I am happy to announce the publication of a new article in the BYU Law Review. Entitled “Separated at Baptism: What the Mortara Case Can Teach Us About the Rejection of Natural Justice by Integralists and Progressives,” here’s the abstract as it appears on my SSRN site:
In recent years two Catholic scholars–Fr. Romanus Cessario, O.P and Dr. Mary McAleese—have taken seemingly contrary positions on the rights and obligations of the Church in relation to baptized children. Fr. Cessario—in his defense of Pope Pius IX’s abduction of Edgardo Mortara—argues that the Catholic Church has the right to exercise by means of political power its obligations to educate and catechize baptized children of non-Catholic parents even if the children’s parents wish otherwise. On the other hand, Dr. McAleese, argues that the Catholic Church does not have the right to exercise its obligations to educate and catechize baptized children insofar as those obligations are contrary to the United Nations Convention on the Rights of the Child. At first glance it may appear that Fr. Cessario and Dr. McAleese are in disagreement. However, upon further inspection (or so I will argue), one discovers that their views share a foundational premise: they both maintain that considerations of natural justice may not trump whatever a governing authority—for Fr. Cessario, the Papal States, and for Dr. McAleese, the United Nations—declares is in the best religious interests of the child. To show why this is so, I first explain what I mean by natural justice as it pertains to parents, children, and religious formation. Here I rely on the writings of St. Thomas Aquinas, whose work in this area both summarizes and expands on the Church’s most ancient teachings on the matter (even though the Church and its theologians, from time to time, have not lived up to those teachings). I then move on to present and critically assess the arguments made by both Fr. Cessario and Dr. McAleese, concluding that their cases are not only susceptible to several counter-examples, but that they share the same rejection of natural justice.
Progressives, especially those hostile to conventional religious belief, have correctly viewed the Catholic Church’s treatment of the Mortara family as an appalling injustice for which the Holy See should be ashamed. Yet many of these same progressives typically cannot see what is wrong with the involvement of compulsory education in the moral formation of children in ways that are contrary to parental wishes. On the other hand, religious conservatives who identify with the Catholic integralist movement are in the forefront of resisting progressive policies that in their judgment interfere with the rightful authority of parents and families, even though some of these same integralists find it difficult to find anything wrong with Pius IX’s abduction of Edgardo Mortara. The lesson is clear: absent the explicit recognition of extra-governmental authority—something like natural justice—it becomes difficult to see what precisely is wrong with a totalizing ideology, especially if its advocates are convinced that God or the United Nations (or History) is on their side.
You can download the entire article here.