The Return of the Oubliette - Sado-Justice in America

Most of us remember reading as children the tales of men in iron masks, dungeons deep or, as in the Prisoner of Chillon, chain'd to a column of stone where all was “blank, and bleak, and grey; and never night, nor ever day.” And with a shudder, we would wonder, how any king could do a thing so terrible and cruel. Thank goodness there had been a revolution!

Thank goodness too, the Oubliette, the dungeon’s dungeon, the cavernous hole into which men were dropped and forgotten, was mostly a thing of gothic tales meant to instill in us a horror of what we ought not to be. Alas, gothic horrors have become a standard feature in America’s criminal justice/national security complex.

For a brief moment, December’s WikiLeaks scandal caused us to remember the forgotten Private Bradley Manning who this very day languishes in a perpetually lit white box, forbidden virtually all sentient stimulation or social contact.

Spokesmen for the Marine Base at Quantico, Virginia, where Manning is being held, deny that he is denied reading material and state that he is being treated no differently than other so-called high security prisoners. To those familiar with so-called “supermax” confinements being used in state and federal facilities since the 1990’s, the denials smack of officially crafted evasions.

The question in reply becomes: how are those other high security prisoners treated? The answer is that for two decades, extreme isolation and depersonalization have been standard and routine features in the American Gulag. The effects of these regimens both on individuals and on constitutional standards of justice are devastating.

With good reason, most of the Bill of Rights is devoted to criminal justice because the “bottom line” of any civilization is precisely how it treats the least of its members. The Bill imposes standards of decency, fair play and restraint on investigations before trial, on proceedings during trial and on punishment thereafter. Because supermax regimes destroy the human mind they necessarily violate constitutional standards at each stage of the justice system.

The cases of John Walker Lindh and Jose Padilla illustrate the destructive effects of sensory and social deprivation on our Fifth Amendment right against coerced confession, our Sixth Amendment right to a fair jury trial and our Eighth Amendment guarantee against cruel and unusual punishments. Both cases also illustrate the less than heroic response of the judiciary to what has become a system of institutionalized sadism.

Much of the litigation in the Lindh and Padilla cases concerned the Bush Administration’s shell game with the defendants’ status. Centuries of jurisprudence was premised on a distinction between international war and domestic violence. As a rule, soldiers acting on orders to kill are not criminals whereas a resort to violence by private persons, whether for personal gain or from political motives, is a crime. By invading a sovereign country in order to “smoke out” alleged terrorists and by treating enemy combatants as criminals (as in Lindh’s case) or alleged criminals as enemy combatants (as in Padilla’s), Bush wreaked havoc on accepted norms of both legal and military procedure. In effect, the Bush Administration played both ends against the middle, using status designations to circumvent legal rights and then bringing criminal sanctions to bear on combatants.

But within the smoke and mirrors concerning status, the hard core constant remained the subjection of human beings to social isolation and sensory deprivation. Lindh’s case illustrates how supermax regimens deconstruct the Fifth Amendment and render any confession irremediably involuntary. Padilla’s case illustrates how supermax isolation reduces any ensuing trial to a farce and a sham. The acceptance of these “techniques” reflects an unparalleled degradation of American law and is categorically incompatible with the Bill of Rights.

I
The Fifth Amendment
A Free and Voluntary Confession

We begin our gothic analysis in July 1896 when the 'Herbert Fuller' set sail from Boston. Two weeks out, at midnight, second mate Bram took the deck. Just after 2 a.m., a scream and gurgling sound were heard emanating from the captain’s cabin. Now in command, Bram had seaman Brown clapped in irons. Once in port, Brown accused Bram of the murder and Bram was clapped in irons too. Bram was then stripped of his clothes and brought before Chief Inspector Powers. “Bram, we are trying to unravel this horrible mystery,” Powers said, “Your position is rather awkward... Brown [says] he saw you do the murder.” Bram replied: “He could not have seen me from where he was.” And on this fatal admission, Bram was convicted.

On appeal, the Supreme Court held that Bram’s confession was involuntary and inadmissible because “it must necessarily have been the result of either hope or fear, or both, operating on the mind.” (Bram v. United States (1897) 168 U. S. 532, 563.) The Court relied on English authorities for the rule that “[a] confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure ... its effect upon the mind of the prisoner....” (id., at p. 543) and “will not suffer a prisoner to be made the deluded instrument of his own conviction” (id., at p. 547).

After a review of American and English precedents dating back to the reign of Elizabeth and the infamous case of Nicholas Throckmorton, the Court concluded that while police interrogations did not render confessions involuntary per se, the coercive threshold was so low that the “slightest hopes of mercy held out to a prisoner to induce him to disclose the fact was sufficient to invalidate a confession.” (Id., at p. 552.) Thus, Bram’s statements “were not made by one who, in law, could be considered a free agent. ... A plainer violation as well of the letter as of the spirit and purpose of the constitutional immunity could scarcely be conceived.” (Id., at p. 564.)

Unfortunately, the brutality of ensuing cases tended to obscure Bram’s legal analysis. In Brown v. Mississippi (1936) 297 U.S. 278, the Court invalidated a confession obtained by whipping a Negro as he was repeatedly hung by his neck. “Further details of the brutal treatment... need not be pursued. It is sufficient to say that... the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.” (Id., at p. 282.)

Again, in Brooks v. Florida (1967) 389 U.S. 413, the Court struck a confession obtained by confining the defendant in a barren cage for two weeks on a daily ration of thin soup and 8 ounces of water. “Putting to one side quibbles over the dimensions of the windowless sweatbox into which Brooks was thrown naked with two other men, we cannot accept his statement as the voluntary expression of an uncoerced will.” (Id., at p. 414.)

By the time Miranda v. Arizona (1966) 384 U.S. 436 was decided the Court had had enough. Speaking for his judicial colleagues, California’s Chief Justice Roger Traynor explained, “We just got tired reading about rubber hoses and people falling down stairs.”

As everyone now knows, Miranda required the police to advise in-custody suspects of their right to remain silent and to legal assistance prior to any interrogation. What tends to get overlooked, even in legal circles, is the basis for rule. While the majority opinion recited at length the plethora of psychological and physical techniques used by law enforcement to induce or extract confessions, its basic factual finding was that any in-custody situation was “inherently” coercive. (Id. at pp. 458, 467, 468, 478.)

Curiously, the majority opinion ignored Bram’s historical analysis. The majority opinion compounded matters by making the astonishingly incorrect assertion that “since” Chambers v. Florida 309 U.S. 227 was decided in 1940 “this Court has recognized that coercion can be mental as well as physical.” (Miranda, at p. 448.) Bram had clearly made that point 44 years before.

Bram was a finessed decision. While it refrained from ruling that custodial interrogations were per se coercive it nevertheless concluded that Bram “could [not] be considered a free agent.” That was a curious way to put it because, rather than referencing the quality of the statement given, it focused on the defendant’s status as a prisoner. That focus coupled with the fact that Inspector Powers had little more than asked a question, resulted in a fact-law holding that for all practical purposes had deemed any in-custody confession to be involuntary.

The underlying logic is impeccable. A person in custody is not free. If you are not free you can’t exercise free will; if you don’t have free will any confession is ipso facto not voluntary.

Fairly read, Bram, while not strictly precedent for Miranda, was solid support for Miranda’s determination that all custodial settings were inherently coercive.

But the Warren Court was mesmerized by the notion that “modern science” (to wit: sociology) had progressed us beyond the quaint confines of Victorian formalism and had given us a whole a bunch of new reasons for knowing better. In truth, sociological jurisprudence merely muddles things beyond recognition. The psychological observations in Bram and the older precedents it cited were not less true because they were stated simply and clearly. By ignoring Bram’s precedent, Miranda undercut its own better authority and gave the impression of cutting law from new cloth.

Needless to say, the outcry from the right was a deafening roar to the effect that “liberals” were “shackling” our police in their “war” against crime. But, as Bram had pointed out, English decisional law had long provided for Miranda-like warnings prior to any criminal deposition or judicial inquiry regarding a case. A statute of Victoria required the defendant to be informed that “whatever you say will be taken down in writing, and may be given in evidence against you upon your trial.”

Contrary to myth, Miranda warnings were not some “modern” criminal-coddling incantation but rather an established English procedure which aimed to allow the use of admissions once the “playing field” was supposedly balanced. If there was a defect in Miranda’s reasoning it was the notion (unsupported by sociological studies!) that an incantation from the same party that was slapping on the cuffs would somehow “un-coerce” the situation.

The results of this so-called “prophylactic” rule have been fairly ludicrous, with conservatives on the court heaving heavily to undermine an incantation that the liberals had intended in order to “save” the confession by supposedly purging admissions of any taint of coercion.

The treatment of Lindh in 2001 stands in stunning contrast to the treatment of Bram in 1896 and illustrates the degradation of American justice even with the supposed “protections” of Miranda.

Lindh, an American convert to Islam, joined the Taliban in order to fight the Afghan Northern Alliance in Afghanistan’s decade long civil war. Although only three states formally recognized the Taliban as the official government of Afghanistan, the Taliban were at least a cognized belligerent party and its soldiers were thus privileged combatants, not criminals.

When the United States invaded Afghanistan it designated the Northern Alliance as an ally and, as a consequence, Lindh became an “enemy combatant.” He was captured along with other Taliban soldiers and held in a flooded basement with floating feces and corpses and such other appalling conditions that there was an uprising of the POWs during which an American CIA agent was killed.

On December 1, 2001, Lindh was transferred to U.S. military custody where he was held incommunicado and interrogated by military personnel. (Defense Memorandum, 2002, U.S. v Lindh (E.D.,Va 2002)212 F.Supp.2d 541.) On December 9th, he was delivered into civilian custody where he was interrogated by the FBI.

In preparation for his transfer, “Marine guards stripped Mr. Lindh of his clothes, blindfolded him, bound him with duct tape to a stretcher and placed him in a metal shipping container” without insulation or heat. (Def. Memorandum, p. 4.) Lindh was denied medical attention to remove a bullet lodged in his leg since the uprising. After two days in these conditions, Lindh was handed over to the FBI.

Lindh was immediately advised of his Miranda rights. However, when he asked for a lawyer he was untruthfully told that no lawyers were available. He then signed the advisement form and, still bound and wounded, was interrogated further for two more days. (Def. Memorandum, pp. 5-6.)

Lindh was thereafter charged with conspiracy to murder US citizens, carrying firearms during crimes of violence and providing material support to terrorist organizations (i.e. the same Taliban the United States had funded and with whom it had sought to negotiate a pipeline deal).

At trial, Lindh’s attorneys sought to suppress both the military and the civilian interrogations. They argued that Miranda applied to interrogations conducted by military personnel and they cited Government guidelines instructing military interrogators to “limit questions to significant military issues and do not question regarding criminal offenses. Leave all criminal offense questioning to [the] FBI....” If it was absolutely impossible to avoid questions on criminal conduct, the interrogee was to be read his Miranda rights. (Def. Memorandum, p. 3 citing Government documents.)

The trial judge had repeatedly ruled against defense motions and, on the day set for hearing of the Miranda motion, a shouting match was heard emanating from the judges chambers. Contemporaneously, Homeland Security Chief, Michael Chertoff, sought to head off any inconvenient court rulings and instructed prosecutors to make Lindh an offer he couldn’t refuse. Lindh avoided a possible three life term and pled guilty to carrying a rifle while serving in the Taliban Army for which he was sentenced to 20 years and which he is currently serving in a “Communications Management Unit.”

The talismanic focus on Miranda warnings obscured the real issue in the case. Certainly, no advisement of rights was required for genuine military debriefing of an enemy POW. However, once any questioning veered into matters which exposed him to criminal prosecution, Lindh’s Fifth Amendment rights came into play and, once he was transferred, into civilian FBI custody a Miranda advisement was required.

But for what earthly purpose? As a magical incantation to “re-balance” the battlefield? At this point, prophylaxis gives way to unreality. Assuming Miranda warnings can truly “un-coerce” hand-cuffed jailhouse interrogations, only a fool would think they could restore voluntariness to shell-shocked combatants or POWs who had been confined in Lindh’s conditions which rivalled those of the “sweatbox” in Brooks v. Florida.

Bram both sets the standard of what can be considered “free and voluntary” and likewise shows that Miranda incantations are pointless as against a coercive tidal wave of prolonged and isolated confinement. But if Miranda warnings cannot restore an aura voluntariness so as to “save the confession” then there is no way to reconcile battlefield interrogations or solitary confinements with the Fifth Amendment. The demands of one or the other must give way.

II
The Sixth Amendment
A Jury Trial as Envisioned by The Framers

In the same month as the invasion of Afghanistan, Attorney General Ashcroft announced that the Justice Department intended to use the material witness statute for the “aggressive detention of lawbreakers”. Thus, no sooner had Lindh been packed away than the FBI arrested José Padilla as a “material witness” to an alleged dirty bomb plot.

Yet again, the Administration signalled its willingness to twist accepted distinctions. An alleged “lawbreaker” is a suspect; and, once a suspect is arrested, he is entitled to Miranda warnings. In contrast, under the material witness statute, any person can be locked up and interrogated as a potential witness if there is probable cause to believe he cannot be questioned by other less drastic means. Although the witness can challenge his detention, he is not entitled to any Miranda advisement. Thus, the nation’s chief law officer had, in fact, announced that the administration would circumvent the Fifth Amendment by intentionally mischaracterizing suspects as “witnesses.”

After one month of being held incommunicado as a material witness, President Bush sought to preclude any challenge to his detention by designating Padilla an “enemy combatant” and transferring him to a Navy brig.

There, Padilla was subjected to an improved and cleaned up version of Lindh’s detention. His cell measured nine feet by seven feet. There was a toilet and sink. The steel bunk was missing its mattress. He had no pillow, no sheet, clock, calendar, radio, television, telephone calls or visitors. The windows were covered over and meals were slid through a slot in his door.

Padilla was subject to ongoing sleep deprivation. For most of his captivity, he was unaware whether it was day or night, or what time of year or day it was. When he was brought outside for exercise, it was done at night. His disorientation from not seeing the sun was exacerbated by his captors’ practice of turning on extremely bright lights in his cell or imposing complete darkness for durations of twenty-four hours or more.

Padilla was routinely put in shackled stress positions for hours at a time. Noxious fumes were introduced to his room causing his eyes and nose to run. The temperature of his cell was manipulated, making his cell extremely cold for long stretches of time.

Padilla was denied even shreds of human dignity by being deprived of showers for weeks at a time yet having to endure forced grooming at the whim of his captors. He was given drugs against his will, believed to be some form of LSD or PCP. He was subjected to exceedingly long interrogation sessions and would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault him.

Padilla was treated like a thing. When taken out of his cell he was subjected to a ritualized routine of impersonal shackling and sensory deprivation by three or more handlers. Without embarrassment the Government allowed a reporter from the New York Times to witness the handling. Deborah Sontag reported:

“Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall.”

It was later revealed that Padilla’s depersonalizing was so total that he was required to sign his name as 'John Doe.' Members of the brig staff told Padilla’s lawyers that he became so docile and inactive that his behavior was like that of “a piece of furniture.”

After four years as an enemy piece of furniture, the Bush administration changed Padilla’s status to that of a mere criminal and filed charges. His court appointed attorneys soon discovered that it was impossible to coordinate a defense with the wreckage of a human being.

Dr. Angela Hegarty examined Padilla and concluded that “What happened at the brig was essentially the destruction of a human being's mind.” Padilla was incapable of recalling precise personal details about the interrogations or the experiences or particular incidents. He wouldn't know when they happened or how long they lasted.

According to Hegarty, Padilla toggled between a state of absolute terror and total numbness. “For him, the government was all-powerful. The government knew everything.... His interrogators would find out every little detail that he revealed. And he would be punished for it.” At the same time, in a classic “Stockholm Syndrome,” he was distrustful of his attorneys and identified with the Government. When his lawyers had done a good job of cross-examining an FBI agent, Padilla got angry and said that the proceedings had been "unfair to the commander-in-chief." Padilla, Hegarty concluded, had been “deconstructed and reformed.”

Speaking for the military, Lt. Col. Todd Vician averred that “Padilla’s conditions of confinement were humane and designed to ensure his safety and security.” With brutish cynicism he added, “While in the brig, Padilla never reported any abusive treatment to the staff or medical personnel.”

Speaking of Padilla’s interrogations, Captain Lefever said it was unfair to compare US anti-terror interrogations with Soviet interrogation techniques. "Their abuse was a systematic practice to conceal the truth," he says. "If Padilla was abused, then it was for a righteous purpose – to reveal the truth."

What is astonishing is that anyone would take this verbal garbage seriously. Given his “deconstruction” anything Padilla emitted was so unreliable that one might as well pull “the truth” from fortune cookies.

Certainly the government pulled no truth that resulted in a confession it sought to use at trial. As a result there was no Miranda violation to contest in court. In the alternative, Padilla’s defense attorneys sought dismissal of the charges on the grounds of “outrageous government conduct.” The motion was denied.

The difficulty with the defense motion was that it failed to connect the Government’s outrageous conduct with the deprivation of any right connected to Padilla’s trial. Basically, the defense argued, tit for tat, that the Government’s wrong entitled Padilla to go free. The judge’s response was that Padilla could sue the Government if he wished for whatever, but that his case was proceeding to trial.

On the claims raised, the judge’s ruling was legally correct. What the defense overlooked was that by “deconstructing” Padilla, the Government had denied him his Sixth Amendment right to a jury trial. It is axiomatic that the right to a jury trial guarantees more than a stage setting, but envisions a particular kind of trial including a variety of features not specifically mentioned in the Constitution. (See e.g. United States v. Cronic (1984) 466 U. S. 648, 656.)

The Sixth Amendment says nothing about the presumption of innocence or proof beyond a reasonable doubt, but there is no doubt that the kind of trial “envisioned” in the Constitution includes those requirements. (In re Winship (1970) 397 U.S. 358.) A “jury trial” also entails the defendant’s right to a jury from which minorities have not been excluded. It includes the right to the assistance of counsel and conversely the opportunity to assist counsel. (Gideon v. Wainwright (1963) 372 U.S. 335, 344.) The right to counsel also “envisions” the absolute right to act as one’s own counsel should one choose to do so. (Faretta v. California (1975) 422 U.S. 806.)

Viewing the matter in this light, it is beyond dispute that what the Government had violated was Padilla’s core right to that kind of jury trial that is contemplated in the Constitution. The absence of grounds for a Miranda motion did not leave the defense without a “trial right” nexus to connect to. For example, how could Padilla exercise his Faretta right to self-representation if he had been turned into a “piece of furniture?”

Trial proceeded on an indictment that charged Padilla with: conspiracy to kidnap or murder people in a foreign country; conspiracy to provide material support to terrorists; and providing material support for terrorists. The indictment alleged that various co-defendants operated a “North American support cell” that engaged in “propaganda, fundraising, recruiting... and providing other physical assets necessary to wage violent Jihad” in various foreign countries. Padilla’s alleged involvement in this conspiracy consisted in being willingly recruited to go fight in Egypt or Afghanistan. Padilla was convicted on all charges and sentenced to 17 years prison.

But Captain Lefever’s gambit needs to be clearly understood. The implication of his remark was that Padilla needed to be tortured in order to protect untold millions from the effects of a possible dirty bomb attack. If he was destroyed, the cost-benefit was worth it. Of course, because the information so acquired was so very, very, ultra sensitive, the details cannot be disclosed and the country will have to take it on faith.

That only leaves the problem of what to do with the human wreckage. The Bush-Obama answer is to find some out of the way place to forget them. In the case of “enemy combatants” the answer is supermax Guantanamo or whatever other oubliette can be found in some willing third country.

In the case of American citizens, we have to have a trial beforehand since we don’t lock up our own without a right proper jury verdict. But since the “enemy-citizen combatant-criminal” can’t be tried on the ultra secret information obtained, he has to be brought up on some flimsy “stand-in” charges which he can’t defend against in any case because he has been turned into a walking cabbage.

Never mind, once he has been convicted he can be returned to the white box from which he was dragged and once again forgotten in confidence that Security & Justice for All has been served.

If Lefever’s paradigm is accepted, American courts will become wretched theaters of the absurd and the rest of us can live in perpetual insecurity that some false accusation or unwary act will ensnare us into a hell-hole against which there is no recourse and from which there is no likely return.

III
The Eighth Amendment
The Guarantee of Human Decency in Punishment

As illustrated by the Padilla case, the cruelest part of this sadistic farce is that the defendant is inevitably returned to his i-box for the remainder of his destroyed life. In other words, what begins as a violation of the Fifth and Sixth Amendments ends in rape of the Eighth. The circle is complete.

Conditions of extreme isolation and depersonalization are pandemic throughout the American Gulag. An estimated 20,000 U.S. inmates subsist in Padilla-like isolation in state or federal facilities.

Supermax confinements began in the 1990’s as a means of neutralizing very violent prisoners or gang leaders who were in fact running their operations from within prison. However, within a decade a concededly extreme but supposedly exceptional regimen had become commonplace and routine. A confluence of interests from government operatives to construction companies work to perpetuate what is nothing other than official sado-barbarism.

Surprisingly, although the Eighth Amendment prohibits cruel and unusual punishments, the Supreme Court has yet to hear a challenge to supermax confinements.

There is little doubt that the Eighth Amendment forbids punishments such as burning at the stake, crucifixion, and breaking on the wheel. (See e.g. In re Kemmler, 136 U.S. 436, 446.) However, the Court’s jurisprudence has been equivocal when it comes to punishments that don’t involve blood, gore and the cracking of bones.

In Haines v. Kerner, (1972) 404 U.S. 519 the Court held that solitary confinement could provide a basis for a civil rights actions but the Court itself has adjudicated little.

Coincidentally, one of the first discussions of solitary confinement came from the same court that had decided Bram. In re Medley (1890)134 U.S. 160. Justice Miller reviewed the “very interesting history” of solitary confinement. In the nascent United States, the “experiment” was first tried at the Walnut-Street Penitentiary, in Philadelphia, in 1787. “The peculiarities of this system were the complete isolation of the prisoner... so arranged that he had no direct intercourse with or sight of any human being....” (Id., at p. 168.) However, it was soon discovered that even after a “short” confinement prisoners fell “into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide....” (Ibid.) Similar experiments were tried in England where persons condemned to hang were kept in solitary confinement. But “public sentiment revolted against this severity” and the additional punishment of solitary confinement was repealed. (Ibid.) The clear implication was that the Court agreed but, unfortunately for the issue, Medley’s sentence was reversed on other grounds.

The question of cruel punishments arose again in Weems v. United States (1910) 217 U.S. 349, where it was held violative of the Eighth Amendment to sentence a defendant to “confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council.” (Id., at p. 366.) Unfortunately, Weems pointed in several directions which did not make for clear law. Was it the chains, the painful labor or the civil disabilities?

In Trop v. Dulles (1958) 356 U.S. 8, the Court focused on the disabilities. Six justices agreed that “use of denationalization as a punishment is barred by the Eighth Amendment... [because]... the total destruction of the individual's status in organized society... is a form of punishment more primitive than torture....” (Id., at p. 101.)

But when it came to “chains,” the Court tacked the other way. In Turner v. Safley (1987) 482 U.S. 78, the Court ruled that restrictive procedures within prison were permissible if they were "reasonably related to legitimate penological interests." (Id., at p. 89.) This constituted a highly flexible standard that deferred to prison authorities provided they could come up with some reasonable sounding excuse that was not bat-wise crazy.

In Overton v. Bazetta (2003) 539 U.S. 126, the Court followed up on Turner by cautioning that the very purpose of prison was to impose civil disabilities on persons convicted of crime, so that curtailment of an inmate’s visitation privileges was not ipso facto unconstitutional; although the Court observed that a two year abrogation of all visitation would probably be too severe.

The Turner court’s liberal minority salvaged a thread of justiciability with the caveat that "the restraints ... which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual.”

When it came to solitary confinement, however, the clouds over our ethical traditions were ominous. In Beards v. Banks (2006) 548 U.S. 521, the Court upheld supermax confinements in principle on the ground that “rehabilitation is a valid penological interest, and deprivation is undoubtedly one valid tool in promoting rehabilitation.” (Id., at p. 548, Stevens, J. diss.; & p. 531, Maj. Opn.)

In Banks, Pennsylvania prison authorities had established a system of gradient and increasingly severe forms of restrictive confinement for prisoners who were disruptive, violent, incorrigible or a threat to prison order. At all levels of restriction, inmates were confined to cells for 23 hours a day without television or radio. At the highest level (LTSU-2) inmates were allowed one non-contact visit a month but otherwise no phone calls and no reading materials or personal photographs.

Prisoner Banks, filed suit claiming that his First Amendment rights were infringed. Applying the Turner-Overton standard, the Court conceded that the deprivations at issue had an “important constitutional dimension.” It ruled, nevertheless, that relying on their professional judgment prison officials had “reached an experience-based conclusion that the policies help[ed] to further legitimate prison objectives.” (Banks, at p. 533.)

The deprivation technique of rehabilitation came up again in Wilkinson v. Austin (2005) 545 U.S. 209 wherein it was argued that Ohio prison authorities were committing inmates to supermax segregation without a sufficient due process hearing.

For the Court, Justice Kennedy summarized supermax conditions as follows: “Incarceration at OSP is synonymous with extreme isolation. ... It is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact. (Id., at p. 214.)

After noting that any claim of cruel and unusual punishment was not before it (id., at p. 218) the Court went on to hold that “courts must give substantial deference to prison management” and Ohio's hearing procedures were ”adequate to safeguard an inmate's [due process] interests" (id., at p. 229).

The spectacle thus presented was one of lawyers and robed judges on their knees, very precisely examining the mouse of procedure while ignoring the gorilla of substance hovering over them. To say that Jesus received an adequate due process hearing before being crucified rather misses the point.

In a society that is increasingly mired in unceasing blabber, it requires an even greater volume of scientific, psychiatric and statistical mumbo jumbo to prove what is otherwise self-evident. But Justice Kennedy, in fact, put the issue quite sufficiently when he observed that supermax inmates “are deprived of almost any environmental or sensory stimuli and of almost all human contact.” (Id., at p. 214.)

That merits a pause for actual thought. At least since the days of Aristotle, it has been recognized that Man is both a social and a sentient animal. (Politics, Bk I; De Anima, Bk II; De Sensu, Bk. I.) The essential importance of sense perception was summarized by the scholastic philosophers as, nihil in mente nisi prius in sensu (there nothing in the mind that was not first in the senses). If there are no sensory stimuli, there can be nothing in the mind. Thus, the mind of a person confined to a box will “self-stimulate” with what is already lodged in his brain, reacting to and within itself alone -- which is precisely what constitutes being crazy.

Similarly, just as the mind requires sensory stimulation, the human heart requires affection. Again Aristotle had it right when he said that all society was comprised of levels of friendship. A smile, a hand-shake, a pat on the back, an embrace are what anchor us to the reality of secure places within the common good. Without that external anchoring we are left to drift on a sea of doubts, fears, angers and paranoias. Without the love of a parent, wife, child, friend or faithful doggie, the human heart simply atrophies into a piece of furniture.

Speaking of “rehabilitation” through isolation, Alexis de Tocqueville wrote that uninterrupted solitary confinement “devours the victim incessantly and unmercifully; it does not reform, it kills.” (Du Systeme Penitentiaire Aux Etats-Unis Et De Son Application En France (1833).) Observing New York’s Cherry Hill prison in 1842, Charles Dickens wrote of the “immense torture” of solitary confinement “which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature.” (American Notes (1842) pp. 118-121.)

If Justice Kennedy actually contemplates what he himself wrote he would know that solitary confinement is simply a living death, which is a more vile, more vicious, infinitely more cruel punishment than a death which puts an end to suffering once and for all.

As stated by Justice Brennan, “The true significance of [cruel and unusual] punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the [Eighth Amendment] that even the vilest criminal remains a human being possessed of common human dignity.” (Furman v. Georgia (1972)408 U.S. 238, 272-273.)

However, as Brennan also often pointed out, our constitutional safeguards are cut from a single cloth. The Fourth, Fifth, Sixth and Eighth Amendments are each and all discrete manifestations of the singular core premise that even the vilest criminal is to be treated by the State with dignity and respect at all stages of the proceedings against him.

Hard core cynics will laugh at these “pretensions” as the pretty fantasies of old ladies, bleeding heart wussies and silly ninnies. The short answer is that life is not nasty, brutish and short unless we make it so.

By whatever name, supermax regimens are nothing less than judicially sanctioned state sadism. Sadism after punishment violates the Eighth Amendment; sadism during interrogation violates the Fifth, and sadism as a prelude to trial violates the Sixth.

The broader lesson of the Lindh and Padilla cases is that the converse consequence of turning military campaigns into pseudo police actions is the militarization of domestic policing. The so-called war on terrorism, with its sado-brutal adjuncts, is fundamentally incompatible with rule of constitutional law.

As a civilization we stand at a cross-roads. Once again, it falls to the Supreme Court to define the contours of civility in America. Were the matter to come before the Bram-Medley or Weems court there could be little doubt of the outcome. Unfortunately, the modern Court has shown itself disposed to defer to the assertedly “reasonable” demands of prison safety and national security. God help us.



©Woodchip Gazette 2010

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God's Dachshund, Part VII - Tacit Corrections

In our preceding feature on Pope Benedict’s papacy we reported on his Apostolic Visit to England where he insisted that the Church -- as guardian of a tradition which had infused European civilization from its inception -- had a political role to play in the guidance and “correction” of public policy.

In the Pope’s view this role was not claimed by the Church as a mere societal interest group among others but fell to her as the correlative of a dialectical balance between “reason and faith” which are mutually tempering and either of which, alone, becomes a pathological superstition.

There are, no doubt, those who will reject the idea that the Church has any special historical or dialectical claim on the formulation of public policy. For those who are at all receptive, the Pope’s claim might sound very fine in gross but they might wonder what it looks like in the net. As it turns out, Benedict’s message in England was presaged by his remarks a week earlier to the German Ambassador to the Holy See.

At that time, the Pope gave an example of the Church’s corrective role by warning against the increasing acceptance of gay marriage by societies around the world. Such alternative unions, the Pope said, contributed “to the relativisation of all legislation and to a confusion of values in society.”

To a certain ear, Benedict’s remarks were nothing short of outrageous; for he had, in effect, said that gay marriage could not be sanctioned because it would confuse straights.

Although the Pope’s remarks were not reported in the English speaking press (or for that matter anywhere else other than the Mexican progressive daily, La Jornada), it is not hard to imagine what the reaction from the atheist, socialist, LGBT and liberal Catholic communities would have been had they been made generally known.

To homosexuals in particular, such remarks could not but be regarded as almost spitefully hurtful and could not but heighten the intense opprobrium in which Benedict is held by a majority of gays and lesbians.

We here at the chipstack would like to offer a contrary assessment. It appears to us that when the Benedict’s remarks are read -- as they must be -- within the context of Catholic terminology and tradition, what is astonishing is what the Pope did not say.

Parsed to its essence, the Pope made an effect-based sociological argument which even when indulged was not very convincing. However, he avoided making a sacramental argument which is surprising given that marriage is, after all, considered a sacrament. More surprising still, he refrained from making an argument based either on the so called moral natural law or on Scripture which are precisely the types of “corrective” contributions he has said the Church should make to the discussion of public policy.

When these omissions are read in light of Benedict’s other writings on eros, love and scriptural exegesis, it rather appears that he is fundamentally “rearranging” the Church’s doctrines on sex and, as a correlative consequence, positioning the Church for full acceptance of homosexual unions.

I

Cohesion & Confusion

(What Benedict Said)

We begin our chipping by looking carefully at what the Pope did say. In its essential contours, Benedict’s remarks (given in German and Italian) affirmed that marriage was a union of man and woman, that the success of this union depended both on personal commitment and societal support and that, in this sense, alternative partnership models introduced a “confusion” into society which weakened the support structure for traditional marriage.

“The Church views with concern the increasing tendency to eliminate the christian concept of marriage and the family from society’s consciousness.

“Marriage manifests and unfolds itself [si manifesta/entfaltet sich] as a lasting union of love between a man and a woman, which tends toward the transmission of human life.

“One of its predicate conditions is the disposition of both partners to ever maintain a mutual committment [bereitschaft/rapportarsi]for one another.

“For this both a personal maturity and a fundamental existential and social orientation [und einer existentiellen und sozialen Grunhaltung (basic-position)/atteggiamento (attitude)] is necessary.

“The existence of this "personal culture" also depends on social developments. So that it may be prepared [vorbereitung] and supported [begleitung], what is needed is the shaping of a (social)foundation [rahmenbedingungen / condizione di basi] that will elevate this personal culture and foster its unfolding development.

“The success of marriage depends on all of us and on the personal culture of each citizen. In this sense the Church cannot approve of those legislative initiatives that implicate a reevaluation (Aufwertung) of alternative models of partner-schaft and family life.

“This contributes to a weakening of the principles of natural law and, as a consequence, to the relativisation of all legislation and to a confusion of values in society.”

At first reading, the Pope’s remarks manifest themselves as yet another grating instance of homiletics on homos. However, instead of the usual condemnations of homosexuality based on scriptural authorities, Benedict resorted to a merely expedient argument based on the alleged deleterious sociological effects on heterosexual unions.

In law, this type of polemic is known as a “parade of horribles”. It is the weakest possible argument that can be made because it argues from conjectured effects rather than from known causes. In this case, the effects, in addition to being conjectural, were tenuous to say the least.

But Pope Benedict is not a stupid man. He is an intelligent, informed and careful writer. Thus, before crumpling the remarks and tossing them into the trash can, it warrants taking a closer look at what he said and to unfold, for those who may not be conversant with Catholic terminology, what was latent in his remarks.

(Personal Prelatures & Cultures)

Key to understanding what the Pope said was his reference to a “personal culture” since it was that thing which he said required personal committment and social support. What exactly was he talking about?

The Pope’s reference to a “personal culture” most certainly did not mean “my own little pot-pourri of personal values and nifty things”. The term “personal culture” is a modern variant of what Thomist theology referred to as habitus -- a habit of virtues or (as we might say) a committed mode of being and conduct.

Pope John Paul II’s choice of the phrase “personal culture” as an equivalent of habitus would appear to be linked to the Catholic concept of a “personal prelature”. A personal prelature is an institution comprised of clergy and lay members which is dedicated to carrying out specific pastoral activities. The word “personal” refers to the fact that the organization is not tied to any particular diocese or place but rather follows upon and is exists within a movable network of individuals. Thus, whereas a priest or monk carries out his mission in connection with a specified place, a person who belongs to a personal prelature, such as Opus Dei, commits to carrying out certain defined pastoral tasks in society wherever he or she may be.

Such tasks are comprised of what used to be called the outer or “active” social virtues. Although they clearly include works of charity, the concept of prelature encompasses any action-in-the-world on which Christian values can be brought to bear.

Within this framework, the term “personal culture” refers to the more individually focused aspect of personal prelatures and virtues. For example, in addition to their more outwardly focused activities, members of Opus Dei undertake to abide by certain “contemplative” virtues relating to their spiritual purification and development as individuals.

However, as used by John Paul II and Benedict, the concept of “personal culture” is not limited to members of an organized prelature. It is, rather, the first rung on a ladder of commitments which applies to all of us living our lives in society whether as partners or individuals. While this “personal culture” can include our own purely individual charitable undertakings, it most primarily refers to a habit of being and acting with respect to oneself.

Thus, when Benedict refers to marriage as a “personal culture” he means more than the legalization of cohabitation -- the putting of an official stamp on “our union” and “what we do as a family unit”. The Church regards marriage as an aspect of christian discipline.

To say as much may sound like nails screeching on the chalk board. Indeed, for many years the Church did little to discourage the view that sex was a dirty thing redeemed only within marriage and harnessed to pushing the human race forward.

But that is definitely not the kind of discipline Benedict has in mind. In his view, marriage involves a process of ascending love -- a process that begins with sexual attraction but proceeds to higher forms of affection in a progression of widening and deepening knowing of and caring for the partner. The culture of marriage is a process that involves a habit of being with one another and ultimately together. As he said in his first encyclical,

"Eros tends to rise 'in ecstasy' towards the Divine, to lead us beyond ourselves; yet for this very reason it calls for a path of ascent, renunciation, purification and healing. ... [¶]... It is part of love's growth towards higher levels and inward purification that it now seeks to become definitive, and it does so in a twofold sense: both in the sense of exclusivity (this particular person alone) and in the sense of being “for ever”. ... [¶]... eros and agape — ascending love and descending love— can never be completely separated. The more the two, in their different aspects, find a proper unity in the one reality of love, the more the true nature of love in general is realized. (Deus Caritas Est, §§ 5, 6, 7.)

Thus, when Benedict refers to marriage as a personal culture, it must be assumed he has the forgoing context in mind. Neither he, nor the Church as a continuum, is stupid. He knows that self-indulgent lust -- even rape -- can occur just as well within marriage as without. In fact, in some cultures marriage has been little more than a nihil obstat to a man’s demanded “conjugal rights”. Calling cohabitation a “marriage” (with all the requisite paperwork) does not make whatever goes on (behind the seal of approval) right. Focusing on what goes on, Benedict’s concept of discipline is not to “blow the whistle” on erotic urges (Op.Cit., § 4) by immersing one’s self in a cold shower but rather to foster a habit of being where eros and caring become intertwined. It is surprising how little credit he is given for this shift in focus.

That said, Benedict’s reference to a “personal culture” should not be misread as referring simply to a personal choice of culture. For Benedict, a culture of the person is ultimately grounded in the idea that man is a social animal: he does nothing alone and can achieve nothing alone. The success and maturation of a “personal” union is in fact a social event and reality.

(A Tapestry of Being)

The American reader is almost entirely tone-deaf to what Europeans and Ibero-Americans understand by “social animal”. They do not mean that unit-man lives “in a group” with the other units with which he “inter-acts”. This disconnected, sociological, Millsian view is regarded as a form of intellectual primitivism. For Benedict, the question “who am I” is inextricably interwoven with the question “who are we”. As Socrates put it almost two and half millennia ago, he could not flee to safety because “Outside of Athens, Socrates is not Socrates.”

None other than Fellini agreed. In a short but astonishing scene in Satyricon, a mature, senatorial man-and-wife, quietly hold hands on a garden bench and commit mutual suicide. They did so, manifestly, because “established” as they were, they could not continue on as what they wanted to be in a society that had otherwise completely degenerated -- that was no longer a society but simply an aggregation of individual lusts and impulses.

The interwoven nature of the one and the many is illustrated if we ask: what did Socrates, as an individual, do? Socrates went about posing riddles and cunundra to young men of a certain breeding. If this were merely a matter of talking, Socrates could have talked as much to a Persian. But the dialogues would not have been as we know them. Their “tissue”, their flesh and blood -- or to put it in technical academic terms the ergon (dramatic work) -- of the dialogue would be entirely different.

Socrates’ conversations presupposed and proceeded from a shared, substantive common reference. This shared reference went beyond the mere possession of logical faculties and physical appetites common to all men. If the dialogues were only a matter of logos they would consist of a collection of ascending theorems, instead of the dramatic philosophy that has delighted generations of readers. Analogous to eros and agape, the ergon and logos of the dialogues bear an intimate, mutually sustaining and defining relation. The scene, the characters, their cultural and historical references, even their names, become the embodiment of the logical argument which they support, limit and color. It is in this sense that the manifestation of that phenomenon we know as “Socrates” cannot exist apart from the phenomenon we know as “Athens”.

This identification between the individual and the social is both limiting and empowering. We derive “inputs” from our social context which, at the same time, channel and delimit our outputs.

We all recognize this individually defining social context although we tend to ignore it at the same time. When, for example, I see Frenchmen dancing in the streets in their sabots celebrating their national holiday, I recognize what they are doing as something that I do myself with respect to my own country. But do I share what they are feeling? Heroes, histories, food and song, literature and legend, haunts in Paris and nostalgic memories wrapped around a particular popular childhood candy or Proust’s Madelaine -- all these recollected ingredients get morticed into a paste of a particular texture and taste known as “being French”. Can I share their patriotism? No, because it is not mine. If it were mine I would be them. To say that man is a social animal means that he shares with his society that complex of particularities that makes up who he remembers himself to be and that comprises the habit of how he thinks, feels and acts.

Thus, when Benedict stated that marriage was a personal culture placed within the larger social framework he meant something more organic than a collection coupled units existing within a certain degree of proximity to one another. The proper metaphor is rather portraits of individual figures within a tapestry made of interwoven strands sharing a common weave. For Benedict, marriage is an act which is both intimate and private and socially public at the same time. The pilgrimage of two people toward an ever enduring and deepening oneness depends on their walking within a pilgrimage of society winding in the same direction.

With all of the foregoing in mind, it can perhaps be seen that the Pope’s “effect-based” argument was somewhat more substantive than simply saying John and John can’t hold hands in public because it might confuse John and Mary. For Benedict both society and culture are something more than an aggregation of proximate instances. A pull on one strand of the tapestry necessarily affects and shapes a figure that only appears to be apart.

In sum, Benedict's remarks to the ambassador made a strong weak argument which was premised on the necessity for cultural cohesion and which raised the question of just how pluralistic a society can become before it ceases to be a society in the integral social sense we have described, and at which point we, as individuals, become un-interwoven threads in the wind.

II

Alienation & Recognition

(The Omitted Sacrament)

Nevertheless, having indulged Benedict’s argument in so far as we are able without cutting an entirely new argument out of different cloth, the question remains why he avoided mentioning what any Catholic would expect to hear. For the Church, marriage is not simply a social event or a cultural manifestation but, most cardinally, a sacramental act. Having made an argument based on the cultural ergon of marriage, why did Benedict refrain from taking the argument further into the liturgeia of holy matrimony?

In search of an answer, we propose to take Benedict’s “cultural effects” argument and “port” it into a sacramental context -- to gild the lily as it were -- to see where it might lead.

(A Confusing Effect on Sacramental Ergon)

We can begin the gilding with Benedict’s own statement that faith itself is a social act.

“Faith is a habitus, that is, a stable disposition of the spirit, through which eternal life takes root in us and reason is led to consent to what it does not see .” (Spe Salvi § 7.)

“Faith is not merely a personal reaching out towards things to come that are still totally absent: ... Faith draws the [hoped for and promised] future into the present, so that ... the present is touched by the future reality, and thus the things of the future spill over into those of the present . (Ibid.)

“[Unlike “passing through the battlefields with a rose in hand”], salvation has always been considered a ‘social’ reality. ... sin is understood by the Fathers as the destruction of the unity of the human race, as fragmentation and division. ... Hence “redemption” appears as the reestablishment of unity, in which we come together once more in a union that begins to take shape in the world community of believers.

“This real life, towards which we try to reach out again and again, is linked to a lived union with a ‘people’, and for each individual it can only be attained within this ‘we’. It presupposes that we escape from the prison of our ‘I’.”

In these passages, Benedict gave the highest expression to the concept of man as a social animal as we have previously described it; and, from this premise of faith as a social reality, the argument that homosexual marriage created a sacramental confusion would go something like this:

If salvation is subjectively personal, then it is just a matter of me holding onto myself within the maelstrom of “all of everything else out there”. One is, as the saying goes, “chaff in the wind.”

If, on the other hand, faith is a social reality, then salvation comes from being interconnected with “all of everything else out there”. One’s faith acquires an “objective” force because it is an objective reality.

This objective reality means that one’s individual faith derives not simply “support” but rather its very vitality (vis) from the body of the faithful. At the same time, decisions as to what an individual should do or want to be are no longer grounded in his subjectivity. They are imposed and constrained by the “we”.

But faith most decisively includes sacramental life. The sacrament of marriage is not just “me and you” but me and you within the witnessing of all of us. The “All” see themselves in the couple just as the couple finds themself in the likeness and continuity of the whole.

This “witnessing” is not an abstraction. The unity of marriage is not a concept but an incarnation. What enters into the social equation is not a theoretical variable but a particular, flesh and blood force. As a purely mathematical question (as a logos) 1 + 1 = 2 and a married pair is at best a “couple” a “(1+1)”. It is only in the ergon of incarnation that we see the mystery of 1 + 1 = 1.

It is precisely here -- in the incarnate unity of two persons -- that the surrounding community of heterosexual faithful cannot see their likeness in a homosexual couple because there is no incarnate likeness in them. There is a concept (a logos) of “unity” but the ergon is alien.

Accordingly, what “alternative unions” introduce into sacramental life is an alienation. We do not see Us in You. A confusion, a contrary weave, has been introduced into the corporate body of the faithful, into man as a sacramental being.

If this argumentation sounds repetitive; it is. To say as much is still to advance a polemic that argues on the basis of sociological effects, only it does so with a sacramental gilding. However, once the underlying logic of Benedict’s effect-based argument is cast into the ergon of sacramental life, it reveals itself to be fundamentally anti-Christian.

(Rutting Hedgehogs & the Logos Of Christianity)

For, if the “recognition” that is the precondition and life blood of “faith” demands homogeneous particularity then it excludes heteronomous otherness from the communion of the faithful. At this point, the argument falls into a contradiction that contravenes the essential spirit (Logos) of Christianity -- the one that led St Paul to go and preach to the Gentiles.

How much identity is required for sacramental effectiveness? Does recognition between black and white couple become an abstraction? Quite literally, a white couple do not “see themselves” in a black pair, so already we are at some level of abstraction in our shared recognition.

Furthermore, we all know that we have different sexual tastes. Do we only recognize other couples in so far as we imagine their ergon to be engaging, like us to be sure, in approved vaginal sex? Do we have to consciously ignore that they may engage in acts we may consider a little short of disgusting, for ourselves. And if so, then how much of our putatively unconfused, incarnate recognition boils down fantasized sacramental kitsch?

The notion that community (or communion) requires identity ends up making as much of a destructive fetish of social being as hyper-individuality. It is simply not true that radical differences necessarily implicate confusion.

We laugh when we see animals rutting, because what we recognize (rather incarnately) is that the same ludicrous compelling drive that drives us, drives them, even if we have no desire to share in their particular manifestation of lust. There is recognition without confusion. Is it to be said, then, that we can recognize “ourselves” in a rutting male and female hedgehog, but can’t see our humanity reflected in the mating of two men?

The fallacy of the “confused effects” argument is that there is a difference between “imagining” and “recognizing”. If I imagine myself as a partner in a homosexual union, I necessarily envision myself engaging in a sexual act with another man; for example, sodomy. As a straight man, I would be disgusted by the thought. Am I less “alienated” from the envisioned reality if I imagine myself engaging in a sexual act with a female hedgehog? The fact that we can laugh at the sight of rutting hedgehogs and feel a kind of recognitive sympathy with them illustrates the difference between “imagining one’s self in the place of another” and “being aware of the commonality shared with another at some level.”

One can accept the social-sacramental premise and yet still acknowledge that there are levels of recognition -- levels which notwithstanding differences of degree and completeness are still incarnate and more than mere abstractions. What is in fact “recognized” in the sacrament of marriage is the fact of struggling, maturing, ongoing commitment inspired by attraction and sustained by hopes.

It is at this point that one can see why Benedict did not gild his argument with sacramental references. In Deus Caritas Est, quoted above, Benedict espoused the view that erotic love ascends to agape (caritas) in a process that was,

“an ongoing exodus out of the closed inward looking self towards its liberation through self giving, and thus towards authentic self discovery.” (Deus Caritas Est, §6.)

The effect-based argument, put into sacramental terms, ends up saying that because we cannot “recognize” homosexual unity at an erotic level we are embarrassed from recognizing it at the very higher level of caring the sacrament exists to foster and attain. Not only is this inconsistent with the sacramental process of marriage, it is not compatible with Benedict's understanding of the Eucharist as the means through which estrangement is transformed into communion.

In our predominately heterosexual culture, two males kissing is an arresting sight. As arresting no doubt, as 2000 years ago, it was to see the slave and the freeborn sitting down at table in Christ. In Spe Salvi, Benedict cited this “bridging” ergon (i.e. sacramental liturgeia) as essential to the Logos of Christianity.

“Those who, as far as their civil status is concerned, stand in relation to one an other as masters and slaves, inasmuch as they are members of the one Church have become brothers and sisters—this is how Christians addressed one another. By virtue of their Baptism they had been reborn, they had been given to drink of the same Spirit and they received the Body of the Lord together, alongside one another. Even if external structures remained unaltered, this changed society from within. (Spe Salvi, § 4.)

There were those early “Christians” who wanted to restrain The Message to the circumscribed Jewish “us” precisely on the grounds that to do otherwise would be to introduce a “confusion” in the body of the faithful. The “other” could gain admission but only if he circumcised himself, cut off his flesh and renounced what he was. Had this faction succeeded there would be -- to put it simply -- no Vatican from whose porticoes the Pope could preach.

Thus, to maintain that sacramental efficacy is lost with the introduction of a confusing otherness into the body of the faithful contradicts the logos of the Eucharistic sacrament and constitutes a fundamental denial of the essence of Christianity. If radical otherness is not destructive of the Eucharist how and on what basis is it “inconsistent” with marriage, or baptism or extreme unction?

While we can never entirely penetrate the otherness of the Pope’s mind, what can be said is that Benedict did not make any attempt at a sacramental argument. This is not to say that Benedict’s concept of “personal culture” within an organic social fabric is nothing he believes in. On the contrary, the concept of integrated communality is central to his thinking; and indeed, the theological review he founded with his mentor, Hans Urs von Balthasar, was entitled Comunio. It is, however, to point out that the argument he made to the ambassador went no further than to assert a deleterious sociological effect on a heterosexual couple’s habit of marriage. The idea that homosexuals were not capable of "erotic-caring" as he had previously described it, or the notion that alien otherness undermined sacramental efficacy was, evidently, not a direction in which he wished to go.

III

Diverting the Flow

(The Natural Law Argument that Wasn't)

Of course, if homosexual conduct were an intrinsic moral wrong, there could be no question of it forming the underlying basis of a sacrament. But in addition to eschewing a sacramental argument, Benedict also refrained from asserting the usual moral arguments based on the natural law.

The tip-off that he was headed in another direction came at the outset,

“Marriage manifests and unfolds itself as a lasting union of love between a man and a woman, which tends toward the transmission of human life."

As already remarked the words "manifest” and “unfolds” implicated a positivist sociological argument in contrast to a theological one flowing from an a priori definition of marriage. Similarly, the word “tends” implicated a departure from stock-in-trade natural law arguments to the effect that the sole redeeming purpose of sex is the propagation of the species.

To understand the departure and its significance, it is necessary to briefly summarize how the Church’s natural law arguments work.

The strength of positivist arguments is that they are anchored in positive facts. Their weakness is that, where humans are concerned, “hard facts” are susceptible to soft change. The empirical laws of physics may perhaps be immutable but human conduct is nothing if not disparate and changeable. Because human conduct manifests itself in varying and discordant ways, no universal, immutable law can be based on such observed practices. This fact induces recourse to a supposed “natural law” which underlies different cultural usages and customs but which is itself universal and immutable.

In the West, the existence of a natural law (or ius gentium) was theorized by Greco-Roman philosophers and jurists who were looking for “commonalities” among the very different groups of people that got lumped together under the greater cultural umbrella of the Roman Empire. An example will suffice to explain the idea: It may be that Jews won’t eat pork, that Gauls gorge themselves on pigs and that Greeks prefer lamb and olives but all men desire to eat. From this empirical observation we can conclude that the desire to eat is a “natural law” that moves all men regardless of their particular tastes in food or the availability of avocados.

The early Church Fathers, cribbed the idea of a natural law from Cato and used it to even out bumps and putty up holes in the moral law, as deducible solely from Scripture. While no rationalist can complain about deducing natural laws from empirical observation, the unfortunate fact was that, in the hands of monks and cardinals, the natural law got used in a rather logically loose and, ultimately, rhetorical fashion. Nowhere was the defectiveness of the analytical process more evident than in the Church’s condemnation of homosexuality.

In this respect, the traditional natural law argument was strictly teleological, viz: The purpose of sex is to procreate the race. Therefore, sex which conforms to this final purpose is “natural” and sex which does not goes against nature. Spilling or bagging seed goes against the “natural flow”, unsheathed, full-flowing, vaginal sex with a woman is “within” the natural flow of things.

What is astonishing is not the intrinsic absurdity of the argument as much as how many wise and learned men have fallen for it. No less an authority than the profound genius Emmanuel Kant argued that masturbation was a crime “akin” to suicide because monkeys didn’t do it. (Lectures on Ethics) What got served up here was simply an argument by metaphor erected on a failure observation.

The fallacy in the natural law argument consists in arguing from an indisputable biological function (sex does serve to propagate) to moral intent (sex must serve to propagate). If one were to make moral rules out of the full panoply of observed animal behavior, life would be nasty, brutish and short indeed.

But even without reference to the causative flaw in the reasoning process, the effects of the putative conclusion leads inexorably to a reductio ad absurdum. For, if all sexual activity is natural or unnatural according as it conforms to a procreative purpose then a child can see that couples who are incapable of bearing children should not have sex. It hardly escapes the reductio to make embarrassed appeals to “intentionality” and the ever present possibility of “miracles” above and beyond the “natural flow”.

It is with this background in mind that one should contrast the Pope’s remarks to the ambassador when he said:

“These [alternative partnerships] contribute to the weakening of natural law principles and, thus, to the relativisation of legislation and a confusion of values in society.”

“It is a principle of christian faith, anchored in the natural law, that every human person merits personal protection in situations of weakness.”

“We cannot gainsay the developments in the biological sciences [referencing artificial insemination and sex change operations] but we ought to be very vigilant...”

These remarks were the only reference the Pope made to the natural law and while they may sound harsh, their bark was far worse than their bite.

In the first instance, Benedict’s remarks subtly shifted the focus from sex per se to the issue of marriage partnerships. It would be an easy thing to argue that homosexuality is intrinsically wrong and therefore there could be no question of condoning much less sanctifying what was sinful. But the Pope made no such argument. He simply skipped over sexual/procreative teleology and talked about “partnership” as a thing in itself. While this left open a path to beat a retreat (i.e. “well... i wasn’t talking about sex per se...”) it still shifted the entire focus of the argument away from the traditional natural law purpose of sex.

When it came to invoking the natural law by name, the avoidance was stunning. In place of the standard and expected rubric “that the institution of marriage exists to promote the propagation of human life” the Pope invoked a supposed natural law of deserved “personal protection in moments of weakness.” On what empirical basis such a natural law was deduced, we need not ask; on whatever basis, it was not the natural law that demands heterosexually procreative sex.

Finally, as if the retreat were not beat far enough, when it came to alternative forms of procreation, Benedict refrained from blasting the biological sciences in Frankenstein mode and instead called for “vigilance” -- a mild caution no reasonable person could object to.

Thus, while he referenced the natural law three times (explicitly twice and once by implication), the Pope eschewed a natural-law definition of sex or marriage and instead stood firmly on the cornerstone of positivism and cautious pragmatism. As a man with a finely tuned sense for the nuance of words, it is again very difficult to believe that any of this was inadvertent.

IV

A Clear and Consistent Condemnation

(The Bible not Thumped)

Nor could it have been inadvertent that not once during his remarks did the Pope make the slightest allusion to Scripture. Instead, the Pope’s comments, quoted above, contained a curious foot-shuffling reference to “principles” of faith being “anchored” in reason.

The dichotomy, accepted by the Church Fathers from the Second Century onward has been that faith and reason (by which the natural law is deduced) stand as separate sources of knowledge. According to St. Thomas Aquinas, faith and reason can collaborate but when push comes to shove the conclusions arrived at by reason must be tethered to revelation as revealed by Scripture. St.Anselm put it simply when he wrote: “I do not seek to understand in order that I may believe; but I believe in order to understand.”

It could justifiably be said that the entire “premise” of the Church is that we are enlightened and guided by Scripture. And yet, instead of maintaining at least a toe hold on the Rock of Revelation, the direction of the Pope’s “anchoring” signaled that he was not going to make an argument based on Holy Scripture.

Benedict certainly knows what the scriptural argument is because he himself has made it. In 1986, ghosting for Pope John Paul II, then Cardinal Ratziner wrote that the “complex issue” of homosexuality warranted “learn[ing] from scientific discovery” but that insofar as the Church’s tradition was concerned biblical exegesis indicated that “there is ... a clear consistency within the Scriptures themselves on the moral issue of homosexual behaviour.” Ratzinger continued,

"5. It is quite true that the Biblical literature owes to the different epochs in which it was written a good deal of its varied patterns of thought and expression (Dei Verbum 12). The Church today addresses the Gospel to a world which differs in many ways from ancient days.

"What should be noticed is that, in the presence of such remarkable diversity, there is nevertheless a clear consistency within the Scriptures themselves on the moral issue of homosexual behaviour. The Church's doctrine regarding this issue is thus based, not on isolated phrases for facile theological argument, but on the solid foundation of a constant Biblical testimony. ....

"Providing a basic plan for understanding this entire discussion of homosexuality is the theology of creation we find in Genesis. God, in his infinite wisdom and love, brings into existence all of reality as a reflection of his goodness. He fashions mankind, male and female, in his own image and likeness. Human beings, therefore, are nothing less than the work of God himself; and in the complementarity of the sexes, they are called to reflect the inner unity of the Creator. They do this in a striking way in their cooperation with him in the transmission of life by a mutual donation of the self to the other.

"In Genesis 3, we find that this truth about persons being an image of God has been obscured by original sin. ... Thus, in Genesis 19:1-11, the deterioration due to sin continues in the story of the men of Sodom. There can be no doubt of the moral judgement made there against homosexual relations. In Leviticus 18:22 and 20:13, in the course of describing the conditions necessary for belonging to the Chosen People, the author excludes from the People of God those who behave in a homosexual fashion.

"Against the background of this exposition of theocratic law, an eschatological perspective is developed by St. Paul when, in I Corinthians 6:9, he ... lists those who behave in a homosexual fashion among those who shall not enter the Kingdom of God. In Romans 1:18-32, ... Paul uses homosexual behaviour as an example of the blindness which has overcome humankind. Instead of the original harmony between Creator and creatures, the acute distortion of idolatry has led to all kinds of moral excess. Paul is at a loss to find a clearer example of this disharmony than homosexual relations. Finally, 1 Timothy 1, in full continuity with the Biblical position, ... explicitly names as sinners those who engage in homosexual acts. (Letter to Bishops on Pastoral Care of Homosexual Persons, October 1986, § 5).

Although copiously fleshed out with citations, the argument proffered was basically simple: Although many things change, some things are immutable; from the beginning, Scripture has consistently taught that the complimentary and procreative unity of man and woman is a reflection of God’s unity and that homosexual relations contravene “the covenantal character of the union these persons had with God and with each other.”

The brevity into which the argument can be distilled answers any protest that the Pope was, after all, only speaking to an ambassador, which is not typically an occasion for theological disquisitions. While that is true, the Pope, on his own initiative, chose to broach a controversial moral topic and in doing so refrained from even an easy, concise and simple allusion to the Church’s scriptural teaching.

Although there is a mild echo between the Letter’s reference to “disharmony” and the Pope’s more recent concern over “confusion”, what is more salient is that where an allusion to Scripture would have most fit in, Benedict inverted the anchoring. Instead of stating that the natural law reflected the Creator’s purpose as revealed in Scripture, he spoke of some vague principle of faith anchored in a putative natural law principle of protecting the weak.

Benedict’s omission of a scriptural argument was not the mere omission of an item on an a la carte menu. Although we have analyzed arguments separately, the Church’s traditional polemic has consisted of an integrated triad of scriptural, sacramental and natural law components which are mutually supportive. The Church does not proffer a series of arguments each on their own terms, but rather a unity of three arguments in one. Thus, after citing the Scriptural premises quoted above, the Pastoral Letter continued,

"The Church, obedient to the Lord who founded her and gave to her the sacramental life, celebrates the divine plan of the loving and life-giving union of men and women in the sacrament of marriage. It is only in the marital relationship that the use of the sexual faculty can be morally good. A person engaging in homosexual behaviour therefore acts immorally.

"To chose someone of the same sex for one's sexual activity is to annul the rich symbolism and meaning, not to mention the goals, of the Creator's sexual design. Homosexual activity is not a complementary union, able to transmit life; and so it thwarts the call to a life of that form of selfgiving which the Gospel says is the essence of Christian living." (Op. Cit., § 7.)

In these passages, sacramental life, natural law and Scripture are tightly intertwined into a consistent triune whole. As Benedict certainly knows, the underlying principle of procreating life is the common thread which hooks and unifies the three component parts: i.e., the material re-generation that occurs in nature reflects the final creative purpose of all life as revealed in Genesis and, within this reflective polarity, the Sacrament of Marriage effectively connects the Logos of Creation with the Ergon of Natural regenerative life by means of a social institution that is at once spiritual and corporal and through which man cooperates with Nature and God.

Even if the argument is, at bottom, merely rhetorical it is certainly stronger than the argument Benedict did make which was simply conjectural.

V

Continuity & Change

(The Collective Intuition of Truth)

The fact that the Pope did not make an argument would hardly seem to be news. But as previously noted Benedict’s remarks to the ambassador served as a run-up to his Apostolic Visit to England during which the Pope reiterated a consistent theme that the Church, as the guardian and bearer of faith, had a political role in counterbalance to the State as the manifestation of reason.

As stated, that theme derived from Benedict’s conviction that, unchecked and taken to extremes, both reason and faith become forms of superstition that lead to pathological results. Reason and faith need one another to temper their excesses, and it has been the traditional role of the Church to harmonize the two.

Accordingly, during his address at Westminster Hall, the Pope was very clear that, in discharging its political role, it was not the Church’s place to substitute its own arguments based on an exercise of pragmatic reason for those of the State, but rather to “correct” the conclusions reached by the secular authorities based on a magisterium grounded in scriptural tradition.

Thus, whether or not that gambit is accepted, it was a little more than puzzling, that during a foretaste of the kind of corrections the Pope had in mind, he fell back entirely on a pragmatic, sociological argument almost entirely devoid of all the traditional components we have described.

The solution to the puzzlement is to be found in the fact that an omission -- which is itself no thing -- gives rise to a space for something else; so that the significance of the omission depends on the offing in the wings.

With this in mind, it seems to us that Benedict did not simply “omit” to make certain arguments but is rather slowly shifting the Church’s orientation on sexual matters. To see how this might be so, it is first necessary to recapitulate what the Church means by “scriptural tradition”.

(Scripture & Tradition)

As apt a definition as any was in fact given in the Pastoral Letter of 1986,

“It is likewise essential to recognize that the Scriptures are not properly understood when they are interpreted in a way which contradicts the Church's living Tradition. To be correct, the interpretation of Scripture must be in substantial accord with that Tradition.”

Such a definition stands the Protestant, and certainly the Fundamentalist, position on its head. For most Americans (including unfortunately many Catholics), a “scriptural” argument means citing Scripture as a kind of immutable statute or as an axiom on the basis of which an argument is then erected like some species of geometric proof. Not surprisingly, despite multiple convictions of bed-rock certainty, the result is a Babelonian pandemonium.

The Catholic Church has never viewed Scripture in such simplistic terms. As stated in Benedict’s Regensburg Address (2006), Holy Scripture is rather the written core of an ongoing process (“...the process which started at the burning bush [and] came to new maturity...”). Certainly, tradition is anchored in Scripture; however, what the scripture means is not simply a question of what any one person thinks it means but what the collective “we” have understood and continue to understand it to mean. In other words, truth is not personal conviction but a social understanding.

Benedict summarized the dynamic relationship between a written scripture and social understanding in the Introduction to his book “Jesus of Nazareth” (Ignatius Press, 2007). He took as his premise that historical criticism was “indispensible” to Biblical exegesis. (Op. Cit., p. xv.) What this means is that the stories and accounts in the Bible have to be read and understood in light of the customs and usages of the time in which they were written. It is not enough to extract some (often mistranslated) dictum and thump on it out of context.

However, Benedict went on to caution that attempting to understand the past in terms of the past, even with the “greatest possible precision” can only lead so far. It remains, a thing of the past that at most has only shadowy points of contact with the present. Indespensable as historical (ie. sociological) contextualization may be, it can still only leave us with a somewhat fuller understanding of what remains, at bottom, an alien world in an alien time. We can never truly and completely be in the past with all the immediacy and (likewise) limitations that such being entails. “We can never simply bring the past into the present” and the past, as we know it, remains an “hypothesis”. (Op.Cit., p. xv.)

Thus, historical interpretation by itself leaves us only with a collection of pieces from which “on painstaking reflection” we can “intuit” “something of ‘deeper value’.” This is Benedict’s polite way of saying that even if we get the translation right we are left with a Bible as literature from which we may extract, au gout, a bunch of moral metaphors. The result is a latitudinarian anti fundamentalism which Benedict equally rejects.

An intuition of Benedict’s thought-process allows us to conjecture that he regards “fundamentalism” and “interpretivism” as opposite extremes each of which lead to equally relativistic results. Fundamentalism becomes relativism because the extracting of putatively relevant “litera” is itself determined by subjective will and impulse. Interpretivism (as I have coined it)is relative because the drawing of “deeper meaning” and metaphor is simply the creature of a subjective capacity for imagination. It may be poetic and delightful but it is still unglued to anything objective. Under either approach Scripture becomes a pile of disconnected scribbles unilaterally asserted or subjectively filtered.

For Benedict this sorry state of affairs is not endurable and Greekling that he is he hews a middle course.

“A voice greater than man’s echoes in Scripture’s human words; the individual writings [Schrifte] of the Bible point somehow to the living process that shapes the one Scripture [Schrift].” (Op. Cit., p. xviii.)

Benedict credits “American scholars” with realizing this point and with formulating an exegesis which “read[s] individual texts within the totality of one Scripture which then sheds new light on all the individual texts.” This methodology “carries [historical interpretation] forward in an organic way toward becoming theology in a proper sense.” (Op. Cit., p. xix.)

This metamorphosis into theology begins with the somewhat sociological observation that the author of any individual book in the Bible “does not speak as a self-contained subject” but “in a living community... in a living historical movement not created by him, nor even by the collective, but which is led forward by a greater power that is at work.” (Echoes of Tolstoy here.) We can analyze and diagram the process by which “older texts are reappropriated, reinterpreted, and read with new eyes in new contexts”.

“They become Scripture by being read anew, evolving in continuity with their original sense, tacitly corrected and given added depth and breadth of meaning. This is a process in which the word gradually unfold its inner potentialities, already somehow present like seeds, but needing the challenge of new situations...and new sufferings, in order to open up.”

Faith enters the picture at the point where, exegesing all of the above, we realise precisely that a greater power is at work and actually working through the community of faithful.

“[T]he books of Scripture involve three interacting subjects. First of all there is the individual authors ... But these authors are not autonomous writers in the modern sense; they form part of a collective subject...from within whose heart and to whom they speak. And yet likewise, this people does not exist alone; rather it knows that it is led and spoken to, by God himself, who -- through men and their humanity -- is at the deepest level the one speaking.” (Op. Cit., pp. xx, xxi)

Up to a point this is nothing new; the Catholic Church has always maintained that the ongoing traditions of the faithful are a co-equal source of Revelation with Scripture. It was also always understood that the two sources could not exist independently of one another. However, Benedict, in a rather modernistic fashion, has sought to explain the mechanics or dynamics of how the two co-operate so as to produce a singular process of ongoing revelation.

Those dynamics are nothing unfamiliar to an American or English lawyer; for, it describes precisely how the Common Law works and how stare decisis becomes “new law” as precedents are adapted to circumstances through discovered nuances, implications and tacit corrections.

If the reader is smiling, nothing more needs be said. But if the reader is understandably perplexed by this morass of words, an example may clarify.

A fundamentalist will use the Bible as a moral “corrective” by citing dicta; in this case, for example, St. Paul’s description of how “ men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion." (Romans 1:27) See! Q.E.D.

"Was man schwarz auf weiß besitzt, kann man getrost nach Hause tragen"!
“What’s black on white, you can take home with trust.” --- Devil to Faust.

A so-called “liberal” Christian will use the historical method to figure out what such passages meant in the social context of the times. On that basis, he or she will argue that St.Paul was talking about so-called “temple prostitution” -- i.e., erotic practices in Bacchanalian mystery cults.

From the Catholic point of view, neither approach is entirely correct. Fundamentalism becomes faithless. If we heed the Bible at all it is because we believe “God spoke through the prophets.” How then, having given us a living faith in Christ, can he not also speak through us, writing on our hearts and minds? But it is equally faithless, in a different way, to presume that God speaks anything through us. A God that contradicts or arbitrarily ignores what he has said before is no better than the Queen of Hearts. It is presumptuous to think that whatever comes into our minds comes “from God”. It is only a slightly more subtle version of the same presumption to think that past understandings can be discarded because we now, with our superior analytical tools, have discovered that previous understandings were “wrong”. This is what Benedict cautions against when he writes that we can never entirely get into the framework and mindset of the past.

The Catholic approach presupposes both change and consistency. It is fundamentally necessary to respect the ordinary or gross meaning of words because if words have no regular significance we are left with babble. But any sentence of words has to be understood in context the facts and circumstances of which serve to whittle down and sharpen the words so as to arrive at a net contextual (i.e. historical) meaning. The interpretation or focus given by past generations is not to be discarded precisely because, being closer to the original context, they are better attuned to the intended meaning. It is equally true, however, that being too close can blur focus or lead to forgetting the forest for the tree. It is only from the remove of time that a greater “whole context” can be seen. The present is as necessary as the past to understand the eternal.

Accordingly, Benedict’s method of interpretation does not leave it at “what this meant then” He goes on to add: “...and now.” To a good faith understanding of what St. Paul might have been referring to (and might have been understood by his listeners to mean), Benedict would also take into account the “understanding” the passage has received through time as shaped by reading Scripture as a unitary whole. This necessarily includes older or “fundamentalist” understandings but it is also alive to the fact that “new sufferings” -- like the irritation of heat on a dormant seed -- cause new flowerings.

(Benedict’s Symposium)

With this understanding of scriptural tradition in mind, we can now look to see if there have been any tacit corrections to the Church’s teaching on sexuality.

We are first of all struck by a striking difference in historical exegesis concerning Deuteronomy and Romans. In the Pastoral Letter, Cardinal Ratzinger (writing for Pope John Paul II),

"[In I Corinthians 6:9, Paul] lists those who behave in a homosexual fashion among those who shall not enter the Kingdom of God. In Romans 1:18-32, ... Paul uses homosexual behaviour as an example of the blindness which has overcome humankind."

This, it will be remembered, was the last installment of a biblical consistency which had condemned homosexuality as an abomination since Genesis. (Past.Let., supra, § 5.)

But in Deus Caritas Est, Joseph Raztzinger (writing for Pope Benedict) explains,

"In [pagan] religions, this [exaltation of eros] found expression in fertility cults, part of which was the “sacred” prostitution which flourished in many temples. Eros was thus celebrated as divine power, as fellowship with the Divine.

"The Old Testament firmly opposed this form of religion, Indeed, the prostitutes in the temple, who had to bestow this divine intoxication, were not treated as human beings and persons, but simply used as a means of arousing “divine madness”: far from being goddesses, they were human persons being exploited. An intoxicated and undisciplined eros, then, is not an ascent in “ecstasy” towards the Divine." (Deus Caritas Est, § 4.)

Benedict does not go on to say that St. Paul’s condemnation of homosexuality referred to temple prostitution, but this liberal interpretation tacitly follows from the supposed “consistency” of Scripture as a whole. In these passages, Benedict adopted a biblical exegesis which indisputably backed away from the mantra of “homosexuality as an abomination.”

More fundamentally, Deus Caritas Est, shifted the weight of the Church’s the sex-love discussion from procreative teleology to psychological teleology.

As has been the seen, the Pastoral Letter regarded the “complementarity of the sexes” as a reflection of God’s inner unity and as a “cooperation with Him in the transmission of life.” (Id., § 5.) In Deus Caritas Est, however,

"True eros, tends to rise “in ecstasy” towards the Divine, to lead us beyond ourselves; yet for this very reason it calls for a path of ascent, renunciation, purification and healing. (Deus., at § 5.)

"Love is indeed “ecstasy”, not in the sense of a moment of intoxication, but rather as a journey, an ongoing exodus out of the closed inward-looking self towards its liberation through self-giving, and thus towards authentic self-discovery (Deus., § 6.)

Love moves beyond self-satisfying appetite and “instead seeks the good of the beloved” so that, in this sense, it reflects the Christ’s path of sacrifice and resurrection which embody “the essence of love and indeed of human life itself.” (Ibid.)

God loves, and his love may certainly be called eros, yet it is also totally agape. (Op.Cit., § 9.)

Benedict then goes on to illustrate the “ascent” by rather impishly citing Song of Songs which, he says, “was perhaps intended for a Jewish wedding feast and meant to exalt conjugal love. [where] searching loves (plural) becomes discovered (singular) love.”

Of course, Benedict would never be so stupid as to say that sex has “no purpose” with respect to procreation. It is absolutely beyond empirical dispute that Nature has subjected animals to driving erotic impulses to make them procreate. Were procreation dependent on an exercise like weight lifting or rowing, humans would be a species on the verge of extinction, notwithstanding our supposed rational powers to sacrifice for the common good.

But Benedict has indisputably shifted the focus of the discussion. This shift includes a subtle rephrasing and modernizing of the temple prostitution argument, viz:

“Eros, reduced to pure “sex”, has become a commodity, a mere “thing” to be bought and sold, [so that] man himself becomes a commodity. This is hardly man's great “yes” to the body. On the contrary, he now considers his body and his sexuality as the purely material part of himself, to be used and exploited at will. ... both enjoyable and harmless. Here we are actually dealing with a debasement of the human body: ... no longer is it a vital expression of our whole being, but it is more or less relegated to the purely biological sphere....” (Deus Caritas Est, § 5.)

“Biological”? Our “whole being” -- including our sexuality -- encompasses more than the “purely biological”?

The unmistakable thrust of Benedict’s first encyclical is that erotic and caring love are intertwined, so that the appetite and impulse “for sex” drives us from wanting another for ourselves to caring for another in spite of ourselves. In this context, what becomes “wrong” is not deviance from the biological but stunting the growth of this impulse so that it remains caged within the narrow confines of pleasure-seeking. There is, after all, a difference between gluttony and Babette’s Feast.

Since its promulgation in 2006, it has seemed to us wood chippers at the Gazette, that Deus Caritas Est was something of a shot across the traditionalist bow. When traditional arguments were contrasted with Deus Caritas Est, it was evident that the Pope was subtly reorienting Catholic doctrine. When it came to the affectional relations between man and woman, the magisterium no longer focused on the erotic-biological “purpose” of sex in the procreative scheme of things but on the psychological progression from erotic needs to sacrificial and giving love in the human scheme of things.

Deus Caritas Est most certainly addressed love in the larger heterosexual context. Although there were teasers here and there, such as Benedict’s straight faced allusion to Aristophanes’ theory of love, we do not mean to suggest that he is centering his aim on the question of homosexuality. His focus is far broader. But once the argument is made that eros properly serves the purpose of promoting higher forms of caring between two individuals, it becomes almost impossible to see why those two individuals cannot be two women or man and man -- who (says Aristophanes) finding their missing halves cleave to one another like the unitary sphere they once were before Zeus maliciously cut the three human genders in half.

In light of Benedict’s shift-of-focus, the absence of stock-in-trade arguments from his remarks to the ambassador are not simply “omissions” -- surprising as they might be. Those omissions maintained space for an unobstructed and corrected perspective on the nature of human love.

VI

Like Ants on the back of a Turtle

That the Pope used an occasion to make a weak attack on gay marriage may be small consolation to those who wish for Validation Now. Nor is that demand unjustifiably impatient. Gays have endured life-destroying opprobrium and discrimination for at least a thousand years and -- if homosexuality is neither an illness nor a sin -- there is nothing self-indulgent in demanding that the persecution end now.

And it has been a persecution. In addition to pro-actively hounding gay people herself, the ecclesiastical Church has fostered a culture of hate and opprobrium thereby engaging in the supreme sin of uncharity. In so sinning, it has denied to homosexuals the habit of humanity.

And let there be no mistake: a young man who realizes he has been denied the option of humanity has no reason to go on living. His blood is on the miter.

However, as Pope and to date, Benedict is more of an ally than the agitated liberal wing of the Church believes and is far less an enemy than the anti-Catholic Queer Activist Brigades have made him out to be. Benedict’s remarks to the ambassador fit within a pattern of manoeuvering the Church into a position that would result in a more solid and permanent change.

People of a childish understanding think that the Pope -- being a pope -- can decree what he wants like the Queen of Hearts and make the Church change its direction. But any society only moves in a given direction when a preponderance of its constituent parts are brought about to re-orient themselves to that direction.

Sadly and undeniably, change tomorrow is of little use to the individual. Each of us is given a relatively short span of existence on this earth during which we scurry about like ants resolving confusions, overcoming difficulties and finding our happinesses as rapidly as we can. Individuals simply do not have two millenia to spare as the Church creeps along like some heaving tortoise. One could hardly blame an ant who wanted to get on with life from scurrying off the turtle’s back.

Were it truly feasible to “kick the dust from one’s sandals” no one could be faulted for moving on with indifference. But we suspect it is not truly possible. Neither the liberation of isolation nor the ghetto of a bigger closet are true solutions. At some point the individual has to face the greater society in which he lives and this involves the work of re-weaving a torn fabric.

This re-weaving is a tedious business because it entails a reconstruction that must match and harmonize with the whole tapestry of doctrine while, at the same time, tacitly correcting it. In addition, this reconstruction must be carried forth collectively because it is only when people participate in the ergon of a project that they can convince themselves of its logic.

Were Benedict to decree that as of Tuesday next priests should confer the sacrament of marriage on faithful gay partners, this hasty “patch” would produce a counter reaction that would nullify the decree the minute the Pope passed on to his greater reward. Change NOW! would have ended up as merely Change for an Enchanted Evening.

Instead, Benedict elaborates a kind of theological calculus, where all the points are being positioned in such a way as to capture a differential space which doesn’t leave much room for condemning homosexuality or denying gay couples a sacrament that will assist them toward the “liberation [of] self giving and...authentic self discovery.” That, it seems to us, is a calculus worth working with.

©WCG, 2010.

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