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by Christine McCarthy McMorris…
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On June 26, after months of robust public debate, two full days of oral argument, and blanket media coverage, the Supreme Court issued opinions in two same-sex marriage cases, Hollingsworth v. Perry and U.S. v. Windsor. The cases generated a record 156 amicus curiae (friend of the court) briefs, of which more than 30 were filed by a broad array of religious and faith-based organizations.
The religious briefs included as signatories, among others: the Becket Foundation for Religious Liberty, Catholics for the Common Good, the National Association of Evangelicals, the Southern Baptist Ethics and Religious Liberty Commission, the Church of Jesus Christ of Latter-day Saints, the Evangelical Lutheran Church of America, the Thomas More Law Center, the Family Research Council, the United States Council of Catholic Bishops, the American Humanist Association, the American Jewish Committee, the Bishops of the Episcopal Church (11 states), the Anti-Defamation League, and the California Council of Churches. Not to mention the Westboro Baptist Church.
In other words, it’s fair to say that most of the organized American religious world expressed its opinion on same-sex marriage to the court. But was the court listening?
There is little evidence to suggest that this avalanche of amicus submissions affected the justices in either case. A review of the citations to legal briefs in the court’s opinions reveals that no references were made to any of the legal briefs filed by religious organizations.
The lack of impact can be explained in part by the fact that Hollingsworth v. Perry, which mounted a direct constitutional challenge to California’s ban on same-sex marriage, was not decided on the merits. Instead, the Court determined that Dennis Hollingsworth, the Republican state senator who represented supporters of the ban, did not have standing to bring the case before the Court. As a result, the Court gave no indication of how it might have incorporated the legal arguments about the constitutional status of bans on same-sex marriage presented in the 96 amicus briefs filed in the case, including those of the religious organizations.
The Court did, however, address the merits in U.S. v. Windsor, which involved the claim of 84-year-old Edith Windsor that Section 3 of the 1996 Defense of Marriage Act (DOMA) denied her the right to be exempt from paying income taxes on the inheritance left to her by her same-sex spouse of 40 years. Windsor’s contention was that by preventing legally married same-sex couples from receiving federal benefits, DOMA was discriminatory and should be found unconstitutional.
Although the Windsor case did not require the Court to reach a conclusion about the constitutional status of same-sex marriage per se, in a close 5-4 decision authored by Justice Anthony Kennedy, DOMA was found to be unconstitutional because it violates the equal protection and due process rights guaranteed to all by the Constitution. According to Justice Kennedy, “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned the authority of the states, and the principal effect is to identify and make unequal a subset of state-sanctioned marriages.”
Kennedy went on to say, “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” He concluded that the court was therefore required “to hold, as it now does, that Section 3 of DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”
In a dramatic victory for Edith Windsor and the opponents of DOMA, the court’s majority thus established that same-sex couples are entitled to all federal benefits that previously had been withheld from them. But it is important to emphasize that the court did not engage the arguments made by religious organizations and faith groups in their amicus briefs concerning the question of whether same-sex marriage is a fundamental constitutional right. In Windsor as in Perry, neither the majority nor the dissenters referenced those briefs even though Justice Scalia’s opinion in the Windsor case certainly coincides with views expressed by many of religious groups who argued that DOMA should be sustained.
Tempting as it may be to dismiss the amicus briefs filed by faith groups and their affiliates in these cases as little more than public relations exercises, in fact they establish the battle lines in a war over constitutional rights that will be fought over a series of upcoming cases, including the contentious contraception mandate of the Affordable Care Act.
Those on the conservative side—including the Becket Foundation, the National Association of Evangelicals, the Southern Baptist Convention, and the Church of Jesus Christ of Latter-day Saints—contend in the Perry case that California’s Proposition 8 referendum banning same-sex marriage was properly enacted by a democratic majority; that the state of California has a legitimate interest in reserving marriage to heterosexuals; that the charge that Proposition 8 supporters are animated by bigotry or hate is false; that heterosexual marriage as the foundation of society; and that the state has the power to base laws on religious and moral teaching.
But the crux of their argument lies elsewhere—with religious liberty. It is most clearly laid out in the double-barreled Becket brief, which covers both cases in 188 pages.
The same-sex marriage debate, the brief begins, is “best resolved not by judicial decree, but by the legislative process, which is more adept at balancing societal interests, including religious liberty.” What follows is an elaborate exploration of the ways in which religious liberty will be imperiled if the court finds California’s ban on same-sex marriage to be unconstitutional.
Religious institutions and individuals that object “will face an increased risk of lawsuits under federal, state, and local anti-discrimination laws, subjecting religious organizations to substantial civil liability if they chose to practice their religious beliefs.” Moreover, “religious institutions and individuals will face a range of penalties from federal state and local government, such as denial of access to public facilities, loss of accreditation and licensing, and the targeted withdrawal of government contract and benefits.”
The bottom line: “These foreseeable conflicts implicate the fundamental First Amendment rights of religious institutions, including the rights of freedom of religion and freedom of association.” Those individuals and institutions that have “conscientious objections” to same-sex marriage thus face threats to their religious liberty from public accommodation laws, public housing laws, and employment discrimination laws.
The anti-discrimination laws discrimination will, Becket asserts, open up new avenues of civil liability because a court decision cannot carve out the kinds of exemptions than only a legislature acting on these matters can properly address. For that reason, the courts should not decide the issue.
With respect to the penalties that state and local governments might apply to religious dissenters, Becket anticipates exclusion from government facilities and forums, loss of licenses or accreditation, disqualification from government grants and contracts, loss of state and local tax exemptions, and loss of educational and employment opportunities. To support this argument, the brief includes a 101-page index with supporting evidence for each category and applicable state laws.
But what about Employment Division v. Smith, the 1990 decision that declared that “neutral and generally applicable laws” could not be challenged as violations of the First Amendment’s protection of religious liberty? Wouldn’t that render same-sex marriage proof against religious liberty claims?
To the contrary, Becket argues, Smith “specifically invited states to consider protections for religious activity that go beyond what the Free Exercise Clause protects.” It was therefore rational for California voters to enact Proposition 8 as a means of doing so.
Becket closes by urging the court not to strike down Proposition 8 and DOMA but instead leave same-sex marriage to legislatures—the only institutions fully capable of “arriving at workable compromises regarding religious liberty.” Only then will the justices avoid generating another irreconcilable conflict as they did by “freezing the debate” over abortion in 1973 with Roe v. Wade, which has generated litigation ever since.
Common claims are also made on the liberal side, in the briefs of such organizations as the Anti-Defamation League, the American Jewish Committee, and the American Humanist Association. These sketch a history of society’s changing views of same-sex marriage, insist on a fully secular reading of the Constitution, and use the 14th Amendment’s guarantees of equal protection and due process to argue for a right to same-sex marriage.
Most importantly, several of the briefs directly address the religious liberty arguments made by Becket.
Stating that it is “principally devoted to the serious issues of religious liberty that arise in the wake of same-sex marriages,” the American Jewish Committee (AJC) brief by Marc Stern, Douglas Laycock, and Thomas Berg rejects the idea of prohibiting same-sex marriage in order to protect religious liberty because in their view “[n]o one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own.”
“The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides,” the AJC argues, going on to remind the court of the “doctrinal tools available to protect religious liberty with respect to marriage,” including the “ministerial exception established” last year in Hosanna-Tabor v. EEOC that prevents the government from “’interfer[ing] with an internal church decision that affects the faith and mission of the church itself.’”
Recognizing that conflicts with anti-discrimination laws can arise when religious organizations offer services to the general public and engage in “external” aspects of their mission, the AJC then explores the meaning of the “neutral and generally applicable” rule created in Employment Division v. Smith. If, for example, an anti-discrimination law provides for secular exceptions, similar exceptions must be made for religious conscience claims of individuals or organizations.
Moreover, the AJC argues, should the Defense of Marriage Act be overturned, the 1993 Religious Freedom Restoration Act “will protect against any substantial burdens imposed on religious liberty.” The brief concludes by recommending that in an appropriate future case “the Court should be open to reconsidering the rule announced in Employment Division v. Smith” to clarify the issues associated with religious objections to same-sex marriage.
Taking a different approach to the issues raised by Becket and other conservative faith groups, the amicus brief submitted by the Anti-Defamation League (ADL) emphasizes the way in which justifications rooted in religious and moral disapproval have resulted in discriminatory treatment of minority groups. The ADL maintains that slavery, segregation, and bans on interracial marriage have all been repudiated because “[r]eligious justifications for discriminatory laws vanish as popular support for those forms of discrimination fade.”
In addition, the ADL contends that as public opinion and attitudes change, “this Court no longer relies on religious and moral disapproval alone to uphold laws, particularly laws burdening minority groups.” As evidence, the brief points out that Justice Anthony Kennedy’s majority opinion in Lawrence v. Texas (2003), which struck down a Texas law that criminalized same-sex sodomy, relied in part on the principle that the “[g]overnment may not act against a particular group based solely on a majority’s view of what morality or religion commands” [emphasis in the original].
The court thus “reaffirmed an essential constitutional principle: that enforcing majoritarian morals, standing alone, offers no rational basis for a law that disfavors unpopular groups.” For that reason, “the religious and morality based arguments advanced by the Petitioner’s amici in the same-sex marriage cases lack persuasive power.”
Finally, the ADL turns to religious freedom:
No matter how framed, the religious freedom argument can gain no traction in a case, like this one, involving a challenge to a discriminatory law; this Court is not in the habit of upholding discriminatory laws to protect religious prerogatives. Amici would do better to recognize that religious liberty is best safeguarded when religious groups retain the freedom to define religious marriage for themselves, remembering that civil marriage is an institution of the government, which is prohibited from establishing laws reflecting particular religious viewpoints” [emphasis in original].
According to the ADL, in other words, religious freedom can only be protected if no particular view of religious marriage is enshrined in government policy and civil law, as would be the case if the Court upheld Proposition 8’s limitation of marriage to heterosexuals.
The arguments about religious freedom proffered by the various amici in the same-sex marriage cases received little attention from the news media prior to the Court’s decision in June. What’s important to recognize is that the same arguments will be front and center in cases now making their way onto the Court’s docket.
As the ADL made clear, the old morality-based arguments deployed by religious advocacy groups in the past were refuted by Justice Kennedy in Lawrence v. Texas and so no longer constitute credible legal discourse—as Justice Antonin Scalia acknowledged by writing, in his Lawrence dissent, that the decision “effectively decrees the end of all morals legislation.”
Conservative religious advocacy groups have thus been deprived of one of their most potent lines of argument in cases that pit the rights of religious believers against the claims of those who assert that the very exercise of those rights constitutes discrimination. It is for that reason that several of the more seasoned conservative religious advocacy groups have pivoted to the religious freedom argument.
To the extent that arguments about discrimination can be turned into arguments about the religious freedom of those who are accused of doing the discriminating, the court will be called upon to do something very different from weighing the strength of particular, religiously based moral claims.
When Becket argues that the recognition of same-sex marriage threatens the religious liberty of sectarian organizations and individual believers, it challenges the court to decide whether same-sex couples or religious believers have a stronger constitutional claim. Looking ahead, it is clear that the meaning of religious liberty will frame the arguments of some of the most important matters coming before the Court, most notably the contraception mandate in the Affordable Care Act, which requires businesses and non-profit organizations to include contraceptive coverage for female employees.
Not surprisingly, Becket is spearheading efforts to challenge this provision, claiming that the mandate violates the religious liberty of both business owners and non-profit organizations that oppose contraception on religious grounds. Becket has brought suit on behalf of a variety of Catholic organizations and is seeking class action status for them.
As of now, two federal appeals courts have issued contradictory rulings on the question of whether for-profit, secular companies can avoid the mandate by way of the Religious Freedom Restoration Act. Meanwhile, the federal government has filed a petition asking the justices to resolve the question.
“I think it’s likely the Supreme Court is going to end up deciding this thing,” Mark Rienzi, Becket’s senior counsel for Becket, told The Hill in August. There’s every reason to think he’s right.
Early 2013 was a season of surprises in Rome. The biggest was Pope Benedict XIV’s February 11 resignation—the first by a pope in 600 years, and perhaps the first voluntary one ever. But a second surprise, the subsequent selection of a Latin American pope who has proven to be extraordinarily popular, probably holds greater long-term significance.
Evidence of Pope Benedict’s increasing physical frailty had been growing, but the papal tradition of serving until death—his predecessor Pope John Paul II soldiered on through years of Parkinson’s Disease—remained unquestioned. The world’s surprise registered in the headlines announcing Benedict’s decision: “A Sudden Papal Resignation,” in the Boston Globe on February12; “A Bolt from the Blue: Pope’s Resignation Stuns the Church” in the London Guardian, the same day; and from the customarily sober New York Times, “A Statement Rocks Rome, Then Sends Shockwaves Around the World.”
The 85-year-old Benedict went out characteristically, issuing his announcement to a group of cardinals who had gathered for a routine meeting to discuss the canonization of several new saints. Speaking in Latin, he calmly announced his unprecedented plan to retire.
“In today’s world, subject to so many rapid changes and shaken by questions of deep relevance for the life of faith, in order to govern the bark of St. Peter and proclaim the gospel, both strength of mind and body are necessary, strength which in the last few months has deteriorated in me to the extent that I have had to recognize my incapacity to adequately fulfill the ministry entrusted to me,” Benedict said.
Once the shockwave began to dissipate, many observers praised Benedict’s willingness to relinquish power. “Pope Benedict has set an example for popes and others in power who stay too long at the fair: judges, senators, athletes,” Baltimore Sun columnist Susan Reimer wrote on February 14. “Those who keep a firm grip on the power and the glory instead of yielding to the inevitability of time.”
“As Cardinal Joseph Ratzinger, the current pope observed firsthand the pain and suffering borne by his predecessor, Pope John Paul II, and how impaired he became,” the Philadelphia Daily News editorialized on February 12. “On more than one occasion, Benedict expressed the opinion that when a pope no longer possesses the strength of mind and body, it was his right and even his duty to resign. On Monday, he set an important historic precedent: Although he is the first pope to resign in modern times, he likely won’t be the last.”
If that seems like faint praise, most assessments of Benedict’s eight-year reign were lukewarm, at best. His election in 2005 was widely seen as evidence that the world’s cardinals wanted more of the theological conservatism that had marked John Paul’s era, in which Benedict had played an important supporting role.
“Ratzinger was theologically conservative, a die-hard traditionalist with a reputation as a heavy-handed enforcer of church discipline that earned him the less-than-flattering nickname, ‘The Rottweiler,’” Religion News Service columnist Cathleen Falsani wrote on March 1. “And yet, as pontiff, Benedict’s demeanor was more subdued than many had expected. Some Vatican insiders called him a ‘reluctant pope’—an introvert more at ease with his books and cats than other people.”
On Benedict’s watch, the Catholic clerical sexual abuse scandal spread from North America to Europe, Australia, and elsewhere, and while Benedict spoke forcefully to denounce it, and met with victims, he failed to hold local bishops responsible for cover-ups. As Falsani and others noted, he also said things that angered Jews and Muslims, cracked down hard on American nuns, and failed to persuade a schismatic group, the Society of Pope Pius X, to moderate its teachings and return to the Catholic fold.
Further, “Benedict was seen as a weak manager,” Rachel Donadio and Nicholas Kulish wrote in the New York Times. “His papacy was troubled by debilitating scandals, most recently when his butler was convicted by a Vatican court in October 2012 of aggravated theft after he admitted stealing confidential documents, many of which wound up in a tell-all book that showed behind-the-scenes Vatican intrigue.”
Even harsher critiques came from Catholic conservatives, who were disappointed by Benedict’s papacy. Writing in the immediate wake of Benedict’s resignation in the online magazine Slate, Michael Brendan Dougherty issued this verdict: “Although Pope Benedict XVI’s highly unusual resignation is said to be for reasons of health, it fits the character of his papacy: All his initiatives remain incomplete. He was consciously elected to rescue the church from itself, but he failed to finish what he started.”
Benedict made the date for his resignation February 28, thereby setting in motion the complex process of a papal election, which is required by church law to take place within 17 days of the death or resignation of a pope.
Since a papal conclave takes place in utter secrecy, with a sequestered electorate that is mostly scattered around the world in its daily life, it’s difficult for journalists to do much actual reporting. Nevertheless, the election of Benedict’s successor turned into a huge story, with hundreds of journalists poking around for interesting angles. Beginning on February 12, most journalistic attention turned to assessing lists of papabile, candidates for the papacy—all of whom deny that they are candidates for the papacy.
All of this involves speculation, often at the level of odds-making, reporting of rumors, or taking the temperature of the Vatican bureaucracy, which may or may not have real insight into the mood of the electors.
The least fortunate of the prognosticators was probably Tom Hennigan of the Irish Times in Dublin. On February 13, he published a story under the headline, “Moment may have passed for Latin America to provide Pope.” The “problem is the lack of any compelling candidate,” Hennigan wrote. Remarkably, he went on to assess the ultimately successful candidate, Cardinal Jorge Mario Bergoglio of Buenos Aires, at some length, discounting him because of his age (76) and because of disputes about his record during the Argentine junta of the 1970s.
Most of the early coverage of the papabile provided long lists, usually headed by a 64-year-old Vatican administrator from Ghana, Cardinal Peter Kodwo Appiah Turkson. One Australian newspaper, the Hobart Mercury, listed Turkson under the label “The Favorite,” and quoted his odd as 3.5 to 1. Others were labeled, “The Plain Speaker,” “The Quiet Achiever,” “The Savior,” and “The Rising Star.” Bergoglio, styled as, “The Salt of the Earth,” appeared well down the list at 29.5 to 1.
While the Mercury’s tip sheet, like that of many similar products, didn’t rate Bergoglio chances very highly, it did tune into aspects of his character that have since made him a very popular and unconventional pope. “Born in Buenos Aires, he has become known for his modest lifestyle and commitment to social justice. He lives in a small apartment, rather than in the palatial bishop’s residence. He gave up his chauffeured limousine in favor of public transportation, and he reportedly cooks his own meals.”
As the election approached, conservative journalist Joseph Bottum argued in the Weekly Standard on March 4 that the best qualified candidate was Cardinal Christoph Schönborn of Vienna, whom Bottum judged had probably stepped on too many curial toes to be electable in a conclave where 39 of 117 cardinals served in the Vatican bureaucracy. Along with Turkson, Cardinal Marc Ouellette, a curial Canadian, and Cardinal Angelo Scola of Milan seemed much more electable.
Unlike the Irish Times, Bottum thought a Latin American might have a chance, and he singled out Cardinal Oscar Maradiaga of Honduras and the Brazilian Odilo Scherr of Sao Paulo. “The archbishop of Buenos Aires, Jorge Mario Bergoglio, is well respected enough, anyway, that he emerged as a leading figure in the 2005 enclave that chose Benedict,” Bottum wrote. “Although he firmly rejected any thought of the papacy for himself this time around, he could play the kingmaker role and persuade his fellow cardinals to elect one of his fellow South Americans.”
Bergoglio also appeared well down the list of top contenders published by the Associated Press on March 10—but again, the AP’s thumbnail sketch of Bergoglio conveyed the information that illuminated what eventually made him attractive to other cardinals.
Bergoglio had, AP reported, “spent nearly his entire career at home in Argentina, overseeing churches and shoe-leather priests…He has long specialized in the kind of pastoral work that some say is an essential skill for the next pope. In a lifetime of teaching and leading priests in Latin America, which has the largest share of the world’s Catholics, Bergoglio has shown a keen political sensibility as well as the kind of self-effacing humility that fellow cardinals value highly. Bergoglio is known for modernizing an Argentine church that had been among the most conservative in Latin America.”
Writing from Argentina on March 4, the AP’s Michael Warren argued that Bergoglio “would likely encourage the church’s 400,000 priests to hit the streets to capture more souls.” Warren quoted Bergoglio’s biographer Sergio Rubin as saying that the archbishop’s style is “the anti-thesis of Vatican splendor.” When Catholic bishops meet, Rubin said, “he always wants to sit in the back row.”
The New York Times saved much of its handicapping for after the election. “The selection of Cardinal Jorge Mario Bergoglio, who did not appear on preconclave lists of likely popes, seemed to confirm that old line about papal succession: go in a pope, come out a cardinal,” David Leonhardt wrote on March 13.
Leonhardt quoted Vaticanologist George Weigel on what is called the Pignedoli Principle—the pattern of disappointed front-runners that is named after a crestfallen Italian contender in the 1978 papal election. “The chances of being elected pope decrease in proportion to the number of times he is described as papabile in the press,” Weigel said.
Leonhardt then knocked down the Pignedoli Principle, noting that favorites had won papal election is three of the last seven conclaves. “Sometimes, the public discussion of the contenders reflects the cardinals’ actual preferences—or may shape those preferences. And sometimes the public discussion is either off-base or may in fact push the cardinals away from a favorite.”
So, despite the shallowness of odds-making as a way of covering papal elections, this year’s coverage did, although perhaps inadvertently, convey qualities and characteristics that accurately foretold what Cardinal Bergoglio would be like as pope.
This suggests that the cardinals knew what they were looking for—and that many of them had been looking for it in 2005, too. They wanted, in the words of the Hobart Mercury, the salt of the earth, a leader with a strong pastoral orientation, a clear sense of the urgency of institutional reform, and the skills to avoid becoming a prisoner of the Vatican.
The cardinals clearly voted for a pope who would try to restrain and reform the Vatican bureaucracy and reduce the centralization of church authority in Rome that has strongly marked recent decades.
Pope Francis has a collegial vision of church leadership, and represents church leaders who want a less “Vatican-centric” future for the Catholic Church, to use a word he tossed out in an October 1 interview with the Roman newspaper La Repubblica. “The church is or should go back to being a community of God’s people, and priests, pastors and bishops who have the care of souls, are at the service of the people of God,” Francis said.
The pope told La Repubblica about his reaction to being elected. “When in the conclave they elected me pope, I asked for some time alone before I accepted,” he said in the interview. “I was overwhelmed by great anxiety, then I closed my eyes and all thoughts, including the possibility of refusing, went away.”
Be that as it may, since his March election, it has been manifest that anxiety is not one of the pope’s afflictions. From the moment when he declined to put on the fur-trimmed papal mozzetta for his formal introduction on the balcony of the Apostolic Palace and then took a bus with his fellow cardinals back to his guest house, Francis has spoken and acted with resolve. In the wake of his second-place finish in 2005, he seems to have given a great deal of thought to what he would do and how he would do it, if ever given another chance to be pope.
I spent a portion of the late spring in Rome this year, residing at the Generalate of the Salvatorian Fathers on the Via della Conciliazione while doing research in the Vatican archives. My room faced the noisy Via and I often watched the crowds coming and going to St. Peter’s Square.
From my window I had a bird’s eye view of the Harley Davidson rally that came to Rome in June. It was like having a bit of Milwaukee in the Eternal City (we just had another one of those noisy affairs here on Labor Day Weekend).
On the last day of the rally, barricades were erected down the center of the broad street and on each side Harleys were parked and ready. Papa Francesco traveled between the barricades, waving and smiling. As he passed, the Milwaukee-made Hogs roared in tribute.
I’ve never seen anything like it. Francesco’s smile, ebullience, and energy told me how much he loved being here. Every roar of the engines made that wonderful smile even wider.
And the barricades were of no consequence. Francesco leaned over them and the leather-jacketed, bandanna-wearing bikers reached out beyond them.
I had seen the same thing earlier that month, when the new pope made an unexpected appearance at the end of a Mass in St. Peter’s commemorating the 50th anniversary of the death of Pope John XXIII. We saw it again in Brazil at World Youth Day. To the now well-known horror of his security people, the pope insists on reaching over the boundaries to the people, and the people to him.
This barricade-breaching is symbolic of the first months of his papacy. He refused his rooms in the Apostolic Palace. (What apostle ever lived in a palace?) He phones people who write to him—including a rape victim and a woman contemplating abortion. He visits Vatican garages and workshops.
He refuses to shed the role of pastor and bishop for bureaucrat and mere tourist attraction. He insists on having “the smell of the sheep.” He caused a world-wide outbreak of “pearl clutching” by washing the feet of a woman—who was also a Muslim (double horror to liturgical fundamentalists and Islamophobes). He has little use for frilly vestments, ostentatious pectoral crosses, and pompous ceremonies.
On the day of his installation, he gazed at his watch, anxious to keep the ponderous rituals within the limits of human endurance on those hard chairs in the Piazza di San Pietro. With a few simple words about gay priests (and gays everywhere)—“Who am I to judge”—he sounded a new chord of mercy and pastoral practice, albeit one that many priests and religious in the field have struck for years. The barricades keep coming down.
I’ve followed the pope as closely as any priest in the months between March and last August and I don’t know if he’s having a honeymoon of any sort.
The problems, great and small, are still out there: the seemingly never-ending scandals of the Vatican bank, the cardinals who have on their own authority re-swathed themselves in yards of regal scarlet, the grumbling of Latin Mass enthusiasts who find Francis problematic, even the poor souvenir sellers who have huge backlogs of Benedict key-chains, pennants, and Chia statues they cannot sell.
The Vaticanisti continue with their predictions—transmitting what their sources have to say. I read them with some interest, but remember they were the same ones who assured us that we were going to have Pope Scola or Pope Scherer and who conferred legitimacy on Cardinal Peter Turkson’s brutta figura campaign to have himself elected.
A hot-off-the-press book by British journalist Paul Vallely purports to give the real story on Francesco’s years in Argentina. Maybe.
I am not a Vatican insider and have no Roman connections or sources. I spent 40 days in Rome this spring and summer and just watched and observed. I spoke with a few churchmen, but never got what I would consider a scoop. Here are my reflections for what they are worth.
First, Francis is the real deal. There is nothing fake, artificial, or phony about him. The enthusiastic reaction to him reflects a pent-up desire for change and a dissatisfaction with the pontificate of Pope Benedict XVI.
I got this from priests, religious, and ordinary folks I met at audiences and papal Masses. Francesco is joyful, not morose—not inveighing constantly against the “culture of death,” or singling out enemies to hit, or rallying the “frozen chosen” behind some antiquarian restorationist agenda. His three-point speeches and homilies invite listeners to mercy, compassion, and dialogue.
Second, as a priest, I have paid close attention to the pontiff’s frank condemnation of clerical careerism, which at one point he compared to “leprosy.” On several occasions Francis has sent clear signals that priestly ministry is a vocation not a career path, and that smaller dioceses are not stepping-stones to “something better.” How often I’ve heard the clerical handicapping over the past 30 years—and even done a bit of it myself.
I’ve also watched priests and bishops do the preening, shape-shifting, and calculated denunciations of those on the hit list of previous pontificates (theological dissidents, feminists, gays, etc.) in order to position themselves for a miter or promotion to a more prestigious diocese. I wonder now where all that bella figura will go with a pope who is wise to it all and apparently not impressed by episcopal wannabes? Third, the themes of Francesco’s preaching appear consistent. Love the poor. Priests, get out of your sacristies and rectories and go to the marginalized. Love of God and love of neighbor are inseparable.
From time to time, his informal comments have given rare insights. The lengthy press conference he held aboard the airplane on the trip home from Brazil was remarkable not only for the positive media coverage but also for his willingness to speak frankly and without notes on a wide variety of subjects.
What does the future hold?
More Grist for the Mill. At the end of the official papal vacation season, Francis resumed his daily Masses and thronged audiences. His sermons and allocutions on these occasions are important sources of his thought on many issues.
In August, he gave an extensive interview to his confrere Antonio Spadaro, S.J. of the Italian Jesuit magazine La Civiltà Cattolica and which was reprinted in America. This free-flowing and frank discussion once again set the press cycle on fire. Can we hope for more interviews of this kind, perhaps with secular journalists who might pose even tougher questions. Barack Obama sat down with Bill O’Reilly. Could Papa Francesco sit down with Rachel Maddow?
A Momentous Double Canonization. The pontiff obviously respects and holds sacred the memory of John Paul II, the man who made him a cardinal. But his words and presence at the Mass honoring Blessed John XXIII (where he again reached over the barricades) reflected an affinity for that predecessor.
When Francesco showed up at the end of the Mass, the crowd inside St. Peter’s went wild. When the bishop offering him formal greetings noted the pope’s resemblance to the beloved John, the basilica again erupted in cheers. The crowds at both tombs in St. Peter’s are always thronged. This canonization will likely be the biggest event since the elevation of the saintly stigmatic, Padre Pio, in 2002.
Ecumenical Advance. On his trip to Assisi in October, Francis may again reach beyond the barricades—as did Pope John Paul II—to reaffirm one of the critical ecumenical thrusts of Vatican II: to affirm what is beautiful, good, and true in the other faith traditions of the world.
More Vocal Opposition. Francis has already begun to field criticisms of his actions and words. One pro-Latin Mass blogger, Jeffrey Tucker, of the New Liturgical Movement, found “many aspects of this papacy to be annoying”—but later rolled back those comments. A conservative blogger, Katrina Fernandez, also wrote critically of the pontiff’s disregard for ecclesiastical finery and one of her correspondents sniffed about his vestments, “Frankly, he looks like he has kind of tacky taste.” (As if entertaining the pretentious aesthetic sensibilities of these dilettantes is the raison d’être for the sacred liturgy.)
Although Francis has been respectful and loving to his predecessor (his first papal act was to ask prayers for him), there are many who are growing “weary” of the comparisons made between the two men—often unfavorable toward Benedict. Archbishop Charles Chaput of Philadelphia worries that the “orthodox” will be left behind. Cardinal Timothy Dolan of New York seemingly downplayed the pope’s kindly words to gays (“He was on a high”) and grumped publicly about the time it’s taking for the pope to move forward on administrative reforms. He too has changed his tone in recent days—now offering three points in his folksy talks and sermons just like Francesco.
Likely, the chorus and the tempo of dissent will pick up if and when he becomes too forceful on issues like social justice. But the right-wing of the Catholic community is ready. These often ferocious defenders of the magisterium will, without blinking, advance a sophisticated method of “nuancing” the reception of papal messages—that will make liberal theologian Charles Curran seem like a troglodyte. What the right once derided as “Cafeteria Catholicism” will now make more sense to them since it’s their ox that’s being gored.
What should we hope for?
At the risk of projecting my own issues on the Holy Father or imagining him to be something he is not, I am encouraged that today there is at least the possibility of engaging a few issues that were simply off the table in the past pontificates.
Francis touched on a neuralgic topic of homosexuality in the church with his “Who am I to judge” comment on gay priests during the press conference home from Brazil. Of course, the barricade battalion was out in full-force insisting that these compassionate words are “what the church always taught.” Fair enough—but as some commentators have noted, the pope’s words suggest a different, more pastoral tone. They come at a moment when social acceptance of homosexuality is rising around the world.
Catholic teaching may not be susceptible to change or the church open to same-sex marriage, but there is increasing acceptance and legitimation of this throughout many portions of the world. The church has to make some credible and intelligent response to the questions raised by this changing cultural climate. Whatever he has said about gays and lesbians has been gentle and respectful—and for those of us in the trenches ministering to these folks, it has been a great relief.
Francis has spent time speaking against clericalism and the offensive careerism it has spawned among priests. Pastors not peacocks are needed now, he insists.
Could he be signaling a major shift in the composition of the College of Bishops and the College of Cardinals? Although this may seem like insider stuff, it really does matter who governs the local churches—because with all due respect to Rome, that is where the action is.
Popes John Paul II and Benedict XVI both made it a priority to reshape the College of Bishops, and many of those they appointed to it are good men who genuinely love and wish to serve their flocks. However, Francis should call a halt to consecrating bureaucrats, canon lawyers, and academics of a certain stripe. He should positively reject the obviously ambitious types.
He could also take a cue from his predecessor, who took time to pay attention to what he considered the dysfunctional dioceses in the world. But instead of removing bishops who are poor financial administrators or whose chief “sin” was to call for dialogue with those who disagree with the church, he should move forcefully against any bishop who has knowingly shielded or withheld information about sexual abusers (Kansas City).
He might also investigate cases where the local bishop has lost all credibility and pastoral effectiveness with both priests and people, or who has used the Eucharist as a weapon against political opponents. A good bellwether of where this may be going, at least in the United States, will be the man who replaces Cardinal Francis George of Chicago.
It would be a great idea to revise the rules regarding episcopal selection by involving priests, religious, and lay persons in the process of choosing worthy candidates—as was the case with such ecclesiastical giants as St. Ambrose and St. Augustine. Dioceses should have the benefit of appointments of men who are “lovers of the place”—who grew up and who know the people and the land they serve. Making a Roman education a major criterion for episcopal selection is a short-sighted policy that has deprived the American church of many fine domestically trained men with solid leadership skills and good theological educations.
Francis appears to be placing much stock in the “Gang of Eight” cardinals whom he has chosen to advise him on rewriting the Apostolic Constitution on the Roman Curia. Let’s hope they don’t spend too much time fretting over the Vatican Bank. (Just close the damned thing and transfer its critical functions to new and better monitored agencies.) Can this group transcend the rather narrow task of reforming the curia and recognize the signs of the times and the new framework Francesco’s words and actions have created for the church?
The pontiff should call a halt to the unseemly chasing after the Society of St. Pius X and end the unpopular persecution of the Leadership Conference of Women Religious. It is difficult to explain why the Vatican has been so tolerant of people who reject whole or in portion the Second Vatican Council while bashing the American sisters whose major “sin” seems to have been supporting the Affordable Care Act aka Obamacare.
As the barricades erected during the past two papacies have begun to be dismantled by Papa Francesco, I have seen so much good will and enthusiasm surface among fellow priests, religious, and lay persons. Hope, that most wonderful of Christian virtues, has risen like a Phoenix, as it always does. He is, at least at this phase of his pontificate, so much like another pope who lifted barricades when he called Vatican II: soon-to-be Saint John XXIII.
It may all come to an end. We have a long-serving diplomat in the Secretariat of State and a Legionary of Christ heading up the affairs of the Vatican state—not much for bold new initiatives in church governance. But whatever Francis accomplishes, he has at least started well.
And if I had a Harley Hog, I’d rev that engine three times in his honor and hold my hands up for a high five.
Since I finished this piece, the Spadaro interview of last August has appeared. Once again the new cycle of commentary erupted from churchmen, Vaticanisti, and people in the pews. Of course the “nothing has changed” crowd served up its regular dish of the hermeneutic of continuity, ignoring or attempting to re-write the church’s often negative and pastorally insensitive actions towards those “on the margins.”
In particular, I am simply amazed by the apparent ease with which they gloss over the explicit criticism of the previous pontificate’s suggestion for a “smaller” church. “This church, with which we should be thinking, is the home of all, not a small chapel that can hold only a small group of selected people,” said Francis. “We must not reduce the bosom of the universal church to a nest protecting our mediocrity.”
But these mental contortionists must really be running scared as their sacred triumvirate of abortion, birth control, and homosexuality is being set aside to focus on a new and more pastoral triad: mercy, inclusion, and compassion. Francis speaks of the church for which I was ordained 34 years ago—a “field hospital” with “the ability to heal wounds and to warm the hearts of the faithful”; a church that refuses to “lock itself up in small things, in small-minded rules”; a place where training for the priesthood and ministry must produce “ministers of mercy above all.”
Nothing has changed? In your dreams.
Avanti Santo Padre! Bravo! Bravissimo!
There’s no contesting that in the second decade of the 21st century books about heaven are hot, hot, hot. “Hotter even than the other place,” wrote Craig Wilson in USA Today on January 25. “Just ask any bookseller in America.”
And the trend shows no sign of cooling off, with the October 6 New York Times combined non-fiction best seller list showing Proof of Heaven: A Neurosurgeon’s Journey Into the Afterlife (49 weeks), and longtime favorites 90 Minutes in Heaven (149 weeks), and Heaven is For Real (150) weeks. As Wilson dryly observed, “It’s a lucrative business.”
The books also open a window on fascinating shifts in American religious belief. On one side of the aisle, Dr. Eben Alexander’s Proof of Heaven made a big splash in spite of drawing scathing reactions, from both religious and secular critics, for his combination of scientific insight and non-orthodox religious experiences.
On the other side of the aisle, two of the most popular of dozens of recent books pretty much toe the line when it comes to the Christian (and particularly evangelical Protestant) view on the afterlife. 90 Minutes in Heaven, written in 2009 by Baptist minister Don Piper, tells of his Ford Fiesta’s nasty run-in with an 18-wheeler in Texas, after which paramedics declared him dead. Piper describes a by-the-book Christian ascension to Heaven, where he met deceased relatives, saw the Pearly Gates of Revelation 21:21, and joined a heavenly choir, before being somewhat reluctantly brought back to this world.
Now a sought-after speaker with his book translated into multiple languages, Piper explains his take-away message on donpiperministries.com. While it is possible that Jews, as the Chosen People, have “a separate judgment” with God, “[t]he truth is we still believe you must profess Christ as your Lord and Savior in order to go to heaven.”
The cuteness factor of Heaven Is For Real: A Little Boy’s Astounding Story of His Trip to Heaven and Back gave it crossover appeal beyond the Christian circuit. It only took three weeks to reach the New York Times best seller list, compared to the three years it took 90 Minutes in Heaven to get there. Todd Burpo (with Lynn Vincent, who assisted Sarah Palin with Going Rogue), wrote the book after his five-year-old son Colton shocked his parents in an Arby’s restaurant by telling them that while under anesthesia for an emergency appendectomy, he not only saw them praying in another room, but that “I was sitting in Jesus’ lap.”
The pastor of Crossroads Wesleyan Church in Imperial, Nebraska, Burpo wrote that he was at first unsure if Colton’s stories were dreams or reality, but became convinced when his son detailed meeting long-lost relatives and a miscarried sister who had been kept a secret. Burpo now makes a living speaking about Colton’s experience, and a movie deal with Columbia Pictures is in the works.
While Colton’s experiences reflect a child’s view of the afterlife, including rainbows, flying horses, and a kindly Jesus, it’s not all sweetness and light. There are descriptions of a final battle to come (complete with monsters) and a meeting with Satan. Again, though less in-your-face than 90 Minutes in Heaven, Heaven Is for Real fulfills the evangelical duty to save souls for Christ. One scene stands out: Colton attending a funeral and blurting out, “Did that man have Jesus? He had to! He had to!…He can’t get into heaven if he didn’t have Jesus in his heart!”
First published by Simon & Schuster in October 23 of last year, Proof of Heaven is an altogether different animal. Written by Eben Alexander, a not particularly religious Episcopalian and former Harvard neurosurgeon now based in Virginia, it tells of a bout of bacterial meningitis that sent him into a coma for seven days. Alexander related that while his brain’s neo-cortex completely stopped functioning, he was reborn into a formless substance, and then guided by a beautiful young woman on a blue butterfly to what he described as “an immense void” filled with light. Without speaking, she communicated to him a message of acceptance.
“You are loved and cherished, dearly, forever.”
“You have nothing to fear.”
“There is nothing you can do wrong.”
Alexander then describes being in the presence of a loving God or spirit of creation he called Om, and observing other people inhabiting the afterlife who were filled with joy and peace. After regaining consciousness and enduring a long recovery, he concluded that he was compelled to write his book and let the world know about his unique experience.
The book got huge and instant play in the media, which took his claims as a man of science very seriously. Newsweek’s October 8, 2012 cover story (“Heaven Is Real: A Doctor’s Experience With the Afterlife”) was given over to Alexander’s unchallenged account of his spiritual experience. Proof of Heaven debuted in the top spot on the New York Times paperback best seller list, and received a generally positive article by Leslie Kaufman in the November 25 Times.
After he described Alexander’s experience, the popularity of his book, and presented only one skeptical voice (Martin Samuels, chairman of the neurology department at Boston’s Brigham and Women’s Hospital), Kaufman ended with a quote from the author. “Our spirit is not dependent on the brain or body,” he said. “It is eternal, and no one has one sentence worth of hard evidence that it isn’t.”
With booming sales and a less hardline vision of who gets to enjoy the afterlife (“all of God’s children”), Alexander became a media figure in a way that others writing before him had not. In the fall of 2012, he appeared on “Nightline,” “Good Morning America,” “The Dr. Oz Show,” and Larry King’s live-streaming talk show on Hulu. On December 12, he sat for an hour-long interview with Oprah Winfrey. He called the faceless, genderless divine entity he encountered Om, he explained to Winfrey, because “‘God’ was too small…so limiting.”
This kind of talk did not endear Alexander to the Christians who lapped up the testimonies of Colton Burpo and Todd Piper. On December 21, Christianity Today ran “Incredible Journeys: What to Make of Visits to Heaven,” a lengthy cover story by editor Mark Galli. Although some Christians consider unorthodox books on heaven to be “mere hallucination or a deceptive work of the Devil,” Galli wrote, “it is apparent that many of these people have had a remarkable encounter with the living God revealed in Jesus Christ.”
Not everyone was so understanding of Alexander’s theology, with Rob Phillips getting down to brass tacks in an article in Baptist Press January 13. “Dr. Alexander states in his book that any religion making exclusive truth claims (think Christianity) is wrong,” wrote Phillips.
Catholic spokespeople were largely silent on the controversy, perhaps inspired by the tolerant attitude of their new pope. As Francis said in a May 21 homily, “The Lord has redeemed all of us, all of us, with the Blood of Christ: all of us, not just Catholics. Everyone! ‘Father, the atheists?’ Even the atheists. Everyone!”
But denunciation by scientists and skeptics was swift and fierce. Incensed by the breathless Newsweek cover story, the atheist neuroscientist Sam Harris burned up his blog with indignation, suggesting that Alexander’s “undocumented claim… suggests that he doesn’t know anything about the relevant brain science.” Harris sought out the opinion of Mark Cohen, a UCLA neuroscientist and pioneer of brain imaging, who declared that what Alexander called “inactivation of the cerebral cortex” actually described “brain death, a one hundred percent lethal condition.”
Harris concluded that “whether or not heaven exists, Alexander sounds exactly how a scientist should not sound when he doesn’t know what he is talking about.”
Neurologist and author Oliver Sacks wrote an article in the December 12 Atlantic titled “Seeing God in the Third Millennium” that explained how the brain can produce both hallucinations and NDEs (near-death experiences) as the result of a number of medical conditions, including regaining consciousness after being in a coma. “To deny the possibility of any natural explanation for an NDE,” Sacks charged, “is more than unscientific—it is antiscientific.”
The April 13 issue of Scientific American chimed in with Skeptic magazine founder Michael Shermer’s article “Why a Near-Death Experience Isn’t Proof of Heaven.” It compared Alexander’s experience to the NDE phenomenon, and asked what was more likely: that he actually went to heaven, “Or that all such experiences are mediated by the brain but seem real to each experiencer?”
While the objections of Harris, Sacks, and other neuroscientists might be easily dismissed by loyal fans of the book, the next attack was aimed at Alexander himself.
In August, nearly a year after Proof of Heaven was published, Esquire ran “The Prophet,” a lengthy piece of investigative journalism by Luke Dittrich that exposed anomalies in the doctor’s medical episode, and especially in his biography. It revealed that Alexander had been fired from Brigham and Women’s Hospital in 2001, and then had his surgical privileges suspended by UMass Memorial in 2003 “on the basis or allegation of improper performance of surgery.”
Alexander’s spotty professional record continued when he moved home to the South and took a job at Lynchburg General Hospital, where he would also lose surgical privileges, eventually transitioning into a non-surgical career after having to settle 10 lawsuits. When confronted by Dittrich for skipping over his professional difficulties in a book that purports to be by a respected neurologist, Alexander responded “I just think that you’re doing a grave disservice to your readers to lead them down a pathway of thinking that any of this is relevant.”
But Esquire went ahead with the revelations, painting a picture of a spiritual guide who is loose with the truth and in it for the cash. “Dr. Alexander looks less like a messenger from heaven and more like a true son of America, a country where men have always found ways to escape the rubble of their old lives through invention.”
While the media picked up on Esquire’s revelations, Proof of Heaven’s continued popularity and position on the bestseller list suggests that the damage wasn’t permanent. Along with Heaven Is For Real and 90 Minutes in Heaven, it remains near the top of a still-expanding growth in books about visits to the hereafter.
It is easy to see why Christians might be interested in books presenting positive descriptions of heaven. In a long post on CNN’s Belief Blog May 19, John Blake put popular fascination with heaven into historical context. Uncertain times—ranging from the Civil War to today’s stalled economy—have often produced passionate interest in reassuring visions of the afterlife.
Alexander’s vision of the afterlife also fits comfortably into a vast but submerged stream of American religious tradition that historians call metaphysical or harmonial, which has been mostly non-institutional, but which has produced some significant movements, including Mormonism, Spiritualism, and Christian Science. Some aspects of Alexander’s tour of heaven sound a good deal like the 19th-century clairvoyant and spiritualist Andrew Jackson Davis’ 1878 account of his reassuring interplanetary tour of the heavens led by a spirit guide.
Blake suggested that the recent spate of books on the afterlife fill a special void, seeking to answer the question, “Why doesn’t the church talk about Heaven anymore?” Perhaps, he wrote, it was because “few big-name pastors devote much energy to preaching or writing about the subject, and many ordinary pastors avoid the topic altogether out of embarrassment, indifference, or fear.” Fear, that is, of laying down the law that heaven will not throw open its gates for anyone who hasn’t accepted Jesus as Savior.
If believers make up the audience for Christian books on heaven, and strict non-believers have no use for Proof of Heaven’s flights of fancy, then who are heaping the dollars into Alexander’s bank account, and accompanying him on healing tours to Greece?
A recent survey of college students may contain some clues.
The 2008 American Religious Identification Survey (ARIS) found that 15 percent of American adults , said they had no religion—up 100 percent over two decades. These “Nones,” said principal investigator Ariela Keysar, were “the only group to have grown in every state of the Union.”
Five years later, the ARIS 2013 National College Student Survey explored the religious identity of young adults. Did they consider themselves to be religious, secular, or spiritual, not religious? Thirty-two percent chose religious, 28 percent chose secular, and 32 percent identified themselves as spiritual, not religious.
In answer to the question, “Do you believe in life after death?” fully 45 percent of the spiritual but not religious respondents answered in the affirmative. Many of these are interested in an eclectic array of healing practices, Eastern religious concepts of karma and reincarnation, and miracles. They are, in fact, more open to a range of metaphysical possibilities than both the religious and the secular.
Metaphysical religion is not new—its heyday was in the mid-19th century. But its current followers seem to be increasingly willing to take a public stand. Proof of Heaven may not convince the religious or the secular among us, but there are plenty of others who find a loving and inclusive afterlife to be just what the doctor ordered.