"SUBJECT TO THE APPROVAL OF THE VATICAN":
Why The American Catholic Church May Be Forced To Choose Between Schism From Rome And Marginalization

By MARCI HAMILTON


hamilton02@aol.com
----
Thursday, Jun. 20, 2002

There is some little-remarked fine print in the United States Conference of Conference of Catholic Bishops' proposal as to how to address the Church's problems with child abuse by clergy. It reads: "subject to the approval of the Vatican."

From this side of the Atlantic, it is hard to imagine the Church hierarchy impeding the bishops' attempts to put the church here back on its own two feet, but one fears it looks different on the other side.

Then Cardinal Avery Dulles closed an op-ed in the New York Times with the following: "If [the bishops] yield too much to the present atmosphere of panic, the Holy See can be relied upon to safeguard the theological and canonical tradition." While this may have been intended to be reassuring, it ought to have had the opposite effect.

If the Vatican is planning to veto the bishops' proposal to work with legal authorities in the prosecution of crimes against children, as these indications suggest, it should understand the severe consequences that will follow. In the United States, the refusal to abide by the rule of law--especially when children are at stake--would be disastrous for the Church.

Thus, if the Vatican sticks with the "canon law, and canon law alone" position, there will be only two options for the United States Roman Catholic Church: schism from Rome, or marginalization.

The U.S.'s Constitutionally-Enabled Religious Diversity

One miracle accomplished by the adoption of the U.S. Constitution has been the peaceful coexistence of religious groups who violently disagree with each other. By guaranteeing both the separation of church and state, and the right to free exercise of religion, the Constitution guarantees both that the government cannot impose religion, and that the people can worship as they see fit - within the different and diverse religions they may adhere to. If you doubt that this is a miracle, consider the number of the world's countries that are defined primarily by a religious, not a civic, identity, and the atrocities that have resulted.

The system has not been geared to the creation of tolerance, though there is success to a degree on that score. Rather, it has created in Americans a willingness to share a national identity side-by-side with those whom one considers wrong, damned, or worse. That ideal is hardly to be scoffed at: Peaceful coexistence is the very best we will ever achieve, and it is a monumental achievement.

Under Our Constitution, No Religion May Be A Law Unto Itself

One key to the achievement of peaceful coexistence in the midst of religious diversity is this: no one is permitted to be a law unto himself, and no religion is permitted to be a law unto itself.

The Supreme Court described this longstanding principle quite clearly in its 1990 free exercise opinion in Employment Division v. Smith, in which it held that general drug laws could be applied to Native American religious ceremonies incorporating the use of peyote. The drug laws apply to everyone, without exception, the Court held; so too should child abuse reporting laws.

At the time of the Constitution's framing, the Christian clergy emphasized these principles in their sermons. At the same time that they exhorted believers to reject government control of belief, they also instructed their followers to obey the duly enacted law when beliefs broke out into overt action. Those early believers instituted a social compact that persists, and that includes within it deep respect for religious devotion coupled to an agreement to obey the general laws that govern actions.

Any U.S. church that takes the position that it should not cooperate with legal authorities in the investigation of criminal actions defies that founding principle. Should the Vatican compel the U.S. Catholic Church to take such a position, it will be no exception.

The Choice for the American Catholic Church Has Been Long Foreordained

The Vatican's canon lawyers have placed a choice before American Catholics: Either obey a rule that encourages the hierarchy of the church to refuse to cooperate with those investigating child abuse (the canon law option), or obey a rule that requires such cooperation (the rule of law option). Most American Catholics chose the latter a long time ago.

In the late nineteenth and early twentieth centuries, Catholics were despised by the Protestant majority. It was in part rank discrimination, fear of the Other. But it was also a fundamental clash of legal cultures.

Most Protestant churches were founded on the principle of rejecting top-down ecclesiastical control, and on belief in the rule of law in the civil sphere. Protestants feared that Catholics would not enter into the same social bargain to obey the law of the government, and would instead bow only to Rome.

The criticisms became hollow as American Catholics entered the mainstream, became successful, and--like President Kennedy--refused quite publicly to choose Rome as a ruler when it clashed with the rule of law here.

The image of the American Catholic accordingly evolved into one of a deeply religious but deeply law-abiding person: devoted, successful, but also firmly sewn into the fabric of the American constitutional bargain. On social issues, U.S. Catholics were willing to reject Rome when they did not deem Rome's reasons for its positions sufficiently persuasive. U.S. Catholics differed with Rome, for example, on birth control, divorce, the death penalty, even abortion.

Meanwhile, the Irish (and frequently Irish Catholic) cop became a caricature for all policemen, and an increasing number of Irish (and frequently Irish Catholic) politicians took on the job of enforcing secular rules. Over the course of our history, obedience to the rule of law by Catholic citizens has never been seriously in question.

Never, that is, until the current child abuse scandal, which squarely places the issue on the table for all to see. The focus is no longer on American Catholics as individuals, but rather on the Church as an institution. The Vatican's canon law announcements show it to be miserably out of step with the culture within which American Catholics live.

If the Vatican chooses to follow the "canon law, and canon law alone" view, it will put American Catholics to a terrible choice, for it will be asking them to turn their backs on what is best in the American constitutional system. They should, and must, opt for compliance with secular law as well as canon law, and reject the Vatican's position.

It would put the entire social order at risk if they were to abandon their obligation to subject criminal complaints--especially those alleging harm to children--to secular law.

Our system of criminal investigation, trial by a jury of one's peers, and subsequent secular punishment - governed by due process norms and the Eighth Amendment's "cruel and unusual punishment prohibition" - is what makes us a secular, not a religious state. It must apply to every citizen equally, regardless of religious belief or religious office.

Early Signs of a Possible Schism

It is difficult to believe that American Catholics, who have been in the forefront of criticizing the Church in this scandal, will let their church take the path of irresponsibility to the public good. Thus, if the Vatican chooses a formal, or even an informal, no-cooperation policy, a schism is likely in the offing.

American Catholics from the top of the hierarchy down know that the failure to cooperate will lead the church to suffer a loss of moral and political credibility. And this loss of credibility, in turn, will lead to the Church's inevitable marginalization in all spheres of society.

A schism may already be in the making. Over 14,000 Catholics from 40 states have joined www.voiceofthefaithful.com, which is well worth a visit from the American bishops and the Vatican. And prominent conservative U.S. Catholics, such as national talk show host Sean Hannity, have threatened to leave the church over the scandal.

These believers are in the right, for it is not only respect for the Catholic Church, but respect for religion itself that may be at stake. Were the Church to choose to defy the rule of law, its decision to work outside the United States' moral and legal imperatives will affect the credibility of all religious institutions here.

In short, it would be difficult to underestimate the destructive effects of a Vatican-imposed noncooperation policy. Let us hope the Vatican has a full understanding of what such a policy would mean, and chooses another way - approving the Bishops' proposal fully to cooperate with local authorities.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law specializing in the legal obligations of religious organizations, at Benjamin N. Cardozo School of Law, Yeshiva University. Her other columns on the Catholic Church scandal can be found in the archive of her columns on FindLaw.com. Her email address is Hamilton02@aol.com.

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