Authority and Its Discontents

The Church’s response to the ObamaCare Mandate calls to mind this journal’s original name, Catholicism in Crisis. Today the Church confronts a crisis – “an invasion of our religious freedom,” Donald Cardinal Wuerl calls it — and the outcome is far from certain. The Mandate is only one in a flood of attacks that will confront the Church in coming years, and our response is hobbled by several problems of our own making. So we have a steep mountain to climb.

Even though the bishops have been allied with the Democrat Party for a century, and have advocated government health care reform since 1919, they never imagined that their allies of such long standing would betray them, twisting their own issue into a dagger aimed at the heart of the Church. Enter Kathleen Sebelius one of the few pro-abortion Catholic politicians actually barred from the Eucharist by her bishop, who wields the dictatorial powers that ObamaCare confers upon the Secretary of Health and Human Services. Sebelius’s Contraception-Abortifacient-Sterilization Mandate caught the bishops by surprise, but the bishops have come together to draw a line in the sand. But what weapons do they bring to the battle?

“He who frames the issue will win it,” Paul Weyrich observed years ago. So how have our bishops framed it? When rallying opposition to the ObamaCare Mandate, Timothy Cardinal Dolan underscores the principle of “religious freedom,” and the USCCB which he heads strongly supports the “Respect for Rights of Conscience Act” to rectify the injustice. So to combat Obama’s Mandate, we are offered principles – “religious freedom” and “conscience rights” – principles which are indeed valid when firmly grounded on metaphysical truth. When they are uprooted, however, and emptied of their content, they can easily collapse into vapid abstractions and be hijacked by enemies of Church teaching.

Consider “conscience rights.” We know all too well that a poorly-formed conscience can cheer on all sorts of malevolent mischief. The focus on conscience invites scrutiny of the formation of the conscience, and of the teaching which that formation imparts. When my hometown Congressman, Notre Dame graduate Joe Donnelly, was dithering before the vote on ObamaCare two years ago, he received a call from former Notre Dame President Father Ted Hesburgh, C.S.C. Father Hesburgh, prompted by Nancy Pelosi, urged Donnelly to vote for ObamaCare, and told Donnelly, “just follow your conscience.” To no one’s surprise, really, Donnelly’s conscience had been quite ill-formed at Notre Dame, so he voted “Aye.” Now that his congressional district has been reconfigured, Donnelly is running for the U.S. Senate. Hayek was right, the worst do “rise to the top.” But I digress.

Who’s Boss: The Supreme Court? Or The Supreme Being?

In defense of religious freedom, Cardinal Dolan refers to the Bill of Rights, specifically to the First Amendment. But for over a century, the First Amendment applied only to the federal government; had the original intent of the Founders prevailed, any state today could impose a contraceptive mandate if it did not violate the state constitution or a specific prohibition of the federal constitution (as, say, an ex post facto law would). That states may not be able to do so now is due to the Supreme Court, which in the past century began applying the Bill of Rights to the states as well as to the federal government. Since then, a variety of justices have rewritten the Bill of Rights with frequency and impunity, altering some provisions while consigning others to oblivion. Among those in oblivion is the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

And there another problem arises. Cardinal Dolan plants his defense of Catholic conscience rights firmly in the Bill of Rights – specifically, in the First Amendment. But that puts the Catholic Church in what Karl Marx, with a wry smile, might have called a “dialectical bind.” After all, for over a century, as the federal government and both political parties have flouted the Tenth Amendment, usurping virtually all the powers once reserved for the states, and the Catholic Church has cheered them on – often, quite profitably. Through its various institutions – such as schools, hospitals, and charities – the Church receives billions of dollars a year from the federal government for activities which the Federal Government is forbidden to fund or otherwise regulate under the Tenth Amendment. Both the Church and the government find that nagging prohibition quite inconvenient – so they ignore it. Mao Tse-Tung would have called this curious posture of the Church a classical “contradiction” – and a sure sign of impending collapse.

This contradiction might escape wide notice, if the problem did not go even deeper. Having wedded themselves, often indelicately, to the political process (and even more scandalously, to a particular political party), the bishops have unconsciously delivered themselves into the ironclad embrace of postmodern America’s positivist law. We recall that Hans Kelsen, the founder of legal positivism, insisted that Auschwitz and the Soviet Gulags were valid law.  Kelsen “could not criticize them as unjust because justice, he said, is ‘an irrational ideal,’” Constitutional Law Professor Charles Rice has observed.

But “American Exceptionalism” will save us – right? Wrong. As Woodrow Wilson explains in Constitutional Government, “”The War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers.” And, as our beloved bishops now appear to be realizing, when leftists run the government, they will use that power to do whatever they can get away with.

So the bishops now find themselves at the mercy of a random five justices of current and future Supreme Courts regarding the survival of rights that were honored for centuries before the Constitution was even written. They have allowed their strongest weapon – metaphysical, magisterial truth – to gather dust on a shelf in the USCCB warehouse, and have placed their flocks at the mercy of the likes of Sonia Sotomayor.

How has this happened? Where is the teaching? Why aren’t our bishops fighting this battle with their strongest weapon — the flawless, timeless truth of Holy Mother Church?

Is Nancy Pelosi Right?

Pope Benedict has said on numerous occasions that “the laity need to hear the Gospel message in its fullness, to understand its implications for their personal lives and for society in general, and thus be constantly converted to the Lord.”

A lot of people in the pews are experiencing what we might call the “backstory” of the Church’s response to the Obamacare Mandate. “What’s wrong with contraception, anyway,” many people of good will ask us. Yes, we Catholics will rally for conscience rights, but what about the content of the Catholic conscience?

Humanae Vitae teaches all the truths we need to understand and to communicate clearly why the Church opposes contraception, abortifacients, and sterilization. But for forty years and more, the American Church has avoided Humanae Vitae like the plague. Nancy Pelosi, the Catholic grandmother and House Minority Leader, drove the point home before a Texas audience in February: “Ninety-eight percent of women in childbearing age that are Catholic use contraception,” she claimed (apparently, for Nancy, virginity and Catholicism don’t mix). “So, in practice the church has not enforced this and now they want the federal government and private insurance to enforce it. It just isn’t consistent to me.”

Pelosi is no dunce: it was she who crafted Sandra Fluke’s tearful plea for free contraceptives and sterilizations for sexually active students at Georgetown and other Catholic schools. Pelosi highlights what she perceives as a glaring weakness in the bishops’ defense: “you haven’t enforced it for forty years” — and she is correct. While that sad fact is disappointing, however, it does not diminish the truth of Catholic teaching, it reveals only what we already know — that Humanae Vitae has not been taught, and it has not been enforced. The sexual revolution did not sneak into the Church, it waltzed right down the center aisle.

When our bishops ask us to join them to oppose the ObamaCare Mandate, they are making a great leap of faith: they are relying on the assumption that the faithful know why artificial contraception is a grave and objective evil. They are assuming that Catholic consciences have been well-formed for the past fifty years. Are they right? Or is Pelosi? And if it’s Pelosi, what have the bishops been doing for all that time?

Father Avery Dulles, S.J., put his finger on the problem thirty years ago, when he observed that “By issuing policy statements on matters that lie beyond their specific competence, and that pertain rather to experts in secular disciplines, the bishops diminish their own credibility in speaking about matters with which they are specially charged as spiritual leaders of the church.” And about which matters are the bishops specially charged to speak? Humanae Vitae comes to mind. It has not been taught to the laity, nor have our bishops corrected those “Catholics” who publicly deride and reject it. On the other hand, on issues where the faithful are encouraged to disagree (Lumen Gentium, No. 37), the laity have been badgered with ideological agendas, parading under the tattered banner of “social justice.” Truth becomes optional, while opinion becomes mandatory. The result? Father Dulles nails it:  “By opting for certain positions on matters legitimately debated among committed Catholics, bishops tend to marginalize church members who have different social or political orientations.”

Today the bishops appeal to a positivist and undependable political authority. To acquiesce is to succumb to what Pope Leo XIII condemned as the Americanist heresy. Meanwhile, they must rally to their side an uncatechized and often marginalized laity. How should they proceed? Clearly, by exercising the authority that is truly theirs and teaching the timeless truths of the Faith, not by advocating political agendas. But how should they respond to the widespread scandal of obstinate and public support “abortion  rights” by Catholic politicians? Should they appeal to Church law, rather than positivist law? Perhaps. But if they tried today to excommunicate the Nancy Pelosi’s, Joe Bidens, John Kerry’s, Pat Leahy’s, and Lisa Murkowski’s, it would invite certain and vindictive retaliation. Of course, had the bishops of forty years ago excommunicated pro-abortion apostates – like Justice William Brennan, appointed by Republican Ike Eisenhower, or Ted Kennedy, a Democrat luminary – the stage would have been set for dealing with public scandal swiftly and routinely. But today’s bishops are constrained not only by the golden handcuffs of government funding, and by the straitjacket of positivist law on which they have staked their claim – alas, they are further burdened by the ball and chain of forty years of distraction and inaction.

These are the impediments, charitably stated, that the bishops and the laity must address as we seek to preserve the realm of freedom that the Church by right should enjoy. It is hardly a secret that the lack of focus on the teachings that are now under full-scale attack by the Culture of Death has significantly hampered the efforts of the bishops conference  to combat it. Pope Benedict recently recounted how our American bishops had told him of “the growing difficulties encountered in communicating the Church’s teaching on marriage and the family in its integrity.” And how did that come to pass? “Certainly we must acknowledge deficiencies in the catechesis of recent decades,” he observed.  He then called for a “well-formed Catholic laity” and insisted that “This teaching [on marriage and sexual morality], stated with increasing clarity by the post-conciliar magisterium and comprehensively presented in both the Catechism of the Catholic Church and the Compendium of the Social Doctrine of the Church, needs to be restored to its proper place in preaching and catechetical instruction.”

As rallies in support of religious freedom go forward, perhaps the bishops could announce a similar public nationwide campaign for Humanae Vitae. Five Supreme Court justices cannot save us, but Christ already has. “In the world you will have trouble, but be brave, for I have conquered the world.” (John 16:33)