By Robert Delahunty* & Andrew Ratelle**

The past few weeks in the life of the Catholic Church in America are proof of a twelfth century English proverb that “often the end fails to equal the beginning.”

What began some fifteen or more years ago as a series of promised reforms, compounded with yet more promises, has made a full circle return to the point of origin. A prince of the Church has been caught yet again in deeply hypocritical, sinful, and, if not for statutes of limitation, tortious and even criminal behavior. But this time, a coterie of fellow bishops and peers is gathered about him, unable or unwilling to see where the line between charitable forbearance and public condemnation must be drawn. According to the New York Times:

Between 1994 and 2008, multiple reports about the cardinal’s transgressions with adult seminary students were made to American bishops, the pope’s representative in Washington and, finally, Pope Benedict XVI. Two New Jersey dioceses secretly paid settlements, in 2005 and 2007, to two men … for allegations against the archbishop.

And now comes the news of a Pennsylvania grand jury’s findings that in six of the State’s eight dioceses, bishops and other clerical leaders concealed at least one thousand identified cases of child sexual abuse for a period of over seventy years. The grand jury wrote:

“Despite some institutional reform, individual leaders of the church have largely escaped public accountability.” …  “Priests were raping little boys and girls, and the men of God who were responsible for them not only did nothing; they hid it all. For decades.”

This is indeed “a spiritual crisis” that cuts deeper with every revelation. It is a “crisis” that goes much deeper than the episcopate seems competent or willing to handle.

The Catholic laity must assume far greater responsibility for the conduct of their bishops and priests, and the hierarchy must give them the tools to do so. Below, we outline a series of lay-led initiatives, ranging from least to most radical, for a project of reform. Most importantly, we recommend that the laity have a greater role in the appointment and removal of diocesan bishops.

The Failure of the Hierarchy

The unfolding story of Cardinal McCarrick’s decades of sexual predation is both dismal and familiar. But those disclosures are not the most dismaying part of the current crisis. What makes the McCarrick matter different is the unbelievable lameness of his fellow bishops’ excuses for their repeated failure to challenge him. Loyal Catholics have been driven to the conclusion that their Church’s hierarchy is utterly compromised. It has proven itself unfit to perform the urgent task of dealing with the rot that it has allowed to fester in its own ranks. The bishops— “good” and “bad” alike—have betrayed the faithful.

In addition to sexual abuse, there are two problems here. One problem is the continuing influence of “bad” bishops, willing to use their power to protect abusers, to promote them, and to marginalize those who would denounce them. The other problem is the silence (or at least the shrugging of the shoulders) of “good” bishops, unwilling to condemn the corrupt practices of their peers. This silence is not always intentional complicity, but it is close enough—a distinction with no real difference.

The American Church, it seems, has its own version of the Deep State, committed to obstructing genuine reform and to punishing those who question its authority.

For the Church to respond to this threat, the laity must now do what the bishops ought to have done years—decades—ago.

We are not talking only about the investigation and correction of priests and bishops who are guilty of sexual abuse. The Church has always had such priests, and canon law structures—though under-enforced—have long been in place to correct them. Clerical sexual abuse is the primary problem, but it is not the only one.

The real task ahead is instead to devise and implement processes, in which lay participation is extensive, that will police the bishops as they ought to have policed themselves. Investigation and punishment of abuses are not enough. It is essential to develop institution-wide remedies. The crisis in the Church is a structural or “constitutional” one.  Its full solution must therefore be “constitutional” in kind. While we are not advocating substantial change in the Church’s current canon law (itself the product of history, not direct revelation), we are advocating deep “constitutional” change in its practices.

Moreover, finding the right remedies is going to require fresh and creative thinking.  Whatever one thinks about a married clergy or the ordination of women, these are not the right solutions for this crisis. What is needed now are ideas that are both bolder and yet more congruent with Catholic traditions.

Any effective program of long-term reform must include a significant leadership role for the laity.  This is not in the least to relegate the local diocesan clergy to the sidelines—far from it. Nor is it to deny that the laity, like the hierarchy, is fallible and, yes, sinful. But the laity could hardly do a worse job than the hierarchy has done in monitoring and correcting clerical corruption. Lay involvement in church governance, as we argue below, has been critically important for centuries of Church history. And if lay-led efforts eventually fail to improve the current situation, then lay people will have no one to blame but themselves.

Lay involvement and the pattern of Church history

Revolutionary as it may yet seem, lay involvement in Church governance is by far the norm throughout Christian history. The clergy was one of two pillars that upheld the universal Church. The second was historically the nobility—the knights, landowners, and men of property—whose practical means and expertise propped up, and occasionally held in check, the more spiritual mission of the priests and bishops. Historically, the nobles were in turn supported by the peasantry, commoners who lived by the work of their hands in exchange for the protection offered by their feudal employer.

As the middle ages developed, an increasing number of social gradations between these two lay classes appeared until the dawn of the modern age, when the nobility and the commoners effectively joined into once distinct class. The knight and the peasant are essentially one, with the modern laity taking a share of the responsibilities of both. It is their duty not just to provide for, but to defend, the universal church, exercising their role in a range of natural competencies best suited to their state in life. Lest we forget it was the advocacy of two extraordinary members of the laity, in the persons of St. Francis of Assisi and Catherine of Siena, who helped correct the errors of the papacy in their own time. Chivalric orders like the fiercely independent Knights Templar held both the clergy and royalty in check for generations because of their roles not just on the battlefield, but in the financial sector. It was the Christian laity that held the line against apostate bishops and Emperors during the time of the Arian heresy, and it was laymen like Dante Alighieri, who put their professions on the line in condemnation of corruption in the Vatican.

The failure to recognize this normative function of the laity creates the conditions in which abuses like the current McCarrick scandal emerge. No single blog post can hope to cover the full scope of what the laity’s response should be.  We aim here only to start a conversation by making five suggestions.

Advocacy

First and most natural to many people is the option of lay advocacy and lobbying for internal change within the clergy. The internet and social media have only made this easier, expanding the reach of the average layperson to be able to impact potentially hundreds of thousands of people. This is an advantage not to be underestimated or underused. In the spirit of Francis of Assisi and Catherine of Siena, offering counsel and urging action on behalf of those bishops in a position to act is an effective baseline from which all other lay action in this matter can be grounded. More substantive measures can also be taken in this regard, such as organizing and attending events like the USCCB’s fall assembly in Baltimore this November. Such public displays of lobbying and advocacy are perhaps the most basic assertion of stock in the larger well-being of the Church, and the one most open to the widest amount of engagement.

Financial sanctions

Many public members of the laity have made the call for parishioners to withhold donations from annual bishop’s appeals or any form of diocesan-wide financial support as a means of protest. This is a good start, something that creates a general platform of protest that leverages the laity’s financial investment in the governance of their local church. But yet more can be done and discussed.

It is well established that while donating to the bishop or diocese in which one lives is more of a prudential appeal towards the individual’s charity, one is still bound to the obligation to give in some way to the support of one’s parish. This issue becomes more complicated when one confronts the potential reprisals incurred against priests or even the parishes of priests who decide to speak out. Systems of financial protection, whether for individuals or institutions, capitalize on the strategy that the best offense is a good defense.

Creating an “ecclesiastical safety net” of sorts to protect and even incentivize priests and their associated parishes to speak out against predatory peers or the bishops who enable them, while remaining free of any retributive action from their superiors is an additional, and more involved measure the laity can take. Setting up foundations, either for the support of such priests individually or specific parishes, can work as a financial leveraging tactic against corruption that allows the laity to bolster justice in the Church not through advocacy so much as exercising the power of the purse.

Diocesan boards of lay overseers

A more permanent or proactive step at lay involvement would be to create a board or council of elected lay overseers within each diocese.  The overseers would have the full power to investigate any credible allegation of clerical abuse in the diocese or of inaction by the bishop in investigating and punishing it.  In the event that the overseers found wrongdoing by the bishop, they could recommend further action to the USCCB, to another American bishop specially designated for the purpose, or to Rome.  The overseers would also have financial powers and could direct diocesan funds and revenues into an escrow account to be held there at their discretion until their recommendation was accepted or rejected.

Lay input in selecting bishops

More ambitiously, we recommend that local parishes, priests and lay people be involved directly and substantially in the appointment and removal of the bishops of their dioceses.

In the early centuries of the Church, the popular vote of the faithful decided the nomination and election of bishops. St. Cyprian believed that these procedures prevented unworthy persons from becoming bishops. The great St. Ambrose of Milan, who converted the still greater St. Augustine of Hippo, was popularly elected bishop as a compromise candidate even while he was still an unbaptized layman!

In the fifth century, Popes Celestine I and Leo I condemned any attempt to impose a bishop without popular consent. The practice began changing in both the Eastern and Western Roman Empire in the early middle ages. In the West, popular elections remained, but Kings (themselves laymen) began to control nominations to vacant sees. Later still, episcopal elections were limited to cathedral canons – the clerical administrative staff of the bishops. In 1485, Pope Innocent VIII removed any reference to elections in the rite of consecration for a bishop. In 1917, the Code of Canon Law confirmed the papal right to appoint all bishops.

We are not recommending a revival of the early elective practice in pure form. Rather, we envisage a voluntary, non-binding commitment on the part of the Pope that he will only appoint as bishops those candidates who have been nominated by the parishes—i.e. priests and laypeople—of the dioceses that those bishops will lead. If the Pope so desired, the practice could vary from one country to another.

Because these arrangements would be non-binding, they would not alter canon law. Moreover, the Pope could stipulate that the agreement held only for the duration of his Papacy, and did not in any way commit his successor. Finally, the Pope could reserve to himself the power to breach or retract the agreement on any occasion.

An analogy may be helpful. Under the US Constitution, the power to appoint Justices of the Supreme Court is shared between two distinct actors—the President and the Senate. The President must make a nomination; the Senate may confirm or reject (or not consider) the nominee; and if the Senate acts favorably, the President then commissions the nominee, completing the appointment.  The President has unfettered freedom in his or her choice of whom to nominate. But without violating the Constitution, President Trump could informally agree with Senators McConnell and Schumer to make a nomination only from a list of candidates they provided to him. That agreement would be de facto a substantial transfer of power to the Senate, but it would not be de jure impermissible.

Exactly what procedures should be devised for “nominating” candidates, whether the electors should give the Pope a single name or a slate of names, who may take part in the selection of nominees, and so on, are difficult questions, and there is much room to debate them. We note that the Catholic Church could learn from studying the practice for selecting bishops in other Christian Churches, where bishops are at least in part “elected.” But these issues, though important, are beyond our present scope.

Removing bishops

Lay involvement in the removal of incumbent bishops for action or inaction relating to clerical sexual abuses is also desirable. For instance, the Pope could agree that, on receiving the petitions of a certain number of parishes within a diocese, Rome would remove that bishop, or at least suspend him pending the outcome of proceedings to evaluate the merit of the complaints. As with elections, the final authority would remain in Papal hands. But also as before, the local laity would exercise a powerful checking function that nevertheless has enough checks against it to prevent it from turning into a pure democracy.

Conclusion

Power must first be realized before it is exercised. With the Church in crisis, it would merely compound the tragedy if those with the ability to do something were to just sit by, complain and do nothing. An attack on the most vulnerable members of the Church is an attack on the Church as a whole, and the Church as a whole, with all its members, is obliged to respond in the capacity in which it is most able. The hierarchy has been found wanting. Now the laity must step up and do their part.

*Robert Delahunty is the LeJeune Professor of Law at the University of St. Thomas School of Law in Minneapolis and a participant in the Tradition Project. 

**Andrew Ratelle is a lawyer practicing in Minneapolis.  He has represented a group of Catholic parishes in the Archdiocesan bankruptcy appeal. He is working on a book on the role of the Catholic layman.