{"id":2980,"date":"2012-03-05T14:58:00","date_gmt":"2012-03-05T19:58:00","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=2980"},"modified":"2014-07-18T23:18:44","modified_gmt":"2014-07-19T03:18:44","slug":"contraception-an-unrepresentative-church-and-unresponsive-courts","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=2980","title":{"rendered":"Contraception, an Unrepresentative Church, and Unresponsive Courts"},"content":{"rendered":"

The Big Picture Home Page<\/a> | Previous Big Picture Column<\/a> | Next Big Picture Column<\/a><\/p>\n

Contraception, an Unrepresentative Church, and Unresponsive Courts<\/h2>\n

A shorter version of this piece was published in the Maryland Daily Record March 5, 2012<\/p>\n

At this writing we still don\u2019t have an outcome, either regulatory or political, in the fight between the President and the bishops over the proposed mandate that employers, including Catholic hospitals and universities, offer their employees health insurance plans with birth control coverage<\/a>. But it is clear that the rhetorical battle line du<\/em> jour<\/em> is \u201creligious freedom.\u201d\u00a0\u00a0\u00a0 The Catholic bishops call their rejection of the mandate \u201cthis effort to protect religious liberty and freedom of conscience for all.\u201d<\/a>\u00a0 Their fellow-traveling politicans have sounded the same note.\u00a0 Speaker John Boehner decried the regulation as \u201can unambiguous attack on religious freedom.\u201d<\/a>\u00a0 Rick Santorum proclaimed<\/a> that \u201cit\u2019s about freedom of religion\u201d among other things.<\/p>\n

The bishops may talk about \u201cfreedom of conscience for all,\u201d but they do not mean all.\u00a0 They\u2019re actually quite selective about whose religious freedom is at stake. Clearly it is not the religious freedom of the 98% of sexually active American Catholic women have used<\/a> so-called \u201cartificial\u201d birth control.\u00a0 Nor is it that of the 57% of American Catholics who support the policy<\/a>, including 59% of American Catholic women, per the Public Policy Polling Organization.\u00a0 A just-published New York Times\/CBS News poll<\/a> turned up similar numbers.\u00a0 Public Policy Polling summarized: \u201cThe Bishops really are not speaking for Catholics as a whole on this issue.\u201d<\/a><\/p>\n

Indeed not.\u00a0 It does not take a great deal of cynicism to see this as an effort by the bishops to reassert a lost relevance, to point out to Catholic believers whom the bishops can no longer otherwise control that the hierarchy still rules the roost on Catholic turf.<\/p>\n

If there seems to be something illegitimate here, though, it is this: that Catholic turf should not be the bishops\u2019 to rule in the first place.\u00a0 The hospitals and the universities were built with the funds and the blood, sweat and tears of generations of all<\/em> Catholic believers, and should by all rights belong to all <\/em>of their successors, the entire<\/em> body of the faithful.\u00a0 But legally speaking, that is not the case.\u00a0 The deeds to every building, the title to every account, vest control in one constituency, the Catholic hierarchy.<\/p>\n

Instead of acting like the in-title-only trustees of these institutions, accountable to those who built them and their successors, the hierarchy behave like the equitable owners.\u00a0 And if you think these would-be owners are in favor of religious freedom for the rest of us in the Catholic fold, I have a bridge in Brooklyn I want to sell you.<\/p>\n

Hitherto, the Catholic church has never claimed that its adherents and institutions should experience religious freedom vis-a-vis their own faith; that\u2019s why all those heretics got burned at the stake, after all \u2013 why we had those Crusades and the Inquisition.\u00a0 But a Church that for most of its history has been, internally, harshly authoritarian shouldn\u2019t get to claim, in the midst of a national presidential campaign, that it is supporting religious freedom, of all things, especially for its female members, and, incidentally, for that of the men who love them.\u00a0 Religious freedom is anathema, in the literal sense of the word<\/a>, to my church.<\/p>\n

Many of us who fill the pews (or, these days, sit in half empty ones) feel differently, however. We would like to see our faith acknowledge the views of those of us, evidently a majority, who see family planning as a good thing.\u00a0 We would also like to see oral contraceptive medications also recognized as providing, and often being prescribed to provide, significant therapy for various medical conditions.[1]\u00a0 We recognize employer-funded health insurance coverage of contraceptives as sound public health policy.\u00a0 Our Church\u2019s denial of any respect or accommodation for our views is antithetical to our<\/em> religious freedom, and its use of institutions we and our predecessors built to reinforce that denial just compounds the insult.<\/p>\n

This repeated disrespect for dissent and alienation of dissenters poses an existential challenge for the Church, however, in the decades ahead.\u00a0 Everyone knows the Church has unsustainable problems, whatever metric one uses, whether it be the replacement rates of faithful,[2] of priests,[3] of nuns, or the survival of schools and churches,[4] or the state of church finances.[5]\u00a0 I am certain that the largest cause for the Church\u2019s decline is the authoritarianism of a hierarchy whose legitimacy is widely viewed as having disappeared.\u00a0 The Church\u2019s prospects for survival would be far more promising if there were some mechanism for turning out the current hierarchy and substituting one more responsive to what the majority consider to be God\u2019s will.<\/p>\n

And that problem is precisely highlighted by the birth control fight, which in part turns on whether the bishops on the one hand or the faithful on the other have the right to speak for the hospitals and universities.<\/p>\n

In America, fights for control of institutions generally have a way of ending up in the courts.\u00a0 I don\u2019t see that happening with this one, however, because since 1872, the Supreme Court has been keeping courts and legislatures from second-guessing decisions about ecclesiastical control.\u00a0 And the Court just did it again, unanimously, two months ago, in Hosanna-Tabor Evangelical Lutheran Church v. E.E.O.C.<\/a><\/em>[6]<\/p>\n

But not to choose is to choose.\u00a0 Hands off doesn\u2019t actually mean hands off.\u00a0 It just means deferring to one side and one side only: the side controlling the hierarchical structures and tribunals, the deeds and the titles to the religious property.\u00a0 That is the teaching of the precedents reaffirmed in Hosanna-Tabor<\/em>.\u00a0 It means going with the bishops even in the teeth of highly credible charges that by governing Catholic institutions in keeping with their doctrinal inflexibility they have abused their power and their trust.\u00a0 It means choosing to let the bishops go on controlling what they \u201cown.\u201d<\/p>\n

And that non-choice choice gives the bishops a huge and undeserved upper hand. It\u2019s hard to have a faith anything like Catholicism without churches, schools, universities and hospitals.\u00a0 This commons, once appropriated by a small entrenched and unrepresentative minority of the faithful, cannot be duplicated by the majority: the faithful have neither the means nor the energy to replicate them anew.<\/p>\n

So, unchecked by the courts, the bishops will win.\u00a0 But I predict their prize will be ashes.\u00a0 There will always be religion and religions, but I\u2019m gloomy about the future of my particular religion.\u00a0 One in ten Americans has left the Catholic Church, making departed Catholics the second biggest \u201cdenomination\u201d in the country.<\/a>\u00a0 Almost any Catholic can tell you about the good young men and women who leave and don\u2019t come back, about the churches consolidating because there aren\u2019t enough priests to say Mass on Sundays, about the closing parochial schools.\u00a0 Anyone who thinks these stories are unrelated to the Church\u2019s obduracy on the subject of birth control (and the usual list of related items: divorce, homosexuality, abortion, clerical celibacy, single-sex clergy, etc.) is deluded.\u00a0 Disgust over that obduracy, together with the child abuse scandals, is the exact reason the Church is wasting away now and will continue to do so.<\/p>\n

Will the last bishop to leave please turn out the lights of his church?\u00a0 (It won\u2019t be our<\/em> church by then, thanks to courts that take sides by not taking sides.)<\/p>\n


<\/p>\n
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[1].\u00a0\u00a0\u00a0 For these thoughts, I credit Max Romano, a medical student at the Johns Hopkins University School of Medicine, and various colleagues, in this piece<\/a>.<\/p>\n<\/div>\n

\n

[2].\u00a0 Father John McCloskey had these observations<\/a> in early 2006:<\/p>\n

Before the Second Vatican Council, approximately 75% of Catholics attended Mass on Sundays. As of 2004, approximately 32% of American Catholics attend Mass every Sunday. On any given Sunday as many as 40% of American Catholics may be attending Mass even though some of them do not attend Mass regularly. Thus there are only more or less half as many Catholics attending Mass now as before the Council.<\/p>\n<\/div>\n

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[3].\u00a0 Father McCloskey said this<\/a> on that score:<\/p>\n

Let’s look at the numbers in the US first. In 1965, at the end of the Council, there were 58,000 priests. Now there are 41,000. By 2020, if present trends continue (and there is no sign of a dramatic upsurge in vocations), there will be only 31,000 priests, and half of those will be over 70. (To offer a personal example of the effect of these demographics, I was ordained in 1981 at the age of 27. Today, at the age of 52, I can still attend gatherings of priests and find myself one of the younger members present.) In 1965, 1,575 new priests were ordained. In 2005, the number was 454, a decrease of more than two-thirds \u2014 and remember that the Catholic population in the US increased during these years from 45.6 million in 1965 to the 64.8 million of 2005, a rise of almost 50%.<\/p>\n<\/div>\n

\n

[4].\u00a0 Father McCloskey said this<\/a> in 2006 on that score: \u201cAlmost half the Catholic schools open in 1965 have closed; 4.5 million students attended Catholic schools in the mid-1960s, while today there are about half that many students.\u201d<\/p>\n<\/div>\n

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[5].\u00a0 This is harder to get reasonable numbers on, because of the opacity of Church finances.\u00a0 However, there is widespread anecdotal evidence that various dioceses are nearly bankrupt after paying settlements to abuse victims \u2013 and not receiving replacement donations from the outraged faithful.\u00a0 See, e.g., this piece from National Catholic Reporter<\/a>. Moreover, it is universally acknowledged that church finances at all levels lack adequate controls, internal or external, leading to endemic theft and embezzlement<\/a>.\u00a0 And what better way to ensure the autonomy of the priests and bishops in all matters spiritual and temporal within their fiefdoms than to assure that no one is allowed to look over their shoulders?<\/p>\n<\/div>\n

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[6].\u00a0 Justice Roberts summarized the decisional history \u2013 and I quote at length:<\/p>\n

In Watson v. Jones<\/em>, 13 Wall. 679, 20 L.Ed. 666 (1872), the Court considered a dispute between antislavery and proslavery factions over who controlled the property of the Walnut Street Presbyterian Church in Louisville, Kentucky. The General Assembly of the Presbyterian Church had recognized the antislavery faction, and this Court, applying not the Constitution but a \u201cbroad and sound view of the relations of church and state under our system of laws\u201d declined to question that determination. Id., at 727. We explained that \u201cwhenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them.\u201d Ibid. As we would put it later, our opinion in Watson \u201cradiates … a spirit of freedom for religious organizations, an independence from secular control or manipulation\u201d in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.\u201d Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America<\/em>, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952).<\/p>\n

Confronting the issue under the Constitution for the first time in Kedroff<\/em>, the Court recognized that the \u201c[f]reedom to select the clergy, where no improper methods of choice are proven,\u201d is \u201cpart of the free exercise of religion\u201d protected by the First Amendment against government interference. Ibid. At issue in Kedroff<\/em> was the right to use a Russian Orthodox cathedral in New York City. The Russian Orthodox churches in North America had split from the Supreme Church Authority in Moscow, out of concern that the Authority had become a tool of the Soviet Government. The North American churches claimed that the right to use the cathedral belonged to an archbishop elected by them; the Supreme Church Authority claimed that it belonged instead to an archbishop appointed by the patriarch in Moscow. New York’s highest court ruled in favor of the North American churches, based on a state law requiring every Russian Orthodox church in New York to recognize the determination of the governing body of the North American churches as authoritative. Id., at 96-97, 99, n. 3, 107, n. 10, 73 S.Ct. 143.<\/p>\n

This Court reversed, concluding that the New York law violated the First Amendment. Id., at 107, 73 S.Ct. 143. We explained that the controversy over the right to use the cathedral was \u201cstrictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America.\u201d Id., at 115, 73 S.Ct. 143. By \u201cpass[ing] the control of matters strictly ecclesiastical from one church authority to another,\u201d the New York law intruded the \u201cpower of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment.\u201d Id., at 119, 73 S.Ct. 143. Accordingly, we declared the law unconstitutional because it \u201cdirectly prohibit[ed] the free exercise of an ecclesiastical right, the Church’s choice of its hierarchy.\u201d Ibid.<\/p>\n

This Court reaffirmed these First Amendment principles in Serbian Eastern Orthodox Diocese for United States <\/em>and Canada v. Milivojevich<\/em>, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), a case involving a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, including its property and assets. The Church had removed Dionisije Milivojevich as bishop of the American-Canadian Diocese because of his defiance of the church hierarchy. Following his removal, Dionisije brought a civil action in state court challenging the Church’s decision, and the Illinois Supreme Court \u201cpurported in effect to reinstate Dionisije as Diocesan Bishop,\u201d\u009d on the ground that the proceedings resulting in his removal failed to comply with church laws and regulations. Id., at 708, 96 S.Ct. 2372.<\/p>\n

Reversing that judgment, this Court explained that the First Amendment \u201cpermit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.\u201d Id., at 724, 96 S.Ct. 2372. When ecclesiastical tribunals decide such disputes, we further explained, \u201cthe Constitution requires that civil courts accept their decisions as binding upon them.\u201d Id., at 725, 96 S.Ct. 2372. We thus held that by inquiring into whether the Church had followed its own procedures, the State Supreme Court had \u201cunconstitutionally undertaken the resolution of quintessentially religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals\u201d of the Church. Id., at 720, 96 S.Ct. 2372.<\/p>\n

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C.,<\/em> 132 S. Ct. 694, 704-05 (2012).<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

The Big Picture Home Page<\/a> | Previous Big Picture Column<\/a> | Next Big Picture Column<\/a><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Catholic turf should not be the bishops\u2019 to rule in the first place. The hospitals and the universities were built with the funds and the blood, sweat and tears of generations of all Catholic believers, and should by all rights belong to all of their successors, the entire body of the faithful. Instead of acting like the in-title-only trustees of these institutions, accountable to those who built them and their successors, the hierarchy behave like the equitable owners. And if you think these would-be owners are in favor of religious freedom for the rest of us in the Catholic fold, I have a bridge in Brooklyn I want to sell you.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[3314,84,3295,3302,3303,3304,3296,3322,3321,3312,3315,3301,3294,3306,2277,3327,3325,3308,3318,3323,3299,3305,894,3313,3307,3324,3317,3330,3320,3333,1606,3300,3328,709,3309,3298,3311,3310,3297,3331,3319,3332,3316,1648,3326,3329],"class_list":["post-2980","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-abortion","tag-barack-obama","tag-birth-control","tag-catholic-churches","tag-catholic-hospitals","tag-catholic-universities","tag-catholicism","tag-child-abuse-settlements","tag-child-abuse-victims","tag-church-finances","tag-clerical-celibacy","tag-consensum-fidei","tag-contraception","tag-crusades","tag-divorce","tag-embezzlement","tag-external-controls","tag-family-planning","tag-father-john-mccloskey","tag-financial-controls","tag-freedom-of-conscience","tag-heretics","tag-homosexuality","tag-hosanna-tabor-evangelical-lutheran-church-v-e-e-o-c","tag-inquisition","tag-internal-controls","tag-john-mccloskey","tag-kedroff-v-saint-nicholas-cathedral","tag-mass-attendance","tag-milivojevich","tag-national-catholic-reporter","tag-polls","tag-presbyterian-church","tag-president-barack-obama","tag-public-health-policy","tag-religious-freedom","tag-replacement-of-nuns","tag-replacement-of-priests","tag-roman-catholicism","tag-russian-orthodox-church","tag-second-vatican-council","tag-serbian-eastern-orthodox-diocese-v-milivojevich","tag-single-sex-clergy-max-romano","tag-supreme-court","tag-theft","tag-watson-v-jones"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2980","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2980"}],"version-history":[{"count":15,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2980\/revisions"}],"predecessor-version":[{"id":4825,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2980\/revisions\/4825"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2980"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2980"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2980"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}