Judge Warns Factfinders: Be Alert to “Groups or Persons Improperly Contesting the Authority of … the Catholic Church’s Official Position or Its Doctrines”

Matter of Zornow, decided by a New York trial court on Dec. 23, 2010, but just recently posted on Westlaw, involves Joan Zornow, a 93-year-old woman who is unfortunately suffering from advanced Alzheimer’s. Given the risk that her condition would deteriorate further, a “living will” was created for her — it’s not clear from the opinion exactly by whom — containing “a blanket directive denying her mother food and water if it could not be administered orally” as well as a directive “that she be denied hospitalization for future medical conditions.” Zornow’s children disagreed about whether this was proper, so the matter came before the court. One important fact: Zornow was “a practicing Catholic,” and before she became ill she was apparently “a daily communicant at Mass.”

Now as I understand New York law, some such directives are permissible if they are dictated by the patient’s wishes, and if the patient hasn’t expressed those wishes, a court may review the facts to decide what the parent likely wished. Thus, for instance, “patient’s statement to her nurse that if she became unable to take food orally, she wished to receive artificially administered food and water” (to which the judge points) might suffice to invalidate the living will. And if someone testifies that the patient had always listened closely to her priest’s Catholic teachings in moral matters, and the priest testifies that those teachings forbid the termination of food and water, or the refusal of life-saving hospitalization, I think that evidence should be highly relevant. The question is what the patient likely would have wanted, and the patient’s religious beliefs may well bear on that.

But some of the judge’s opinion, it seems to me, goes far beyond that. Maybe I’m mistaken, but the judge’s opinion reads at least in part as a judgment about what Catholics ought to believe — buttressed by remarkably extensive quotations from Catholic teachings — and not just what this particular woman likely did believe. For instance, the judge writes,

Under this statute the finders of fact and surrogates, in ascertaining the Catholic’s beliefs as applicable to a particular medical condition, may encounter, and should be alerted to, various groups or persons improperly contesting the authority of the Magisterium, or the Catholic Church’s official position or its doctrines, and claiming a right to declare principles in opposition to or inconsistent therewith:

[UPDATE: Paragraph added.] Often the lack of obedience to the Magisterium is not total but selective; Our culture teaches us to believe what is convenient and to reject what is difficult for us or challenges us. Thus, we can easily fall into cafeteria Catholicism,’ a practice of the faith, which picks and chooses what part of the deposit of faith to believe and practice. A most tragic example of the lack of obedience of faith, also on the part of certain Bishops, was the response of many to the Encyclical Letter Humanae vitae of Pope Paul VI, published on July 25, 1968. The confusion which resulted has led many Catholics into habits of sin in what pertains to the procreation and education of human life. (Catholic Orthodoxy, Cardinal Burke, supra; see also Charles E Curran’s Grossly Inaccurate Attack on the Moral Theology of John Paul II, May, William E., professor of Moral Theology, Catholic University of America, June 14, 2005).

I would think that, given the Establishment Clause, American judges (writing in their official capacities, as opposed to expressing their personal views in their personal lives) can’t decide what constitutes “improperly contesting the authority of the Magisterium, or the Catholic Church’s official position or its doctrines.” (See, e.g., Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), one of the many cases holding that secular courts may not determine the true interpretation of religious doctrine.) If some Catholics take a different view from the Catholic hierarchy — as, I understand it, very many American Catholics do, on subjects such as contraception, abortion, the death penalty, and likely even withdrawal of food and water from those who are in a coma, or outright euthanasia — that position is equal before American law to the position of the Catholic hierarchy. [UPDATE: Sentence added.] Cafeteria Catholicism and follow-the-official-teaching Catholicism are of equal stature under American law.

It would be just as wrong, I think, for a judge to apply official Catholic doctrine in guessing the preferences of a Catholic who seems to have rejected that doctrine, as it would be for a judge to apply dissenting Catholic doctrine in guessing the preferences of a Catholic who seems to follow the official Catholic line. It is every American’s right “right to declare principles in opposition to or inconsistent” with “the Catholic Church’s official position or its doctrines,” and to argue that those principles are indeed the ones that Catholics should hold, or that a particular Catholic did hold.

I’d say the same about this passage:

It is noted that one of the children here, after consultation with a priest, believed that the blanket directive to prohibit food and water from his mother when she became unable to take food orally regardless of her medical condition was consistent with Catholic principles. (Transcript of 9/2/10 Colloquy). It is not clear whether he misunderstood, misapplied, or was misadvised. Nevertheless, it points out the need for the guardian/surrogate under the statute for vigilance to search out proper authority well trained in Catholic moral theology in determining their charges’ religious beliefs to be applied to the applicable medical situation.

“Catholic principles” as perceived by the Catholic vary from Catholic to Catholic. Under American law, it is up to each Catholic to decide what she wants, notwithstanding what “proper authority well trained in Catholic moral theology” might think. Perhaps under Catholic teachings, parishioners are the “charges” of such “proper authority,” but not under American secular law. The only question has to be what the particular Catholic believed; “Catholic principles” as set forth by the “proper authority” are relevant only insofar as we have reason to think that the particular patient adhered to those principles. Perhaps in this particular case there was evidence that Joan Zornow did indeed want to follow the “proper authority.” But the passage above — especially in the context of the extended theological discussion throughout the rest of the opinion — suggests to me that the judge is speaking more broadly, about Catholics generally.

I’d say the same about this passage:

The potential question earlier raised, but not reached, is if a Catholic or non-Catholic determines to forego water and food administered artificially in situations of legally allowed euthanasia under the statute or law, but morally disallowed for Catholics, may any Catholic, especially Catholic surrogates, and Catholic health care providers etc. make or implement such decisions.

What business is it of a secular court to decide what “any Catholic” may or may not do? Again, if a particular person (Catholic or not) came to court, testified that he had a sincere religious objection to participating in such a decision, and therefore claimed the right to some exemption from a requirement to so participate, a court would have to decide whether the exemption should be granted, applying the secular legal standards embodied in the relevant exemption law. (The claim might be brought, for instance, under Title VII of the Civil Rights Act of 1964, or under the New York Constitution, which has been interpreted as mandating constitutional exemptions for religious objectors from generally applicable government rules.) But no secular court can set up a rule for “any Catholic”; from the perspective of American law, it is up to each Catholic to choose which beliefs of the church to accept.

I realize that the Catholic church is a hierarchical church, and that the Church expects it member to follow the Church’s teachings. But that is the Catholic expectation. From the perspective of American law, Catholic dissenters — or even Catholic heretics and Catholic schismatics — are entitled to be treated the same way as those who follow official Catholic teachings on all things. (Naturally, they aren’t entitled to take over Catholic churches, but that’s because those churches are owned by a particular quasi-corporate organization that has the right to control its property, just like GM or Harvard University has the right to control its property. That organization has no similar right over its parishioners.)