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The Catholic Church’s Accountability and Autonomy

Editor’s Note: This is part of a Law and Liberty Symposium on the crisis in the Catholic Church.

For at least a dozen years, I have tried to make the case, in academic and other contexts, that the fundamental human right to religious freedom has an “institutional” dimension; that this right belongs to and is appropriately exercised by communities, groups, societies, and associations as well as persons; that the jurisdiction of secular political authorities does not extend to theological and ecclesiastical questions; that religious communities enjoy autonomy – even a kind of sovereignty – with respect to matters of polity and self-government; that a thick civil society densely populated by healthy intermediate societies and associations is essential to political freedom and the common good; and that the idea of the “separation of church and state” should be seen as a constraint on the latter for the benefit of the former.  A crucial dimension of the freedom of religion, I contend, is “the freedom of the church.”

Proposing these arguments has been an uphill battle for a number of reasons, including a widespread and growing mistrust of institutions generally, the increasing number of people who are religiously unaffiliated (“the nones”),  our individualistic moral anthropology,  and the growing appeal of a “spiritual, but not religious” view of the world. And, needless to say, the recent horrifying and heartbreaking revelations, reports, and rumors of sexual abuse in the Catholic Church have supplied additional evidence that, reasonable people could well conclude, cuts against my positions. As Damon Linker put it, writing in The Week, the “monstrous, grotesque ugliness” of alleged and confirmed abuses reveals the Catholic Church “as a repulsive institution.” Respecting the rights of the “repulsive” is, for all of us, a challenge.

I am aware, of course, that journalists and litigators have focused particular attention on religious institutions, especially the Roman Catholic Church; that clergy, including unmarried Catholic priests, are not more likely than other populations to sexually abuse children; that judicious reservation and careful evaluation are appropriate when it comes to untested allegations; and that procedures and policies adopted, in the Catholic context and in others, during the last three decades have protected the vulnerable and exposed abusers.

And yet, there is no denying that colossal errors and inexcusable wrongdoing by religious leaders and clergy call into question the case for church “autonomy” and instead prompt understandable expressions of deep anger and calls for “accountability.” For example, commentator and law professor Hugh Hewitt took to the pages of The Washington Post to call for a full-scale government investigation — by not just one but fifty state attorneys general, and also, for good measure, the Attorney General of the United States — of the Church. Similarly, the spotlight-hungry political strategist Steve Bannon announced to Reuters his plans to form an “independent, non-partisan tribunal” to “look into every aspect of the multiplying scandals.” Several public officials have announced plans to follow the lead of the Statewide Investigating Grand Jury in Pennsylvania. And so on.

Now, it is clear, and it is crucial, that – in accord with due process, of course, and in keeping with important safeguards like statutes of limitations – alleged crimes be investigated, that criminal offenses be punished, that victims are compensated. This is true for bishops and clergy no less than it is for politicians and police or for laymen and citizens. It seems no less clear and crucial that not only repentance and penance but also reform and a reckoning are needed in the Church leadership, structures, and processes.

At the same time, calls for “accountability” should reflect careful thinking about the questions “accountable to whom?” There are matters over which secular political authorities and public officials have no power or say. It is not the business of an attorney general, public commission, or grand jury to influence Catholic teachings on the ordained priesthood or human sexuality. It would be an overreach for any secular investigators to presume, as the Royal Commission on Institutional Responses to Sexual Abuse in Australia did last year, to call for revisions to religious doctrines or to canon law. It was presumptuous (and unconstitutional) during the previous decade when, in response to financial and other scandals, legislators in Connecticut and Massachusetts proposed legislation that would have stripped bishops of administrative authority over parishes and imposed more congregational models of church governance or when people upset about parish-closing decisions turned to courts to second-guess them.

As the Supreme Court reminded us, in its 2012 Hosanna-Tabor decision, when Archbishop John Carroll asked the Jefferson Administration “who should be appointed to direct the affairs of the Catholic Church in the territory newly acquired by the Louisiana Purchase,” then-Secretary of State James Madison’s response was to note the “scrupulous policy of the Constitution in guarding against a political interference with religious affairs[.]” Even in times of scandal and shame, our foundational commitment to the freedom of religion requires that “scrupulous policy” to be followed.

Reader Discussion

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on September 13, 2018 at 07:33:11 am

[…] Richard W. Garnett – The Catholic Church’s Accountability and Autonomy […]

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Abuse Under the Collar: A Law and Liberty Symposium on the Catholic Church’s Crisis
on September 13, 2018 at 11:16:10 am

“A crucial dimension of the freedom of religion, I contend, is “the freedom of the church.”

The crucial dimension of freedom of religion, is “the freedom of the church”, but it is important to note that Christ’s One, Holy, Catholic, and Apostolic Church, consists of The Faithful. The Faithful, are those Baptized Catholics who assent to “those things that are to be believed with Divine and Catholic Faith which are contained in The Word of God, as it has been written or
handed down by Tradition, that is, in the single Deposit of Faith, entrusted to The Church, and which are at the same time, proposed as Divinely Revealed either by the solemn Magesterium of The Church, or by its ordinary and universal Magisterium, which in fact is manifested by the common adherence of Christ’s Faithful, under the guidance of the sacred Magisterium. All, are therefore bound to avoid any contrary doctrines.”
Anyone, (including a Pope) “who rejects propositions which are to be held definitively, sets himself against the teaching of The Catholic Church”. (Catholic canon 750)

It is not The Faithful who are responsible for the heinous abuse crisis, the bullying, coercion, and sexual assaults within various Seminaries, and the heinous cover up that enabled the abuse crisis to continue. The Faithful assent to Christ’s teaching regarding sexual morality, and thus respect The Sanctity of the marital act within The Sacrament of Holy Matrimony.

“It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity of The Holy Ghost. (Filioque) It is not possible for a counterfeit church to subsist within Christ’s One, Holy, Catholic, and Apostolic Church.

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N.D.
on September 13, 2018 at 11:26:35 am

“A crucial dimension of the freedom of religion, I contend, is “the freedom of the church.”

True, because only The True God can endow us with our inherent Right to Religious Liberty, the purpose of which is so that we can come to know, Love, and serve God, in this life, and hopefully, be with God, The Most Holy And Undivided Blessed Trinity, and our beloved, forever, in Heaven.
It is important to note that Christ’s One, Holy, Catholic, and Apostolic Church, consists of The Faithful. The Faithful, are those Baptized Catholics who assent to “those things that are to be believed with Divine and Catholic Faith which are contained in The Word of God, as it has been written or handed down by Tradition, that is, in the single Deposit of Faith, entrusted to The Church, and which are at the same time, proposed as Divinely Revealed either by the solemn Magesterium of The Church, or by its ordinary and universal Magisterium, which in fact is manifested by the common adherence of Christ’s Faithful, under the guidance of the sacred Magisterium. All, are therefore bound to avoid any contrary doctrines.” (Catholic Canon 750)

Anyone, (including a Pope) “who rejects propositions which are to be held definitively, sets himself against the teaching of The Catholic Church”. (Catholic canon 750)

It is not The Faithful who are responsible for the heinous abuse crisis, the bullying, coercion, and sexual assaults within various Seminaries, and the heinous cover up that enabled the abuse crisis to continue. The Faithful assent to Christ’s teaching regarding sexual morality, and thus respect The Sanctity of the marital act within The Sacrament of Holy Matrimony.

“It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity of The Holy Ghost. (Filioque) It is not possible for a counterfeit church to subsist within Christ’s One, Holy, Catholic, and Apostolic Church.

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Nancy
on September 13, 2018 at 11:36:25 am

Recall if you will some of the *teachings* of our blogging friend, R. Richard Schweitzer, obn the (de-) evolution of "Institutions and how over time they depart from their originating purpose, pursue new objectives and purposes and how these new objectives oftentimes are the result of the personal relationships of those comprising the Institution.

How is it that such a noble institution as the RC Church has come to be the plaything of officious bureaucrats who just happen to have a predilection for abhorrent sexual practices? (OK< a slight exaggeration). Is this not an indication of the transformation of an institution in pursuit of personal objectives?

Quite sad; despicable, in fact!

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gabe
on September 13, 2018 at 16:00:00 pm

I strongly agree with the author "that the fundamental human right to religious freedom has an “institutional” dimension; that this right belongs to and is appropriately exercised by communities, groups, societies, and associations as well as persons; that the jurisdiction of secular political authorities does not extend to theological and ecclesiastical questions; that religious communities enjoy autonomy — even a kind of sovereignty — with respect to matters of polity and self-government [...]".

Yet there seems to be a fundamental problem with applying this institutional autonomy or sovereignty to entities like the Catholic Church. This problem, as I see it, is that the Catholic Church is of itself unable to deal properly with manifest internal corruption. This inability seems do to the fact that this Church is organized like functional hierarchy, for example like the military, or, to make political comparisons, like the absolute monarchy of Louis XIV or the Soviet Union in the days of Breznjev.

A functional hierarchy is always incapable of effectively dealing with corruption when it is not supervised by some other body of authority. This is because a functional hierarchy, if it is absolute or autonomous, knows no separation of powers, an independent judiciary, or any checks and balances. It is totalitarian.

The armed forces of a democratic state is such a functional hierarchy which is controlled and supervised by a higher order of power which knows these checks and balances. The military is not autonomous, and this is why it can be kept free from corruption and from becoming a totalitarian power. It is clear, however, that as soon as we have an autonomous or sovereign political entity which is organized like such a functional hierarchy, it will necessary corrupt itself. This corruption of in the domain of state power in the Old World was the exact reason of the American Experiment.

Thus any autonomous or sovereign entity should embrace the principles of separation of powers, of internal checks and balances, and of the necessity of an indepedent judiciary, in order to maintain its standing and morale during the course of time.

The Catholic Church, however, not only does not know these principles, its structure is utterly unable to apply them and its doctrine is opposed to them for theological reasons. That's why from time to time, during its history, we see this Church succumb to levels of corruption and internal criminality which are devastating, crying to Heaven, and threatening its very existence. This was the case in the 10th century, in the 15th century, and it appears to be the case again in our time.

If the Church is unable to clean up its own mess — as is embarrassingly clear from its endless sexual and financial scandals — then it can hardly be granted any autonomous or sovereignty. To the contrary, here in the US the Church runs the real risk of facing a RICO investigation in the near future, which is not much different from being considered a possible criminal organization by the Federal Justice Department.

If this is the structural state of affairs of the Catholic Church, as seems to have been the case throughout history, then the very structure of the Church as a functional hierarchy requires the supervision and guardianship of the State in order to deal with its own internal problems, however sad as this conclusion may be.

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Ronald Sevenster
on September 13, 2018 at 17:07:50 pm

Would this also apply to an organization such as the Southern Poverty Law Center?

Sir, I think you go too far and mischaracterize (this spell-chucker is atrocious, please get rid of it) the essayists argument.

The essayist argues, I think, only that the State has no right to interfere in either the internal dogma or structure of ANY religious organization not that it may not, nor is not empowered to address, investigate or prosecute offenses against the law.
Many organization would appear to fit your definition of totalitarian, to include the Masons, Major League Baseball, etc. Is the State now to "reconstruct" those organizations. Are we to completely disavow all those "Little Platoons" (OK, in this case a BIG Platoon) of which Burke spoke so highly and accurately? Are we finally abandon any and all mediating institutions against an ever growing and ever more powerful State?

BTW: As to the RC Church and Criminal behavior during the 15th century, perhaps, you could check your history a little more thoroughly. You may find that all parties were less than saintly and engaged in all manner of violent acts. Indeed, were it not for the misbehavior of Protestant sects within Britain, the USA may never have been founded. Recall that it was not the Catholic Church in England that was persecuting the Puritans / Quakers, etc; rather, Catholicism in Britain had still not recovered from the forced confiscation and destruction of its churches and followers during the three centuries after Henry VIII.

So let us be fair about this.
Yes, the RC Church has blundered, has at times been run by corrupt and very very fallible men AND *THOSE* men ought to be held to account NOT the many millions of faithful adherents of that faith who have been betrayed. Would you now make them homeless as well and throw them into the *beneficent* arms of the State?

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gabe
on September 14, 2018 at 00:24:22 am

You don't address my main argument, which is that an autonomous functional hierarchy always and necessarily corrupts itself. Who would trust a US President who united in his person all the powers of government instead of only the executive branch? If the US had a system which gave the President supreme and autonomous legislative as well as executive powers, and at the same time made him the sole Supreme Judge of the country, every American would hold such a system to be structurally corrupt and dictatorial, even before it produced its bad fruits. But that is exactly the system of government of the Catholic Church. It is not corrupt because there no good and pious popes and prelates, for there really are. It is corrupt despite these good and pious men. It is the structure which is corrupt and which corrupts those operating within it.

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Ronald Sevenster
on September 14, 2018 at 08:55:52 am

What you argue, re: "an autonomous functional hierarchy always and necessarily corrupts itself." is certainly true. However, it is no more the business of government, at least a government (once) constitutionally dedicated to *LIMITED* governance to regulate the internal structures and operating methodologies of a Church than it is for that government to regulate / determine how the Masons or a bird-watching club ought to organize itself. Also, there is the pesky issue of the First Amendment, Given (at least as I understand it) that RC Church doctrine claims "infallibility" for its Leader, it would appear that such an attempt to regulate the structure of that Church would impinge upon certain doctrinal issues were one to upset this hierarchical arrangement.

Clearly, however, you are correct about "autonomous functional hierarchy."

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gabe
on September 14, 2018 at 10:35:49 am

"A functional hierarchy is always incapable of effectively dealing with corruption when it is not supervised by some other body of authority. This is because a functional hierarchy, if it is absolute or autonomous, knows no separation of powers, an independent judiciary, or any checks and balances. It is totalitarian.

Christ, The Word of God Made Flesh, Has Revealed Himself to His Church, through Sacred Tradition, Sacred Scripture, and The Teaching of The Magisterium based upon Sacred Tradition and Sacred Scripture.

"Code of Canon Law (Latin Church)
Canon 750
1. Those things are to be believed by divine and catholic faith which are contained in the word of God as it has been written or handed down by tradition, that is, in the single deposit of faith entrusted to the Church, and which are at the same time proposed as divinely revealed either by the solemn Magisterium of the Church, or by its ordinary and universal Magisterium, which in fact is manifested by the common adherence of Christ's faithful under the guidance of the sacred Magisterium. All are therefore bound to avoid any contrary doctrines.
2. Furthermore, each and everything set forth definitively by the Magisterium of the Church regarding teaching on faith and morals must be firmly accepted and held; namely those things required for the holy keeping and faithful exposition of the deposit of faith; therefore, anyone who rejects propositions which are to be held definitively sets himself against the teaching of the Catholic Church.[new]

Canon 1371
The following are to be punished with a just penalty:
1° a person who, apart from the case mentioned in canon 1364, 1, teaches a doctrine condemned by the Roman Pontiff, or by an Ecumenical Council, or obstinately rejects the teachings mentioned in canon 750, 2 or in canon 752 and, when warned by the Apostolic See or by the Ordinary, does not retract;
2° a person who in any other way does not obey the lawful command or prohibition of the Apostolic See or the Ordinary or Superior and, after being warned, persists in disobedience."

http://www.ewtn.com/library/canonlaw/adtucans.htm

No doubt, a multitude of Baptized Catholics, who desire to render onto Caesar or themselves, what Has always belonged to God, The Most Holy And Undivided Blessed Trinity, have created a counterfeit church, which, because it denies elements of The Deposit of Faith, is autonomous from Christ's One, Holy, Catholic, and Apostolic Church. Those who deny that God, The Most Holy and Undivided Blessed Trinity, Is The Author of Love, of Life, and of Marriage, have attempted to make it appear as if this autonomous counterfeit church, could be in communion with Christ's One, Holy, Catholic, and Apostolic Church. One can know through both Faith and reason, that it is not possible to be autonomous, and in communion, simultaneously, for it Is Through, With, and In Christ, In The Unity of The Holy Ghost (Filioque), that Holy Mother Church exists. It is not possible for a counterfeit church to subsist within Christ's One, Holy, Catholic, and Apostolic Church, making it appear lukewarm, as if one can both be for Christ, and against Christ simultaneously.

"It is not possible to have Sacramental Communion without Ecclesial Communion", due to The Unity of The Holy Ghost. Thus a Pope, who would be fallible in regards to Faith and morals, having set himself apart from God, and The Deposit of Faith, and thus autonomous, would reveal himself to be anti Pope, anti Filioque, and no longer in communion with Christ and His Church. We can know through both Faith and reason, that every Catholic Pope, must prior to, during, and after his election, be in communion with Holy Mother Church.

When we deny that God Is The Author of Love, of Life, and of Marriage, and render onto Caesar, what belongs to God, eventually we will end with tyranny, as those "checks and balances" no longer exist to protect our God Given unalienable Rights, that cannot be relinguished even if we so desire to relinguish them.

As the veil is being lifted, it has become clear, what we are witnessing is a Crisis in Faith, due to a denial of The Spirit of The Law, resulting in a denial of the spirit of our Constitution, which serves first and foremost, to protect and secure our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, which can only be endowed to us from The True God, the purpose of which can only be, what God intended.

We need to stop sleeping in Gethsemane, and recognize the signs of this moment in Time in Salvation History. Stay Awake and remain Faithful!

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Nancy
on September 17, 2018 at 14:36:45 pm

[R]eligious communities enjoy autonomy – even a kind of sovereignty – with respect to matters of polity and self-government….

* * *

Now, it is clear, and it is crucial, that – in accord with due process, of course, and in keeping with important safeguards like statutes of limitations – alleged crimes be investigated, that criminal offenses be punished, that victims are compensated.

Agreed. The law should apply uniformly, even to religious people and organizations, but government should not otherwise interfere with those people or organizations (or, indeed, with ANY people or organizations). This is Scalia’s views expressed in Employment Division v. Smith: laws of general applicability apply to all.

For example, if the court can compel hitmen to disclose what the crime lord told them to do, then other people should also be subject to the same compulsion. The hitmen would be free to refuse to testify, but would be subject to sanctions for doing so. One hitman might claim a religious basis for refusing to testify, while the other might not. But they should both be subject to the same sanctions—as should anyone else who was ordered to testify.

Moreover, if the law creates a duty to report knowledge of certain crimes, then that duty should apply uniformly. If any exceptions apply, those exceptions should be stated in the law, be rationally related to a bona fide governmental purpose, and be applied without discrimination.

It would be an overreach for any secular investigators to presume, as the Royal Commission on Institutional Responses to Sexual Abuse in Australia did last year, to call for revisions to religious doctrines or to canon law.

I would favor governmental agencies refraining from offering unsolicited suggestions to private ones. That said, I don’t object to governmental agencies offering solicited advice (e.g., SEC “no action” letters or IRS advisory letters). And I believe in governmental agencies making factual statements relevant to the public interest, regardless of the statement’s effects on religion.

Thus, I favor public schools teaching evolution—even if this practice offends some religious views. I favor the CDC reporting statistics on the consequences of smoking tobacco and drinking alcohol—even if some religious practices involve smoking and/or drinking. I would oppose teaching that celebrate priests pose any kind of greater threat to the public than anyone else—unless the data demonstrated otherwise.

In short, I want government to avoid discriminating on the basis of religion—whether that means discriminating in favor or in opposition. Government should discriminate on the basis of bona fide governmental interests alone.

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nobody.really
on September 19, 2018 at 17:38:16 pm

“It would be an overreach for any secular investigators to presume, as the Royal Commission on Institutional Responses to Sexual Abuse in Australia did last year, to call for revisions to religious doctrines or to canon law. “

True, as Catholic Doctrine and Canon Law exist to protect human persons from harm, not to accomodate harmful, and in the case of the abuse crisis, heinous behavior.

It is not Faithful Catholics who are responsible for the heinous sexual abuse crisis, the bullying, manipulation, and sexual assault in various seminaries, and the cover up that enabled the sexual abuse to continue.

Rogue priests with sexually deviant desires/inclinations, entered the priesthood so that they could groom their victims, bully, manipulate, and eventually, sexually assault them. The silence of the bishops is scandalous. How can any Faithful Bishop remain silent in the face of such evil?

For the sake of Christ, His Church, all who will come to believe, and those prodigal sons and daughters who, hopefully, will soon return to Christ's One, Holy, Catholic, and Apostolic Church, those beloved sons and daughters who were victims of these heinous crimes must be able to heal their wounds and have their Faith restored, as those who sexually assaulted them, and those who covered up for the sexual predators, enabling them to commit these crimes, receive the Justice they deserve.

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N.D.

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