In early April, Harry Reid, the Senate Majority Leader, announced his intention to bring immigration legislation to the Senate floor for debate during the last two weeks of May. This was a curious announcement, since there was no pending legislation at the time regarding immigration. Regardless of the prescriptions that one might believe necessary to resolve the current immigration crisis, the eagerness with which the United States Conference of Catholic Bishops (USCCB) welcomed this announcement provides an opportunity for American Catholics to examine the remarkable development of the relationship between our ecclesial leaders and the rule of law.

In January 2003, the USCCB released a pastoral letter concerning immigration: " Strangers No Longer: Together on the Journey of Hope ." The document is more than eleven thousand words long and thus is uncommonly specific (for a USCCB document) in the instructions it issues for changes to federal and state laws. A prominent place in the wish list is given to "a broad legalization program of the undocumented." Over the past four years, as the immigration debate has become increasingly politicized, the American episcopate has been exceptionally willing to step into the fray in what we are told are heroic stands for immigrants’ rights. The most striking example was Cardinal Mahony’s threat last spring to defy federal law if Congress seeks to restrain the Church from aiding those who have already defied federal law by entering the country illegally. On January 25, 2007, the chairman of the USCCB Committee on Migration, Bishop Barnes of San Bernardino, issued a statement again calling for a "legalization program which allows undocumented persons to earn permanent residency."

Now, to be fair, there is some justification for the bishops’ concern in this matter. The immigration reform movement contains elements of anti-Catholicism, over-population alarmism, and simple racism. It is both unfortunate and striking, however, that completely absent from both statements from the USCCB (and Cardinal Mahoney’s reasoning) is any reference to or acknowledgment of the moral importance of civil law. There is, for example, no reference to paragraph 2238 of the Catechism of the Catholic Church ("Those subject to authority should regard those in authority as representatives of God"), or to 1 Pet. 2:13 ("Be subject for the Lord’s sake to every human institution"), or to Pope John Paul II’s encyclical Centesimus Annus ("The rule of law is the necessary condition for establishing true democracy"). And it goes without saying that there is no reference made to paragraph 2241 of the CCC : "Political authorities, for the sake of the common good for which they are responsible, may make the exercise of the right to immigrate subject to various juridical conditions, especially with regard to the immigrants’ duties toward their country of adoption. Immigrants are obliged to respect with gratitude the material and spiritual heritage of the country that receives them, to obey its laws and to assist in carrying civic burdens."

Perhaps the omission of this portion of church teaching should not come as a surprise. The position of our clergy is, as my local pastor has argued, that "the law is simply not practical." Bishop Wenski of Orlando put it more forcefully: "Human beings are not problems. The problem is antiquated laws." Indeed, both Sacred Scripture and tradition teach that "The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel" ( CCC § 2242).

Nevertheless, to disregard civil law in the name of defending fundamental human rights is an interesting change of position for an episcopate that has shown such respect for the rule of law in the past. In January 1995, the late bishop James McHugh of Camden, New Jersey, issued a letter to pro-life demonstrators saying that their activities must “always reflect gospel values and be law-abiding.” In December 1994, Cardinal Mahony wrote, in a condemnation of violence against abortionists, that "life is to be protected according to the scrutiny of the law." He was joined in 2001 by the USCCB in their " Pastoral Plan for Pro-Life Activities ": "We abhor and condemn such violence unequivocally." In such warnings, the bishops are of course undoubtedly correct. But one might be excused in wondering why the bishops, so zealous in upholding the rule of law in the case of abortion, have suddenly begun to sing a different tune when it comes to immigration policy.

It will be argued that it is a mistake to equate all forms of illegal activity. In the words of Bishop William Curlin of Charlotte: "The problem is violence. It can never be part of the solution." And indeed, the Church does hold to a higher standard those who reject civil authority violently (CCC §2243). But the aforementioned statements in defense of civil authority do not limit themselves to prohibitions against violence. Bishop McHugh, ironically enough, clearly condemned trespassing onto abortion clinic property. It seems unlikely that the American bishops would conclude that our legal code’s allowance of the unrestricted murder of unborn children is somehow more practical, less antiquated, or more in line with "the fundamental rights of persons" than our immigration policy. There must, therefore, be some reason for their new approach to civil authority.

Two rather implausible reasons have been offered to explain this position of the USCCB. Illegal immigrants are overwhelmingly Catholic; some people speculate that there will be some financial benefit to the Church from their continued presence. Alternatively, after the recent publicity over the denial of Communion to certain high profile pro-abortion liberals, some see the immigration issue as an opportunity for the Church to demonstrate its political neutrality. But both of these explanations seem rather unsatisfactory. Despite the abuse scandal, most of the dioceses in America are not in financial duress. And with the positions each has taken on global warming, the minimum wage, and the war in Iraq, neither Cardinal Mahony nor the USCCB is in any need of further demonstrating independence from the political right.

It seems far more likely that after over three decades of succumbing to cultural pressure, our clergy are simply eager to show their courage in the face of the law on the first safe issue that has presented itself. It is far easier for my local pastor in rural North Dakota to demand open borders in Arizona than to demand the rejection of contraception here at home. And even in border dioceses, it is far easier to take a stand on an issue that will earn plaudits from the media, and immigrants rather than on an issue that will earn only the silent thanks of unborn infants. If one is going to stand up to the law, it may as well be a law that many people already ignore.

James Kerian, a 2005 graduate of Gonzaga University, is a layman in the Diocese of Fargo.

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