Cathleen Kaveny, whom the Cardinal Newman Society points out is the the John P. Murphy Foundation Professor of Law and Professor of Theology at the University of Notre Dame Law School, wrote a column over at Commonweal that does not befit someone of her education and position.
She took note of the analogy used by Bishop Lori when he testified before Congress on the HHS mandate. Bishop Lori likened the mandate to forcing a kosher Jewish deli to sell ham. A suitable analogy for its intended usage, but like all analogies it isn’t a perfect one-to-one comparison. It breaks down when looked at from a given angle. That’s a known, unavoidable phenomenon of analogies: they all break down from an angle or two from which they were not intended to be used.
Professor Kaveny either missed that fact of how analogies function or chose to ignore it when she took an area where the analogy breaks down and made it the feature.
This part is a little pedantic, but regrettably necessary if one as educated as Professor Kaveny can miss the point so massively. See, Bishop Lori’s analogy had to do with the effect of federal law on the practice of one’s faith. He was saying that federal laws forcing Catholic institutions to subsidize the purchase of abortifacients, contraceptives, and sterilization is a violation of the First Amendment’s free exercise clause, just as forcing Jewish delis to sell ham would be.
He was not saying Catholic opposition to contraceptives, abortifacients, and sterilization is based on the same moral code or logical/societal/cultural/religious construction as Jewish laws of kashrut. His analogy concerned the effect of external forces on people practicing their faith, not the internal workings of how the practice of the faith works.
Professor Kaveny didn’t work with that obvious-to-most understanding of the analogy. No, she took his analogy to indicate a likeness between the Catholic rationale for opposition to abortifacients, contraceptives, and sterilization and the Jewish rationale for laws of kashrut. Since the latter are very much about Jewish cultural identity and not at all intended to be universal moral norms (that is, rules that ought to be observed by everyone, regardless of whether they are Jewish), she argues, Lori is clearly indicating that he thinks the Catholic proscription of abortion, contraception, and sterilization is also becoming more of a Catholic cultural thing, to be observed only by those who self-identify as Catholics, and can no longer be defended as a universal moral norm.
She helpfully explains: “I was surprised that a bishop would make this comparison—and certain that Aquinas would have been shocked.”
Indeed. We’ll see.
Moving on, she doesn’t stop with Bishop Lori’s analogy. She also targets Catholic families that eschew artificial contraception and embrace the practices of Natural Family Planning with her uncareful analysis. I usually don’t like doing the paragraph-by-paragraph-response blogging style, but the next part of her writing demands it.
Thanks to John Paul II’s “Theology of the Body,” a small but dedicated group of Catholics appears to be structuring their family lives around the prohibition of contraception. In treating that prohibition as the linchpin of a faithful Catholic life, including faithfulness to divinely ordained gender roles, they are transforming the prohibition into a religious identity marker. If their blogs are any indication, Catholics who publicize their commitment to this church teaching tend to see those who don’t follow it as inauthentic Catholics. That is more akin to a cultic judgment than a moral one…
Methinks the lady doth protest too much. This reads like she is trying to justify her own possible dissent on the matter by ascribing a negative characteristic to those simply trying to live according to authentic Catholic morality. In a culture such as ours where contracepting is the norm, those who do not and are unafraid to speak about the beauty of authentic, unrestricted, unhindered lovemaking will, in fact stand out. If this practice is largely limited to Catholics that is a tragedy for others, not an indictment of the Catholics.
Moreover, those who publicize their dissent from this, or any other clear and firm teaching of the Church, have indicated by their own actions and words that they are inauthentic Catholics, and possibly guilty of scandal to boot. Calling them out for it, in charity and humility, is the Christian thing to do. If doing so is a cultic judgment it is, at least in part, because those who strive to live by the clear, unequivocal teachings of the Church on sexual ethics would prefer not to be undermined (especially those raising children) by other “Catholics” who dissent on this matter. If you’re Catholic, believe like it, act like it, teach like it. If you cannot do one of the three, please do the rest of us the favor of either not calling yourself Catholic or quiet yourself until such time as you can see and imbibe the Truth of the Church as your own.
…Significantly, no one talks about the prohibitions against stealing, lying, or murdering this way. Someone who commits murder would be labeled a sinner or a bad Catholic—not an inauthentic one.
“Significantly” in her own head, perhaps. There is nothing culturally odd about failing to murder* or steal**—though there are those who, contra Professor Kaveny, think lying is a-okay in many circumstances. So this actually bolsters my point more than hers: in a culture-at-large where contraception is the norm but murder and thievery still merit scorn those who morally oppose contraception will ipso facto stick out while those who morally oppose murder and thievery will fit in, even if the Catholic refrains from all three explicitly because of his Catholic faith and for no other reason. See: the categorization of the “others” as “cultic” comes because of the norms of the culture at large not the norms of the faithful few.
And think of the construct she’s setting up: more of those who identify as Catholic are also, in larger numbers, identifying as those who oppose contraception (if they feel the need to publicly disclose anything on this subject). So more who self-identify as “Catholic” live according to authentic Catholic moral norms than any other demographic. Isn’t that definitional? Can’t the same be said for any group of people who self-identify their membership and have a set of rules to live by? Where’s the problem?
The problem Professor Kaveny really seems to have is with Catholics who actually, really seem to believe all that stuff the priests and Bishops are saying these days, especially as a result of Theology of the Body. Her problem seems to be with what Catholicism looks like rather than with what the people who take Catholicism to heart look like. Her problem seems to be that more priests and Bishops are preaching Humanae Vitae as something to be believed rather than ignored. This is a change from a decade or so ago, to be sure, but a return to authentic Catholic morality is a good thing, not a sign of problems.
The similarities go further. Conformity to cultic norms generally takes a great deal of thought and vigilance, and Natural Family Planning demands ongoing vigilance in ways analogous to keeping kosher. Just as there are competing rabbinical schools, there exist NFP experts, as well as study groups and manuals, to address technical questions.
Another logical fallacy: coincidence does not equal correlation. Fantasy baseball takes a heckuva lot of planning and vigilance, too. There are magazines, websites, mutual-help groups, professional scouts, and statistical analysis services dedicated to helping people do fantasy baseball well, and people pay for these. But no one would argue that it is akin to laws of kashrut.
Not surprisingly, enterprising adherents to both Jewish dietary prohibitions and the Catholic ban on contraception have invented smartphone apps to make conformity easier.
There are apps for fantasy baseball as well.
In contrast, I’m not aware of an app for “not killing”—or “not stealing,” for that matter. That’s because most people don’t spend too much time thinking about whether and how to conform to basic moral prohibitions.”
Did you see what she did there? A little sleight of hand. She used “following NFP” as a replacement for “not contracepting” and then said those who use the “following NFP” apps are using them to avoid contracepting. Bull hooey.
Following the proscription against killing and stealing is fairly simple: don’t do it. Similarly, following the proscription against adultery, fornication, and even contraception is also simple: don’t do it.
Those using NFP apps are not using them to avoid using contraception—that is, they’re not using them to avoid going foul of the moral code. They could do that by simply refraining from sex outside marriage and not contracepting within marriage. Those using the NFP apps use them to monitor their fertility and space conceptions. If they mess up following NFP, no big deal morally, but there might be conception. Great! There is nothing sinful in failing to follow NFP perfectly.
There is, however, something sinful in failing to refrain from artificial contraception. Therefore, practicing NFP is a massively different thing than following laws of kashrut, so Professor Kaveny’s argument is utterly off-base here, and her sleight of hand did not save it.
And her conclusion:
A hundred years from now, no one will remember the political skirmishes around religious liberty during the 2012 presidential campaign. But some future historians of Catholic moral theology might point to Bishop Lori’s testimony as a turning point, marking the moment when the church’s official teachers began to concede that the prohibition against contraception could plausibly be defended no longer as a matter of a universal moral law, but only as a cultic precept binding on Catholics. Four decades after Humanae vitae, that prohibition looks increasingly like a form of Catholic kashrut.
First, I very much disagree that no one will remember the present skirmishes around religious liberty in 100 years. This is one of the most significant epochs in our national history: the executive branch, empowered by the legislature, is attempting to directly and comprehensively smash the free exercise of religion clause of the First Amendment. If this is allowed to stand then there is nothing the federal government cannot regulate in the personal lives of each and every American, all in the name of “health care.”
But beyond that, her conclusion just doesn’t pass the laugh test. She presents no evidence apart from her strained interpretation of a single analogy for such a sweeping conclusion. The Church will never abandon the belief that our moral norms are and ought to be universal because our anthropology demands that belief—our morality treats the human person and how the human person ought to act, with no distinction among Jew, Muslim, Buddhist, atheist, Christian, secularist, or any other “-ist” you can mention. Our morality is based in seeing the Imago Dei in each and every person and calling him to be the child of God whom he was made and loved into existence to be. We do not impose our morality on anyone, but we offer it to all. But most especially in this current fight we simply demand the continuation of the Constitutionally protected liberty to keep living according to the Catholic norms according to which we freely choose to live.
Since Aquinas would appreciate the modern movement back in the direction of authentic Catholic morality I imagine his shock would be with Professor Kaveny’s analysis, not Bishop Lori’s analogy.
* Abortion notwithstanding, for sake of argument.
** Same for confiscatory taxation.
Tom Crowe is a writer and the web content editor at Franciscan University of Steubenville. Views expressed are exclusively his own and do not represent the thinking of any other person or institution.