Religious freedom in the United States is popularly supposed to be guaranteed by the separation of church and state. In fact, the phrase “separation of church and state” appears nowhere in the Constitution of the United States (it is a private observation from the later correspondence of Jefferson). But it is useful for pointing to something prior to and deeper than itself: the distinction between church and state, a distinction as old as, but not older than, Christianity.
The ancient pagan world knew no such duality of church and state. For it, society was the polis or, later, the imperium, a compact and undifferentiated unity whose functions were not only those which we call political, but also those which we call religious. The city or the empire enforced laws and fought wars; it also worshipped the gods, and it saw no reason for regarding priests as being any less civic functionaries than magistrates or generals.
With the rise of Christianity, there appeared for the first time a distinct social body that called itself the ecclesia or church. Unlike the people of Israel whom God had made peculiarly his own, the church was open to all who would accept the faith that it taught and would join it through baptism. Like Israel, it presented itself as having been founded directly by God, and while it acknowledged the authority of governments in temporal affairs, it claimed autonomy in all that pertained to man’s relationship with God.
Now there were two distinct authorities in society, the political and the religious, the temporal and the spiritual. The centuries since then have been filled with an unending debate, by no means yet concluded, on the proper relationship between them. The question of that relationship presupposes the distinction between them. If there were only the state, there would be no church to which to relate it or from which to separate it.
Given the reality of both church and state, drawing the line between their proper spheres leads ultimately to the idea of constitutional government—that is, government limited in its powers. Underlying this idea is a conception of society as organized in different ways for different purposes. Society is indeed composed of individuals, but not of individuals standing alone opposite the state. For example, the family is a natural human grouping, and society is made up of families as much as of individuals. As society develops, it articulates itself into a multitude of economic, cultural, and other groups. Society overall is organized as the state, but only for certain purposes and for the performance of certain functions relative to those purposes. For the performance of other functions in relation to God, a Christian society organizes itself as the church or the churches. The state and its organs of government thus come to have limited powers because they have limited goals and functions.
The late John Courtney Murray, S.J., saw this constitutional conception of the state as basic to the American idea of religious liberty. Murray was certainly not the only American Catholic who wrote on church-state relations, nor was he the only or the principal person who influenced Vatican II’s Declaration on Religious Freedom. But in the years before Vatican II, he was the most profound and articulate Catholic interpreter of the American understanding of religious liberty. When inquiring into the impact of the American Catholic experience on the document framed by Vatican II, we may well begin with Murray’s reflections on that experience.
Murray’s writings on church-state relations and religious freedom were voluminous and, so far as I know, appeared originally in periodicals. Some people write books, but Murray developed his thought in a series of articles that ended only with his death in 1967. Even his one published book, We Hold These Truths, was a reworking of articles published previously. His best statement of the institutionalization of religious liberty in the U.S. Constitution is found in chapter 2 of that book, under the title “Civil Liberty and Religious Integrity.”
“The American thesis,” he states in this chapter, “is that government is not juridically omnipotent. Its powers are limited, and one of the principles of limitation is the distinction between state and church, in their purposes, methods, and manner of organization.” The wording of the religion clauses of the First Amendment to the Constitution bears him out. On their face, these clauses state nothing but a limitation on the powers of government: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It is significant that the statement is made in the imperative rather than the indicative mood, and in the language of law rather than of dogma. According to Murray,
these constitutional clauses have no religious content. They answer none of the eternal human questions with regard to the nature of truth and freedom or the manner in which the spiritual order of man’s life is to be organized or not organized. Therefore they are not invested with the sanctity that attaches to dogma, but only with the rationality that attaches to law.
One may subscribe to these clauses for theological or philosophical reasons, and many have done so. But one also may accept them, as Murray proposes that we should, simply as good law, known to be good from experience rather than from theory. “If history makes one thing clear,” he says, “it is that these clauses were the twin children of social necessity, the necessity of creating a social environment, protected by law, in which men of differing religious faiths might live together in peace.” What the First Amendment gave us, Murray argues, was an adaptation “to the peculiar genius of American government and to the concrete conditions of American society” of “one of the central assertions” of “the genuine Western tradition of politics”—namely, “the distinction of church and state.”
As Murray reads the First Amendment,
it does not say that there is no distinction between true and false religion, good and bad morality. But it does say that in American circumstances the conscience of the community, aware of its moral obligations to the peace of the community, and speaking therefore as the voice of God, does not give government any mandate, does not impose on it any duty, and does not even communicate to it the right to repress religious opinions or practices, even though they are erroneous and false.
The religion clauses of the First Amendment are “not articles of faith but articles of peace… in a pluralist society.” They also are not, however, mere concessions to expediency. They are not only morally acceptable but morally obligatory to the Catholic conscience because they arise out of the moral exigencies of the common good in our society. “The origins of our fundamental law,” says Murray, “are in moral principle; the obligations it imposes are moral obligations, binding in conscience.”
Moreover, the American experience under the religion clauses has validated their claim to serve the common good. “First, America has proved by experience that political unity and stability are possible without uniformity of religious belief and practice, without the necessity of any governmental restrictions on any religion.” Murray is aware, however, that there is a limit to what this experience proves. He therefore adds a caveat: the nation depends for its existence and well-being on a moral consensus “with regard to the rational truths and moral precepts that govern the structure of the constitutional state, specify the substance of the common weal, and determine the ends of public policy,” and experience has not shown us how, if at all, this consensus “can survive amid all the ruptures of religious division, whose tendency is inherently disintegrative of all consensus and community.”
“The second American experience,” he continues, “was that stable political unity, which means perduring agreement on the common good of man at the level of performance, can be strengthened by the exclusion of religious differences from the area of concern allotted to government.” That is to say, religious groups find it easier to differ without civil strife when political power is not open to them as an object for which they can strive.
“The third and most striking aspect of the American experience consists in the fact that religion itself, and not least the Catholic Church, has benefitted by our free institutions, by the maintenance, even in exaggerated form, of the distinction between church and state.” In this respect, says Murray, the experience of the Church has been better in America than in Latin countries, where the Church’s situation has alternated between privilege and persecution.
This last benefit of the American experience—namely, the freedom of the Church—is of crucial importance to Murray. Under the American Constitution, he notes, religious freedom is guaranteed “not only to the individual Catholic but to the Church as an organized society with its own law and jurisdiction…. Within [American] society, as distinct from the state, there is room for the independent exercise of an authority which is not that of the state.” According to Murray, this independent spiritual authority has been the essential element of freedom in the political tradition of the Christian West.
Murray defended the American “separation of church and state,” while conceding that it “exaggerates the distinction between church and state by its self-denying ordinances.” But, he said, “it is one thing to exaggerate a traditional distinction along the lines of its inherent tendency; it is quite another to abolish the distinction. In the latter case the result is a vicious monistic society; in the former, a faultily dualistic one.” The monistic society was the “lay state” of European liberalism, in which separation of church and state amounted to a subordination of the church to the state. But the American separation was a dualism whose fault was “some exaggeration of the restrictions placed on government.” In American circumstances, this exaggeration was “necessary in order to insure freedom.”
Therefore, Murray does not found his theory of religious freedom or his interpretation of the American experience of religious liberty on the freedom of the individual conscience. This appears clearly in a paper which he read at an Institute on Religious Freedom held at the Bellarmine School of Theology in North Aurora, Illinois, shortly after the conclusion of Vatican II. He described the evolution of the argument for religious freedom in Vatican II as a movement away from freedom of conscience as its foundation toward what he regarded as a sounder political and juridical basis.
The Second Vatican Council’s Declaration on Religious Freedom, Murray explains, went through three schemata; the third, with three revisions, became the final document. He says that it is fair to characterize the first schema “as a declaration of a theory of freedom of conscience.” In it, “religious freedom is freedom of conscience, and freedom of conscience is to be positively defined as ‘the right of the person to the free exercise of religion according to the dictates of conscience.’ The object or content of this right is not simply negative—an immunity, a ‘freedom from’ coercion; it is also positive—a `freedom for’ action according to conscience.”
According to Murray, it was this second, or positive, aspect of freedom of conscience that “encountered an unresolved dispute within the Church with regard to the `rights of conscience.’ ” Both sides in the dispute agreed that, in the matters of faith, no one should be forced to act against his conscience. They disagreed on the extent to which the sincerity of one’s conscience founds an obligation in other people to give one full scope to act in accordance with one’s conscience.
The second schema, while an improvement on the first,
asserted that the man of sincere conscience, even though he be in error, has the right to religious freedom, meaning the public profession, practice, and observance of his religion, and to its public teaching, according to the dictates of his own conscience. The foundation of his right is his own conscience and its sincerity…. This position was opposed by another, which asserted that the man who is in error, even though he be sincere, has no right to religious freedom, no right to the public manifestation of his error, whether in action or, more particularly, in public teaching. The reason for this counter assertion was that rights must be founded on the objective order of truth, not on the subjective dictates of conscience.
Murray regarded both of these positions as “simplistic” and inadequate. In any case, since there was an unresolved dispute and no clear tradition in the Church on the “rights of conscience,” the liberal line taken by the first and second schemata “could not be made the basis of a conciliar statement.”
The third schema, however, began to move in the right direction, and “took up the issue of religious freedom as a formally juridical concept.” In this concept,
religious freedom is a freedom from coercion; it is an immunity; its content is negative. Historically, the First Amendment to the Constitution of the United States launched this conception. The freedoms of the First Amendment, including “the free exercise of religion,” were understood to be certain specified immunities…. The political or civil freedoms of the First Amendment, unlike later freedoms or rights of the socio-economic order, were not claims on society and government for positive action, but assurances against coercive action by government and society.
Hence the object of religious freedom as a juridical conception is not the actualization of positive values inherent in religious belief, profession, and practice…. The object of the right is simply the assured absence of constraints and restraints on individuals in their efforts to pursue freely the positive values of religion.
But although the notion of religious freedom is negative in the sense that it consists in the absence of constraints and restraints, it does not connote hostility or even indifference to religion. In this notion,
government denies to itself the competence to be a judge of religious belief and action. But this denial is not an assertion of indifference to the values of religion to man and society…. It is simply a recognition of the limited functions of the juridical order of society as the legal armature of human rights. Hence it is a recognition of the inviolability of the human person, individually and in association with others, in what concerns religious belief and action.
Accordingly, Murray explains, the third schema changes the foundation of religious freedom from the rights of conscience to “the dignity of the human person,” on which papal teaching regarding the social, economic, and political order has put increasing emphasis in the twentieth century. He adds, however, that “it can hardly be said that the schema develops the idea satisfactorily; it does no more than suggest the line of development to be followed.”
The rest of Murray’s paper is a sketch of what a properly developed argument for religious freedom based on “the dignity of the human person” would be. He concludes that
an exigence for immunity from coercion is resident in the human person as such. It is an exigence of his dignity as a moral subject. This exigence is the source of the fundamental rights of the person—those politico-civil rights concerning the search for truth, artistic creation, scientific discovery, and the development of man’s political views, moral convictions, and religious beliefs. In all these areas of human life, in which the values of the human spirit are directly at stake, the human person has the right to immunity from coercion….
This exigence is a thing of the objective order; it is rooted in the given reality of man as man…. It is identically the basic imperative requirement that man should act in accordance with his nature.
Murray’s doctrine on religious freedom is thus based, not on the subjective rights of conscience, but on the objective natural goals of civil society. From the latter, a theory of constitutional government can be inferred. He says that the Declaration on Religious Freedom moved—though not far enough—in the same direction. I have some reason, however, to doubt whether he was even as much satisfied with the final draft of the Declaration as he purported to be in this paper.
A Personal Encounter
At the Bellarmine School of Theology’s Institute on Religious Freedom, I, too, presented a paper on the Declaration. My talk followed Murray’s, and in it I raised a question about the Declaration’s argument, which proceeds from the obligation to follow conscience in pursuing religious truth to a rather elaborate series of rights that collectively constitute religious freedom. “Does this argument,” I asked, “really bear the full weight that is put on it?” Later that day, Murray referred to this query and told me, “You were much too kind” to the Declaration’s argument. At his urging, I elaborated on my criticisms when I revised the paper for publication in the Institute’s Religious Liberty: An End and a Beginning, edited by Murray. Referring to that essay in his Preface, Murray notes that I judge the Declaration’s “argument deficient—as indeed it is—through a failure to fully appreciate the political dimension of the issue.”
If I understand his comment to me correctly, Murray believed that even the final version of the Declaration was much too beholden to an argument from conscience rather than from “the innate dignity of a moral subject.” From this I would infer that Murray was less pleased with the Declaration than some of his writings imply, though of course neither he nor I would criticize the conclusions of the Declaration, but only its arguments in support of them.
The American Experiment in Decline?
Murray died in 1967, just 20 years after the U.S. Supreme Court in Everson v. Board of Education began to write our contemporary constitutional law on the meaning of the establishment-of-religion clause. He was thoroughly familiar with that case and its sequels up to the time of his death, and I know that he was not at all happy with the Everson opinion. I have sometimes wondered what his judgment on the American experience would be if it included all that the Supreme Court has done with the First Amendment, and with the establishment clause in particular, in the years since he died.
Murray, in his writings, and Vatican II, in the Declaration on Religious Freedom, located religious liberty not in the non-establishment of religion but in its free exercise. The Declaration adverts only in passing to the establishment of religion when it says, “if, in view of peculiar circumstances obtaining among certain peoples, special legal recognition is given in the constitutional order of society to one religious body, it is at the same time imperative that the right of all citizens and religious bodies to religious freedom should be recognized and made effective in practice.” In the mind of the Council, an established religion is acceptable only if it does not impede the free exercise of religion. In Murray’s mind, contemplating the American situation, the non-establishment of religion was ancillary to its free exercise, a mere means to an end, not an end in itself.
The difficulty that our Supreme Court has had in reconciling the demands of the establishment and the free exercise clauses of the First Amendment with one another lies precisely in the Court’s tendency to see the clauses as serving two equal and independent ends. The bar against an establishment of religion becomes an end in itself, with no clearly elaborated relationship to free exercise. There is, in addition, a well-organized and influential body of opinion in this country that urges the Court to make the non-establishment of religion the supreme end, meaning that government may do nothing that has the effect of favoring religion, whatever inhibiting effect that policy may have on the free exercise thereof. Murray’s reading of the First Amendment cannot, therefore, be said to hold the field.
It may also be that religious freedom as we have known it in America has depended on the particular kind of pluralism that resulted from a multiplicity of religious denominations that nonetheless shared a common biblical tradition. The common tradition made possible a consensus on the good of man at the level of performance, which is the level that counts in the government of a political community. Again, Murray was well aware that our American experience had not shown us how the moral consensus on which the nation depends “can survive amid all the ruptures of religious division, whose tendency is inherently disintegrative of all consensus and community.” The consensus has surely not become stronger in the years since he wrote. Rather, one has the impression that it is falling apart under the unrelenting pressure of claims to individual liberty as the highest good.
We also noted that Murray held that our constitutional guarantee of religious liberty extends not only to the individual but also “to the Church as an organized society with its own law and jurisdiction.” A substantial body of case law supports his statement; our constitutional law does protect the corporate freedom of churches.
But there is another way of looking at our constitutionalism that has its own validity and deserves consideration. A Methodist theologian, Stanley Hauerwas, agrees that, “in America we have institutionalized the limited state.” We protect the rights of institutions as well as of individuals. But in effect, he says, “the rights of the individual have become the secular equivalent to the church as the means to keep government in its proper sphere.” That, too, is a not inaccurate description of the drift of a good deal of contemporary American law, and it leads us to ignore the
fundamental tension between our commitments to the rights of the individual, preservation of intermediate associations, and the ability to retain a limited state. Indeed, the very language of “intermediate associations” already betrays liberal presuppositions which distort the moral reality of such institutions as the family. Whatever else the family is, it is not but another voluntary association. The very means used to insure that the democratic state be a limited state—namely, the rights of the individual—turn out to be no less destructive for intermediate institutions than the monistic state of Marxism. For it is the strategy of liberalism to insure the existence of the “autonomy of cultural and economic life” by insuring the freedom of the individual. Ironically, that strategy results in the undermining of intermediate associations because they are now understood only as those arbitrary institutions sustained by the private desires of individuals.
Murray clearly would agree that a constitutionalism based solely or primarily on the rights of the individual is a weak one and leads eventually to a monistic society. He might also agree today that that is the direction in which our constitutionalism is moving.
All of this suggests that religious freedom is not simply a timeless principle but a moment in history. It does indeed depend on principles derived from the unchanging elements in the nature of man, and so it must depend if we are to make an intelligible case for it. Otherwise, our religious freedom rests upon an unstable voluntarism: we are free because we will to be free. But who can predict how long, in conditions of decaying consensus and increasing pluralism, freedom will be our strongest desire?
The underlying principles of religious liberty are necessary, but they are not enough. They depend for their realization in practice on sets of circumstances that come into being in history and likewise may pass out of being. Certain beliefs and convictions of a moral and religious nature must prevail among a people, certain balances of religious, social, and cultural forces must exist, and certain political and legal traditions must be strong in their society before that people can achieve religious freedom. We have had those sets of circumstances in America; they constitute our experience. It could turn out to have been a happy moment in history.