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Tim Kaine is a Harvard Law graduate, but he and other pro-choice Catholic politicians owe much to Notre Dame. As Matthew Franck has observed in First Things, Mario Cuomo’s 1984 “personally opposed but won’t impose” speech at the university was a “watershed moment” for pro-choice apologists. Notre Dame’s gift to Cuomo of a high-visibility platform and an enthusiastic audience seemed to stamp “nihil obstat” on his argument. (Despite, as Dr. Franck explained, the “crashing ineptitude” of Cuomo’s rationale.)

Then a couple of months ago, just in time for Senator Kaine’s campaign on a ticket with the most radical pro-abortion platform in history, Notre Dame gave a boost to the Cuomo model of dissenting-but-faithful Catholic politician. At its Commencement, the University awarded the Laetare Medal, which it describes as “The Most Prestigious Award Given to American Catholics,” to Vice President Joe Biden and Speaker John Boehner. The award is given for “outstanding service to Church and society.”

Like Senator Kaine, Biden is resolutely pro-choice; and like Kaine, Biden supports same-sex marriage. Biden endorses the Obamacare contraception mandate’s incursion on religious liberty, and Kaine has just co-sponsored a bill aimed at crushing with heavy fines the consciences of pharmacists who don’t want to sell contraceptives.

Notre Dame honored Biden despite the strong opposition of its bishop, the Most Rev. Kevin C. Rhoades. The award, Bishop Rhoades said, would scandalize the faithful—a blindingly obvious and important concern at a school charged with the moral formation of young Catholics. If Notre Dame thinks that a person with Biden’s extensive record of major dissent deserves this extraordinary tribute, then cafeteria Catholicism ought to do for everyone else.

Further, Bishop Rhoades deplored this breach in the relationship that should obtain between a Catholic university and its bishop. He could have noted that this was a third strike for Notre Dame’s president, the Rev. John I. Jenkins, C.S.C.

Father Jenkins began his presidency in 2006 with a very public and sharp dispute with Bishop John M. D’Arcy over a student production of The Vagina Monologues, a graphic paean to lesbian sex. Next came Bishop D’Arcy’s denunciation of the honoring of President Obama, who is the Church’s most formidable adversary on abortion and religious liberty. Eighty-two cardinals, archbishops, and bishops concurred in Bishop D’Arcy’s reproach. When has anything like that ever happened at a Catholic university?

Of these three episodes, the Biden affair is especially telling. There were (flimsy) faculty assertions of academic freedom respecting The Vagina Monologues, and there was a (sort of) tradition of honoring presidents. But in the Biden matter, Father Jenkins rejected the faculty’s recommendations; and surely he knew that his action would divide alumni, cast a pall over the commencement, and tarnish Notre Dame’s reputation in the pro-life community.

And for what? To convert the Laetare Medal into a civics award to politicians whom no one would call distinguished but who have generally (though not always) been affable with opponents and generally (though not always) inclined toward compromise.

How to explain this repeated stiff-arming of Notre Dame’s bishops by the priest-president of a school whose robust Catholicism has been celebrated over decades in films and books and the cheers of legions of fans of the Fighting Irish?

The answer lies in the increasingly muscular application of another “watershed” declaration with Notre Dame origins, the 1967 Land O’Lakes Statement. This declaration of independence by representatives of twenty-six leading Catholic universities was adopted at a meeting presided over by Father Ted Hesburgh, the storied Notre Dame president, and held at the Holy Cross Land O’Lakes Wisconsin retreat.

In its opening paragraph, the signatories proclaimed:

To perform its teaching and research functions effectively the Catholic university must have a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself.

The statement sounded this self-sufficiency theme throughout, as Father James T. Burtchaell, C.S.C., a former provost of Notre Dame, explained in his study of the secularization of Catholic universities, The Dying of the Light. “From the Church,” he wrote, “the university asks only to be left alone.”

The tension between Land O’Lakes and Saint John Paul II’s charter for Catholic universities, Ex Corde Ecclesiae, is palpable. In the former, the Church is held at arm’s length. In the latter, university and Church are joined in a sustaining, if non-juridical, relationship:

Every Catholic University, without ceasing to be a University, has a relationship to the Church that is essential to its institutional identity. One consequence … is a recognition of and adherence to the teaching authority of the Church in matters of faith and morals.

Bishops are the primary link between Church and school. They “should be seen, not as external agents, but as participants in the life of the Catholic University.” They “have a particular responsibility to promote and assist in the preservation and strengthening of their Catholic identity.” To this end, there should be “close personal and pastoral relationships between University and Church authorities, characterized by mutual trust, close and consistent cooperation and continuing dialogue.”

But at Notre Dame, Land O’Lakes has had the upper hand. In an article in America, Bishop D’Arcy disclosed that Father Jenkins “chose not to dialogue with his bishop on these two matters [The Vagina Monologues and Obama affair], both pastoral and both with serious ramifications for the care of souls, which is the core responsibility of the local bishop.”

Now, why would Father Jenkins and others in authority (especially his Provincial) find this rupture between Church and university acceptable, if not indeed desirable as a badge of independence? One reason, surely, is that most of the faculty approve. Father Jenkins reportedly received a standing ovation at his post-Obama faculty dinner for facing down the eighty-three protesting bishops.

The problem—it is life-threatening—is that Notre Dame does not comply with another provision of Ex Corde Ecclesiae, the injunction that a majority of the faculty be Catholic. In their Application of Ex Corde Ecclesiae, the bishops declared that each Catholic university should have a majority of the faculty “committed to the witness of the faith.”

This provision is the key to Catholic identity, as Dr. John Garvey, the able president of Catholic University, explained in a recent address. “If the university follows it, the university will be Catholic. If it doesn’t, it won’t.”

The Notre Dame faculty doesn’t come close to having a majority “committed to the witness of the faith.” Nominal Catholic faculty representation has plummeted from 85 percent in the 1970s to just over 50 percent today. Nominal Catholic faculty are simply those who check the “Catholic” box when hired. Something less than a majority are “Catholics committed to the witness of the faith,” to put it mildly.

As the highly respected Dr. Walter Nicgorski observed in an address to Sycamore Trust, an unofficial alumni organization concerned about the school’s weakening Catholic identity:

There is the widely shared recognition that a large number of those who list themselves as Catholic are not inclined to be involved in any concerns about the religious character of this university.

As a result, he continued, “[A] young person going through Notre Dame might not encounter a practicing Catholic informed and engaged by the Catholic intellectual tradition.” Another long-time professor, Dr. Alfred Freddoso, put it succinctly: Notre Dame is “something like a public school in a Catholic neighborhood.”

Consider what this means for Catholic higher education. Notre Dame is still in many ways a very Catholic place. It probably has a higher proportion of dedicated Catholic faculty and Catholics students than any other major Catholic university, except perhaps Catholic University. It has vibrant Catholic student organizations and faculty institutes. A student who chooses professors carefully can still receive a fine Catholic education. There are chapels in the residence halls, crucifixes in the classrooms, and many opportunities for spiritual growth. That is the Catholic “neighborbood.”

With all of this, if Notre Dame doesn’t make it as an authentically Catholic school, what are the chances for the many more secularized Catholic schools? Father Wilson Miscamble, C.S.C., award-winning Notre Dame historian and author of For Notre Dame: Battling for the Heart and Soul of a Catholic University, has characterized the battle as a “debate between these two documents,” Land O’Lakes and Ex Corde Ecclesiae. “How this contest gets worked out in practice,” he declared, “will determine the future of Notre Dame.”

Land O’Lakes is ahead, but the game isn’t over.

William Dempsey, a graduate of the University of Notre Dame and the Yale School of Law, served as chief law clerk for Chief Justice Earl Warren. He has worked as an attorney in Washington, D.C., as chief labor negotiator for the railroad industry, as president of the American Association of Railroads, and now as president of Sycamore Trust.

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