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On May 3, 2001 a new Church law governing Catholic Universities went into effect in the United States. It is the outcome of many years of tense discussion; many more years of experimentation with its concrete application undoubtedly lie ahead.
To understand what it is all about, we need to bear in mind that there are two basic types of "Catholic universities." The classic type, referred to as pontifical or ecclesiastical universities, originated in the Middle Ages. They are chartered by the Church, which also awards their degrees. Regulations for them were given in the original Code of Canon Law (can. 1375 ff.) The Catholic University of America is the principal example of such a university in this country.
A different kind of Catholic university has arisen in modern times. It is not directly the work of the Church itself, but of some private organization within the Church. Nearly all of the Catholic universities in this country were established by religious congregations, notably the Jesuits. Notre Dame was founded by the Congregation of Holy Cross; Duquesne by the Holy Ghost Fathers. The original Code of Canon Law, issued in 1917, did not take this type of university into consideration; but when preparations for a new Code began after Vatican II, it was recognized that this gap needed to be filled and world-wide consultation was initiated.
Meanwhile, the International Federation of Catholic Universities, under the leadership of Father Theodore Hesburgh, C.S.C., of the University of Notre Dame, had already set about trying to define the characteristics of a Catholic university. Their reflections culminated in the famous "Land O'Lakes Document," which became a watershed in the history of Catholic education in this country. Drawn up in 1967 by officers from various universities, it declared that, "the Catholic university must have a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself."
Whatever else it implied, this statement evidently regarded bishops as "clerical authority external to the academic community"; and de facto one might say that this was pretty much the case. While the bishop's approval had to be sought for the founding of an institution in his diocese, and occasionally he might be consulted, or decide to intervene, in regard to some touchy issue, the ordinary affairs of the university were handled by its own officers. These were under the supervision of the religious order that had founded the university, but not of the bishop.
The Land O'Lakes document was evidently motivated by the desire to affirm that Catholic universities are genuine universities, and in particular that they enjoy the same sort of freedom as others. But it did not consider whether academic freedom may not have a special configuration in a Catholic university — the question that will be dealt with here.
After Land O'Lakes, many Catholic universities proceeded to sever their ties with the congregations that had founded them and take on the character of independent legal entities. They retained firm bonds with the congregation (for example, by requiring that the majority of the trustees belong to them), but were legally independent. This was not an act of rebellion; generally speaking, the religious communities were in complete agreement with the move. The separation was motivated chiefly by concern that, on the grounds of "separation between the Church and state," governmental subsidies for research projects would be denied to universities officially linked to any church. However, a series of legal decisions, beginning especially with the Tilton case in Connecticut (1971) and culminating in a decision by the Supreme Court on the Roemer case in Maryland (1976), made it clear that this would not be so. Nonetheless, the educators continued to cite this danger as a reason for their autonomy. (On this, see Kenneth Whitehead, "The History of Ex Corde Ecclesiae" The Catholic Dossier, July-August, 1999 and James Burtchaell, C.S.C., "Everything you need to know about Ex Corde Ecclesiae" in Crisis Magazine, July/August 1999.)
In 1983, the new Code of Canon Law appeared. Besides a chapter devoted to pontifical (a.k.a. "ecclesiastical") universities and faculties, it contained a completely new chapter devoted to "Catholic universities and other institutes of higher learning." This explicitly declares that "no university may bear the title or name Catholic University without the consent of the competent ecclesiastical authority" (can. 808). The teachers should be qualified, not only by learning and pedagogical competence, but also in being "outstanding in their integrity of doctrine and probity of life"; otherwise they are to be removed (can. 810 #1). The bishops of the country have the responsibility of seeing to it "that in these universities the principles of Catholic doctrine are faithfully observed" (can. 810 #2). Finally it is stipulated that "those who teach theological disciplines . . . have a mandate from the competent ecclesiastical authority" (can. 812).
It is this requirement of a mandate that has been the main focus of contention. When the first Code appeared, most universities simply paid no attention to it, and went on appointing faculty as before. When the Congregation for Catholic Education in 1985 published a tentative draft of a Church document on Catholic higher education, the presidents of the American Catholic universities responded very critically, especially as regards the mandate, which they characterized as "contrary to the American values of both academic freedom and due process." For a while, the Roman authorities seemed ready to give in to their protests; but in 1990, the papal letter Ex Corde Ecclesiae reiterated the requirement of the mandate.
The American bishops then set up a committee to draw up ordinances complying with the demands of this letter. A draft proposed in 1994 was quickly dropped after university administrators objected that requirement of the mandate would be an intrusion by bishops into the internal affairs of the university.
Two years later, the bishops adopted a document which spoke eloquently about the "communion" which ought to exist between the hierarchy and educators, but said nothing about the mandate. Rome promptly rejected this version, calling for one that would specify the juridical instruments by which communion could be maintained. Accordingly, in 1999 the bishops revised their proposal in a document entitled, "The Application of Ex Corde Ecclesiae for the United States." It was approved by Rome and went into effect on May 3 of this year.
In an apparent effort to avoid some of the connotations of the English word mandate, the officially approved document replaces it with the Latin term, mandatum, and defines it as "an acknowledgment by Church authority that a Catholic professor of a theological discipline is a teacher within the full communion of the Catholic Church." The document goes on to explain that "the mandatum recognizes the professor's commitment and responsibility to teach authentic Catholic doctrine and to refrain from putting forth as Catholic teaching anything contrary to the Church's magisterium." But to preclude any misunderstanding, it is added that "the mandatum should not be construed as an appointment, authorization, delegation or approbation of one's teaching by Church authorities." The local bishop is designated as the person competent to grant the mandatum.
A detailed procedure for requesting, granting or withdrawing the mandatum is still to come, and perhaps practical experience will enable us to discern how official certification of a professor's "commitment to teach authentic Catholic doctrine" can be distinguished from "approbation of his or her teaching."
Not everyone is happy with this decree. Fr. Richard McBrien declared flatly, "I shall not seek a mandate," adding that this is "a matter of principle," because the requirement of a mandate "compromises the academic integrity of the faculty and the university" (America, February 12, 2000, p. 14). His colleague, Lawrence Cunningham, protested: "I resent the fact that Catholics will have to take an oath of fidelity to their faith!" The president of the University of Notre Dame, Fr. Edward Malloy, C.S.C., and the Chancellor of Boston College, Fr. Donald Monan, S.J., indicated their dissatisfaction in an article entitled, "'Ex Corde Ecclesiae' Creates an Impasse" (America, January 30, 1999). The Catholic Theological Society of America, to which most Catholic theology professors belong, has for many years opposed such a mandate; its most recent declaration, "Theologians, Catholic Higher Education and the Mandatum" (September 15, 2000) insists that the right relationship of theologians to the Church must be brought about by "communion," not by juridical instruments.
The objections to the mandatum are mainly two: that it would risk making Catholic schools ineligible for state aid; and that it would violate the academic freedom essential to a university.
The first of these objections has been effectively refuted by the experts noted above, and more recently in a "Symposium on Ex Corde Ecclesiae," in the Journal of College and University Law (Spring, 1999). Here I would like to offer some reflections on the second objection.
In the first place, as many others have already pointed out, all American universities are submitted to the scrutiny of diverse "outside authorities." A few obvious examples are the accreditation agencies of the American Bar Association, the American Medical Association, the Board of Engineering and Engineering Technology, the American Assembly of Collegiate Schools of Business, and even the National Collegiate Athletic Association. There are many other ways in which universities are subject to regulation by the Department of Education and other federal departments. For Catholic universities to be subject also to episcopal regulation fits into the normal pattern of university structures.
To place the issue on a non-academic level: as several observers have noted, the Catholic Church has just as much right to stipulate requirements for use of its name as McDonald's or Walgreen's have the right to place conditions of the use of their trademark (see, e.g., Will Esser in The Observer, February 3, 1999, p. 9.) If a professor takes a stance in opposition to that of the Church, he has no right to the label Catholic. Here too there should be truth in advertising.
The danger of abusing the name Catholic is by no means remote. In recent years, theologians Hans Kung, Charles Curran and (for a while) Tissa Balasuriya were all declared by the Congregation for the Doctrine of the Faith as unfit to teach Catholic theology. In this country, many parents are distressed that the faith of their children has been wrecked rather than deepened as so-called "Catholic" universities; and many students complain about the difficulty they experience in trying to live a Catholic life in those places. Bishops are concerned that not even seminary faculties can always be relied on to impart a truly Catholic doctrine.
We are confronted with a widespread and grave situation: that so-called Catholic faculties have largely abandoned or disfigured their Catholicism. This has come about, not by any major policy decisions, but by thousands of petty moves which the mandatum will by no means suffice to reverse; but it is meant as a first step.
Obviously there are in Catholicism, as in any other field, debatable questions and differences of opinion. There are those who hold that such and such a version of Liberation Theology is incompatible with Catholic faith, and others who would disagree. Such questions are ordinarily left to the academic community to be worked out and settled by purely academic discussion. That will undoubtedly continue to be the case, even under the mandatum.
But granted that the Church has the right to lay down conditions for the use of its name, is the mandatum the wisest way to achieve this? Will it not deprive a university of that freedom to investigate and to theorize that constitutes its lifeblood? If the Catholic Church insists on mandating those who are to teach theology, will not this heavy-handed method reduce universities to the mediocrity of a finishing school?
This is a delicate question calling for a carefully nuanced reflection on the structure of theology as an intellectual discipline. A very detailed and concrete "Instruction on the Ecclesial Vocation of the Theologian" was published by the Congregation for the Doctrine of the Faith just three months prior to Ex Corde Ecclesiae, and accompanied by an insightful commentary of Cardinal Ratzinger (Osservatore Romano, Eng. ed. July 2, 1990). Unfortunately it has been almost totally overlooked in the furor over Ex Corde. Here I would like to offer some independent reflections of my own.
First it must be acknowledged that academic freedom is without doubt a precious safeguard of intellectual exploration. Its purpose is to allow original investigations to be made without the danger of being suppressed by some power that finds itself threatened by them, or by some bureaucrat whose mind is not open to new ways of thinking. As the Holy Father himself declared, "freedom has always been an essential condition for the development of a science . . . " (L'Osservatore Romano, Engl. ed. Oct. 10, 1988. p. 3).
On the other hand, academic freedom has also been so glorified in our culture that it has become a kind of mini-idol. It is treated as an absolute good, in disregard of the fact that it too can be abused. Academic freedom is only one of many factors that need to be adjusted to one another for the achievement of a good life. There is no need to undertake here an investigation of academic freedom in general; it is the special character of academic freedom in the work of the Catholic theologian I wish to consider.
Two difficult points must be insisted on. The first is that theology, as understood in the Catholic world, is not just the intellectual investigation of a religious topic; it is by its very nature rooted in faith. In the famous phrase of St. Anselm, it is "faith seeking understanding." An intellectual who studies Christianity with detachment, i.e., without any personal commitment, is not properly a Christian theologian, no matter how learned he may be. He may be well informed about the history of Christianity and the controversies that have divided Christian thinkers down through the ages. Such a one would be an "expert" on Christianity, but he is not a Christian theologian. He does not have the light, the insight that comes from opening oneself up to the Word of God. Faith is only secondarily the product of a human investigation; primarily it is an acceptance of a light offered by God and which cannot be found elsewhere.
This accounts for the distinction commonly made between theology and "religious studies." In the latter case, as the term is generally used today, a person studies religious topics and appraises them by whatever criteria he chooses. He may devote himself to a particular religion, such as Buddhism or Confucianism, or even Catholicism, and become an expert on its literature, its doctrines, its debates, artistic expressions and all the rest. One who studies Catholicism in this way might be much better informed than the vast majority of Catholics, better even than the Pope himself. But such a one is not a Catholic theologian, because he is not viewing matters in the light of faith. In the final analysis, he is not competent to make judgments about Catholics doctrine.
This does not make a theologian irrational or unintellectual. Theology consists precisely in the use of all the intellectual resources available to the human mind in order the better to understand the mysteries of faith and relate them to things of the natural order. The works of theologians such as St. Augustine or St. Thomas Aquinas can be numbered among the greatest intellectual achievements of mankind. But with all its intellectual finesse, theology is nonetheless rooted in faith.
Many academics recoil from such a view, maintaining that personal detachment is precisely what qualifies a person to be an objective and impartial judge. This is in effect to deny that there can be a truly Christian or Catholic university: the very notion would imply an intrinsic contradiction. Without undertaking to deal adequately with this topic, we can at least recall that it was Catholic intellectuals who invented the university. It was out of an impulse to join the study of the faith together with all the other great domains of human intelligence, that universities first arose in Paris, Oxford, Bologna and elsewhere.
Even from a secular point of view, it should be evident that personal commitment and living engagement in a belief provide an insight and a sense of realism lacking to the detached observer. In any case, faith is an opening of the mind to revelation, which, without closing off any of the natural sources of human light, provides an illumination inaccessible to the mind that is confined to secular resources.
My second point is that Christian faith, by its very nature, needs to be lived in the Church, under the supervision of its pastors. Jesus did not simply cast his gospel to the winds, hoping for it to spread as far as possible. He gathered his disciples into a community, and formed shepherds to watch over them, and in particular over their life of faith. For this task, he equips these shepherds, whom we now call bishops, with a special grace of the Holy Spirit. Consequently, the proclamation of the Gospel, at whatever level and in whatever mode it is done, is subject to the supervision of the bishops.
In other words, Catholicism is not just a set of beliefs about God, Christ and the Church, so that the name Catholic would apply to anyone who embraces these beliefs. Catholicism designates a community, a family, gathered together around Jesus, focused on him, and watched over and governed by shepherds consecrated by him. One of the principal responsibilities of the shepherd is that of proclaiming the Gospel message, and consequently of authorizing others who collaborate in this work.
Pope John Paul II (himself a former university professor) made a statement at Xavier University, New Orleans in 1987, which he has since reiterated several times: "the bishops of the Church, as doctores et magistri fidei [doctors and teachers of the faith], should be seen, not as external agents, but as participants in the life of the Catholic university . . . " (Origins, 1987, p. 269).
There is, of course, a distinction between a catechist, who simply teaches Church doctrine, and a theologian, whose task includes the quest for understanding, investigation of problems and exploration of frontiers. The theologian is not an agent of the bishop. He has his own initiative and independent judgment in reflecting on the implications of the faith, exploring its relationships with secular disciplines, and so on. Nevertheless, he does this as a believer, and thereby as one submitted to the supervision of the bishop.
In reference to the International Theological Commission, the Pope declared that, "Its very independence is a guarantee of the autonomy necessary for its reflection," even while adding that "the theologian must be a person of faith, in the certainty that the true faith is always what the Church professes" (L'Osservatore Romano, Engl. ed. December 21/28 1994, p. 7).
It would be interesting — but far too long and complicated for this essay! — to reflect on the interplay between theologians and bishops. The Instruction on the Ecclesial Vocation of the Theologian mentioned above gives a very detailed and alert discussion of this subject. By no means is it simplistic or authoritarian; it recognizes, in particular, the due autonomy of the theologian. Here, let us recall briefly the oft cited fact that most bishops are not professional theologians; they themselves generally recognize the need to consult experts on theological issues. (Even the Pope does this.) Likewise, bishops are far from infallible. They make mistakes like anyone else. It is a realistic dread of every Catholic intellectual that he may come under a bishop who, out of an institutional pattern of thinking, is blind to new insights. This was in a sense the fate of Yves Congar and Henri de Lubac (although the blame was not all on the side of the hierarchy!). But it is instructive for us that these men did not rebel against the Church. They suffered patiently until rehabilitated by Vatican II and subsequent pontiffs. They accepted their trial as part of the wear and tear that any member of the Church must endure as the price of belonging to an institution which, though founded by Christ and animated by the Holy Spirit, is made up of and governed by human beings.
In conclusion, the life and work of a Catholic university is characterized by faith. And faith is not just an intellectual stance, it is a life that needs to be lived in the community formed by Jesus and illumined by the Holy Spirit. In that community, there are shepherds entrusted with the responsibility and the charism for transmitting and guarding the faith. Theologians, inasmuch as they are believers, belong under the supervision of the bishops. It is intrinsic to the life of faith, and therefore also to Catholic intellectual life, to endorse this.
There may be a better means than the mandatum for episcopal authority to be implemented; but if so, someone has got to come up with it. (Warm talk about communion is certainly not sufficient!) Meanwhile, if the mandatum is what the Church has decided on, that is what has to be respected as a matter of principle.
Reverend D. O'Connor, C.S.C., has taught theology at Notre Dame University since 1952. He has published books and articles on Mary, faith, Thomist theology, spirituality, and the Charismatic renewal. His two books are The Contemplative Life (Crossroads Press, 1990) and The Catholic Vision (Our Sunday Visitor, 1992). His last article in HPR appeared in June 1997.