By June 1, 2002, Catholic theologians who teach in Catholic colleges and universities are supposed to have received and accepted a mandatum from the local bishop. (In this article, I will use "universities" to include all these institutions.) Those hired subsequently are to acquire the mandatum within the academic year or within six months of being hired, whichever period is longer. Many theologians then are facing a question of conscience. How did we get to this point?

A Brief History

Georgetown University, founded in 1786, is the oldest Catholic institution of higher education in the United States. From that time until World War II, there was really no question of what made Catholic universities "Catholic." That was something that could be taken entirely for granted. Most of their students were Catholic; most of their faculty members were Catholic clergy and religious. Most of the laity who eventually taught alongside of them were themselves Catholic. The curriculum reflected Catholic interests, beliefs, and sensibilities. The Catholic community was willing to support this unique and complex private school system, including primary and secondary schools, because enough Catholics felt that, in a religiously pluralistic culture, it was important to provide an education for their children in which being Catholic could be something pervasive and encompassing.

In the decade following the end of World War II, American higher education grew and changed dramatically. This was as true of Catholic universities as of the others. These Catholic institutions were becoming bigger, more ambitious, more mainstream, and more professional. They were determined to hold themselves to high standards. During this prosperous, expansive period, the earlier Catholic immigrants—the Irish, Germans, Italians, and Poles, for example—were moving into the middle and upper middle classes. Throughout this time, the rallying cry in Catholic higher education was "excellence." This meant that "being Catholic" could not, must not, be allowed to provide any excuse whatever for mediocrity.

The commitment to "excellence" at Catholic universities was explicitly connected to Catholicism’s opening to the modern world at Vatican II, and this opening to modernity was focused on the related issues of liberty and trust, especially (in regard to higher education) on the issues of academic freedom and institutional autonomy. This was the main significance of the "Land O’Lakes Statement: The Nature of the Contemporary Catholic University," issued by representatives of American Catholic higher education in 1967, which has remained a benchmark of authentic intellectual engagement and the highest standards of performance and achievement for most American Catholic universities. Nonetheless, it would be fair to say that it never received any clear endorsement from the Vatican. This ambiguous situation, with Vatican officials holding out for some kind of juridical control over Catholic universities, and the consistent resistance to any such arrangement by a large majority of the presidents of American Catholic universities, and, until recently, by the bishops, has lasted more or less until the present time.

Developments after 1967 were complicated, tumultuous, and mostly unplanned. This was a period of rapid and profound change in American culture, in American universities, and in American Catholicism. In all these areas, the increasing pluralization of values, lifestyles, intellectual frameworks, and cultural traditions was intense. New attention was being given to the experience and vantage points of people previously marginalized and discounted. In almost every discipline, new topics and new methodologies were reshaping the basic features of academic life.

The American Catholic Church was in turmoil. In retrospect, one of the most significant changes during this time was the sharp decline in vocations to the priesthood and religious life, combined with large numbers of resignations and departures. A distinctive Catholic subculture continued to wane. Meanwhile, Catholic universities continued to become larger, more professionalized, and more diversified. More and more students and faculty members were not themselves Catholics. The meaning of a university education was changing, even as the meaning of being Catholic was changing. Yet, until the early eighties, little attention was given to the question of Catholic identity.

The rest of this history can be summarized in terms of four major events. First, in 1983, a revision of the Catholic Church’s Code of Canon Law was officially promulgated. It includes seven new canons referring to Catholic universities, whereas the 1917 Code had had none. One of these canons requires an episcopal mandatum for Catholics teaching theology in Catholic institutions.

Second, during the 1980s, discussions were begun leading to a major papal statement on the nature of Catholic higher education addressing recent concerns, and Ex corde ecclesiae was issued by John Paul II on August 15, 1990. It is a substantial document touching on many important topics. It is eloquent in its affirmations and hopes, and it describes real dangers—that all of us should face candidly—of squandering a heritage. Nevertheless, it is sometimes careless about important cultural differences among the nations where Catholic universities are located. Unfortunately, it reiterates as universal law the requirements of the revised Code and insists on some kinds of juridical control of these institutions by the hierarchy.

With the promulgation of Ex corde, the mandatum was again urged on the attention of the American bishops. The provision was criticized and actively resisted by many Catholics and Catholic organizations. It did, of course, have support among some Catholic academicians and writers, and at a few Catholic colleges, but these constituted a small minority. Yet, for ten more years, the American bishops did nothing to implement this provision.

Third, in 1996, bishops, presidents, theologians, and trustees worked out a consensus on the implementation of Ex corde in the United States. The requirement of the mandatum was omitted in this draft document, which the bishops approved in a vote of 224 to 6. This document was not approved by the Vatican and was returned to the bishops for revision in a more juridical form, now specifically including the mandatum. That this 1996 document was rejected by curial officials is to many Catholics theologically and pastorally troubling. It was as though, after all the study, consultation, and reflection, prayer and conversation, the American bishops had gone through in making this decision, the great majority of them, over 97 percent of those voting, could not be trusted on such a difficult and important matter.

Two years later, the bishops completed a revised document which did incorporate the mandatum, and despite warnings and objections from Catholic theologians and most leaders of Catholic higher education, on November 17, 1999, they passed this fourth draft by a vote of 223 to 31. The following spring, on May 3, 2000, the Roman Congregation for Bishops approved this version. It became law for the United States one year later. The guidelines for the mandatum were still being discussed and debated during that year. The committee submitted a draft of these guidelines for discussion among the bishops in November 2000.

Fourth, the final draft of these Guidelines was approved by voice vote of the bishops at their general meeting last June.

The ’Mandatum’

What the American bishops have now decided is that Catholics—clergy, religious, and lay persons—who teach theology at Catholic universities must each obtain a mandatum from the bishop of the diocese in which the university is located. The guidelines define the mandatum as a matter exclusively between the theologian and the local bishop. It is, they say, "an obligation of the professor, not of the university." None of their documents defines any role whatsoever for Catholic universities to play in regard to the mandatum. Nor is it easy to see by what authority administrative officers or governing boards could invent such roles for themselves. Nor do the bishops state any intention to "enforce" this requirement, threaten any penalties, or provide for any means to employ sanctions.

Cincinnati Archbishop Daniel Pilarczyk, head of the committee that drafted the official procedures, has stated this unequivocally: "If a person does not want it, it does not mean he [or she] is heterodox....There is no mechanism to make anybody request or accept the mandatum," he said, describing it as an "obligation without a sanction." The local bishop is instructed, however, to send a list of the names of those who should but do not possess a mandatum to "the appropriate authority in the college or university." This may seem curious, but, nevertheless, that is all that is determined by church authority. The matter is simply left there.

Many are concerned, however, that this plan leaves open one dangerous possibility, one that some bishops, though possibly just a few, may even seem to be encouraging without saying so, and that is that serious sanctions for noncompliance might nevertheless be invented at some Catholic universities on their own authority. If this is true, even for just a few bishops, it would cast a very unflattering light on their public protestations that they are doing nothing to enforce this requirement, when it might be that their protestations are really calculated risks taken to immunize themselves against potentially damaging lawsuits, preferring, in other words, to gamble with other people’s money. Charity should lead us to assume this fear is groundless.

Nevertheless, a serious concern may persist for at least four reasons. First, it is only Catholic theologians who are employed at Catholic colleges and universities who are under this obligation, contrary to the apparent sense of canon 812, which reads: "Those who teach theological subjects in any institute of higher studies must have a mandate from the competent ecclesiastical authority." Catholic theologians who teach in public or non-Catholic private universities, however, are not so obliged.

This is puzzling. After all, some of the best-known and most influential Catholic theologians in this country currently teach at secular or ecumenical institutions, while a few Catholic intellectuals, whose voices still strongly affect the theological conversation, are now working outside academic life. The mandatum, then, does not pertain to the category of Catholic theologian as such. That seems crucial. In fact, the obligation as defined pertains instead to one subcategory of employees at Catholic universities: those who teach theology; and not to all who teach theology at these institutions, but only to those who happen to be Catholic.

It’s likely that in these same departments, the same or similar courses are taught by faculty members who are not Catholic. Nor are there norms about the qualifications of those who are not Catholic. They may presumably be Christians belonging to other churches, or they may be Jews, Muslims, Buddhists, Hindus, religious or secular humanists, agnostics or atheists. Nothing is said about any of this. Nor is it commonly assumed that some courses can only be taught by department members affiliated with particular faith communities. What, then, does the mandatum signify?

Second, the relevant bishop to grant the mandatum is the bishop of the place in which the Catholic university is located, that is, the ordinary of the place where the theologian is employed. Since it is defined as a matter between a theologian and a bishop, and provides no role for the schools to play, why is it not the theologian’s own bishop who is involved? In fact, this provision contradicts a long-standing norm in canon law that Catholics are subject to "the diocesan bishop of their place of domicile or quasi-domicile" (canon 107 §1).

Third, although the bishops have decided that the mandatum belongs essentially to the relationship between a theologian and a bishop, the requirement occurs in the context of a canonical treatment of Catholic universities, and in Ex corde, an apostolic constitution on the subject not of theologians, but of Catholic universities. Finally the implementation plan was written by the bishops in response to this papal statement. Moreover, the exclusion or inclusion of a provision about the mandatum became part of a larger debate about specifically "juridical" controls over these universities granted to members of the hierarchy. That was the point. Thus there is a disturbing air of mystery about all this.

Fourth, in all the published documentation, it is precisely the role of the Catholic university which is elided. This absence has the feel of an erasure. Yet if the obligation to possess the mandatum is an obligation without a sanction, it is puzzling that bishops are instructed to send the names of theologians who should but do not have a mandatum to their employers.

It is true that in endnote 41 of the application document the bishops say: "If a particular professor lacks a mandatum and continues to teach a theological discipline, the university must determine what further action may be taken in accordance with its own mission and statutes" (see canon 810, §1). Although this has an ominous overtone, it merely states the obvious. The fact remains that no role for the college or university is instituted, suggested, or described by the bishops. The bishops have offered no justification and given no support for university administrators or board members to take it upon themselves to interpret the mandatum on their own.

"Discussions among the bishops," we have been told, "have emphasized that [the mandatum] does not impact on the hiring, retention, or promotion of professors, and that there is no mechanism of enforcement by the bishop. Like other canon law requirements, it is a matter of conscience." The bishops have stressed the need to "further converse and build a community of trust and dialogue between bishops and theologians. Without ongoing and respectful communication," they have written, "the implementation of the mandatum might appear to be only a juridical constriction of the work of theologians." After the bishops’ meeting last June, Bishop Joseph Fiorenza, president of the bishops’ conference, warned against using the mandatum to bring "dangerous" and "harmful" accusations against theologians in violation of Christian charity. Archbishop Pilarczyk also warned against misuse of the mandatum as a tool to rate the orthodoxy or Catholicity of theologians or Catholic institutions.

I think we should be very reluctant simply to assume that the bishops are secretly hoping these universities will somehow "enforce" the mandatum, when the bishops themselves explicitly will not, and thereby risk litigation, when the bishops themselves, presumably, will not.

What Does It Mean?

What meaning, now, could we say has been salvaged for this exchange between bishops and theologians? In other words, what do theologians ask for if they ask for a mandatum? Or if one is granted to them by a bishop to be accepted by them, what would they be accepting?

First, the mandatum is said by our bishops to represent "an acknowledgment by church authority that a Catholic professor of a theological discipline is teaching within the full communion of the Catholic Church." It is not clear what is meant here by the idea of "full communion," an idea that suggests Catholics may be in different degrees of communion with the church. This idea of degrees of communion has previously been used only in discussions of other Christian churches in the context of ecumenical considerations and has not been applied to individuals or their activities. Catholics are presumably in "full communion" with the church after their baptism unless they publicly renounce the faith or should in some way incur excommunication. It would seem, then, that whatever they do, they do within this full communion.

Second, the mandatum is said to recognize the professor’s "commitment and responsibility to teach authentic Catholic doctrine and to refrain from putting forth as Catholic teaching anything contrary to the church’s magisterium." Is there some pervasive problem of professors putting forward their own personal judgments as if they were official Vatican teaching? I’ve never heard of such a case. Nobody could teach their own opinion as official Catholic teaching as though their students lived in plastic bubbles. After all, paperback editions of the new catechism are inexpensive and available everywhere. In fact, the catechism is online free at the Vatican Web site.

The actual concern, I think, is that some Catholic theologians may admit in their classrooms and in their writings that they are not in good conscience able to agree with certain positions advanced in currently official Vatican statements. But these disagreements are surely presented as no more than their own personal judgments. Would it be better if they lied? Yet the bishops seem to claim that their concern is about confusion concerning the official teaching of the church. Why do they say this?

In fact, large numbers of American Catholics do not find persuasive the Vatican’s pronouncements on a number of disputed contemporary issues. This is a concern for many, but what can be done about it? Even if all Catholics teaching theology at Catholic institutions announced tomorrow their full agreement with papal and curial documents, the large majority of American Catholics would not find their testimony convincing.

Third, and most puzzling of all, it is said that once the mandatum is granted and formally accepted, the theologian continues nevertheless to teach in his or her own name, and in no way in the name of the bishop or in the name of the church. "The mandatum should not be construed," we are told by the bishops, "as an appointment, authorization, delegation, or approbation of one’s teaching by church authorities." What is it, then? you may ask. Well, whatever it is, it’s clearly not a "mandate" as the word is used in English and defined in English-language dictionaries. That’s why the Latin mandatum is used by the bishops themselves in their revised application of Ex corde and now by most writers on the subject. "Mandate" just seems an erroneous translation. But is this claim of the bishops even coherent? It’s hard to see in what sense the granting of a mandatum could be construed as anything other than an "authorization" and an "approbation" of somebody’s teaching by church authority.

These three characterizations by the bishops, furthermore, seem to be directly at odds with the view of the mandatum taken by Cardinal Joseph Ratzinger, prefect of the Congregation for the Doctrine of the Faith, in the "Instruction on the Ecclesial Vocation of the Theologian" (issued on May 24, 1990). "In a certain sense," Cardinal Ratzinger has written, "such collaboration [between the theologian and the magisterium, once the theologian receives the canonical mission or the mandate to teach] becomes a participation in the work of the magisterium, linked, as it then is, by a juridic bond. The theologian’s code of conduct...is here reinforced by the commitment the theologian assumes in accepting his office, making the profession of faith, and taking the oath of fidelity. From this moment on, the theologian is officially charged with the task of presenting and illustrating the doctrine of the faith in its integrity and with full accuracy" (§ 22, italics added).

For Ratzinger, the mandatum has more specificity, more gravity, than it does in the American bishops’ interpretation. There is nothing in the bishops’ version that speaks of accepting an office, or making the profession of faith, or taking an oath of fidelity, or being officially charged with a task of presenting doctrine. And more remarkably, later in the same document, the cardinal writes: "the theologian who is not disposed to think with the church ("sentire cum ecclesia") contradicts the commitment he [or she?] freely and knowingly accepted to teach in the name of the church" (§ 37, italics added). Yet the American bishops have written that those who have received a mandatum "teach in their own name in virtue of their baptism and their academic and professional competence." This suggests that the mandatum may mean something quite different in the United States than it does in Rome or perhaps elsewhere.

It’s clear that the situation is quite different in the United States than it is in Europe. There, the canonical mission or the mandate to teach seems to occur primarily in the context of state-supported institutions that include both Catholic and Protestant faculties of theology. Here, we are talking about Catholic universities, private institutions, for the most part privately funded, in which the men and women hired to teach theology are usually not asked about their religious affiliation.

What should we conclude from all this? If I teach in virtue of my baptism and my own academic and professional competence, and if there is no question here of "an appointment, authorization, delegation, or approbation by church authority," what exactly is the significance of the mandatum? Why would I need a mandatum from a bishop in order to teach in my own name?

What Are the Consequences?

All this ambiguity is itself a compelling reason to hesitate before we determine our response to this law. A theologian who accepts a mandatum in writing seems to acknowledge the legitimacy of the law and, in the opinion of many legal experts, acknowledges the mandatum as a kind of "religious qualification" of the type permitted by U.S. law for certain types of employment. In a sense theologians would be relinquishing some of their own civil rights and might be contributing to the loss by others of their civil rights. The theologian seems to be consenting to an arrangement whereby the bishop of the diocese in which a Catholic university is located is granted the power to—in some sense!—approve or disapprove of some faculty appointments provided the candidates happen to be Catholic. That seems to penalize or at least put in jeopardy one group of people in a particular discipline on the basis of their religious affiliation. In our context, here in the United States, this seems at least unfair, and perhaps unjust, if not illegal.

The implementation of this law will violate what has, for the last thirty years and more, been considered the legitimate autonomy of these universities and their freedom from interference by external authorities of any kind, civil or religious. It will have at least a chilling effect on the academic freedom of Catholics, and non-Catholics for that matter, working in the field of theology who are employed by Catholic institutions, and, if withheld or later withdrawn, could directly violate the person’s academic freedom if it proves to be injurious to the theologian’s reputation, or if possession of the mandatum is allowed to affect hiring, reappointment, tenure, or promotion, in spite of the bishops excluding this possibility.

In view of the complexity of contemporary theology as a discipline, the large number of highly specialized subdivisions it encompasses, and the large number of diverse schools of thought and philosophical frameworks represented within it, it is difficult to believe that all the relevant bishops, or even the majority of them, will have the appropriate competence and temperament to make these judgments in a fair and meaningful way.

Furthermore, if established, the mandatum requirement could have serious and deleterious consequences: for example, it could discourage some young Catholics from going into the field of theology; discourage many younger Catholic theologians from seeking jobs at Catholic institutions; possibly persuade some Catholics teaching at such institutions to convert, or appear to convert, to another faith community; damage the credibility of all Catholic theologians, whose motives might subsequently seem questionable and undecidable; interfere with the ordinary process of peer review and criticism among theologians; cause some Catholic theologians to stay away from important but controversial topics; encourage some to be less than fully honest about their actual considered judgments; damage the academic reputation of Catholic universities; aggravate divisions, suspicions, and hostilities within the Catholic theological community, on Catholic campuses, and within the Catholic Church more widely; injure the credibility of the Catholic Church as a whole in this country; and potentially cast the U.S. bishops in the role of inquisitors or ayatollahs. In sum, it is very hard to see in what way all this would enhance the Catholic character of any university.

Is there really any reason to believe this requirement will have a positive effect on the Catholic character of these communities and institutions? Isn’t it more likely that the atmosphere it will help to create and the polarization it will likely aggravate will make many faculty and staff at these institutions allergic to talk about "Catholic identity" for a long time to come? Isn’t it more likely that the very distrust of freedom and open discussion now symbolized by the mandatum will itself be more damaging to the faith life of our students than the personal dissenting opinions of some theology teachers? Wouldn’t a sincere concern about the Catholic character of a university rather ask first about an environment of believable trust, hopefulness, honesty, consideration, and love? Wouldn’t the practice of justice and generosity and patience among those representing the university and those entrusted with roles of leadership be more eloquent testimony about what it means to be Catholic?

Many are therefore now convinced that by accepting this law, theologians would become complicit in an action that will very probably be injurious to Catholic intellectual life, to the Catholic character and future prospects of Catholic universities, and to the health and credibility of the American Catholic Church. If these results are honestly judged to be likely, it would seem to be impossible to accept and consent to the law in good conscience.

In concluding, let me distinguish my own position from both popular Catholic conservatism and popular Catholic liberalism. I do not think it is possible to be a Catholic and to be uncritical of the modernity that emerged in Western Europe in the seventeenth and eighteenth centuries. On the other hand, I do not think it is possible to return to a premodern situation. It could only be possible to spend the rest of one’s life in a medieval theme park. The relevant answer to any question about Catholicism and modernity can’t be to choose one over the other.

What we need to be discussing is which things in the heritage of modernity must be honored, defended, and handed on, and which things must be criticized, resisted, and transformed, just as we need to be discussing which things in the Catholic tradition must be cherished and more fully retrieved, and which things must be subject to criticism and rejected. Any theology that fails to be discerning about the challenge of modernity and the ambiguity of Catholic tradition forfeits its claim on our serious attention.

We have reached a point of reignited conflict in Catholicism about the claims of modernity and the claims of Catholic tradition. Can contemporary universities be and remain Catholic without hierarchical control? It is hard to think of another issue quite as important and indicative of the direction in which we are heading. My hope is that the Catholic Church in the United States will give compelling testimony (even with contrary winds blowing in our faces) that the love of God can and must also be found by us in the modern experience of human freedom.