In the Gospel of John (20:19-23) Jesus appeared to his fearful disciples after the resurrection and uttered the words “Peace be with you.” He then showed the disciples his hands and his side. In this account of the resurrection, Jesus connected the experience of peace or shalom with an acknowledgement of the wounds he had suffered and the truth that such peace is not really possible unless one has journeyed the painful course from Good Friday to Easter Sunday.
As Christians, our common goal is the peace that Jesus announced in this post-resurrection scene. But the sense of wholeness or integrity that comes from peace often is not possible unless one has first navigated the painful path of discerning the truth and, upon completing such discernment, doing justice based upon that truth.
As a canonist, I believe it is the role of the practitioner of canon law to develop and implement structures that accurately discern truth and then apply justice based upon that truth.
Unfortunately, within our Catholic community, members of the faithful often dispute the truth of a situation and the justice to be applied. Too often in recent history, partly because of a lack of practical structures for settling internal church disputes, these matters have been taken to the secular courts.
With its vast parish and school structures, the Archdiocese of Milwaukee is one of the largest employers in the 10- county area that comprises the diocese. Inevitably disputes arise, most often involving personnel issues. Pastors firing school principals without adequate consultation or documentation, church administrators restructuring positions to eliminate perceived personnel problems, church workers making claims of sexual or age discrimination—these are typical issues that disrupt local church communities, often leading to scandal as well as civil litigation. Does the church have at its disposal sufficient tools to resolve these issues internally?
For more than 30 years the Canon Law Society of America has studied the role of canon law in the resolution of internal disputes that arise within the church. Various structures have been tested in several American dioceses, some with greater success than others.
When I became judicial vicar of the Archdiocese of Milwaukee in 1995, I was asked to implement one of these experimental structures. Borrowing procedural norms from a 1991 C.L.S.A. report, Protection of Rights of Persons in the Church, the archdiocese now has successfully heard about 90 cases of administrative recourse without a single one of these cases subsequently being taken to the civil courts. More important than the money saved by not having to pay attorney and court fees, settlements and penalties, is the fact that the archdiocese has established structures that raise the level of justice for members of our local church.
Since the 1983 Code of Canon Law provides minimal guidance on how administrative recourse is to be done on a diocesan level, this leaves to the local bishop significant discretion as to how recourse against decisions of administrative power is to be dealt with in his diocese. Some bishops prefer to handle such cases personally, but often they find that their own time and energy limitations prohibit them from thoroughly investigating every dispute that lands on their desk. The danger in such an approach is that there will be arbitrary decisions regarding the merits of the case as well as the remedies to be applied.
In the Archdiocese of Milwaukee, the process of dispute resolution is premised on the principle of subsidiarity. Following Mt. 18:15-20, the initial structures of dispute resolution are as close to the dispute as possible, usually on a parish level. Every parish has been requested to set up appropriate grievance procedures and structures to hear cases.
Only upon failing to resolve the dispute on the local level is the issue allowed to reach the level of the appropriate diocesan office. Only after again failing to resolve the dispute is the case admitted to the due process office of the archdiocese. Should this office be unable to resolve the dispute, the case may be admitted to the Archdiocesan Court of Equity, where both sides are immediately provided with canonical advocates. A panel of three canonists hears the matter employing the seldom-used “Oral Contentious Process” of the code (cc. 1656-70). Upon deliberation, the canonists render an opinion to the archbishop as to the facts of the matter, the applicable law and magisterial teaching, and they then make recommendations for the just settlement of the issue. The archbishop, as the chief judge of the diocese, is free to accept, decline or amend the opinions and recommendations made by the Archdiocesan Court of Equity.
Having participated in numerous cases that have reached various levels of our diocesan structure, we have learned that there are patterns of disputes that arise time and again. Most issues that are hierarchically appealed are not legal issues so much as human and communication issues. When disputes occur, parties often quickly cut off communication with each other. The sides arm themselves with their alleged grievances and responses. Civil legal counsel often is consulted. Even when one side begins to understand that the other side may have a legitimate point, the need to save face becomes paramount.
It has been a common experience for our due process office to begin mediation procedures and subsequently employ internal church legal remedies simply to find out at a later date that all the alleged victim ever wanted was an apology. Sincere and heartfelt apologies may be the most underused legal as well as Christian remedy to internal church disputes.
It is my belief that civil attorneys often do a disservice to the church, as well as to the practice of justice, when they counsel parties to cease communication and never offer apologies. In such cases, civil attorneys are asking the church to stop being the church, which is a sure path to trouble.
On the level of the human and communication issues involved in conflict resolution, it has been our experience that the presenting issue is rarely the true issue. Disputants often approach our office with outlandish claims of having been wronged. Subsequent meetings with the various parties involved result in a puzzle of paradoxical and illogical accounts of the dispute. A critical question to ask when such scenarios arise is this: “The story as presented makes little or no sense; what is really going on?” The answer to that question often is the key to understanding the dispute as well as to discerning possible remedies.
In dealing with persons in dispute, the church must always honestly seek the truth about the matters in question and, furthermore, have the courage to provide just solutions based upon the magisterial teachings of the church and canon law. To accomplish this lofty goal, appropriate structures for the resolution of disputes need to exist in the local church community. The Code of Canon Law provides wide discretion for diocesan bishops to establish dispute resolution structures within their dioceses. The failure to implement such structures only invites disputants to take their disputes to civil courts.
St. Paul, among others, saw the shame and scandal of Christians using nonreligious court systems to settle grievances, especially in disputes among believers (1 Cor. 6:1-11). Using the wide latitude the Code of Canon Law allows diocesan bishops to settle disputes within their dioceses, the administration of justice, if pursued vigorously, energetically and courageously, is attainable on the level of the local church.
Disputes involving safety, discrimination, organization, wages, leave, child labor, work injury, whistle-blowing and other protections are matters that the worker has a right to pursue or have reviewed by civil laws or regulations if such course is opted. A five-tier canon law process, although a licit administrative option, should respect the disputants’ right to pursue governmental options before, during and after a canon law decision. Unilateral canonist decisions might lack the insight of adversarial or expert proceedings conducted by labor law professionals. Canonical advocates should not be provided, as suggested for the Archdiocesan Court of Equity; the disputant should be permitted to opt for a personally chosen advocate.
The principle of subsidiarity does not seem operable when each case has the potential that the archbishop will accept or amend the recommendation. The disputants’ further appeal could be costly and give the media a field day at the archbishop’s peril. There are no worker disputes that cannot be administratively finalized at the parish or institutional level with any necessary help from the diocesan personnel department.