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Published online by Cambridge University Press: 05 August 2009
The question implies that the First Amendment's “separation of church and state,” as interpreted by the Supreme Court, is an insufficient solution to the old conflict between American democracy and Catholicism. Catholicism has become unsafe in contemporary American democracy in ways that the original constitutional arrangement, of which the First Amendment was only a part, does not help. The contemporary danger is rooted partly in the old conflict between classical liberalism and revealed religion as such. But the more proximate danger is the secular “civil liberties” regime that has been instituted by the Supreme Court since 1940. That regime permits Catholics to follow their religion in public affairs only insofar as it is in agreement with the secularism which the “civil liberties” regime both instituted and understands liberal democracy to require.
1 We Hold These Truths: Catholic Reflections on the American Proposition (New York: Sheed and Ward, 1960), pp. ix–x.Google Scholar
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3 Henry Abbott, North Carolina Ratifying Convention.
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6 See the debate between Senators Morton, Kernan, Bogy and Edmunds, 14 August 1876 in 4 Cong. Rec., 5585–89,5590–91. See especially Sen. Bogy's remarks on 5589.
7 Blanshard, Paul, American Freedom and Catholic Power, 2nd ed. (Boston: Beacon Press, 1960), 14Google Scholar. What this view of democracy calls the democratic side was also the Communist side. For a discussion see Gleason, Philip, “Pluralism, Democracy, and Catholicism in the Era of World War II,” Review of Politics (1987): 209.Google Scholar
8 Discussed in Gleason, , “Pluralism, Democracy, and Catholicism,” p. 214.Google Scholar Blanshard asserts, “It [the American Catholic hierarchy] is an autocratic moral monarchy in a liberal democracy” (American Freedom and Catholic Power, p. 14). Andrew Greeley notes, “Suspicion and hostility toward the Catholic hierarchy have
always been a part of American life” (An Ugly Little Secret: Anti-Catholicism in North America [Kansas City, MO: Sheed, Andrews and McMeel, 1977], 23).Google Scholar
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10 Blanshard, , American Freedom and Catholic Power, pp. x–xi, 2.Google Scholar
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12 This has been the public position of the American Civil Liberties Union since about 1977.
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14 The experience formative of this view is primarily with European democracies. Catholicism's American experience seemed to have been little noticed. Gleason, Philip, Contending with Modernity: Catholic Higher Education in the Twentieth Century (New York: Oxford University Press, 1995), pp. 278–79.Google Scholar
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18 New York Times, 15 July 1991, p. A15.
19 Quoted in The Chicago Tribune, 17 July 1991, Sec. 1, p. 17.
20 Goodman in The Chicago Tribune, 14 July 1991, Sec. 5, p. 6.
21 Lawler, Philip says that Thomas, “was raised a Catholic but eventually drifted away from the Church,” Catholic World Report (07 1996)Google Scholar. Thomas apparently returned to the Catholic Church only in 1996. At the time of his nomination he was an “evangelical Episcopalian” (Savage, David G., Turning Right: The Making of the Rehnquist Court [New York: John Wiley & Sons, 1992], p. 426).Google Scholar
22 Quoted in Ellis, John Tracy, American Catholicism, 2nd. ed. (Chicago: University of Chicago Press, 1969), 151Google Scholar. See also Duke, Burton and Richter, Edward J., Religion and the Presidency: A Recurring American Problem (New York: MacMillan, 1962), pp. vi–vii.Google Scholar
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24 We set aside, as not immediately relevant here, two other major elements of this new order, namely the decreased constitutional protection afforded to property and the transfer of power from legislatures to courts.
25 See Cooke, Jacob, ed., The Federalist Papers (Cleveland: World, 1965), No. 9, 51.Google Scholar
26 5 U.S. 137 at 163. Marshall here quotes Blackstone concerning the “settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.” In light of the important distinction we draw between “civil liberty” and “civil liberties,” we note that Marshall does not imply that individual protection by the laws trumps other goods which the law may also properly protect. “Civil liberty” appears in 39 cases from Marbury (1803) to Gobitis (1940).
27 Congressional Globe, 1st Session, 39th Congress, Part 1, 29 01 1866, 474. See Blackstone, William, Commentaries on the Laws of England, 1: 121Google Scholar. Trumbull follows Blackstone (and Locke's Second Treatise of Civil Government, chap. 4, para 22) in contrasting “civil liberty” to “natural liberty” which “consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature.“ Commentaries, p. 121.
28 83 U.S. 36 (1872). Citing “1 Sharswood's Blackstone, 127, note 8” at 111 fn. 40.
29 Cooke, , ed., The Federalist Papers, 51, pp. 351–52.Google Scholar
30 Ibid., p. 353.
31 “Religious pluralism” is the phrase Murray uses in We Hold These Truths (p. 15 ff). It does not mean that public schools were not predominately Protestant or that government was neutral between Protestants and Catholics. It means only that their situations were determined politically rather than constitutionally.
32 Defense counsel in McCollum v. Board of Education 333 U.S. 203 at 211 (1948).
33 Murray, , We Hold These Truths, p. x.Google Scholar
34 Dissenting in Everson 330 U.S. 1 at 39 (1947), Justice Rutledge correctly finds this view in Madison's “Memorial and Remonstrance” (1785). But his argument that this view is required by the First Amendment is not persuasive. See Glenn, Gary D., “Forgotten Purposes of the First Amendment Religion Clauses,” Review of Politics 49 (1987): 340–67.CrossRefGoogle Scholar
35 330 U.S. 1 at 15–16. We abstract here from the Court's having earlier (Gitlow v. U.S., 1925) assumed the First Amendment applied to the States.
36 333 U.S. 203 at 211–212. Murray saw immediately both that McCollum's theory mandated public secularism, that this was wholly new, and that it went together with the Court's view of civil liberties and civil rights. “Law or Prepossessions”? in Law and Contemporary Problems 14 (Winter 1949): 1, 37,39Google Scholar. The American Catholic Bishops described McCollum's understanding of church-state separation as a “novel interpretation of the First Amendment” and as “the shibboleth of doctrinaire secularism.” “The Christian I Action,” 21 November 1948 quoted in New York Times, 8 September 1960, pp. 1, 25.
37 374 U.S. 203 and 370 U.S. 421. LEXIS finds “secular” or its cognates used 4 times in Engel and 55 times in Abington.
38 Minersville School District v. Gobitis 310 U.S. at 602 and 603.
39 Letter from Frankfurter to Chief Justice Stone, 27 April 1938, quoted in Murphy, Walter F., Fleming, James E., and Harris, William, American Constitutional Interpretation (Mineola, NY: The Foundation Press, 1986), 491Google Scholar. As late as Niemotko v. Maryland (1951) Frankfurter (concurring) resisted the thought that “civil liberties” was a term of legal art. “Particularly within the area of due process colloquially called ‘civil liberties’…” 340 U.S. 268 at 288.
40 Holy Trinity Church v. U.S. 143 U.S. at 467 (1892).
41 Kepner v. U. S. 195 U.S. at 111 (1904).
42 We consider below (pp. 19–20ff.) in the next section why the political interests of the “civil liberties” regime prefer public secularism.
43 Notes on Virginia (1787), ed. Wishy, Bernard and Leuchtenburg, William E. (New York: Harper and Row, 1964), Query XVIII, 156Google Scholar. Perhaps this statement can be read as saying only that democracy requires popular belief that rights are God-given. But then how might divine retribution be possible?
44 Basler, Roy P., ed., Abraham Lincoln: His Speeches and Writings (New York: Da Capo Press, 1946) 734.Google Scholar
45 Speech at Rochester, , New York, 5 July 1852,“The Meaning of July Fourth For the Negro,” in The Life and Writings of Frederick Douglass, 2: 189,201.Google Scholar
46 Murray, John Courtney, S.J., “Address to the National Federation of Catholic College Students,” 23 04 1948, Murray Papers 7/538, Georgetown University Library, Special Collections Division, Washington, D. C.Google Scholar
47 Murray, , “Law or Possessions?” p. 29.Google Scholar
48 Democracy in America, p. 436.
49 Ibid., p. 292.
50 Recall Frankfurter's reference to “the laity,” above note 39 and text. Moreover, secularists called secularism a religion long before religious conservatives began to do so. Kallen, Horace M., Cultural Pluralism and the American Idea (Philadelphia: University of Pennsylvania Press, 1956), pp. 206–207CrossRefGoogle Scholar says pluralism applies only to those who share the same “apprehension of human nature and human relations … this is how the American Idea is, literally, religion.”
51 Jackson, Justice Rober in Brown v. Allen 344 U.S. 443 (1953) at 540.Google Scholar
52 “One is wrong in regarding the Catholic religion as a natural enemy of democracy. Rather, among the various Christian doctrines Catholicism seems one of those most favorable to equality of conditions. … Protestantism in general orients men much less toward equality than toward independence” (Democracy in America, p. 288).
53 Zorach v. Clauson 343 U.S. 306 (1952).
54 Rawls, , Political Liberalism (New York: Columbia University Press, 1993), pp. 243, 253.Google Scholar
55 Ibid., pp. 243…44, fn. 32.
56 Murphy, Andrew R., “Rawls and a Shrinking Liberty of Conscience,” Review of Politics, 60 (1998):269.CrossRefGoogle Scholar He plausibly understands Rawls to hold that such views should be “eradicated” from the public sphere (p. 268).
57 Ibid., p. 273.
58 Goerner's, E. A. review of Political Liberalism, Review of Politics 55 (1993):715.Google Scholar The Rawls quote is from Political Liberalism, p. 254. Murphy argues that, “despite his [Rawls's] claims, this [privileging political values appealing solely to public reason] would likely rule out the theologically-laced rhetoric of Lincoln's Second Inaugural” and even “much of King's eloquent Letter from [a] Birmingham Jail” (“Rawls and Shrinking Liberty,” p. 268, emphasis in original).
59 Since only nonliberal comprehensive doctrines are excluded, Murphy goes too far in accusing Rawls of “in effect eradicating comprehensive doctrines from the public sphere” (“Rawls and Shrinking Liberty,” p. 268).
60 Audi, , “The Separation of Church and State and the Obligations of Citizenship,” Philosophy and Public Affairs 18 (1989): 279, 278Google Scholar. Greenawalt, Kent also presents this view in Religious Convictions and Political Choice (NewYork: Oxford University Press, 1988), pp. 216–17Google Scholar. “The government of a liberal society knows no religious truth and a crucial premise about a liberal society is that citizens … can build principles of political order and social justice that do not depend on particular religious beliefs.” Michael J. Perry doubts that Greenawalt consistently maintains this view. See Perry, , Love and Power: The Role of Religion and Morality in American Politics (New York: Oxford University Press, 1991), 22.Google Scholar
61 Weithman, , “The Separation of Church and State: Some Questions for Professor Audi,” Philosophy and Public Affairs 20 (1991): 58.Google Scholar
62 Perry, , Morality, Politics and the Law:A Bicentennial Essay (New York: Oxford University Press, 1988), pp. 72–73.Google Scholar Emphasis in original.
63 Galston, , Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (Cambridge: Cambridge University Press, 1991)CrossRefGoogle Scholar esp. chap. 12. Harry Clor agrees, though on explicitly nontheological grounds. See his Public Morality and Liberal Society: Essays on Decency, Law, and Pornography (Notre Dame and London: University of Notre Dame Press, 1996)Google Scholar, chap. 4.
64 Justice Potter Stewart noted (in dissent) that secularism replaces the biblical morality as the basis of public life when he that banning Bible reading establishes “the religion of secularism” (Abington v. Schempp 374 U.S. 203, 313 [1963]). This secularism is now so taken for granted by the Court that Neuhaus, Richard John could plausibly say that Romer v. Evans 116 S.Ct. 1620 (1996)Google Scholar, placed “religiously based virtue or moral judgment … beyond the pale of public discourse.” See “Religion and the Shifting Center in American Politics,” The Long Term View, 3, No.3, (Boston: The Massachusetts School of Law, 1996), 77Google Scholar. We think it more precise to say that Romer so excludes from the public sphere only nonliberal religiously based moral judgments.
65 Clor, , Public Morality and Liberal Society, chap. 2, esp. pp. 61–62.Google Scholar His argument in defense of traditional morality is wholly secular.
66 Democracy in America, p. 291.
67 Evangelium Vitae, chap. 1, #19.
68 “ACommon Enemy, ACommon Cause.” Speech to an interfaith audience at Wilmington, Delaware, 3 May 1948. Printed in First Things, October 1992, p. 34 (emphasis added).
69 1947 Congressional hearings on Federal Aid to parochial schools, quoted in Dulce, Berton and Richter, Edward J., Religion and the Presidency (New York: Macmillan, 1962), 123.Google Scholar
70 Speech to the Society of Newspaper Editors, Washington, D.C., April 21, 1960 quoted %Ibid., p. 143.
71 New York Times, 8 September 1960, pp. 1, 25.
72 Quoted in Dulce, and Richter, , Religion and the Presidency, pp. 142,130.Google Scholar
73 Speech at Notre Dame University, 13 September 1984, “The Confessions of a Public Man.” Printed in full in Notre Dame Magazine, Autumn, 1984, pp. 21–30, esp. p. 25. Excerpts appeared in The Washington Post, Friday, 14 September 1984, p. A6.
74 As we argued in section two above (p. 13).
75 Matthew 12:25, Mark 3:24–25, Luke 11:18, Revelation 16:19.
76 Cuomo, in Notre Dame Magazine, p. 24.Google Scholar
77 And even, incipiently, socially discriminated against. See Arkes's, Hadley discussion of the potential employment consequences and legal vulnerabilities of Romer for those opposed to homosexual actions. “A Culture Corrupted” in The End of Democracy: The Judicial Usurpation of Politics? (Dallas: Spence, 1997), pp. 36–37.Google Scholar
78 “Pastoral Constitution on the Church in the Modern World,” Gaudium et Spes (1965), Section 75, in Flannery, , Vatican Council II, pp. 982–85.Google Scholar
79 Centesimus Annus (1991), #49.
80 %Ibid., in #48, 20, 15, and 49. “Subsidiarity” was first adopted by Pius XI in Quadragessimo Anno (1931), #79.
81 Centesimus Annus, #48.
82 Evangelium Vitae, Introduction, # 3. This emphasis on a broad-based corruption of popular and elite opinion on these life matters is a recurring theme. See chap. 1, #14 and #17.
83 %Ibid., Ch. 1, #18.
84 %Ibid., chap. 1, #12.
85 %Ibid., chap. 3, #70.
86 Weigel, George suggests that the pope thinks culture is more important than politics “as an engine of historical change.” “John Paul II and the Priority of Culture,” First Things, 02 1998, p.19.Google Scholar
87 Evangelium Vitae, chap. 3, #71. Quoted from Pacem in Terris (1963) chap. 2, #61.
88 “Precisely in an age when inviolable rights of the person are solemnly proclaimed and the value of life publicly affirmed [i.e., by the Western democracies], the very right to life is being denied or trampled upon [by these Western democracies]” (Evangelium Vitae, chap. 1, #18).
89 In Evangelium Vitae, Introduction, #4, the pope distinguishes “[t]he basic principles of their Constitutions [i.e., of many countries] which protect the right to life,” from modern legislation which makes legal some practices that are against life.
90 %Ibid., chap. 1, #19.
91 Walter Berns correctly argues that the liberal American Constitution follows Locke on religious toleration and Adam Smith on the desirability of commerce and multiplicity of sects. And religious toleration “probably does depend on a way of life from which weakened belief follows as a consequence.” That way of life, he says, is commerce. Taking the Constitution Seriously Lanham, MD: Madison Books, (1987), pp. 180,173 ff.Google Scholar
92 John Paul II takes note of “those who consider such relativism an essential condition of democracy, inasmuch as it alone is held to guarantee tolerance, mutual respect between people, and acceptance of decisions of the majority, whereas moral norms considered to be objective and binding are held to lead to authoritarianism and intolerance” Evangelium Vitae, chap. 3, #70.
93 Democracy in America, pp. 255–56.