O’Malley, “Vatican I”

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As an Orthodox Christian who directs a law and religion center at a Catholic University, I often feel like I am on the inside, looking in. That is certainly how I have felt over the past few weeks, as Catholic commentators have argued emotionally over a recent First Things piece defending Pope Pius IX’s actions in the nineteenth-century Edgardo Mortara case, in the which the Papal States seized and raised a Jewish boy who had been baptized without his parents’ knowledge, on the ground that baptism had rendered the child a Catholic and the Church had an obligation to give him a Catholic upbringing.

The First Things piece has sparked a debate on the proper relationship of church and state in Catholicism. To my mind, that debate is quite beside the point. The Mortara case has little to do with a proper theory of church-state relations. One could be an integralist (there’s a word I didn’t know until a few weeks ago) and argue for a close connection between church and state, even for a subordination of state to church, and still not endorse what happened in the Mortara case. Put differently, one need not be an Americanist (another word I didn’t know until fairly recently) to see the seizure of the child and Pius’s refusal to return him to his parents–“Non Possumus”–as an abuse. It’s not the relationship of church and state in nineteenth-century Bologna that offends; it’s the use of a surreptitious baptism to justify removing a child from his family. It’s bewildering that someone would revive the controversy and seek to defend that action today.

I say all this as preface to a forthcoming book from Harvard University Press, Vatican I: The Council and the Making of the Ultramontane Church, by Georgetown Professor John W. O’Malley. The book addresses the context of the council, which Pius himself summoned and which made maximal claims about papal authority, precisely as the pope’s temporal authority was coming to an end. Here’s a description of the book from the publisher’s website:

The enduring influence of the Catholic Church has many sources—its spiritual and intellectual appeal, missionary achievements, wealth, diplomatic effectiveness, and stable hierarchy. But in the first half of the nineteenth century, the foundations upon which the church had rested for centuries were shaken. In the eyes of many thoughtful people, liberalism in the guise of liberty, equality, and fraternity was the quintessence of the evils that shook those foundations. At the Vatican Council of 1869–1870, the church made a dramatic effort to set things right by defining the doctrine of papal infallibility.

In Vatican I: The Council and the Making of the Ultramontane Church, John W. O’Malley draws us into the bitter controversies over papal infallibility that at one point seemed destined to rend the church in two. Archbishop Henry Manning was the principal driving force for the definition, and Lord Acton was his brilliant counterpart on the other side. But they shrink in significance alongside Pope Pius IX, whose zeal for the definition was so notable that it raised questions about the very legitimacy of the council. Entering the fray were politicians such as Gladstone and Bismarck. The growing tension in the council played out within the larger drama of the seizure of the Papal States by Italian forces and its seemingly inevitable consequence, the conquest of Rome itself.

Largely as a result of the council and its aftermath, the Catholic Church became more pope-centered than ever before. In the terminology of the period, it became ultramontane.

International Summer School in Vatican Law (Rome 2018)

Università-LUMSA-logoOur sister institution, Università LUMSA in Rome, has announced that it will host a summer school in Vatican Law for two weeks this coming July. The program is open to students of international law, EU Law, canon law and law and religion, and will also appeal to those who work in institutions that have relationships with the Holy See. Topics will include: historical introduction of the Vatican City State; introduction to canon law; the relationship between Vatican Law and canon law; the Holy See and the Roman Curia; guarantees of freedom of the Holy See; relationship between the Holy See and the Vatican City State; constitutive and constitutional principles; profiles of international law; sources of Vatican Law; the judicial system; Vatican substantive and procedural civil law; Vatican substantive and procedural criminal law; labor law; administrative law; extraterritoriality; financial and monetary system; and money laundering legislation.

For further details, please check the link above.

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web This Week

Here are some interesting stories involving law and religion from this past week:

Around the Web This Week

Here are some interesting news stories involving law and religion from this past week:

Ceci, “The Vatican and Mussolini’s Italy”

In October, Brill Publishers will release The Vatican and Mussolini’s Italy by Lucia Ceci (University of Rome). The publisher’s description follows:The Vatican and Mussolini's Italy

Lucia Ceci reconstructs the relationship between the Catholic Church and Fascism. New sources from the Vatican Archives throw fresh light on individual aspects of this complex relationship: the accession of Mussolini to power, the war in Ethiopia, the racial laws, the comparison between Pius XI and Pius XII. This book offers a comprehensive reconstruction of this encounter, explaining the criteria that led Catholics to support a dictatorial, warmongering and racist regime. In contrast to the traditional periodization, the history begins with the childhood of Mussolini in the final years of the nineteenth century, and ends with the sudden collapse of his puppet regime, in 1945. This means to some extent placing in a different light the exceptional nature of the ventennio. The Italian original L’interesse superiore, Il Vaticano e l’Italia di Mussolini has won the “Friuli Storia” Prize for Studies of Contemporary History.

The Synod on the Family and the Developing World

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First World Problems?

Not long after his election, the new Pope explained why he had taken the name “Francis”: “Ah, how I would like a church,” he said, “that is poor and is for the poor.” It was refreshing: the Pope was going to change the basic terms of the conversation between the Church and the world. Instead of waging a grinding “culture war” against a secular West, the Church would instead speak to the most urgent concerns of the global East and South. The first Pope to come from beyond Europe and the Mediterranean basin promised to be the champion of those who lived in the parts of the earth where hunger, injustice and persecution abounded. Places like the Philippines, Mexico, and Nigeria had already become the true center of gravity of a global Church, displacing Quebec, Chicago, Milan and Vienna. The new Pope would speak for the populations of the emerging world – for their suffering, their desperation, their resilience, their energy, their sense of hope. The “North/South” polarity would supplant the “Left/Right” one. The Church would make the pivot to poverty. In making that turn, it would address the West too – but by awakening it from the deadly self-absorption of the affluent.

So when one learns that the Synod of Catholic cardinals and bishops summoned by the same Pope has returned the conversation to the culture wars of the West – though with unmistakable overtones of capitulation on many of the bishops’ part — it is, to say no more, a disappointment. Try as it may, the Church under Francis seems to be unable to resist scratching the sores of Western sexuality. The consuming obsessions of the West, now in the terminal phases of the sexual and cultural revolutions that have swept over it for more than half a century, are dominating the Church’s agenda once again. At the Pope’s insistence, the bishops did a reset, plunging the Church into renewed debate over divorce and homosexuality and cutting short the conversation that the Pope had earlier invited over famine, persecution and want. With Islamist terrorist groups like Boko Haram recently murdering 2500 Catholics in one Nigerian diocese alone, and with Christian children being crucified or cut in half by ISIS, you might think that the world’s bishops would have more pressing things on their mind than the compatibility of same-sex unions with Church teaching. You would, of course, be wrong.

Indeed, even considering “family” issues alone, the non-Western Church was short-changed: how much attention was given to the question of inter-faith marriages, despite its being a major concern for the Church in India? In the Philippines, many marriages break up because poverty forces a spouse or parent to migrate overseas in search of employment, leaving home, spouse and children behind. Philippine Cardinal Luis Tagle noted this problem, saying that poverty “goes right at the heart of the family” in his country ; but how much attention did this issue get?

What is more, the organizers of the Synod openly expressed their indifference to – if not contempt for – the opinions of the leaders of the non-Western Church. They spoke as if the opposition of the African bishops to their “modernizing” program could stem only from irrational hatred and prejudice. What the Africans needed, they seemed to be saying, was a good, stiff dose of Richard Posner’s writings. In the controversy over the initial draft of the Synod’s statement, Cardinal Walter Kasper, an octogenarian German theologian and a favorite of the Pope’s, infamously said:

Africa is totally different from the West. Also Asian and Muslim countries, they’re very different, especially about gays. You can’t speak about this with Africans and people of Muslim countries. It’s not possible. It’s a taboo. For us, we say we ought not to discriminate, we don’t want to discriminate in certain respects.

Kasper later denied having made those revealing remarks – a denial that was then proven to be false. In any case, the remarks hardly seemed out of character for the Cardinal. In an interview with the German magazine Focus published under the heading “Third World Land,” Kasper was reported to have said, “When you land at Heathrow you think at times you have landed in a Third World country.” The German Cardinal obviously notices different things when he is at the airport from what Cardinal Tagle does. The Philippine prelate spoke of his anguish in watching Filipino mothers at airports forced to part from their children because their poverty is so desperate that they must leave their families and search for work abroad.

Not Just Cardinal Kasper

Even if Cardinal Kasper’s statement were merely condescension on the part of the passenger with the first-class cabin towards the passengers in steerage, it would be bad enough. But Kasper and those like him simply did not seem to understand the position. Perhaps the Africans and Asians are not just squinting narrowly at the issue of homosexuality, but rather looking at the state of Western culture as a whole? And perhaps they do not like what they see? Perhaps the cultural exports of the secular West – its current practices regarding marriage, abortion, childbirth, the family, the relations between the sexes – are no more wanted in Africa and Asia than the West’s toxic wastes and sewage effluents? (New York Cardinal Dolan’s wonderful defense of the “prophetic” African Church effectively made these points. )

But the problem with the Synod went far beyond the tactlessness and incomprehension of elderly European churchmen. Apparently at the Pope’s insistence, the Synod’s final report included three controversial articles that had received the approval of a Synod majority, but not the supermajority required for consensus. The final report will now go to the Church throughout the world for discussion and debate before the Synod reconvenes. You can be sure that the media coverage of the debate in this intervening period will focus overwhelmingly on the articles that the Pope reinstated. Cui bono? In their effort to get the conversation back on the familiar tracks of the Western culture wars, the Pope and his bishops are doing serious harm to millions of faithful Catholics trying to live out the Gospel in hostile and often dangerous conditions in the emerging world.

My former student, Andrew Ratelle, makes the point forcefully:

By upholding the nuclear family, the Church made what was perhaps the most important social investment in history. People in the poorer, more pagan regions of the world where polygamy, polyandry, arranged and child marriages were common, now had a place to look for support when it came to building a life that was most beneficial for themselves and their children. By weakening this support, or at the very least dispersing it to include more “diverse” arrangements, these bishops have weakened the very shield from which the nuclear family has received so much protection. Even in our own country, where “diverse” familial arrangements have almost become synonymous with urban poverty and crime (at least for those who have no gilded safety net to fall into), where should families look to now, since the Church has seen fit to dilute the medicine they have thrived on for so long?

Church leaders in the developing world understand this perfectly well. South African Cardinal Wilfrid Napier, for instance, wondered how he could deny communion to an African man living in polygamy in accordance with local culture and tradition, if he had to administer the sacrament to a divorced man married to his second wife? “Successive” polygamy, Napier pointed out, is hardly distinguishable from “simultaneous” polygamy.

Pope Francis was right (at first): it really is time to change the conversation. The global Church is not the parochial Western Church; the Church of the poor and the marginal is not the affluent, greying Church of Western Europe and North America. The Church should not be shadowing the West’s cultural trajectory all the way downwards. The future of the Church lies elsewhere. Ex oriente, lux.

Photo from the Catholic News Agency.

Pope Francis Opens Center’s Conference with Statement on Religious Liberty, Persecution of Christians

Pope Francis opened our conference in Rome last week with a statement on religious liberty and the persecution of Christians. He reflected on the place of religious liberty in Catholic thought and decried religious discrimination across the world, particularly against Christians.

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Pope Francis Greets Conference Participants (News.va)

The Pope’s remarks came at a special audience at the Vatican for participants in the conference, “International Religious Freedom and the Global Clash of Values,” which the Center for Law and Religion co-sponsored with the St. John’s Center for International and Comparative Law and the Department of Law at the Libera Università Maria SS. Assunta. Referring to the Second Vatican Council’s declaration, Dignitatis humanae, the Pope argued that people require religious freedom in order to be fully human:

“Every human is a ‘seeker’ of truth on his origins and destiny,” the Pope said. “In his mind and in his ‘heart,’ questions and thoughts arise that cannot be repressed or stifled, since they emerge from the depths of the person and are a part of the intimate essence of the person. They are religious questions, and religious freedom is necessary for them to manifest themselves fully.”

He called religious freedom “a fundamental right of man.” It is “not simply freedom of thought or private worship,” but “the freedom to live according to ethical principles, both privately and publicly, consequent to the truth one has found.”

“Legal systems, at both national and international level, are therefore required to recognize, guarantee and protect religious freedom, which is a right intrinsically inherent in human nature.”

Religious freedom is also “an indicator of a healthy democracy” and “one of the main sources of the legitimacy of the state,” the Pope continued.

Nowadays, international and domestic law protect religious freedom. Notwithstanding this protection, however, religious discrimination continues. In fact, Pope Francis noted, 1700 years after the Edict of Milan, Christians worldwide suffer disproportionate discrimination and persecution. “The persecution of Christians today is even more virulent than in the first centuries of the Church,” he said, “and there are more Christian martyrs today than in that era.”

We’ll have a fuller discussion of the Pope’s statement when the Vatican releases an official English translation. Meanwhile, here’s a video report on the audience in English.

The UN, Children, and the Vatican

Here is the latest evidence of the clash between contemporary human rights norms and traditional religions. Last week, the UN’s Committee on the Rights of the Child reported on the Vatican’s compliance with an international treaty, the Convention on the Rights of the Child. The Convention, which virtually every UN member, including the Holy See, has ratified (though not the US), lists universal rights of children, including the right to be protected from discrimination; the right to be free from violence, including sexual abuse; the right to health and welfare; and so on.

The committee had blunt words for the Vatican. With respect to the sexual abuse crisis, it complained, “the Holy See has not acknowledged the extent of the crimes committed, has not taken the necessary measures to address cases of child sexual abuse and to protect children, and has adopted policies and practices which have led to the continuation of the abuse by and the impunity of the perpetrators.” The committee had several suggestions for how the Vatican could do better job, including the immediate removal of “all known and suspected child sexual abusers” and referral of cases “to the relevant law enforcement authorities.”

Critics complain that the that the committee did not sufficiently acknowledge the steps the Vatican has taken to address the crisis. I’ll leave that question to others. Whether or not the Vatican’s response has been adequate, everyone agrees that sexual abuse is a violation of children’s rights. But the committee also addressed subjects on which everyone does not agree. It suggested that the Vatican alter its positions on abortion, contraception, and homosexuality in order to meet its obligations under the Convention.

For example, the committee stated that the prohibition of abortion “places obvious risks on the life and health of pregnant girls”and urged the Vatican to amend canon law to “identify circumstances under which access to abortion services can be permitted.” It expressed “serious concern” about the Vatican’s policy of “denying adolescents access to contraception.” The Vatican must put “adolescents’ best interests” ahead of other concerns, the committee said. And the committee expressed concern that the Holy See’s disapproval of homosexuality may lead to discrimination against LGBT children and the children of LGBT parents. It recommended that the Holy See amend canon law to recognize diverse family arrangements. 

As my former colleague Julian Ku explains, these recommendations don’t follow clearly from the text of the Convention, which lacks “specific language about LGBTQ rights, the appropriate circumstances for abortions, or birth-control education.” On the contrary, Ku says, the report is based upon an “aggressive” reading of the treaty. And the recommendations obviously conflict with fundamental teachings of one of the world’s great religions. Given these facts, shouldn’t the committee have dialed it back a bit? Why push an aggressive, contestable interpretation of a treaty that purports to be universal, notwithstanding the inevitable conflict with the Catholic Church and other traditional religions?

There are probably two explanations. First, to the committee, these recommendations seem morally incontrovertible. Who could doubt that children’s best interests call for liberalized abortion, unrestricted access to contraceptives, and the recognition of same-sex marriages? From the secular human rights perspective, these propositions are frustratingly obvious. The idea that one might in good faith define “best interests” differently–that many world religions in fact do define “best interests” differently–doesn’t make sense. The committee simply cannot credit the other point of view.

Second, the secular human rights regime believes it is at the brink of final victory in these matters. (It has believed so for about 50 years now.) The forces of obscurity are in retreat and religion no longer dictates people’s lives, at least in the civilized West. The Catholic Church, in particular, is on the ropes, a victim of its own sins and intransigence. Why not put an end to its obstructionism once and for all? This would help the cause of progress, and actually be a good thing for the Church, too.

The committee no doubt expected the negative reaction of the Vatican to last week’s report. But it may have been surprised that so many in the elite media objected too. The Economist criticized the report for being sloppy and taking positions on issues where consensus is lacking. The Atlantic‘s  Emma Green complained that the report inappropriately critiqued deeply-held religious beliefs. And the Boston Globe‘s John Allen argued that the report would only confirm the opinion of skeptics that the UN is motivated by politics and secular ideology. Perhaps the final victory is still a ways off.

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