I’ve recently been exploring the bishops’ involvement in the Bostock case. The Supreme Court ruled on the case last month, determining that firing employees because they are gay or transgender violates Title VII’s prohibition against sex discrimination. In Commonweal, I wrote how the legal brief submitted by the U.S. Conference of Catholic Bishops in the case sacrifices the Church’s moral theology for the sake of culture warring. Yesterday, I explored some ways in which the brief undermines the Church’s position on sex, sexual orientation, and marriage. Today I will explore whether this should matter for the sake of legal briefings.
It is possible to ask if it’s the responsibility of the USCCB to advocate a holistic vision of Catholic moral theology when submitting a legal brief. Indeed, the names appearing on the cover page are not those of then-USCCB President Cardinal DiNardo and the other bishops but are, rather, those of their attorneys. Presumably, the USCCB brief was drafted by those attorneys. Are they really responsible for arguing in favor of an integrated moral theology?
Many defense attorneys suggest not. When asked about his attacks on child abuse victims during depositions, Jeffrey Epstein’s attorney Alan Dershowitz said, “You just bring out all the negatives… It’s the role of the defense attorney, to raise questions about the credibility of any witnesses. You don’t look at what’s good for victims. You don’t look at anything except what’s good for our client.” Similarly, when asked about his work during the wake of the clergy abuse crisis, former USCCB General Counsel Mark Chopko said, “When you jump into the legal arena, everything changes… Litigation is about trial by combat—it’s not about telling the story.” In an interview with the Boston Globe, Chopko warned that apologies by bishops “can be construed as confessions of liability” and that the Church “has a duty to defend itself.” The position of attorneys, whether working for child sex traffickers or the Church (or both), has often been to focus only on protections against financial losses and criminal penalties, which they separate out from the broader moral concerns of either their clients or the community.
University of St. Thomas School of Law dean Robert Vischer, in his article “Legal Advice as Moral Perspective,” challenges the “legality/morality distinction” implicitly adopted by lawyers like Dershowitz and Chopko. He writes that the legal profession is not amoral but often holds an implicit morality. This implicit morality supplanted Catholic morality during the clergy sex-abuse crisis, something noticed by those tasked with holding the Church accountable. Vischer summarizes, for example, a 2004 opinion of the USCCB National Review Board: “The review board faulted the bishops for adopting the presumptions and prejudices of their legal counsel in their effort to minimize the impact of the allegations.”
Vischer identifies three primary characteristics of the legal approach which superseded the Catholic moral perspective: (1) an overly aggressive legal posture towards the “opposing” side, (2) defensive tactics taking precedence over pastoral care, and (3) a fractured, secrecy-driven approach to legal claims. Vischer argues that even if the USCCB’s tactics in those cases (and the pragmatic and adversarial morality undergirding them) may have been legally expedient and politically compelling at the time of their use, they ultimately damaged the Church’s external credibility and internal integrity. They drove the Church to both financial bankruptcy and being viewed with contempt in much of the culture.
It’s telling that Epstein’s attorney and the Church’s attorneys adopted essentially the same aggressive and adversarial disposition towards victims of abuse. Perhaps Church leaders take a different stance now towards clergy sex-abuse cases. But whatever Church leaders claim to have learned from the clergy sex-abuse crisis, this lesson has not transferred over to their approach to other issues, especially contentious “social issues.” The approach taken by the bishops in legal cases hasn’t really changed.
Ultimately, one would hope that the Church’s attorneys actually represent the Church. What has happened, instead, is that the Church’s mission has found itself again and again subject to the morality and prerogatives that are normative for the legal profession. A new kind of engagement is needed. It may increase legal liability, but it’s the only way we can maintain our integrity.
More of my thoughts on the Bostock case:
- Bostock Initial Review: A Mixed Bag
- Taking Freedom Too Far (in Commonweal)
- The Bishops and Bostock: Considering Sex and Sexual Orientation
Chris Damian is a writer, speaker, attorney, and business professional living in the Twin Cities. He received his B.A. in Philosophy from the University of Notre Dame and his J.D. and M.A. in Catholic Studies from the University of St. Thomas. He is the author of “I Desired You: Intellectual Journals on Faith and (Homo)sexuality” (volumes I and II). He is also the co-founder of YArespond, a group of Catholic young adults seeking informed and holistic responses to the clergy abuse crisis. In his free time, he enjoys hosting dinner parties and creative writing workshops.