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December 14, 2011 | 39 comments
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Richard Posner, the influential judge and law and economics scholar, has written a blog reaction to Pope Benedict XVI’s recently publicized comments on condoms. Posner’s argument (that the pope is probably going to have to OK condoms in the near future) has its own sort of internal logic, but it doesn’t relate to anything in real life because all his facts are wrong.
What’s mystifying is that the concepts and facts that trip Posner up are not exactly obscure or hard to ascertain. If Posner had bothered simply to reference the Catechism — the very first place one would look, and instantly accessible online — he would have avoided most of the egregious errors he makes.
Without going into the merits of Posner’s overarching argument, here is an incomplete list of where he goes wrong in the piece, starting with the first sentence:
1. “It is always difficult to decide whether a religious tenet of a hierarchical religion, such as Roman Catholicism, reflects religious belief or institutional strategy.” In fact, in the case of Roman Catholicism, it isn’t difficult at all. The tenets of the Catholic Church that reflect religious belief are clearly spelled out in the Catechism. For institutional strategy, one might consult the Code of Canon Law.
2. “The Church has long been hostile to contraception, but the nature of its hostility has changed, and may be changing yet again with the Pope’s recent acknowledgment that the use of condoms may sometimes be justified as a way of preventing the spread of AIDS.” The pope never acknowledged that the use of condoms may be “justified” in any context.
3. “Eventually the Church achieved a partial accommodation by authorizing the “rhythm” method of contraception, since that was a form of abstinence and abstinence was consistent with Catholic doctrine-indeed it was enjoined on priests and nuns. But few married couples found it satisfactory.” It’s not clear what Posner means by this, but whatever it is it’s incorrect.
4. “[The Church] has been losing customers in the Western world, but gaining them in Africa-but Africans, ravaged by the AIDS epidemic, are pressing for a relaxation of the Church’s ban against contraception because condoms are a cheap and effective method of preventing infection with the AIDS virus.” This doesn’t relate to the Catechism, but…which Africans? And what is the evidence that condoms are a cheap and effective method of preventing AIDS infection? The best evidence indicates the opposite.
5. “In 1930, responding to the Anglican Church’s rescission of its prohibition of contraception, Pope Pius VI made an “infallible” declaration unequivocally reiterating the Catholic Church’s age-old prohibition of the practice, and his declaration was repeated by subsequent popes well into the 1990s.” There’s a lot that is wrong here, starting with the fact that it was Pope Pius XI, not VI, who promulgated Casti Connubii, which was not an “infallible” declaration in the sense of the word as the Church uses it.
6. “Concern with the loss of religious authority may explain another peculiar feature (to an outsider, at least) of Catholic doctrine, which is the ban on priests’ marrying and on women becoming priests.” Catholic doctrine does not ban priests from marrying.
7. “The problem of priests’ sexually molesting boys would be solved if priests were allowed to marry and if women could be priests, because then the priesthood would attract fewer homosexuals.” A textbook non sequitur. Does Posner think there is no molestation of boys in denominations that allow clergy to marry?
8. “The current shortage of priests and nuns…would also be greatly alleviated if priests could marry and women could become priests. But the solution would represent such a dramatic reversal of age-old Catholic doctrine as to undermine any pretense of papal infallibility.” Again, does the Catholic Church face any more of a shortage of clergy than denominations that allow married and women priests? And papal infallibility really is not relevant to the question at hand.
9. “An intermediate position for the Church to take-and the most likely position for it to take in the short run-would be to relax the ban on contraception only with respect to condoms, viewed as an essential preventive of AIDS.” I will bet a year’s worth of my wages to a year of Posner’s that the Church will not relax the ban on condoms in any short run that Posner cares to define.
Granted, Posner’s not a canonical lawyer, and his blog post is not supposed to be a rigorous, formal argument. But consider Posner’s prominence as a judge, professor, and public intellectual. I wonder how he would react if, for instance, Archbishop Timothy Dolan of New York took to amateur law criticism on his personal blog, and in doing so wrote about constitutional law without referencing the Constitution, criticized a Supreme Court decision without reading any of the relevant briefs or arguments, or falsely ascribed an opinion to a judge — while making glaring factual errors along the way. I think it would be fair in that case for Posner to wonder about Archbishop Dolan’s competency — not just as a legal theorist, but also as a bishop.
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