By Marci A. Hamilton with Peter C. Kuzma
Religious News Online
February 4, 2004

http://www.sweenytod.com/rno/modules.php?name=News&file=article&sid=754

The Catholic Church’s contemporary crisis is so severe there is a chance the Church will never recover. To be sure, the bishops think they are over the worst of it, but they are wrong.

In this society, to criticize a church is to violate unspoken taboos. We are raised to respect our clergy members, whether priest or rabbi, minister or imam, but as adults we learn that they are as human as their parishioners. This American taboo must be broken if the greater good is to be achieved.

I am an incorrigible Presbyterian and legal scholar, who has dedicated my professional life to analyzing and publicly criticizing abuses of power by trusted bodies, from Congress to churches. My husband, Peter, is a devout Catholic, who has rarely missed mass in the twenty-six years we have been together except in Budapest, where they shut the door on him, thinking he was just a tourist! Our children are Catholic, and we attend mass every week, wherever we are. Our daughter, Alexandra, was baptized in 1995 by a man we later learned was a pedophile in our own parish. Peter loves the Church, I love our children, and we both hate corruption, so we are in this fight together.

The galvanizing moment for this current crisis, of course, was the Boston Globe’s decision to finally tell the story of serial child sexual abuse at the hands of priests in Boston. I have written extensively on this awful chapter from a legal perspective in my www. findlaw.com columns.

Even though I remain absolutely committed to doing everything in my capacity to see that justice is found for the victims of clergy abuse, in this article I would like to turn attention away from current events and to address instead the fundamental defects in the Church’s institutional structure that made this crisis possible.

Accountability is the problem.

This crisis was caused at the deepest level by a severely flawed institutional structure that has made it virtually impossible for the leadership to be accountable to the faithful or the public good. They have operated in a self-referential vacuum, where the primary value has been preservation of the institution at all costs. The recently discovered 1962 Vatican document mandating secret procedures for internal Church trials involving charges of clergy abuse make[s] my point. Not only was secrecy imposed on Church leaders, but also the victims: The oath of keeping the secret must be given in these cases also by the accusers or those denouncing [the priest] and the witnesses.

Those who study institutions will tell you that the Church is no different than any other institution in that once an institution is formed[,] there is a strong internal tendency to perpetuate itself. The extent to which the Church has been focused on its own preservation, regardless the cost, has been shocking, but it is not terribly different in principle from Enron or any other institution bent on self preservation. The question is how to turn the institution away from the preservation of bad values and toward its higher calling.

With Enron, it started with indictments of top brass. State and federal prosecutors so far have failed to enforce the laws the Catholic bishops have so plainly violated, and therefore have not provided one of the best spurs to institutional reform. I have faith that there is an upstanding prosecutor somewhere in the country who will have the courage to do the right thing, but until then it will take internal pressure to reform the Church.

There are proven structural principles that are necessary to create accountability. Three points make the case: (1) the heart of the Church cannot be destroyed even by the evil acts of its leaders or its faulty structure, so we are not talking about displacing the Church but rather reforming it; (2) there are ways to build accountability into the Church structure, and the laity needs to brainstorm now; and (3) society can be a constructive check on the Church through the rule of law.

In short, I will address the true Church, the checks from within, and the checks from without.

I. The Church Is the Church

The Church was started by God, not man, and will continue through the works of God and Christ throughout history. Man turned the Church into an institution, and that institution can be as fallible as the men and women who created it. This is true for every institution[--]secular or religious. The Catholic Church has been through a series of changes in institutional structure, but the Church has lived on through each, despite the failings of the humans involved.

You may be surprised to learn that the early Church in the first several centuries had a very different structure, one that was accountable to the faithful. The members had the power to choose their priests and then had the obligation to monitor them to ensure that they stayed on the right path.

They even had the power of removal in some circumstances. The monarchical structure that appeared much later eliminated the role of the people in choosing and monitoring their leaders.

The faithful were not the only ones displaced by the monarchical structure. As time wore on, the monarchical structure also cut out the active role of women as leaders in the early Church.

The monarchical structure of the Church, which was solidified when the Pope ruled Europe, subjugates the faithful to the will of the Church’s leaders. When the Pope ruled Europe, he also subjugated the kings and queens. The famous scholar of the Reformation, Roland Bainton, describes it as follows:

The Church claimed to be the director of society not by reason of the goodness of churchmen but by virtue of the prerogative of the clergy alone to celebrate the sacraments, through which exclusively salvation is mediated to men. For that reason the meanest priest was greater than the loftiest emperor. The latter could confer on man only tranquility on earth. The former could convey the peace of heaven[.]

Now, that is a lot of power. The organizational structure then and now is top-down. Orders are issued from the top, with the Pope as pinnacle.

This is a pure monarchy.

Within the Church’s monarchical structure, there is no mechanism by which the people can challenge the authority of their leaders, from the bishop to the Pope. Unlike the European monarchies that were forced over time to take the people into account through various mechanisms, in the Church, there is no Parliament to intervene on the people’s behalf, no power to elect and remove, no Prime Minister. The Church has preserved instead one of the clearest examples of an unchecked monarchical structure.

The purest expression of the top-down nature of the Church occurred when the Church declared that the Pope is infallible in matters of faith. That cemented the Church’s message that believers were not permitted to question the Church leadership.

Nor is there a separation of powers within the Church that might foment adequate internal critical dialogue. The structure is tailor-made for abuses of power.

II. Structural Reform for the Church: Finding Structures of Accountability from Within

A. Looking Back to the Sixteenth Century Reformation

In the sixteenth century, the Church was rocked by the Reformation, which was led by two reformers, John Calvin and Martin Luther. They were, of course, Catholics themselves who challenged the Church’s corruption in that era. Luther was most interested in theological matters and liturgy. As you know, his views led to a schism from the Church to form the Protestant denomination Lutheranism.

Calvin was an analytical thinker whose diagnosis of the Church focused on a different question: structural reform. It was his fundamental belief that the problems of the Church arose not only from the evil acts of its leadership but also from the Church’s structure, which made accountability to the faithful impossible. He also held differing views on the sacraments, but those views are irrelevant to the issues I want to address today.

Calvin was passionately disillusioned by the Church in his era, which, among other things, was selling indulgences as tickets to heaven. He placed the blame on the hierarchy and the structure. For Calvin, the Church, of all institutions, should not have been subject to corruption. Like so many Catholics today, he was shocked and passionately angry with the sinfulness of the Church’s leaders.

His response, however, was not aimed at individuals per se because he accepted the inherent fallibility of all humans. For him, the system was as blameworthy as the errant individual. Thus, replacing the leaders would not be enough.

Calvin sought to construct a system that would deter Church leaders from sinning in the future by instituting representation and accountability. He believed that as long as the Church leaders were not accountable, the papacy and lesser clergy would be too easily tempted by wealth and power.

In crafting a system that would check them, Calvin wished not to destroy the Church, but to restore its integrity. He was, on his own terms, not a revolutionary, but a reformer. He was also forced into becoming an outsider, because the Church of the sixteenth century, like the Church of the twenty-first century, was bent on preservation, not change.

Calvin, like so many of us, began by trusting [the] church’s holy leaders. The shock for Calvin that propelled him to seek reform was that even when a man was within the Church, he could be successfully tempted by evil. The lesson Calvin took from the Church crisis in his own era was that even though the Church was always inviolate at its core, it was foolhardy to trust any particular individual who holds a position of power, because the temptation to abuse is always there and no man is perfect. As we all know so well now, simply by donning the Church’s vestments, whether he be priest, monsignor, monk, bishop, or cardinal, a man does not thereby make himself immune to sin. Knowledge of the right path did not inexorably lead the Church’s leaders to follow it.

In Calvin’s words, as much as man desires to follow what is good, still he does not follow it.

The pivotal starting point for Calvin in reforming church structure, then, was distrust of every human. And if every human was to be distrusted, then the structure needed to be made that would deter abuses of power. He sought to build in checks and balances.

Now, some of you are thinking, wait a minute, that sounds like the United States Constitution, not a church structure. Actually, you are absolutely right that it sounds like the United States Constitution.

Calvinist principles of structural reform were built into the constitutional process. Calvinist principles have played a role in every working free democratic society in modern times. Those same principles can work to shape church order as well.

Calvin believed the same principles applied to both churches and civil governments. His observations of the Church left him with a preternatural distrust of human motives, beliefs, and actions.

As Calvin counseled distrust, he also taught that there was no hierarchy of humans in the eyes of God. Every human, by nature, is sinful. Not even the head of the Church should have been free from the distrust properly trained on all men.

The problem of his era was how to re-construct the Church on the basis of these principles. Calvin believed that if he were to go over the faults of ecclesiastical government in detail, [he] should never have done, and therefore he proposed and instituted extensive structural changes in the governance of the Church. His views bring a surprisingly fresh perspective to our own troubles.

First, the Roman Church as constituted had to be rejected and condemned. Calvin described in vivid prose the sixteenth century’s Roman Church's hubris and its usurpation of power against the people:

Because of the primacy of the Roman Church, they say, no one has the right to review the judgments of this See. Likewise: as judge it will be judged neither by emperor, nor by kings, nor by all the clergy, nor by the people. This is the very height of imperiousness for one man to set himself up as judge of all, and suffer himself to obey the judgment of none. But what if he exercise tyranny over God's people? If he scatter and lay waste Christ's Kingdom? If he throw the whole church into confusion? If he turn the pastoral office into robbery? Nay, though he be utterly wicked, he denies he is bound to give an accounting.

Second, another structure embodying the Church must be constructed in its place, one with a structure that would guard against the evils of the pre-Reformation Church. The boundless power of the monarchical structure of the Roman Catholic Church was to be transformed through the introduction of limiting structures. Thus, over two hundred years before the framers rejected monarchy as an institution unacceptable for the preservation of liberty, Calvin spoke at length on the tyranny of a monarchy within the Church.

Calvin’s prescription: find the right principles for the time and the people to build accountability into the organization of the Church. There was no single organizational structure that would work for all time, but rather the people needed to experiment with constitutional forms to create the right government for the time. That is the message that is most relevant to today’s crisis.

Even though his vision was rejected four centuries ago, it is never too late to try what works.

The question, then, is which structural reforms will be most effective in this era.

B. The Rise and Fall of the Church’s Monarchy in the United States

In fact, the Catholic Church in the United States has been experimenting with various means of creating accountability for a long time. It may be surprising to learn that the laity participated in the governance of the Church in the colonies, in Philadelphia in particular.

Such moves toward accountability and democracy within the Church, however, were quickly suppressed.

The conciliar movement would have placed the locus of power in local churches, not Rome. Over the years, various attempts have been made to introduce lay involvement, with some moments of vibrant lay input and even control.

It is not surprising such movements would happen in the United States, where the accepted principles of civil and just government rest on accountability and transparency. Those same values have been translated by American Catholics into Church values during these moments, but they have never achieved a lasting effect.

The Voice of the Faithful is the latest movement by lay Catholics to insist on the inculcation of accountability, at a time when it has never been more necessary. It will take more than VOTF, however, to transform the Church in the ways that are necessary to protect those who would be abused by the Church’s enormous power. It will take an internal uprising.

The recurrence of such movements shows the enduring quality of the values undergirding the latest incarnation. It also shows that a more permanent structure needs to appear, so that the cycle can be broken and accountability can become permanent.

Part of this process requires a clear statement of the goal to be achieved. While Calvin does not provide a full blueprint for the Catholic Church today, his characterization of the role of the leaders within the Church is worth considering as reformers work toward their goals. Calvin repeatedly emphasized the many demands God placed on leaders within the Church. Acting on behalf of God and in His presence, they needed a great zeal for uprightness, for prudence, gentleness, self-control, and for innocence. They were required to watch with care, earnestness, and diligence that they represent the image of divine providence, protection, goodness, benevolence, and justice. Rulers were to exercise both judgment and justice, which is to receive into safekeeping, to embrace, to protect, vindicate, and free the innocent. But judgment is to withstand the boldness of the impious, to repress their violence, to punish their misdeeds.

A leader who lived up to his calling held many titles, including shepherd of his people, guardian of peace, protector of righteousness, and avenger of innocence.

In addition to laboring under God’s judgment, ministers of the ancient church were held to certain standards of quality and were subject to canons governing their behavior. The ancient church leaders who strayed beyond their powers were punished through Church laws, or canons, which were levied against evil representatives.

Yet, all of these earthly punishments paled in comparison to the judgment God would wield against those who abused their charges in His name.

Three principles flow from this description: (1) Church leaders must be accountable to a higher good that transcends their own personal aspirations; (2) Church leaders are to protect their flock, not the institution; and (3) Church members must be capable [o]f bringing to account those leaders who fail to fulfill these tasks.

C. Current Proposals: Finding the Right Form of Government for the Church

The problem for contemporary reform is finding the right structural reforms that will return the Church to a truer path.

Calvin saw no necessity for choosing any one particular form of government from among the long-identified choices - monarchy, aristocracy, and democracy, but he counseled checks on the exercise of power, noting that it is very rare for kings . . . to control themselves. The framers thought the same at the Constitutional Convention.

On these terms, the monarchy of the Church need not be discarded altogether. Rather, checks need to be added.

The discussion (and action) already has begun. A lay review board has been overseeing the clergy abuse scandal, with a mixed record, to be sure.

What about a lay review board not limited to clergy abuse? One that oversaw the work of the bishops? How about a lay review board made up of a majority of survivors of the Church’s cruel era of child sexual abuse? How about one paid for by a special Sunday offering, with no control of the money by the bishops? Yes, this is strong medicine. Reform-minded faithful will need to decide how strong the medicine must be to put this chapter behind the Church permanently.

There are other checks that can be instituted, whether they are taken from the ancient Church or from other governance principles. For example, parishes could be empowered to remove a priest known to be working against the interests of the parishioners. What a weapon that would have been for those families suffering from abuse by a priest! Instead of hiding in shame, alone, the grieving parents of the abused child could have approached their fellow parishioners and provided the evidence needed to remove the priest from their parish. There would have been a procedure rather than the brick wall now in place.

Another approach would be for a legislative body of the laity to be instituted that has the power to pass judgment on the work of the hierarchy. Elected by the laity, it would stand as a check to overreaching bishops. Separation of powers has worked extremely well in the civil context, and in some churches. The absence of this checking function leaves the Church to the abuses of power from which it now suffers.

Members can let the Church know how interested they are in accountability reform by joining together and refusing to give during the offertory on a designated Sunday. Or refusing to give at all till the new structures are in place. That will not hurt victims, whose damages are usually paid out of insurance funds, not the Church’s coffers, despite Church intimations to the contrary, but it could scare the leaders silly. We are not advocating any particular structure here, only brainstorming on the basis of other governing structures that have worked. The choice, in the end, will be for the reformers.

III. The Law: The Check from Without

Finding the correct internal structure for the Church will not be sufficient to prevent further abuses of power like those we see today. The Church has for too long considered itself above and beyond the civil law. For true reform to take place, the Church must reconsider this position.

The pinnacle achievement of the United States Constitution is that it created a system of rules that every citizen must obey, no matter who they were. That principle, the rule of law has been applied to the President, to the Justices, and to churches. One of our most valuable exports is this principle of the rule of law.

The current crisis was created by a Church structured in a way that defied accountability to the faithful, including those faithful who were abused at the hands of priests. But it was also fostered by a systemic belief that the Church has the right and power unilaterally to trump society’s laws.

In my scholarly work, I have talked about how the First Amendment makes it possible for the government to be challenged by dissenting ideas, by difficult speech, and by religious institutions. Such challenges are good for society. At the same time, religious institutions need to be challenged themselves by the government’s duly enacted laws, which reflect the policy choices made by the people’s duly elected representatives. The government and religion are the two most authoritative structures of human existence and if either is permitted to operate without any check, it is all too likely that it will spin into a realm of unaccountability and abuse of power.

The clergy abuse crisis is is a vivid example. The government through its duly enacted laws--is the external check that can keep the Church accountable to the larger public good.

Had the Church turned to the government when its first abusing priests were discovered decades (actually centuries) ago and held to that policy, and let the perpetrators make their way through the justice system, the Church would have benefited.

By taking on all of the functions of civil society, the Church has spiraled into a vortex of corruption.

The United States has the best system in the world for ensuring that the public good is served and religious liberty is preserved. Religious institutions and individuals are subject to the general laws that govern everyone else. If those laws place an intolerable burden on the religious, they can ask the legislature to consider exempting them from the law. It is the job of the legislature to then determine whether such an exemption is in the interest of the public. The Church would do well to consider becoming a partner in this process, rather than an antagonist.

Some of the legacy of anti-Catholicism in this country can be traced to the Church’s insistence that the Pope and the Church stand above the law. There is a fundamental tension between that view and the United States’ institution of a system of rules of law, not rules of men. The clergy abuse crisis brings the issue into sharp focus and cries out for Church reform.

By taking itself outside the bounds of the law, the Church multiplied the evil and the wrongs a thousandfold. Catholic theologians will say that the Church’s stance toward the law is part and parcel of the Church’s long held theological constructs.

That may be so, but it does not make it right. The current crisis absolutely demands reform, even painful and gut-wrenching reform.

Marci A. Hamilton is Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law (hamilton02@aol.com); Peter C. Kuzma, Ph.D. is President, VIP Products Corp. (vipprodcrp@aol.com).