in whose hands the keeping of the faith has been entrusted will avail themselves of their constitutional liberty to protect it.


Government Aid

One of the subsidiary issues relating to the Curran controversy is the twofold image which a number of colleges, calling themselves “Catholic,” have sought. A “recruiting” image, shown to a market of credulous Catholic parents (and potential donors who are wealthy old- fashioned Catholics) is that of a solidly orthodox institution “where your son or daughter can get a real Catholic education.” A quite different image, presented to the accrediting agencies, mainstream academe, and others “who count,” is that of a religiously uninhibited, free-thinking academy concerned only with the pursuit of “excellence.”

The emergence of the latter image, in the late 1960s, is traceable in part to something well described by Professor Hitchcock in his Catholicism and Modernity. “Excellence” depended in part upon its avoidance of “narrow sectarianism” or separation from the higher educational “mainstream” to which the idea of episcopal guidance or directive was abhorrent. The second source related to the drive, at that same time, for governmental aid, and the adoption of those means of grantsmanship that seemed best designed to result in such aid. The legal study of Gellhorn and Greenawalt prepared for Fordham University in 1968 became the flagship guide for Catholic colleges, which wanted now to enter the secular mainstream, shuck the old trappings of Catholic “religiosity,” and participate in governmental funding. In cases in the 1970s involving government aid to Catholic colleges, the colleges’ attorneys built trial records that showed the institutions to be largely secularized. The Supreme Court noted with respect to the four Catholic colleges involved in Roemer v. Board of Public Works:

“Though controlled and largely populated by Roman Catholics, the colleges were not restricted to adherents of that faith. No religious services were required to be attended. Theology courses were mandatory, but they were taught in an academic fashion, and with treatment of beliefs other than Roman Catholicism. There were not attempts to proselytize among students, and principles of academic freedom prevailed. With colleges of this character, there was little risk that ‘religion would seep into the teaching of secular subjects, and the state surveillance necessary to separate the two, therefore, was diminished.”

To what extent a Catholic college receiving government aid would have to observe all of the foregoing allowances is uncertain. It therefore seems by no means clear that if a religious institution were to fire a teacher for lack of “doctrinal integrity” — or lack of “uprightness of life” (see Article 26 of the proposed Vatican norms) — it would necessarily be deprived of any form of government aid. Contemporary constitutional scholarship contradicts the whole notion that the establishment clause of the First Amendment was ever intended to bar government from providing financial aid to individuals because they choose to be educated in a candidly religious institution. There is good reason to hope that the Supreme Court will sustain such programs as well as research and other programs of religious colleges that serve important public needs.

But should it note, of what significance is it to the Church, except in terms of doctrinal confusion, that “Catholic” colleges continue to exist which insist upon the allowance of doctrinal dissent? It is bootless to say that without government aid many such colleges would have gone under; with government aid they did go under as to the only thing that justified their special existence: the informing of minds and lives with the riches of the ancient faith.

It is most unfortunate that some church leaders seem, in the Curran matter, to be placing the integrity of Church identity in the balance with fearful speculation — worse, that concern over the latter should outweigh concern for the former.

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William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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