The Historical Context

Chapter 1 from Dissent In and For the Church

On July 29, 1968, in Rome, Pope Paul VI released his Encyclical letter Humanae Vitae, in which he reiterated that “. . . every action which either in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible” (Humanae Vitae, paragraph 14) is absolutely to be excluded as licit means of regulating birth. Similarly, “. . . it is necessary that each and every marriage act must remain open to the transmission of life” (Humanae vitae, paragraph 11). It seemed to many that this pronouncement would have ended a controversy, but in reality it signalled the beginning of an even more intense controversy within the Roman Catholic Church.

In the 1930 Encyclical Letter Casti Connubii, Pope Pius XI had formulated the following teaching: “Any use whatsoever of matrimony exercised in such a way that the act is deliberatively frustrated in its natural power to generate life is an offense against the law of God and of nature, and those who indulge in such are branded with the guilt of grave sin” (paragraph 56). This teaching was repeated by the successors of Pius XI and for a long period by all Roman Catholic theologians writing on the topic. The first cautious attacks by Catholic theologians and philosophers against the absolute condemnation of contraception appeared only late in 1963. In June of 1964, Pope Paul VI announced that a special commission had been established to study the question but that in the meantime the norms proposed by his predecessors were in force.

In the ensuing five years the problem of birth control and the Catholic Church was widely discussed and debated not only in scientific journals but in popular magazines and on television. Interest centered on the commission established by the Pope and its recommendations. In June of 1966, the “birth control commission” (officially called the Commission on Problems of the Family, Population and Natality) made its report to the Pope. The Pope remarked in October of that year that he was still studying the question, but the world learned in April of 1967, through extensive documentation published in the United States by the National Catholic Reporter, that the majority of the papal commission had recommended a change in the teaching on contraception. The release of this documentation intensified the debate within the Roman Catholic Church.

Rumours circulated in the Spring of 1968 that the Pope was ready to issue an Encyclical restating the absolute ban on artificial contraception. According to some press sources, liberal European bishops and cardinals dissuaded Paul VI from doing so, but, apparently, the matter was not concluded.

On June 27, 1968, “Guidelines for the Teaching of Religion in the Province of Baltimore and the Archdiocese of Washington” were released by the archbishops of these dioceses. The Guidelines firmly asserted that priests or teachers may not say or imply that the teaching of the Church permits or condones artificial contraception. Some professors at the Catholic University of America were asked by priests in Washington for their evaluation of the Guidelines and, seeking theological interpretation, the Association of Washington Priests sent the Guidelines to all the officers of the Catholic Theological Society of America, including Professor Charles E. Curran of Catholic University, who was then Vice-President of that organization. The negative reaction of the Washington Priests’ Association to the Guidelines, as well as comments from a telephone interview with Professor Curran in Olean, New York, appeared in a story on the front page of the Sunday, July 28, edition of the Washington Star.

Concurrently, rumours were again circulating that the Pope was about to issue an Encyclical reiterating the absolute ban on artificial contraception. A number of Catholic University theologians, then at various places throughout the country for lectures and studies, conferred by telephone among themselves and with other colleagues about possible courses of action. The mass media insisted that an Encyclical was imminent; finally, on Sunday evening, July 28, it was confirmed that Time magazine had obtained a copy of the Encyclical which would be released on Monday, July 29, in Rome.

After consultation, a number of Catholic University professors agreed to meet on the afternoon of July 29  on the campus in Washington, D.C., with other theological colleagues from outside Catholic University. Vatican officials had released and offered interpretations of the Encyclical at a press conference in Rome at 4:30 A.M. Washington time. At approximately 5:00 P.M. the group of theologians, who had obtained copies of the full English text of the Encyclical from the Family Life Bureau of the United States Catholic Conference, met in Caldwell Hall on the campus to read, analyse, discuss and evaluate the papal Letter. The group included the following professors from Catholic University: Charles E. Curran, Robert E. Hunt, Daniel C. Maguire, Alfred McBride, and Russell G. Ruffino. Other participants were: Reverend John E. Corrigan, a priest of the Washington diocese teaching on the summer staff of the Department of Religious Education; Reverend Francis X. Murphy, C.SS.R., Professor of Patristic Moral Theology at the Academia Alfonsiana in Rome; Reverend David L. Jones, a priest of the diocese of Oklahoma City-Tulsa with advanced degrees in sacred scripture and theology, who was also a summer lecturer in the Department of Religious Education; Reverend Henry Schreitmueller, Instructor in Theology at Seton Hall University; Reverend Robert Springer, S.J., Professor of Moral Theology at Woodstock College.

Before and during the discussion, the members of the group had been in contact with other theologians throughout the country. It was finally agreed that a statement would be made and released to the press the next day. (The Association of Washington Priests had already reserved a room at the Mayflower Hotel in Washington for a press conference on Tuesday, July 30, at which they were going to discuss their reaction to the Guidelines.)

The draftsmen agreed on a first draft by 9:00 P.M. and then contacted other theologians throughout the country by telephone to learn whether they would be willing to subscribe to the Statement which would be made public at a press conference the next morning. After a long night of telephoning, reading the statement, and explaining its public release, eighty-seven American theologians agreed to endorse the proposed Statement publicly. On July 30, at a 10:00 A.M. press conference, the Statement by Catholic Theologians was released to the press by Professor Curran in the name of the original eighty-seven subscribers. In addition to the draftsmen, the original signers included the following full-time faculty members from Catholic University: William Bassett, Christian Ceroke, George Kanoti, Peter Kearney, Berard Marthaler, Bernard McGinn and David W. Tracy. The original subscribers to the Statement included theologians from many distinguished Catholic universities, colleges and theologates: e.g., Fordham University; Manhattan College; Notre Dame University; St. John’s University, Collegeville, Minnesota; St. John’s University, Jamaica, New York; St. Bonaventure University; Seton Hall University; Catholic Theological Union of Chicago; Pope John XXIII National Seminary; St. Meinrad School of Theology; Christ the King Seminary.

About ten of the signers were present to explain and elucidate the Statement and answer questions posed by the press. The individual theologians repeatedly emphasized that the Statement of dissent was not a rebellion or a revolution but a loyal act of theological interpretation by loyal Roman Catholics who accept the Petrine office in the Church. Some of the Catholic University professors (Professors Hunt, Maguire, Ruffino and Tracy) explained their position in greater detail at an open forum sponsored that evening on the campus of Catholic University by the Association of Washington Priests and the Washington Lay Association.

On July 31, letters were mailed to approximately 1,200 members of the Catholic Theological Society of America and the College Theology Society on behalf of the original eighty-seven subscribers to the Statement. The letters were co-signed for the original subscribers by John F. Cronin, Professor of Moral Theology, St. Mary’s Seminary, Baltimore; Charles E. Curran of Catholic University; and Edwin F. Falteisek, Head of the Department of Pastoral Theology, School of Divinity, St. Louis University. The letters invited all those who were qualified and who agreed in substance with the public Statement of the Theologians to subscribe to the Statement. The accompanying letter described the required qualifications: “Since the Statement is to represent the thinking of those with special competence in the sacred sciences, it is necessary that the signers be qualified as follows: teachers of theology, philosophy, or canon law (or at least possessing a degree in their fields); or, members of a recognized professional society sponsored by the above-mentioned sciences.” Eventually over 600 qualified in the sacred sciences publicly subscribed to the Statement.

There is another important aspect of the context within which the theologians made public their dissent to a practical conclusion of the papal teaching. The Statement of the Theologians was not the first public statement on the issue. On July 29 a number of American bishops made statements about the Encyclical. For example, the Archbishop of Washington said: “I call upon all priests in their capacity as confessors, teachers, and preachers of God’s word to follow without equivocation, ambiguity or simulation the teaching of the Church on this matter as enunciated clearly by Paul VI.”(1) Such a reaction on the part of American bishops was not wholly unexpected. In January, 1968, the American bishops had released their pastoral letter, The Church in Our Day, which did not adequately distinguish between the absolute assent of faith and the conditional religious assent which is due to non-infallible authoritative teachings. This letter failed even to mention the possibility of dissent from authoritative, non-infallible teaching. (2)

Two Catholic University professors (Hunt and Tracy) had pointed out this confusion to one of the bishops on the drafting committee of the pastoral, but no changes were made. Thus on the American scene it was obvious that many Catholics, including bishops, were not totally aware of what the Theologians’ Statement referred to as the common teaching about the possibility of dissent from authoritative teaching. People who did not have this knowledge faced the false dilemma of either accepting the teaching of the Encyclical or thinking they had to reject their Roman Catholic faith commitment. Undoubtedly, one could propose many reasons to explain why this was not common knowledge in the Church in the United States, but the important matter remains the fact that a large number of Roman Catholics did not know the existence of the right to dissent from authoritative teachings when there is sufficient reason for such dissent.

On July 31 the American bishops did issue a short statement on Humanae Vitae through Archbishop John F. Dearden, President of the National Conference of Catholic Bishops, which in its most pointed reference to the teaching of the Encyclical declared: “. . . we, the Bishops of the Church in the United States, unite with him [Pope Paul] in calling upon our priests and people to receive with sincerity what he has taught, to study it carefully, and to form their consciences in its light.”(3) No one can really know what effect the Statement of the Theologians had on the subsequent declaration of the American bishops. Would they have adopted a “harder line” if the theologians had not reacted? Would they have remained silent? In reality, however, the American bishops’ statement did leave the door open for many different theological interpretations.

On August 1 another press conference was held at the Mayflower Hotel at which all the lay members of the papal birth control commission from the United States publicly agreed in substance, in accord with their respective competencies, with the Statement of the Theologians. Two members of the commission, Dr. Andre Hellegers and Professor Thomas K. Burch, both of Georgetown University, as well as the only special consultant on history to the papal commission, Professor John T. Noonan, Jr., of the University of California at Berkeley, spoke at the press conference chaired by Professor Maguire. Both Professor Springer of Woodstock College and Professor Curran stated, in reply to reporters’ questions, that their Statement was not irreconcilable with the statement that had been made on July 31 in the name of the American bishops.(4)

The remarks of Professors Springer and Curran drew an immediate response. On August 2, Bishop Joseph L. Bernardin, General Secretary of the National Conference of Catholic Bishops, issued a brief press release stating: “In asking our people to ‘receive (the Encyclical Humanae Vitae) with sincerity, to study it carefully, and to form their consciences in its light,’ the bishops in no way intend to imply there is any divergence between their statement and the teaching of the Holy Father.”(5) Thus the controversy continued.

The activity in the next two weeks of August was primarily behind the scenes. The Acting Rector of Catholic University, Very Reverend John P. Whalen, was obviously under heavy pressure. The Chancellor of the University, Cardinal O’Boyle, the Archbishop of Washington, had taken a very firm and public stand against any possible dissent from the Encyclical in his diocese. Editorial opinion in some Catholic newspapers frequently and fiercely attacked the stand taken by the theologians, especially those at Catholic University.

Acting Rector Whalen, during the week of August 4, organized a meeting among certain members of the hierarchy, including Trustees of the University, and various theologians, including professors from the University and other universities and theologians who supported the dissent from the Encyclical and those who deemed it improper. The purpose of the meeting was to discuss the reaction to the Encyclical, with its theological and pastoral overtones. Initially, Cardinal O’Boyle had agreed to attend such a meeting; but later he changed his mind. Instead, in his capacity as Chancellor of the University he had the Acting Rector send, under date of August 9, a special delivery letter to all the faculty members in the School of Theology and the Department of Religious Education, even though the majority of these people were not in Washington for the summer, to ask them to be at the campus for a special meeting with the Chancellor on August 20.

The meeting between bishops and theologians arranged by Acting Rector Whalen took place at the Statler-Hilton Hotel in New York City on August 18 and 19. There was no doubt that Rector Whalen was trying at this meeting to avert any crises for Catholic University, but his hopes were thwarted. It is questionable whether there were then any realistic possibilities for a solution acceptable to all. The controversy was already too far along and the polarization too deep to expect that a single meeting could solve the problem. If bishops and theologians had been previously involved in an ongoing dialogue, the situation might have been different. But in reality there had been little or no dialogue in the past and much mutual suspicion and even distrust. The meeting did help to establish a modicum of rapport and to dissolve some of the suspicion, but an initial meeting called under crisis conditions could not be expected to cure readily what had long been a festering problem.

By previous agreement between Rector Whalen and Professor Curran, there were fourteen participants at the Statler-Hilton meeting, seven who had dissented from the Encyclical and seven who had objected to the public dissent. The seven dissenters included three Catholic University theologians—Professors Curran, Hunt, and Maguire—as well as Professor Walter Burghardt, S.J., of Woodstock College; Bernard Haering, C.SS.R., a German teaching at the Academia Alfonsiana in Rome; Professor James Megivern, C.M., of St. John’s University; and Professor John T. Noonan, Jr. The other seven included four bishops: Bishop Joseph Bernardin, General Secretary of the National Conference of Catholic Bishops; Archbishop Philip Hannan of New Orleans, a Trustee of the University; Bishop John Wright of Pittsburgh, who missed the session on Monday, August 19; and Bishop Alexander Zaleski of Lansing, a Trustee of the University and Chairman of the American Bishops’ Committee on Doctrine.

Three theologians who disagreed with the dissent also participated: Reverend Paul McKeever, Editor, Long Island Catholic, Professor Carl Peter of Catholic University; and Professor Austin Vaughn of St. Joseph’s Seminary, Yonkers, New York.

The meeting began with supper on Sunday evening, August 18, followed by a discussion, with another discussion on Monday morning, closing with lunch. The atmosphere was somewhat strained and reserved, but the tension gradually dissolved as the discussion developed. After the dissenting theologians explained the right to dissent as found in the theological manuals, questions arose about the public character of such dissent. In the light of a developing understanding of the Church, the various roles in the Church, the contemporary situation of mass media and modern communications and the “right to know” in the Church, the dissenting theologians argued that theologians might even be obliged to dissent publicly in certain instances. The bishops present voiced concern over the confusion created among the faithful by such dissent, and some wondered if the theologians were not usurping the pastoral teaching office of the bishops. The dissenting theologians explained their position on these matters. Although no changes of position resulted from the meeting, all agreed that continued dialogue would be profitable.

Acting Rector Whalen issued a press statement describing the meeting in very general terms. According to the official minutes of the Board of Trustees of Catholic University a few weeks later, Acting Rector Whalen as well as Bishops Wright and Zaleski reported on the meeting with the theologians. Father Whalen observed that it was a frustrating experience because nothing tangible was achieved. Bishop Zaleski summarized the attitude of the dissenting theologians and felt there were tendencies which “went beyond Vatican I and II, involving a new concept of the role of the Holy Father, de-emphasizing his authority and stressing the consensus of the faithful.” Bishop Wright, who had attended less than half the discussion, “thought the attitude at the New York meeting definitely at variance with Vatican II.” However, Bishop Wright thought the meeting was a good idea. Obviously the report on this meeting by these two bishops reflected a definite theological cleavage between them and the dissenting theologians.

On Tuesday, August 20, Chancellor O’Boyle held the meeting to which he had “invited” the faculties of Theology and Religious Education. At the last minute, efforts were made to summon to the meeting faculty members from other schools and departments of the University (Philosophy and Canon Law) who had subscribed to the Statement of July 30. The press referred beforehand to the meeting as a showdown; but, although the Chancellor had his civil and canon lawyers and a court reporter in attendance, the tone of the meeting was courteous. The Chancellor never entered into the theological discussion. After verifying the Theologians’ Statement itself and those Catholic University faculty members who had endorsed it, he asked the faculty members if they wished to make any comments “in regard to the problems you think the statement might raise for us as a University.”

The professors responded, in general, that the Statement raised no real problems since it was a responsible utterance made by loyal Catholic theologians acting within the bounds of their competency. The subscribers cited the historical context of the paragraph of Lumen Gentium (the Constitution on the Church of Vatican II), which calls for the religious assent of intellect and will that is due authoritative, non-infallible teaching and they re¬called that the official response at the Vatican Council to proposed revisions of paragraph 25 (i.e., modus 159) acknowledged that the possibility of dissent from such teaching was already recognized under paragraph 25. They also referred to the theological manuals of Dieckmann, Lercher, Palmieri, Straub, Pesch, Herve, Van Noort, Karrer, and articles in the New Catholic Encyclopedia. Pertinent portions of the manuals of Pesch and Lercher were read into the transcript of the meeting. Some professors who had not subscribed to the statement defended the orthodoxy of the declarations and actions of the dissenters.

After being assured that everyone had had an opportunity to set forth his opinions, however, the Chancellor remarked: “Frankly, I believe I will have to refer the matter to the Board of Trustees and ask for a special meeting of the Board.” After the faculty comments, Cardinal O’Boyle also asked each faculty member to give him in writing, within a week or ten days, his professional opinion of paragraphs 8 and 9 of the “Statement by Theologians.” These two paragraphs referred to the common teaching on dissent in general and then concluded that in this case Catholic “spouses may responsibly decide according to their conscience that artificial contraception in some circumstances is permissible and indeed necessary to preserve and foster the values and sacredness of marriage.”

The remainder of the meeting involved a mental and verbal duel between the Chancellor and the dissenters about the possibility of fulfilling the Chancellor’s request. It was already August 20; classes were scheduled to begin within a month. The dissenting professors felt they would stand on much firmer ground once the classes were resumed and the students were back on campus. No one present in that room could forget the University-wide faculty and students’ strike a year and a half earlier which forced the Chancellor and the other Trustees to rehire and promote Professor Curran.

The dissenters were careful to have the record of the meeting indicate that it in no way constituted a formal hearing. They all admitted an obligation and responsibility to explain further, to wider audiences, their reasons for theological dissent. But even some of the non-dissenters present at the meeting said that a deadline of ten days was much too short, for many had previous commitments for the next few weeks. After much discussion the Chancellor finally agreed that the written comments (prepared either by individuals or a group) should be given him by October 1, although he would prefer to receive the materials earlier.

The meeting with the Chancellor thus indicated that his whole concern was the right to dissent itself, not the mode and manner of that dissent. He only requested a theological explanation of the two paragraphs in the Statement which proposed the right to dissent from authoritative teaching, in this instance, Humanae Vitae. During the course of the Inquiry that was to follow, the Acting Rector supplied the Inquiry Board with an English translation of the Latin texts cited by the subscribers to the Statement in the August 20 meeting, which had been prepared for Chancellor  O’Boyle by Germain Grisez, a philosopher who took a leave of absence from his post at Georgetown to serve as a special consultant to Cardinal O’Boyle after the birth control controversy erupted.

The translations prepared for the Chancellor were selective, and thus somewhat distorted, and failed to indicate all the points favouring the possibility of dissent. The distortion in this document prepared for the Chancellor is evident from a comparison of the translations with the originals and was acknowledged by the one theologian on the Inquiry Board. The impact of the selective translation of the works cited by the dissenting professors is not clear.

The Chancellor had come to the meeting with a prepared press release. Near the end of the meeting he distributed his release and asked for comments. The dissenting professors pointed out that the press release was his and not theirs, although they were willing to make their comments. In “off the record remarks” the Chancellor indicated his intention of releasing his press statement and of making no further comments to the press. In the Inquiry that was to follow, witnesses testified that the Chancellor said he had no objection if anyone else wanted to talk to the press. Some of the dissenting professors, including Professors Curran and Hunt, did talk informally with the press after the meeting. Although dissenting theologians had not alerted the press, reporters were waiting outside Caldwell Hall where the meeting took place. Articles on the meeting with the Chancellor, including comments from Professors Ceroke, Curran, Hunt and Ruffino, were carried in the papers the next day.

The professors were initially generally satisfied with the Chancellor’s meeting, and most of them left Washington to return to what they had been doing during the summer months. Apparently Chancellor O’Boyle was not satisfied. Early in the morning of August 21 he called Acting Rector Whalen and Dean Schmitz of the School of Theology to his chancery office. He was quite irate both about the meeting and the subsequent publicity. Later that day, the Chancellor issued a lengthy press release in which he charged that “two of the dissenting theologians, Professor Charles Curran and Professor Robert Hunt, immediately presented to the news media an account of the meeting that seriously misrepresented my position.” The Chancellor continued: “The false and misleading reports of the meeting suggested that my effort to be fair implied a vindication of the claimed ‘right of dissent. . . .’ Listening with patience does not imply agreement.”(6) The Chancellor then returned his focus to paragraphs 8 and 9 of the Statement.

Those who say that this is “common teaching” about dissent offer no evidence that the Catholic Church ever tolerated dissent of the sort they are carrying on and even instigating. … In my judgment, those who give Catholics advice like this are misleading them because, by implication, what they are saying is either that human judgment stands above the law of God or that the Catholic Church is lying when it claims divine authority for its moral teaching. It seems odd to me that those who signed the dissenting statement in which these two paragraphs were included did not find themselves able to render a professional opinion upon them as I requested. (7)

The Encyclical, in the Chancellor’s mind, was “the law of God,” and professional opinions, coupled with scholarly citations, did not constitute “professional opinion.”

The tone and style of Chancellor O’Boyle’s comments differed greatly from the Statement by Theologians. Had the dissenting theologians, particularly Professors Curran and Hunt, distorted the position of the Chancellor? The O’Boyle statement of August 21 does not mention any specific charges of distortion. However, the minutes of the special subsequent meeting of the Board of Trustees, held on September 5, make the Chancellor’s charges more explicit and specific. According to the official minutes of the meeting, he said: “Yet the Baltimore Sun, the Washington Post and Star quoted Father Curran and Hunt as saying that they ‘felt vindicated’ and that their ‘right of dissent had been approved.'” The minutes also report that “This reaction, the Cardinal thought, was erroneous, based on confusing patient listening with agreement.”

The Inquiry Board subsequently did not find any such distortion in the declarations made by Professors Curran and Hunt to the press. The specific accusations made in the minutes cited above are false. The article in the Baltimore Sun never quoted either Professor Curran or Hunt. The quotations attributed to the two professors did not appear in any of the newspaper accounts “quoted” in the minutes. It is true that the word “vindicated” did appear in a story written for the National Catholic News Service. But this particular story was “killed” before publication by someone other than the reporter. The reporter in question was called by the Inquiry Panel and testified that Professor Curran had not used the term “vindicated.” The reporter, who pointed out that his story was similar in tenor to the stories carried in the daily press, later testified that he used that term to describe the situation because the dissenting theologians did explain to the press that they presented the Chancellor with a number of accepted theological authorities who uphold the right to dissent from authoritative, non-infallible papal teaching. After the long statement by Chancellor O’Boyle, a professor who had not subscribed to the statement publicly came to the defence of his colleagues. Professor Leo Farley issued a statement taking “exception to the Chancellor’s account and interpretation of the Tuesday (August 20) meeting.” (8)

The reaction following the August 20 meeting with the Chancellor indicated that the whole matter was not going to be dropped. The Chairman of the Board of Trustees of Catholic University, apparently at the instigation of Chancellor O’Boyle, called a special meeting of the Board in Washington on September 5 to consider “the urgent situation the University faces because of the reaction of some faculty members to Paul VI’s Encyclical Humanae Vitae.” Newsmen were already gathered at the Madison Hotel as the members arrived for the 9:30 A.M. meeting. During the course of the day, occasional announcements were made to the press that a statement would be forthcoming shortly, but the meeting dragged on. Obviously there was division within the Board. Finally the press was informed that the Chairman of the Board, Dr. Carroll Hochwalt, would read a statement to the press at 9:00 P.M. When Hochwait finally did appear to read his statement, he refused to answer any questions or give any added interpretation of the statement.

The official minutes of the Trustees’ meeting, which were subsequently supplied to the subject professors, indicate the general trend of the meeting. First the Statement by Theologians was read, and then some of the participants discussed the Statler-Hilton meeting in New York and the August 20 meeting with the Chancellor. Cardinal Mclntyre then introduced a long resolution that the Board of Trustees, having “seriously and penetratingly considered the utterances of Father Curran, his followers and associates with regard to the Encyclical Humanae Vitae, . . . has come to the conclusion that these statements and other expressed opinions are in obvious conflict with known and practiced teachings of the Church as held for centuries and recently reiterated and confirmed by the Holy Father. . . .” The resolution calls the attitude of the theologians a violation of their Profession of Faith and their contract with the University, and thus a breach of contract which admits of no other consideration than a termination.

Debate followed. Although no vote on the Mclntyre resolution was taken according to official minutes, the Chairman appointed a committee to draft a statement in accord with the tenor of the debate. At 3:00 P.M. the meeting reconvened with a reading of the tentative points prepared by the drafting committee. After discussion of these points, a committee was appointed to prepare a final draft. Cardinal Mclntyre then withdrew his motion. At 6:00 P.M. the revised draft was presented, discussed and adopted in final form. In substance, the Board called for the Acting Rector to institute an inquiry, in accord with academic norms and process, to determine if the theologians had violated their manifold responsibilities.

The only statement which came from this meeting of the Trustees was the statement read to the press. This news release questioned both the dissent itself and “the style and method of organizing and publicizing their dissent.” It is important to underline the fact that, in their statement, the Trustees do question the dissent itself and not merely the “manner and mode.” The Board first affirmed that the dissenting members of the faculty were not speaking for the University. It also affirmed its loyalty to the Holy Father. The sentence questioning style and manner is introduced by a “moreover.” While the Board asserted that final judgments in theological matters belong to the bishops of the Church, it directed the Acting Rector to institute an inquiry to determine whether the professors, by “their declarations and actions with regard to the Encyclical,” had violated their responsibilities under general norms of responsible academic procedure and under the “Statutes” of the University, which require, among other things, that faculty members “submit unreservedly” to the Pope’s Apostolic Authority as the “only safe norm of Truth.” Moreover, the condition laid down by the Trustees for the continued teaching of the professors during the course of the Inquiry was their agreement to abstain from “any activities which would involve the name of the Catholic University and which are inconsistent with the pronouncements of the ordinary teaching authority established in the Church—above all, that of the Holy Father.” Although there may have been changes of position later, there can be no doubt that on September 5, despite the long explanation given in the Statler-Hilton meeting and the Chancellor’s meeting, the Board of Trustees definitely was challenging the right to dissent itself.

Acting Rector Whalen began immediately to carry out his mandate from the Board. On September 9, he proposed four questions to the professors involved, who were then on campus, and explained that if a professor would withdraw his endorsement of the Statement by Theologians, he would not be subject to the Inquiry. One of the questions asked if the theologians were willing to observe during the Inquiry the conditions set down by the Board of Trustees in their September 5 press release. The professors refused. (It should be noted that the professors never did agree with the alien condition of silence imposed by the Board of Trustees, even though Whalen and others gave the impression that the professors had agreed. A special committee of the Academic Senate of the University as well as an official University press release confirm this lack of agreement.  The only “agreement” made by the professors was to observe the ban on Inquiry publicity required by governing American Association of University Professors’ procedures.)

The action by the Acting Rector on September 9 marked the beginning of what was to be a tedious and tiring Inquiry lasting until April. The subject professors realized the need for counsel and consultation if they were going to be subject to such an Inquiry. On September 10, five of the professors met for three hours with the executive secretary, general counsel and other staff members of the AAUP, who strongly advised the need for legal counsel. The Washington, D.C., chapter of the American Civil Liberties Union offered its services, and Professor Hunt consulted his brother, John F. Hunt, Jr., a New York attorney and member of the law firm of Cravath, Swaine & Moore. At Mr. Hunt’s request, the Cravath firm itself agreed to represent the professors during the course of the Inquiry. Mr. Hunt and Terrence R. Connelly as his associate handled the case. At the request of AAUP, Robert K. Webb, Professor of History at Columbia University and Editor of the American Historical Review, volunteered his services to act as academic counsel for the subject professors.

Acting Rector Whalen asked the help and cooperation of the Academic Senate in carrying out his mandate from the Board of Trustees. The Senate first appointed a Committee on Committees which was commissioned to nominate two committees to begin the work of the Inquiry. As a result of the Senate action, two committees came into existence: “Committee A,” under the chairmanship of Professor J. Kerby Neill, had the task of investigating the agreement reached between the Acting Rector and the theologians concerning the conditions laid down by the Board of Trustees if the professors were to continue to teach pending the findings of the Inquiry. “Committee B,” chaired by Dean Donald E. Marlowe, was charged with drawing up the procedures for the inquiry itself, and these procedures were approved by the Academic Senate on October 16. The procedures also outlined the process for the election of the Board of Inquiry itself—one member from each of the three main divisions of the University (the Graduate Schools, the Professional Schools, and the Ecclesiastical Schools); two members at large, one of whom should be from outside the University and competent in the sacred sciences; one alternate from the faculty at large.

Meanwhile, in November, the American bishops released their Pastoral Letter Human Life in Our Day. By this time, not only had many other hierarchies throughout the world commented on the Encyclical, but also bishops, theologians, and many in the Church had become better acquainted with the “common teaching in the Church that Catholics may dissent from authoritative, non-infallible teachings of the magisterium when sufficient reasons for so doing exist.”

The 1968 Pastoral Letter of the American bishops recognizes the possibility of theological dissent from authoritative, non-infallible papal teaching. However, there remain the questions of (1) whether, as the dissenters had claimed, spouses may dissent in practice and (2) how theological dissent may be expressed. The American bishops comment: “The expression of theological dissent from the magisterium is in order only if the reasons are serious and well-founded, if the manner of the dissent does not question or impugn the teaching authority of the Church and is such as not to give scandal. Since our age is characterized by popular interest in theological debate and given the reality of modern mass media, the ways in which theological dissent may be effectively expressed, in a manner consistent with pastoral solicitude, should become the object of fruitful dialogue between bishops and theologians. They have their diverse ministries in the Church, their distinct responsibilities to the faith and their respective charisms.” (9)

The subject professors were still expecting that specific charges would be levelled against them. The only communication from the Board of Trustees was the statement which was released to the press on September 5. The Trustees had that day publicly labelled the dissenters’ conduct as seriously questionable under norms of responsible academic procedure and had threatened to suspend anyone who repeated such questioned conduct pending the Inquiry. The procedures of the American Association of University Professors, which the Trustees cited as authorizing suspension in this case, permit no suspension unless charges are pending; thus the professors believed that their refusal to recant would bring on charges. Moreover, if one is accused of wrong-doing, it is an elemental principle of justice that the accuser has an obligation to detail the nature of the charges. However, no charges were forthcoming.

On December 23, the acting Rector of the University submitted a letter of comments from a committee of Trustees in response to the Inquiry Board’s request, in the absence of charges, for a “clarification or particularization” of the Trustees’ September 5 action:

In giving this directive to the faculty of the University, the Board did not attempt to pre-judge the result of the inquiry. The Board made no charges – levelled no accusations. . . .

Hence, the focus of the present inquiry is on the style and method whereby some faculty members expressed personal dissent from Papal teaching, and apparently helped organize additional public dissent to such teaching. At no time in this inquiry is there any attempt by the Board to question the right of a scholar to have or to hold private dissent on Papal teaching not defined as infallible.

There is a considerable body of commentary on the method and spirit of due dissent in the Catholic Theological community. However, the literature now available in the general academic community on how believing Christians reconcile the tenets of their religious faith with the demands of authentic speculative investigation is almost non-existent. . . .

It is possible that the current inquiry could result in an historic statement for the entire field of speculative theology. . . .

This letter of comment marked a definite shift of position: according to the letter, the Inquiry was now supposed to concern only the “style and method” of dissent and not the right to dissent itself. This position is contradicted by a number of factors: the specific request in the December 23 letter itself that the Inquiry determine whether the professors had violated their profession of faith; the statement released at the September 5 meeting of the Board of Trustees questioning the responsibility of the professors’ Declarations as well as their actions and the tenor of the meeting itself; the threat of suspension imposed by the Board of Trustees unless the professors agreed “to abstain for the period of the Inquiry from any activities . . . which are inconsistent with the pronouncements of the ordinary teaching authority established in the Church —above all, that of the Holy Father”; and the questions posed by the Acting Rector to the professors on September 9 and 10. Despite the December 23 letter, the Board of Inquiry understood that the Trustees’ September 5 mandate required it to determine whether the asserted right to dissent represented “permissible scholarly views” within the pale of responsible Roman Catholic theological positions. Moreover, Bishop James Shannon, testifying as the Trustees’ representative to the Inquiry three weeks after the December 23 letter was written, agreed that the Inquiry Board’s concept of its task was “reasonable.”

The Board of Inquiry held its first organizational meeting on October 31, 1968, and then devoted the next month to developing its rules of procedure. Pre-Inquiry conferences took place on December 13 and December 27, 1968, and January 10, 1969. In January the professors proposed a detailed statement of the facts which was then discussed and mutually agreed upon. The subject professors in late January transmitted to the Board the first part of their written materials—over 200 pages defending on theological grounds their public dissent from the Encyclical. On February 18, civil and academic counsel submitted on behalf of the subject professors the second part of their written materials defending the responsibility of the declarations and actions of the professors in the light of academic principles and norms.

After the Board questioned the professors about the written materials, expert testimony was advanced on significant aspects of the question of dissent. These expert witnesses were people of outstanding merit who testified from the viewpoint of their respective competences. Those who gave either written or oral testimony in defense of the professors included Dr. Robert Cross, then President, Hunter College, now President, Swarthmore College; Reverend Walter Burghardt, Editor, Theological Studies; Dr. John C. Bennett, President, Union Theological Seminary; Reverend John H. Thirlkel, Dean of Theology, St. Mary’s Seminary and University, Baltimore; John Noonan, Professor of Law, University of California, Berkeley; Reverend Victor Yanitelli, President, St. Peter’s College; Reverend John Hotchkin, Bishop’s Committee for Ecumenism and Interreligious Affairs; Reverend Clarence Friedman, Associate Secretary, College and University Department, NCEA; Kenneth Woodward, Religion Editor, Newsweek; Reverend Gerard Sloyan, Professor of Religion, Temple University; Reverend Bernard Lonergan, Research Professor of Theology, Regis College, Toronto; and Reverend Theodore Hesburgh, President, Notre Dame University, Indiana.

The hearings ended on March 12, 1969. The professors, through their counsel, sent their proposed findings to the Board. Neither the Trustees nor their counsel proposed any findings. The Board had already begun to draft their findings before consulting the findings proposed by the professors. (The charge was later heard that the Inquiry Board merely adopted the findings proposed by the professors; anyone familiar with the proposed findings and the report would find this assertion ridiculous.) When the Inquiry Board made its report to the Academic Senate at a special meeting on April 1, the Senate unanimously adopted the report. The report exonerated the professors and chided the Trustees for some of their declarations and actions, especially those concerning the threat of suspension employed in their September 5 statement. The report also urged that Catholic University adopt the norms of academic freedom and academic due process recommended in the report.

As noted, the report of the Board of Inquiry did not close the matter. At their meeting in Houston in April, 1969, the Board of Trustees of Catholic University voted only to receive the report and appointed a subcommittee of their members to study it and bring their recommendations to the next regular meeting or to a special meeting. The publication of the report of the Inquiry board again touched off comments pro and con concerning the theological dissent from the Encyclical and illustrated anew the need for a cogent explanation justifying such dissent. Finally, at their June meeting, the Trustees terminated the University proceedings against the professors but authorized reference of the theological issues to the bishops.

The remaining chapters of this volume develop the theological justification for the dissent of the professors at Catholic University and their public promulgation of that dissent. Since the professors were subjected to the Inquiry because they ascribed to the Statement by Catholic Theologians of July 30, 1968, these chapters will focus on that statement and the reasons its preparation and publication were responsible courses of action of Roman Catholic theologians at the Catholic University of America. (The Statement is set forth in its entirety at the conclusion of this chapter.) The argumentation developed in the following chapters supports the conclusion that the substance of the Statement by Theologians, promulgation of the Statement through the mass media, the timing of such promulgation and subsequent subsidiary promulgation were all within the pale of responsible Roman Catholic theological activity. However, this volume does not attempt to prove that other views regarding the Encyclical, or regarding the promulgation of views concerning the Encyclical, are not within the pale of responsible Roman Catholic theological activity.

Full Text of the July 30, 1968, Statement by Catholic Theologians

1. As Roman Catholic theologians we respectfully acknowledge a distinct role of hierarchical magisterium (teaching authority) in the Church of Christ. At the same time, Christian tradition assigns theologians the special responsibility of evaluating and interpreting pronouncements of the magisterium in the light of the total theological data operative in each question or statement. We offer these initial comments on Pope Paul VI’s Encyclical on the Regulation of Birth.
2. The Encyclical is not an infallible teaching. History shows that a number of statements of similar or even greater authoritative weight have subsequently been proved inadequate or even erroneous. Past authoritative statements on religious liberty, interest-taking, the right to silence, and the ends of marriage have all been corrected at a later date.
3. Many positive values concerning marriage are expressed in Paul VI’s Encyclical. However, we take exception to the ecclesiology implied and the methodology used by Paul VI in the writing and promulgation of the document: they are incompatible with the Church’s authentic self-awareness as expressed in and suggested by the acts of the Second Vatican Council itself. The Encyclical consistently assumes that the Church is identical with the hierarchical office. No real importance is afforded the witness of the life of the Church in its totality; the special witness of many Catholic couples is neglected; it fails to acknowledge the witness of the separated Christian churches and ecclesial communities; it is insensitive to the witness of many men of good will; it pays insufficient attention to the ethical import of modern science.
4. Furthermore, the Encyclical betrays a narrow and positivistic notion of papal authority, as illustrated by the rejection of the majority view presented by the Commission established to consider the question, as well as by the rejection of the conclusion of a large part of the international Catholic theological community.
5. Likewise, we take exception to some of the specific ethical conclusions contained in the Encyclical. They are based on an inadequate concept of natural law: the multiple forms of natural law theory are ignored and the fact that competent philosophers come to different conclusions on this very question is disregarded. Even the minority report of the papal commission noted grave difficulty in attempting to present conclusive proof of the immorality of artificial contraception based on natural law.
6. Other defects include: overemphasis on the biological aspects of conjugal relations as ethically normative; undue stress on sexual acts and on the faculty of sex viewed in itself, apart from the person and the couple; a static worldview which downplays the historical and evolutionary character of humanity in its finite existence, as described in Vatican II’s Pastoral Constitution on the Church in the Modern World; unfounded assumptions about ‘the evil consequences of methods of artificial birth control’; indifference to Vatican II’s assertion that prolonged sexual abstinence may cause ‘faithfulness to be imperilled and its quality of fruitfulness to be ruined’; an almost total disregard for the dignity of millions of human beings brought into the world without the slightest possibility of being fed and educated decently.
7. In actual fact, the Encyclical demonstrates no development over the teaching of Pius XI’s Casti Connubii whose conclusions have been called into question for grave and serious reasons. These reasons, given a muffled voice at Vatican II, have not been adequately handled by the mere repetition of past teaching.
8. It is common teaching in the Church that Catholics may dissent from authoritative, non-infallible teachings of the magisterium when sufficient reasons for so doing exist.
9. Therefore, as Roman Catholic theologians, conscious of our duty and our limitations, we conclude that spouses may responsibly decide according to their conscience that artificial contraception in some circumstances is permissible and indeed necessary to preserve and foster the values and sacredness of marriage.
10. It is our conviction also that true commitment to the mystery of Christ and the Church requires a candid statement of mind at this time by all Catholic theologians.

Notes

1. Washington Evening Star, July 30, 1968, p. A-4. The article referred to the fact that O’Boyle “released his statement to newsmen by telephone from Pennsylvania.”
2. The Church in Our Day (Washington, D.C.: U.S.C.C., 1968), pp. 69-73.
3. N.C. News Service (Domestic), July 31, 1968.
4. Washington Post, August 2, 1968, p. A-2; New York Times, August 2, 1968, p. 1.
5. N.C. News Service (Domestic), August 2, 1968.
6. N.C. News Service (Documentary Service), August 22, 1968; also Washington Post, August 22, 1968, p. B-1.
7. Ibid.
8. Washington Post, August 24, 1968, p. D-4.
9. N.C. News Service (Documentary Service), November 15, 1968, pp. 18, 19.

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