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« Who you gonna believe, me or your own eyes? Part II | Main | Margaret Farley lecturing at Yale on February 23, 28, & March 1 »

02/16/2012

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Clark West

Michael, I think this is a marvelous post, one with which, as a theologian I entirely agree. I serve in a hierarchical church, one with bishops, etc. and I know first hand the truth of what you say and the danger of clerical overreach on these matters.

And yet, I wonder if the legal system in the U.S. will agree. The deference shown in property disputes by the Supreme Court to hierarchical churches and their canon law, which do give the bishops significant authority whether the people like it or not, is a concern.
Even after Jones v. Wolf and the articulation of neutral principles as opposed to always deferring to hierarchies, do the bishops still have legal authority in this arena, to which the Court would defer? I suspect they do in their parishes, but I'm not aware of to what extent they have control over entities like Catholic hospitals and Catholic Charities. Can they speak for these institutions and have a canonical, legal authority that the U.S. Court system will defer to?
In other words, if the bishops say that the HHS mandate violates the religious freedom of Catholic Charities, even if Fr. Snyder, CC's director states otherwise (I know there has been some confusion regarding his stand on this), are they canonically, legally authorized to speak for Catholic Charities on this? If not, how can the bishops make a freedom of religion claim on behalf of entities over which they may not have any direct control? Is it posturing, or real legal (because canonical) authority?

In any case, I am deeply grateful for your articulation of the sources of authority in the church, about which, regardless of how the legal cases may turn out, I entirely agree.

Michael Perry

Thanks very much, Clark.

But let me hasten to clarify: The author of the piece is not I, but Gary Gutting, professor of philosophy at Notre Dame.

The "go to" person on the relevant First Amendment issues is your Cornell colleague/friend--and our fellow RLL blogger--Steve Shiffrin.

Michael

Clark West

Thanks, Michael. I missed that. And of course, Steve has been a tremendous help to me in learning to distinguish between theological and legal reasoning on these matters. What may be obvious as a theological matter is by no means how the law will see it. In this case, keeping these separate seems crucial, as intra-catholic debates over the legitimacy of the mandate (formal vs. material co-operation with evil etc.) may not matter at all to the courts if called upon to decide if there has been an infringement. That's why I'm curious as to whether the bishops can legitimately claim to speak legally for these other entities.

By the way, I sometimes joke that since the Law School here at Cornell is just a quadrangle away from the Religious Life offices, keeping these thought worlds separate in my mind is no easy feat! They mingle in the space between us!

Jimbino

Damn! You lifted the entire argument from Martin Luther.

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