by Bill Piatt. Durham, NC: Carolina Academic Press, 2012. 328 pages. Cloth $48.00. ISBN: 978-1-61163-138-8.Reviewed by Mark Rush, Dean, Arts and Sciences, American University of Sharjah.
pp.5-8
Catholic Legal Perspectives is casebook that presents a very balanced analysis of the differences between Roman Catholic and secular views on particular legal issues. Insofar as the analysis is quite balanced, the book is unremarkable and quite refreshing. In each chapter, Piatt sets forth the Catholic church’s position with regard to key controversies and how it differs from prevailing norms of American law. As well, he thoughtfully demonstrates how and where divisions exist with the Catholic church concerning the manner in which Catholics – particularly lawyers – should reconcile the teachings of the church with their secular roles.
The book is comprised of six chapters. After setting forth the “Sources of Law and Catholic Perspectives,” Piatt proceeds to address Family Issues, Life and Death, Immigration, and Welfare (Feeding the Hungry, Sheltering the Homeless). He then concludes with a discussion of legal education and the role of the bar.
In each, Piatt offers a careful, lawyerly analysis of the divergence and overlap between Catholic teaching and the state of American law. The tenor of the book is, therefore, not judgmental. He demonstrates simply that secular law does not abide by Catholic teachings. Instead, it operates on the basis secular norms that reflect or conflict with Catholic teachings to greater and lesser extents. Even when the law and Catholic teachings agree, it is clear that the secular basis of the law is not necessarily in agreement with the normative underpinnings of church teachings.
Piatt shows that Catholics are one of many groups that engage in the legal process in hopes of moving the prevailing legal norms in a direction that they prefer. The law is in a constant state of flux or evolution and, at any given time, the prevailing legal norms will resonate more or less with Catholic teachings. In this regard, then, Piatt does not present differences between prevailing legal norms and Catholic teachings as tensions. Instead, the differences are presented as the natural divergences that will narrow and broaden due to the fact that the legal system is dynamic.
Piatt also notes that Catholic teachings and practice can vary and be unclear as well. Accordingly, “the Catholic thing to do” is not always clear or beyond debate and, therefore, the sources of disagreement between Catholic teaching and American law may be blurred as well. A good example of this aspect of the book occurs at the end of chapter 2, where he addresses how Catholic lawyers should deal with clients seeking divorce. Divorce is anathema to Catholic teaching insofar as the religion regards marriage as a sacrament. While the Pope issued a strong directive to lawyers concerning their participation in divorce proceedings, the Dean of the Boston College Law School offered qualifications to the Pope’s position, stating that there may be cases where a “Catholic lawyer can act rightly in bringing about a divorce” (p.63).
Catholic teaching and the law may share common ends but not the reasoning on which those ends are based. Accordingly, in matters of life and death, the extent to which the law resonates with Catholic teaching depends on jurisdiction and politics. Thus, the resonance between Catholic teaching and American law with regard to stem cell research changed dramatically when President Obama loosened President Bush’s restrictions on stem cell research..
Federalism is the principal determinant of agreement between Catholic and secular legal views towards homosexual marriage. While some states may allow homosexual marriage, others do not. As a result, the extent to which American law resonates with Catholic teaching depends less on the norms underpinning the definition of marriage in any particular state than it does on judicial interpretation of the Full Faith and Credit Clause of the Constitution.
In the case of homosexual marriage, the moral issues will be subsumed by whether or not the Supreme Court declares the Defense of Marriage Act (“DOMA”) to be constitutional in terms of Congressional powers and the interpretation of the Full Faith and Credit Clause of the Constitution. If it does, then states will be free to accept or reject homosexual marriage within their own jurisdictions and free to recognize (or not) homosexual marriages recognized in others.
Accordingly, while American law may not embrace particular norms because they are shared by the Catholic faith, the nature and diversity of the federal legal system and legal process allow for at least the partial resonance between legal norms and religious teaching. While a state may not, for example, recognize homosexual marriage, it also will not be compelled, e.g., to provide judicial proceedings for homosexual couples married in other states who seek divorce. Thus, Texas did not have – nor was compelled to provide – divorce proceedings to a homosexual couple married in Massachusetts. Since Texas restricted the definition of marriage to heterosexual couples, its legal system did not provide subject matter jurisdiction over homosexual divorce proceedings (p.32, citing In the Matter of the Marriage of J.B. and H.B.).
In this regard, Piatt nicely demonstrates the extent to which Catholics – like any other group in a plural society – must engage the legal and political processes in hopes of moving law and public policy in their preferred direction while acknowledging that other groups will be doing the same thing. So, American law presents a glass that is half-full to all interest groups.
The discussion of marriage, family, life and death takes up half of the text’s 300 pages. This comes as no surprise because Catholic teachings and sacraments set forth clear norms with regard to these issues. The discussion of immigration and welfare are less contentious because Catholic social teaching on these issues is not based on sacraments or ex cathedra statements and, therefore, is less prone to dogmatic positions or statements.
Piatt says, for example, that Catholic teaching would afford a broader right to immigrate than that recognized by U.S. law (p.194). But, generally, American law and Catholic teachings embody the same values. Piatt draws extensively from his own work on immigration to set forth the parameters and issues involved in the debate about the rights of immigrants and the rights of citizens to control their own polity.
The chapter presents statements by the United States Conference of Catholic Bishops (USSCCB) that emphasize the importance of keeping families intact, allowing them to cross borders to reunite and the corresponding need to update immigration laws to reflect “the realities” of migrants’ family conditions (p.212). In drawing frequently from his own work on reform, Piatt’s analysis in this chapter is less balanced and more clearly prescriptive. While one can sympathize with Piatt’s calls for a “more just immigration policy” (p.215), one can also ask that he provide a more balanced analysis of the rights of citizens to build and maintain their own commonweal.
In the chapter on welfare, “Feeding the Hungry, Sheltering the Homeless, Treating the Sick,” the discussion again contrasts to that of abortion and marriage because welfare decisions clearly embody more obvious economic issues. Marriage and abortion controversies focus on key definitional issues: that of marriage and the point at which life begins. Welfare discussions are constrained by economic concerns: regardless of whether one believes that public schooling, immigration or government assistance are “rights”, programs designed to administer them are constrained by bureaucratic and fiscal realities.
The court decisions Piatt uses all demonstrate this. Access to education in or rights to immigrate into a particular state beg important questions about a polity’s right to self-determination and the extent to which a polity can discriminate in favor of its own citizens. The lower court decisions concerning the Affordable Health Care Act demonstrate the extent to which concerns of federalism affect the manner in which a federally mandated program can be administered at the expense of state sovereignty.
While the Catholic Church or the USCCB may have particular opinions about what should be done for migrants, school children and seekers of medical services, the fiscal and bureaucratic constraints that affect immigration, schooling and health care are the same that affect all other government programs. In this respect, the book’s coverage of welfare and immigration provides more of an overview of policy making in a manner that transcends the question of how the law does or does not resonate with Catholic teaching and vice versa.
In the final chapter “Applications”, Piatt offers a concluding overview of the tensions between Catholic teaching and American law and how Catholic universities can address them. The chapter draws upon his 2010 article “Catholicism and Constitutional Law: More Than Privacy in the Penumbras.” Catholic universities are bound to operate on and support principles of Catholic teaching. Yet, that must be balanced with ensuring that students have a clear sense of the myriad perspectives that exist on legal issues.
He notes that Catholic values tend to mesh well with the existing legal views about immigration and the death penalty while diverging significantly with regard to abortion. In this regard, the final chapter provides a succinct summary of the issues raised throughout the previous parts of the book in the context of teaching about them in Catholic institutions of higher learning while adhering to principles of academic freedom.
The concluding chapter is as thoughtful as it is thought-provoking. In Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez (pp.279ff.) Piatt presents the reader with a clear example of the complexity of the issues facing universities and student groups. In this case, the Christian legal society protested the university’s “all-comers” policy for student group membership.
The case neatly demonstrates the difficulty inherent in trying to separate the secular and the sectarian, the public and the private and what is Caesar’s from what is not. In a liberal, pluralist society boundaries overlap and are blurred. So, it is impossible to set forth principles that allow us to resolve conflicts neatly. Instead, we must live with the uncertainty of conflict management. In this case, the court upheld the “all-comers” policy despite the fact that it conflicted with the society’s desire to limit membership to the faithful. So, if the society wanted to operate in the public law school, it would have to adjust its rules.
Members of the bench and the bar must operate under similar constraints. With one foot in the faith and the other in the secular realm of the law, they must seek to advance the goals of their faith and maintain the integrity of the legal system.
In conclusion, Catholic Legal Perspectives is a clear, intriguing presentation of the tensions inherent between any religion and a secular legal system.
CASE REFERENCES:
Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez Docket No. 08-1371 561 U.S. – (2010)
In The Matter of the Marriage of J.B. and H.B. 26 S.W.3d 654 (Tx. 5th Cir. Ct of Appeal 2010).
Copyright 2013 by the Author, Mark Rush.
