Bernard Delanoe, the Mayor of Paris, this week expressed his opposition to a proposed Russian Orthodox Cathedral on the banks of the Seine near the Eiffel Tower. According to Reuters’s FaithWorld blog, Delanoe’s opposition has nothing to do with religion. He simply thinks the proposed design of the cathedral, with onion-shaped domes and a wavy glass roof, lacks éclat. The design is “mediocre architecture conceived in haste,” he complains. France gave its approval for the project two years ago — “without the agreement of the city of Paris,” Delanoe notes — and Delanoe seems to lack authority to stop it now. In fact, he’s asking for UNESCO, the UN body that granted protected “World Heritage Site” status to the Seine riverbank, to intervene “so that no permission” for construction “can be given without the endorsement of international experts.” Wonder if France has a version of RLUIPA.
By using the amicus curiae briefs of the United States Conference of Catholic Bishops to define the universe of Supreme Court cases in which the Catholic hierarchy has an interest, it is possible to reveal the areas of consonance and dissonance between a leading set of views about the preferred state of the law from the point of view of Catholic social teaching (namely the Bishops’ Conference’s views) and the actual state of the law as brought about by the Supreme Court. It is also possible, as the charts in prior posts illustrate (here and here), to assess the extent to which particular Justices have voted for parties supported by the Bishops’ Conference as amicus curiae. But the Bishops’ Conference’s briefs should not be understood as presenting the Catholic position on the legal questions that they address. There is no single, correct “Catholic answer” to questions of constitutional law (or any questions of federal law, for that matter). There is, for example, a Catholic teaching about the morality of the death penalty. But there is no Catholic teaching about the meaning of the Eighth Amendment. There is, to pick another example, a Catholic teaching about the necessity for the Church to have the freedom to administer sacraments and to gather the People of God. But there is no Catholic teaching about the meaning of the Free Exercise Clause of the First Amendment. And so on. When bringing Catholic teaching to bear on questions of federal law, the Bishops’ Conference makes prudential, strategic, tactical, and legal judgments in deciding whether to file a brief and what to include in it.
Even while affirming that there is no single, correct “Catholic answer” to questions of federal law, it is important not to overemphasize this point. Catholic social teaching guides the Bishops’ Conference’s amicus briefs, and all of these briefs ask the Court to implement the insights of that teaching in some way. Moreover, it is difficult to imagine the Bishops’ Conference weighing in on the opposite side of the cases in which they file amicus curiae briefs. Take, for instance, Gonzales v. Oregon, which involved an interpretive rule issued by the Attorney General that prohibited the prescription of death-dealing drugs under federal law in certain circumstances even when state law explicitly permitted such prescriptions. As a potential amicus curiae, the Bishops’ Conference’s principal is whether to file or not; there is little doubt which side the Conference would support if it were to file.
Unlike potential amici, Catholic Justices do not have the option of sitting on the sidelines. In cases properly before them, their obligation is to render judgment. Moreover, in the course of adjudicating cases, the Justices develop broader jurisprudential commitments that influence how they approach cases–commitments that the Bishops’ Conference need not develop or adopt in a similar manner.
Gonzales v. Oregon, for example, presented both federalism and separation of powers issues about which Catholic social teaching has little to say in comparison with the ample resources for moral evaluation offered by the tradition. The Bishops’ Conference’s support of a national, one-size-fits-all approach to the particular medical and legal issues in Gonzales v. Oregon depended not only on Catholic teaching about what constitutes a “legitimate medical purpose,” but also prudential judgments about the distribution of power between the state and federal government. Those prudential judgments take on a different complexion when the relevant federal actor claiming authority to make legal judgments about medical practices, whether that be the Attorney General or the Secretary of HHS, is more hostile than sympathetic to the Bishops’ Conference’s considered moral judgments. For the Justices, by contrast, judgments about the distribution of regulatory power between the federal and state governments, and about the distribution of interpretive power between the executive and the judiciary, must be more legal than prudential. And they should, to the greatest extent possible, be consistent with the legal judgments those Justices would reach with respect to issues that have little, if nothing, to do with Catholic social teaching.
Following up on an item we covered in December, a law clarifying the Catholic Church’s responsibility for property taxes is making its way through the Italian Parliament. Although media reports describe the law as controversial, it actually breaks little new ground, Time Magazine reports. Since 2005, the Church has had to pay tax on property it uses for commercial purposes; the Church does not object to that. Property used for non-commercial (religious and non-profit) purposes remains exempt; no one, except perhaps the Radical Party, seems to object to that. The only controversy is what to do with mixed-use property: property that is used for religious and commercial purposes, like a convent that contains a chapel as well as a few rooms for tourists. Under the new law, only those parts of mixed-use property that are used for commercial purposes would be subject to tax. Religious entities would be required to account for which parts of their property are in fact used for commercial purposes. The law’s opponents argue that this arrangement is susceptible to abuse; in a country where tax enforcement is so lax, they argue, no one is likely to check the accounting.
Here’s a very interesting piece about the relations between Cuba and the Catholic Church (h/t John Barrett). It highlights the mediating role that the Church has taken with the Castro regime, and how taking “the long view” seems to have been both shrewd and effective in various political and cultural ways. A bit:
When Pope Benedict XVI visits Cuba next month, he will once again reinforce a strategy that the Vatican has allowed the local Catholic Church there to pursue for more than three decades: diligently avoid any political confrontation with the Castro regime, collaborate with Havana to combat the U.S.-led embargo, and support the Cuban government’s incremental economic reforms. In exchange, the Church has been able to maintain a certain amount of autonomy on the island, allowing it to rebuild its presence and position for the possible post-Castro economic boom times to come.
It is a controversial balance. Cubans in the exile community vigorously criticize the Church because they think Church leadership on the island should challenge the dictatorship. But the Vatican takes the long view. Rather than overtly push for change, the Church has come to pursue a strategy of “reconciliation.” It has inserted itself as mediator between the regime and its most daring opponents, both those imprisoned and those out in the streets. The Church is present and persistent, but it is nonpartisan. The attitude harkens back to the ostpolitik it practiced during the Cold War — in most communist countries, especially in those where Catholics were a minority, clergy hunkered down, ministered to the faithful, and survived. Today, in countries ranging from Albania and Montenegro to Romania and Ukraine, Catholic communities are thriving.