It is tempting for many to read Pope John Paul II's apostolic constitution Ex Corde Ecclesiae, shake their head sadly, and dismiss the document's call for the preferential hiring of Catholics as applicable for Catholic countries in Europe, maybe, but not at all applicable for America. We have laws against that kind of thing.

Ex Corde Ecclesiae calls for the juridical implementation of Canon 810, which requires universities to hire faculty who demonstrate “integrity of doctrine and probity of life.” College officials say they are unable to comply with this and other canons because of the constraints imposed by American law, including the claim that employment discrimination laws prevent them from favoring Catholics.

No Basis in Law

But these fears have no basis in the law, though they may be out of favor with secular colleagues. It is much easier to hide behind the prevailing language of inclusiveness and pluralism than to build a genuine Christian community through pro-active hiring practices in favor of Catholics.

The pertinent law is found in Title VII of the 1964 U.S. Civil Rights Act which prohibits employment discrimination on various bases, including race, ethnicity and religion (gender and marital status were added as amendments later).

However, one of the exemptions to nondiscrimination was for “religious educational institutions.” This leaves Catholic colleges perfectly free to choose Catholic candidates for teaching and administrative positions over others — even if those candidates have superior technical qualifications.

The exemptions have been challenged on the grounds that they contradict the Constitution's prohibition against the establishment of religion. No challenge has succeeded.

Canon 810 could not be used to break, or interfere with, current contracts. However, those contracts, including good-character clauses, should be interpreted in the light of the canon, and Ex Corde Ecclesiae.

Options for Theologians

As for theologians — the most important category of faculty covered by Ex Corde Ecclesiae — there is no reason in law to delay full implementation of Canon 812, which states that “it is necessary that those who teach theological disciplines in any institute of higher studies have a mandate from the competent ecclesiastical authority,” usually understood to be the local bishop.

First, not everyone teaching theology must have a mandate, but only those teaching one of the “theological disciplines.” These are the subjects in which the content of the Catholic faith is the central subject matter of the course, including fundamental and systematic theology, moral theology, liturgy, ecclesiology, sacred Scripture and perhaps others. There is no canonical reason why a Protestant (who would be ineligible for a mandate) could not teach a course on the “Theology of the Reformers” or on “Pacifism in the Christian Tradition.” In fact, it might be better if a Protestant handled those courses.

Instead of dismissing those who are not able or willing to pursue the mandate, theology departments should find a place where they may not be expected to teach the Catholic position or (at least) will not scandalize students if they do. It might even be more efficient to create a new department of “Catholic Theology” or “Church Theology,” that is distinguishable from the older “Academic Theology” department.

Even the contracts of tenured professors are not likely to require more than this. At the same time, it is not likely that a college would be able to fire a tenured professor of theology because of his inability or unwillingness to pursue the mandate to teach subjects like moral theology. In that case, courses in theology — but not in a “theological discipline” — should be assigned.

Possible Challenges

Implementation of Canon 812 could lead to extensive reassignment of teachers and courses. A few professors would probably claim that they have a contractual right to teach a particular course, notwithstanding a different assignment by the university in light of Canon 812.

This could even become known as the “Curran defense” in honor of Father Charles Curran, who was stripped of his ecclesiastical mission to teach theology at The Catholic University of America in the 1980s because of his dissenting views.

Although Father Curran filed suit against Catholic University in civil court, his claim was denied. A key factor in the decision was the centrality of faith to theology. The court understood itself as being asked to rule against the Church on the question of who speaks for the faith. Quite rightly, the court found that Father Curran's contract with Catholic University implicitly included a condition that he be licensed by the Church in order to teach Catholic theology on a pontifical faculty. Indeed, in my view, the First Amendment could hardly tolerate such a usurpation of the Church's religious liberty.

If the reassignment of theology teachers is defended as essential to the integrity of the doctrine of the faith and as central to the preservation of the bishop's role as teacher of the faith, the courts would surely back off. In fact, the mandate requirement of Canon 812 and Ex Corde Ecclesiae establishes an even stronger nexus between teaching assignments and the prerogatives of the Church itself — a link that judges will not want to rule on.

Laxness by the colleges would serve the arguments of lawyers for the rare professor with a plausible basis for asserting a vested right to teach a particular theology course. They would try to exploit a college's lack of firmness on this point and treat gaps in implementation and flaccid enforcement as evidence that the Church authorities, including the bishops, do not hold such an integral view. If they did, courts will reason, it is likely that Church authorities would take greater care to preserve their prerogative.

No court is going to actually reinstate a professor to the course he has been excluded from because the remedy he seeks, called in the law “specific performance,” is generally disfavored in employment situations. (Though mostly for the employee's protection, this would, in cases involving Canon 812, work more in favor of the employee's university.)

And no court is going to make an exception to the general rule in a case where the doctrinal authority of a bishop is at issue. To do so would make a judge the arbiter of who speaks for the Catholic Church. And that is hardly a result compatible with the First Amendment.

The probable finding in such cases would hold that the professor has a right to be paid at the contract rate, but no claim to a course now off limits to him by dint of Canon 8l2.

The college would have the obligation to mitigate damages by obliging him to teach other courses, closer to his specialty but still outside the scope of Canon 812.

The Impect

One effect of implementing Canon 812 will be a reduction at most schools in the number of courses offered in the theological disciplines. At most colleges, the present faculty will not contain enough members able or willing to get mandates to teach the courses now offered. Financial constraints on the colleges will likely delay recruitment of replacements with mandates. This result would be unfortunate.

At the present time, most professors at Catholic colleges are unable or unwilling to confirm their adherence to the very truths of the faith that are the substance of the courses they are teaching.

It will not come as a surprise to many if it turns out that critics of juridical implementation of Ex Corde Ecclesiae reject the features identified by the document as essential to a Catholic university. But we will not know that until the camouflage of concern about adverse legal consequences is cleared away, and a discussion on the document's merits can finally begin.

—Gerard V. Bradley writes from South Bend, Indiana.