Should There Be a Law?: Catholic Theology, The Modern State, and John Courtney Murray, S.J

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Should There Be a Law?:Catholic Theology, the Modern State, and John Courtney Murray, S.J.

Paper for PresentationThe Irrepressible Energy of the Spirit: Vatican II and Beyond

April 12-14, 2013

Chestnut Hill CollegePhiladelphia, Pennsylvania

Steven P. Millies

Associate Professor of Political Science

Chair, Department of History, Political Science, and PhilosophyUniversity of South Carolina Aiken

471 University Parkway

Aiken, South Carolina 29801-6389803.641.3383 (direct) 803.641.3461 (fax) [email protected]


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From June 21-July 4 of last year the United States Conference of Catholic Bishops urged

Catholics to observe a Fortnight for Freedom. The proximate event behind this observance could

be found in the Obama Administrations announcement of rules that would govern the

implementation of the Patient Protection and Affordable Care At of 2010 (Obamacare). Of

course, no one cause could have produced such a massive reaction. Since the 2008 election,

when one prominent archbishop described Barack Obama as the most committed abortion rights

candidate in 35 years, and after the uproar over President Obamas 2009 commencement

address at the University of Notre Dame, it should have been clear to any casual observer that a

major conflict was in the offing.

1

By the time that Boston auxiliary bishop Arthur Kennedy

lamented an impending loss of religious freedom in June 2012, and the loss of a Catholic

voice in the public square, the bishops were on a war footing. The Fortnight for Freedom

gathered under its aprons not only the final rule implementing Obamacare, but also the

Administrations refusal to defend the Defense of Marriage Act against a court challenge, st ate

governments that have challenged the sanctuary churches have offered undocumented

immigrants, a failed Connecticut bill that would have altered the Churchs tax status and forced a

corporate reorganization diminishing the authority of a bishop, and a potpourri of other

grievances.2

By the time the Fortnight for Freedom had ended, the muddle at the heart of the bishops

arguments for religious freedom had come into focus at its most fundamental, foundational level.

1 Thomas C. Fox, Memphis bishop calls upon Catholics to avoid one issue votes, National Catholic

Reporter (21 October 2008), accessed at: http://www.ncronline.org/news/politics/memphis-bishop-calls-upon-

catholics-to-avoid-one-issue-votes.2 So eager was the USCCB to identify any potential grievance, they even included the Administrations

efforts to oppose a Lutheran churchs use of the ministerial exception from employment discrimination when they

fired a school teacher for having narcolepsy. See: Hosanna-Tabor v. EEOC (10-553), cited by the USCCB at:

http://www.usccb.org/news/2011/11-184.cfm.


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were resolved by the Second Vatican Council. But the dissonant coexistence of that first premise

and the second premise in so many influential Catholic minds, and the conclusion that results

inexorably from their juxtaposition, tell us that serious questions remain unresolved.6

In order to untangle the questions we must examine carefully the career and writings of

John Courtney Murray, S.J., whose influence was felt so keenly by the fathers of the Second

Vatican Council. In the legacy of his ideas, which we find in the pedigree of the Councils

Declaration on Religious Freedom, lie the dormant, unresolved problem we face today. And, to

name that problem specifically: no less today than at any time in the history of the Roman

Catholic Church, Catholic bishops claim authority over political questions of justice, so far as

those political questions are moral questions susceptible to their teaching officeeven in a

constitutional republic where they also claim and clamor for the protection of religious liberty

possible only in a state that gives no preferences to one church over another.

It is more than a project such as this one can hope for to formulate a new Catholic theory

of church and state. But certainly to expose the contradictions that rive the current paradigm

down to its foundations is something we can manage.

John Courtney Murray, S.J.

No discussion of these questions can begin without a serious reflection on the life and

work of John Courtney Murray, S.J. Murray was born in New York City in 1904 and, attending

a Jesuit high school in Manhattan, entered the Society of Jesus at the relatively youthful age of

sixteen. Ordained in 1933, he went on for advanced study at the Jesuits Pontifical Gregorian

6 Portions of this argument have been anticipated at: Joseph Komonchak, John Courtney Murray and the

Redemption of History,John Courtney Murray and the Growth of Tradition, eds. J. Leon Hooper and Todd David

Whitmore (Kansas City, MO: Sheed & Ward, 1996), 60-81. Recent events only have made the problems appear

more pressing.


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Univeristy in Rome, earning an S.T.D. in 1937 and, from that time until his death in 1967, taught

dogmatic theology at Woodstock College. Not unimportantly, Murray also was an editor of

Theological Studies from 1941-1967, a journal even today which is identified closely with his

legacy and with controversies that characterized his theological career.

Murray was affected deeply by the civilizational crisis of the mid-century. By 1940,

already at Woodstock, Murrays acute sense of the challenges facing Catholic Christianity found

him offering a series of lectures on The Construction of a Christian Culture. In those early

days, Murrays focus rested on the role played by laypeople as the visible and active

representatives of the Church in the secular world. By 1944, Murray began to translate that

theology of a Christian culture into a more systematic treatment of the Churchs relationship to

society. That newly-narrowed focus set Murray down the theological path for which he is

remembered well today, and it found him writings an ironically fateful sentence: In the first

place, it is evident that religious liberty is a problem of the first magnitude.7

That 1944 essay, in chief, was Murrays reflection on Protestant efforts to grapple with

religious liberty. Still, even before he took up the problem systematically from a Catholic point

of view, we see that Murray has penetrated to the theological core of the problem facing any

religious tradition taking on the question of religious liberty.8 Once Murray did take up the

problem from a perspective of Catholic theology, the true elusiveness of solutions grew even

more apparent.

A 1945 article in Theological Studies pursued the question of religious liberty from a

particularly Catholic and specifically Thomist perspective, offering unqualified statements about

7 John Courtney Murray, Freedom of Religion, Theological Studies6 (Mar. 1944), 87.8 Actually, therefore, it is ones concept of the Church of Christ that is the decisive element here. Because

of the very nature of the problem, ones conception of it and ones solution to it must be framed in terms of some

kind of an ecclesiology, or in terms of the rejection of all ecclesiologies, or at very least in terms of sheer atheism.

The influence of ultimate views is inescapable, at:Ibid.,88.


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the obligations toward God shared by the organized social community and the public

authority as fact without taking muchnote at all of the reality of religious pluralism or its

consequences in public spaces or the difficult questions it raises.9 It bears pointing out that

Murray did indulge a principle at least comfortably allied to John Lockes spirit of liberal

toleration, that the State cannot oblige a man internally to assent to the truth, and also with St.

Thomas foresees the tolerance of evil as a matter of political prudence, while nevertheless

holding that such prudent toleration does not award or recognize any rights of moral evil.10

Still,

in this early treatment, Murrays discussion of liberalism and the freedom of religion followed

rather well-established lines drawn by Popes Gregory XVI, Leo XIII, and Pius IX, addressing

what in Murrays time had become almost a straw man argument, that liberalism was understood

in its continental expressions as, first, the absolute autonomy of the individual reason, and,

second, the juridical omnipotence of the state.11

Murray abandoned the approach of that 1945 essay later, and not without reason. In

failing to take a serious account of what the Churchs understanding of religious liberty should or

could mean in the concrete, ubiquitous reality of religious pluralism in the United States, in a

situation outside the rather historically-particular circumstances of continental liberalism, Murray

failed to reach the most serious dimensions of the problem. He began drawing more subtle

distinctions in 1949 when he distinguished the United States as a unique historical realization of

the lay state, one untroubled by the absolutism that plagued and distorted the histories of

9

John Courtney Murray, Freedom of Religion: I. The Ethical Problem, Theological Studies6 (Mar. 1945),266. Murray also accepted uncritically here that a mandate to guard the juridical order and the common good

gives to the civil state the right to restrict the propaganda of atheism or secularism and the practice of immorality,

a right the state enjoys in all circumstances(269).10 Ibid., 261, 270.11 Ibid., 279. One passage sounds rather as though Murray had borrowed it, anachronistically, from a 2012

USCCB press release: I should add here that the Liberal theory also involved a particularly dangerous brand of

political nonsense, in its nave assumption that, provided the State were atheist in itself and neutral towards all

religious groups, the freedom of conscience of its citizens would somehow be insured. Actually, this theory

amounted in the concrete to the imposition, by the State authority, of the religion of secularist.(281 -282).


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continental nations in their developments of civil liberties traditions.12

Later still, in 1953,

Murray described Catholic opposition to religious liberty in the qualified context of the

historical situation, a response of popes (particularly Leo XIII) to specific and idiosyncratic

provocations that can be distinguished from principle.13

Those provocations specifically came

from what Murray described as sects, not to be understood as Protestant religious groups but

rather, the organized adherents of the new political religions such as the Masonic Order.14

In Murrays description, The Pope [Leo XIII] accepts the theory of a vast conspiracy,

international in scope defined by hatred of the Church, and determined to drive God out of

society, to strip society of its Christian form.

15

The developing emphasis in Murrays

treatment of religious liberty on a historicist reading of the condemnations of religious liberty is

the theological development here, one that calls to mind how the Council eventually would

address the interpretation of Sacred Scripture as hinging on the contexts of time and culture,

and how Murrays Jesuit confrere, Avery Dulles, would later assert the continuity of Murrays

work with the tradition.16

Asserting the relevance of history in this way, Murray was treading on

ground already worn well by nineteenth century liberal theologians and John Henry Newman.

The question at hand was the development of doctrine. How does the passage of time

relate to the teaching of the Church? Truth never changes, but some expressions of truth lose

their relevance. Pope Leos condemnations of sects determined to destroy the Church or other

12 John Courtney Murray, Contemporary Orientations of Catholic Thought on Church and State in the Light

of History, Theological Studies10 (Jun. 1949), 188.13

John Courtney Murray, Leo XIII on Church and State: The General Structure of the Controversy,Theological Studies14 (Mar. 1953), 1. Note the correspondence of his emphasis here on the historical situation

with the title and emphasis of that 1949 essay to see the unfolding direction of Murrays ideas. 14 Ibid., 3. Note too how Pope Leos pejorative judgments about Protestants are contextualized, explained

away by Murray. Leos harsher sentiments about Protestantism are conventional references, and Protestantism

really should be understood as a movement whose stirrings were unitive, not divisive (2). 15 Ibid., 4-5. Murray quotes from Pope Leos encyclical, Au Milieu, and his Apostolic Letter, Praeclara

gratulationis.16 Dei Verbum, 12. Also, Avery Cardinal Dulles, S.J., Religious Freedom: Innovation and Development,

First Things118 (Dec. 2001), 35-39.


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pronouncements against destructive uses and expressions of religious liberty were right in those

times and contexts, but they need not be understood as universal condemnations of religious

liberty in principle. Indeed, Murrays work now focused on explaining religious liberty as a

development of doctrineone rooted in the most ancient traditions of the Churchand adapting

the universal principles they expressed to the particular circumstances of our times.

This theological approach had considerable merit and was more than popular in the years

leading to the Second Vatican Council, its identification of ressourcement as an analytical

principle. Yet Murray encountered difficulty not really for his reliance on ancient Christian

principles as much as for the use of historical contextualization as a means to isolate those

principles that mattered permanently from the incidental occurrences of history that could be left

aside. As Avery Dulles later would summarize the principles at work in this interpretive method

to tell us that, The teaching of the nineteenth-century popes was not erroneous, but was limited

by the political and social horizons of the time, it seems clear the challenge lies in

distinguishing the contingent social and political horizons of the time which we can set aside

from the unerring teaching that proceeds in continuity from the beginning of the Christian

revelation. As much in life as it is true that one mans treasure is another mans trash (De

gustibus non est diputandum), it appears that this is a matter on which people disagree.

Murray already had firm indications that these conclusions he was reaching and the

method by which he drew them were attracting unfavorable notice at the highest levels of the

Holy See, and not a few enemies inside the American theological community were hard at work

to be certain that Roman authorities heard about everything Murray was saying or writing in the

worst light possible. The conflicts between Murray, Msgr. Joseph Fenton, Fr. Francis Connell,

C.SS.R., and the prefect of the Holy Office, Alfredo Cardinal Ottaviani are well known. All we


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need really to note here is now Murray delivered a lecture in 1954 at The Catholic University of

America boldly asserting that Pope Pius XII agreed with Murray, that Ottaviani was under

necessity of reversing his views and placing himself into open conflict with the Holy Office.17

By 1955, Murrays Jesuit superiors instructed him to cease all of his writing on church-state

questions, and Murray obeyed.

The election of Pope John XXIII in 1958 changed Murrays circumstances somewhat.

He returned to the church-state question by a different path, one not specifically forbidden to him

and no longer focused on the theological exploration of religious liberty as a task and duty of the

Church to tolerate religious diversity and, rather, emphasizing those aspects of his concern for

religious liberty that were historical or philosophical. This was Murrays well-documented

movement from a theology of religious pluralism to a Catholic public philosophy useful in

modern, pluralist circumstances. The shift may appear to have been subtle, but its effects would

be significant.

Murrays well-known 1960 book, We Hold These Truths, expresses a difference in

Murrays emphasis in its subtitle: Catholic Reflections on the American Proposition. Not a

theological reflection, these essays are advertised to the reader perhaps as history, philosophy, or

even political science. It is not a reflection on a Catholic theology of religious liberty, but

instead on something uniquely, distinctively Americanpresumably a topic in which Cardinal

17 Philip Gleason, Contending with Modernity: Catholic Higher Education in the Twentieth Century (New

York: Oxford University Press, 1995), 281-282. In a December 6, 1953 speech to Italian jurists, Pope Pius XII had

referred to the widely varying circumstances throughout history where the Church has faced the most diversifiedsituationsnations of marvelous culture, with others an almost incredible lack of civilization, and with all possible

intermediate degrees: diversity of extraction, of language, of philosophy, of religious belief, of national aspirations

and characteristics; free peoples and enslaved peoples; peoples that have never belonged to the Church and peoples

that have been separated from her communion. In all cases, said Pope Pius, the Church has the duty of teaching

and education in all the inflexibility of truth and goodness, and with this absolute obligation she must remain and

work among men and nations that in mental outlook are completely different from one another(Pope Pius XII, Ci

Riesce). In other words, between the absolute obligation to inflexibility of truth and goodness andthe ability to

adapt to varied cultural or historical circumstances, there was plenty in Ci Riesceto leave both Ottaviani and Murray

certain the Pope was on his side.


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Ottaviani could say nothing. Little had changed fundamentally from the argument Murray began

to develop in the later 1940s. The bedrock of Murrays arguments in We Hold These Truths

remained a fundamental correspondence between that American proposition and the natural law

tradition that orients the purpose of the state toward moral truth and the common good. As he

argued before he was silenced, the premise of Murrays approach continued to rest on the idea

that, by way of the Anglo-Saxon tradition, the United States has preserved the integrity of the

medieval constitutional tradition without any taint of absolutism to corrupt it. We Hold These

Truths rests firmly on these foundations, and two generations of scholars who have followed

Murray have elaborated this uniquely American contribution to Church teaching found in the

inspiration of John Courtney Murray.18

In at least one respect, though this was a uniquely American contribution, the

contribution was not unique to Murray. In an 1887 book, The Church and the Age, Isaac Hecker

attempted to make sense of the Churchs encounter with modernity and settled on the principle

that, The doctrines of the Catholic Church alone give to popular rights and governments

founded thereupon, an intellectual basis, and furnish their vital principle.19 Heckers argument

was a cheerful one that presumed a necessary correspondence between Catholicism and

republicanism (In no place where Protestantism prevailed among a people as their religion has it

given birth to a republic.), overlooking a lengthy list of absolutist Catholic monarchs and the

chiefly-Protestant republic in which he lived, the nineteenth-century United States. Yet Heckers

optimistic preoccupation with a reconciliation between American liberty and Catholicism did not

die out, but grew to characterize a century of American Catholic political reflection, and would

18 To name only one typical case of a prominent scholar, John T. Noonan discusses the American

contribution to Church teaching in: John T. Noonan, The Lustre of Our Country: The American Experience of

Religious Freedom(Berkeley: University of California Press, 1998).19 Isaac Thomas Hecker, The Church and the Age: An Exposition on the Catholic Church in View of the

Needs and Aspirations of the Present Age(New York: The Catholic Book Exchange, 1896), 86.


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reach beyond even the strictly Catholic world. Born of old New England stock and hardly a

Catholic, Edward S. Corwin argued in a way similar to Murray for the relation of the American

founding to medieval constitutionalism and the natural law.20

It was in every sense John Courtney Murrays work that cemented this idea in the

firmament of Catholic political ideas, an idea quite distinct from the theological defense of the

lay state as such. To develop a theological acceptance of the lay state and its separate

competence, especially in plural circumstances where agreement about objectively moral

reasoning will not easily produce a consensus in liminal cases, is quite different from

establishing the historical and philosophical legacy of Catholicism as the foundation on which

the lay state is built. The former is the means by which the authority and legitimacy of secular

government to operate according to prudence in contingent circumstances is something to which

Catholic theology is committed. The latter is a case where Catholic theology reserves a right to

veto those prudential choices on the grounds of objective morality over which the Church claims

a special competence.

To contextualize the Churchs earlier condemnations of liberalism and secular authority

as historically contingent, and to develop a theological basis on which to do that, was the first

tentative step Murray took toward that articulation of the lay state, and it proved also to be a step

toward his conflict with the Holy Office. That, in turn, was a path toward his silencing and

toward the theology of religious liberty enshrined by the Second Vatican Council in its

Declaration on Religious Libertyan enshrinement of Murrays public philosophy articulated in

a way calculated not to offend theological authorities.

20 Edward S. Corwin, The Higher Law Background of American Constitutional Law 8th ed. (Ithaca:

Cornell University Press, 1929), xi. Corwin found the specifically Catholic iteration of the natural law to be a

nave construction where questions of government were concerned(22).


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The Dignity of the Human Person

John Courtney Murrays silencing on church-state questions formally came over a 1954

article in which he attempted to emphasize Pope Pius XIIs continuity with Pope Leo XIII, who

had favored a distinction between sacred and secular spheres of action along lines established in

the patristic period but favoring also civil privileges for the Church that included establishment.

While Murray stressed the continuity of Pius with Leo, he also pointed to a certain progress

within the tradition brought forth by Pope Pius.21

That sense of progress was made possible

only by a kind of historical contingency, a consciousness of history, that was not accepted

universally.

That sort of historical consciousness could not have been more strongly rejected as a

premise by Msgr. Joseph Fenton or, we may say safely, Cardinal Ottaviani. Here is Fenton in a

1954 rebuttal to Murrays Catholic University lecture:

[the declarations of Catholic doctrine] certainly cannot be substantially improved, if

improvement is to involve any kind of transmutation or denial of the meaning which has

hitherto been contained under these formulae.What has attracted opposition to

[Cardinal Ottavianis] paper may possibly be due to what the Cardinal had to say aboutthe permanent validity of authoritative ecclesiastical doctrine. The Cardinal contended

that no one can prove that there has been any kind of change, in the manner of these

principles, between the Summi pontificatus of Pius XII and the encyclicals of Pius XI,Divini Redemptorisagainst communism,Mit brennender Sorgeagainst Nazism, andNam

abbiamo bisogno against the state monopoly of fascism, and the earlier encyclicals of

Leo XIII,Immortale Dei,Libertas, and Sapientiae christianae, on the other. Those whowould like to believe and to have others believe that this and other subjects has changed

or developed in such a way that something presented as true by popes like Pius XI and

Leo XIII have been completely or partially denied by more recent pontiffs would not like

what the Cardinal has to say on this subject.22

21 John Courtney Murray, Leo XIII and Pius XII: Government and the Order of Religion, Religious Liberty:

Catholic Struggles with Pluralism(Louisville: Westminster/John Knox, 1993), 102.22 Joseph Clifford Fenton, Toleration and the Church-State Controversy, The American Ecclesiastical

Review130:5 (May 1954), 335, 343. It is difficult not to see, from the perspective of 2013, a prefiguration in this

debate of more recent arguments about the appropriate hermeneutic with which to authoritatively interpret the

Second Vatican Council.


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Seen in this way, our interpretive task seems quite clear. If Murrays talk of a certain progress

within the tradition, and the development of doctrine cannot be found in Dignitatis Humanae,

then we have a good indication of whether the theological argument for development prevailed

in the Councils teaching on religious freedom, or whether that less controversial path

prevailedthe one that premised religious freedom on a historical and philosophical legacy

owed to the Church and the Middle Ages. If that be the case, then the premises of our opening

syllogism point toward a conclusion rather difficult to elude.

Murray came to the Council as a peritusbeginning in its second session and, during the

eventual deliberations onDignitatis Humanae, Murray authored the third and fourth drafts of the

document. His influence on the documents development was considerably, not only directly as

aperitusbut indirectly as one whose writings shaped the sensibilities of American bishops and

not a few European bishops on the topic of religious liberty. We can say not unreasonably that

the published quarrels over religious liberty in which Murray had been so prominently a

participant for so long were the reason why the Council took up religious liberty at all. The

subject was in the air, and had been for some time. The opening paragraphs of Dignitatis

Humanae give evidence of Murrays influence where they orient the reader to preoccupations

that motivated the Council to write on religious liberty in the first place:

Contemporary man is becoming increasingly conscious of the dignity of the human

person.The Vatican Council pays careful attention to these spiritual aspirations and,

with a view to declaring to what extent they are in accord with the truth and justice,

searches the tradition and sacred teaching of the Church, from which it draws forth newthings that are always in harmony with the old.

23

For as much as these introductory sentences remind us of Murrays confidence that a certain

progress in the tradition was possible through the development of doctrine, this introduction

really offers the last overt evidence of Murrays more controversial ideas on the document. The

23 Dignitatis Humanae, 1.


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rest of the teaching is much more cautious and aligned with views that Fenton would have found

difficult to criticize.

A sign of this cautiously conservative tone, one at odds with Murrays language of

development, can be found in a note on the second paragraph of Dignitatis Humanae, one where

the Council Fathers cite the same documents Fenton named in his 1954 article to substantiate

that the dignity of the human person [is] known through the revealed word of God and by

reason itself.24

There is nothing particularly in that proposition with which Murrays writings

disagree. Murray drew from the same tradition that Fenton drew from, and utilized many of the

same documents that built on the same Thomist foundation. But this presentation of the Thomist

dual order does succeed to set the rest ofDignitatis Humanaedown a most cautious path. Where

the Council Fathers deal directly with the juridical order, the regulatory norms(7) that govern

the freedom of religion and the relationship of the Church to civil society, the emphasis yet rests

on the authority of the objective moral order over the prudential competence of the lay state.

According to the Declaration on Religious Liberty, civil society has the right to protect

itself against possible abuses committed in the name of religious liberty, but the civil authority

must act in conformity with the objective moral order.25

The civil authority also is responsible

for that just public peace which is to be found where men live together in good order and true

justice. All these matters are basic to the common good and belong to what is called public

order.According to this principle m ans freedom should be given the fullest possible

recognition and should not be curtailed except when and in so far as is necessary.26

24 Dignitatis Humanae, 2. The Council Fathers cite in n.2 to Mit brennender Sorge and to Libertas

Praestantissimum.25 Dignitatis Humanae, 7.26 Dignitatis Humanae, 7.


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But when, and to what degree, will it be necessary to curtail freedom in defense of public

peace, of true justice, of the common good, of public order? The Councils guidance comes in

the next paragraph, where the Fathers observe that many pressures tug modern men and women

from the opposite directions of being prevented from following [their] own free judgment, in

totalitarian regimes, and reject[ing] all submission to authority and mak[ing] light of the duty of

obedience, in situations of continental liberalism. The Council offers a reminder that, a respect

for the moral order is necessary, that those who obey lawful authority are lovers of true

freedom, and that, Religious liberty therefore should have this further purpose and aim of

enabling men to act with greater responsibility in fulfilling their obligations in society.

27

All well, and none per se in tension with Murrays theological writings. Yet, how do

men and women come to know the moral order that shapes their obligations in society? Such

knowledge is available to reason alone, yes. When such knowledge is attained from the dual

sources of reason and revealed truth it enjoys a double-check. But what about claims to special

competence to know revealed truth, alone?

It is not difficult to find such claims, and neither are such claims, themselves, at all

unreasonable. Divine assistance is given to the successors of the Apostles [Catholic bishops],

teaching in communion with the bishop of Rome[who] propose in the exercise of the ordinary

Magisterium a teaching that leads to better understanding of Revelation in matters of faith and

morals.28

The Fathers of the Second Vatican Council themselves taught that, In matters of

faith and morals, the bishops speak in the name of Christ, a doctrine that has been articulated in

this same way at least since the Synod of Pistoia.29

No Catholic anywhere could be surprised to

find that a Catholic bishop is an authoritative teacher of faith and morals, nor that Bishops,

27 Dignitatis Humanae, 8.28 Catechism of the Catholic Church, 892.29 Lumen Gentium, 25. See also: Denzinger, Sources of Catholic Dogma, 1506.


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teaching in communion with the Roman Pontiff, are to be respected by all as witnesses to divine

and Catholic truth.30

But once we describe the obligation of the civil authority to act in

conformity with the objective moral order, and once we tell citizens that a respect for the

moral order must accompany their obedience to lawful authority, the guarantees of religious

liberty begin to seem as something other than the recognition of a competent lay state.

Both an ordinary laypersonCatholic or notor a Catholic bishop can know the

objective moral order by way of reason. The bishop or the layperson can err in their reason, too,

as they attempt to discover that moral order. But no layperson can speak as an authoritative

witness to divine and Catholic truth, and neither can the layperson in matters of faith and

morals speak in the name of Christ in the same way that a Catholic bishop can. When a

laypersons reason leads her or him to a conclusion different from one reached by a bishop in

matters of faith or morals, only one of these speaks with Divine assistance. (It is not the

layperson.) To the degree thatDignitatis Humanaepremises its teaching about religious liberty

on conformity to the moral order interpreted authoritatively by Catholic bishops and not on the

separate competence of a lay state, we have found the origin of that flaw in the foundation of the

teaching on religious liberty suggested by the syllogism at the beginning of this essay.

Dignitatis Humanae and the teaching of the Church since the Council has favored the

path of history and philosophy that follows less controversially the continuity from Gregory XVI

and Leo XIII, not the more novel theological direction that Murray began to chart before he was

silenced. The consequences of the Councils pursuit of that former avenue, and the failure to

develop the theological definition, an ecclesiological understanding, of the Churchs relation to a

competent lay state has had consequences that only now recently have come fully into focus.

30 Lumen Gentium, 25.


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Conclusion

John Courtney Murray observed in a 1966 reflection that, No formal document on the

relations between Church and state issued from Vatican Council II.31

No one could have been

more aware of that fact than Murray, who had been silenced for his attempt to begin to articulate

a treatment of that issue before the Council and who, at the Council, had been involved so

closely in the drafting of a Declaration that pursued the much more narrow and safe definition of

religious liberty.

A treatment of religious liberty really is the easy part, from the perspective of the Church.

Such reflections consider the prerogatives of the Church in secular, public spaces and ask the

Church to concede only that the non-Catholic conscience must not be forced. In this very narrow

sense, as Murray observed in that 1966 article, the question of religious pluralism was settled

definitively by Dignitatis Humanae once and for all. That is a great victory that cannot be

reversed. But the practical consequences of pluralism remain to be addressed.

We encounter those consequences in their most challenging form when we examine

political cases that, in a moral sense, are liminal isues. The moral evil of abortion, in the view of

the secular state, is complicated by its implication of the mother. Of course it is morally wrong

to end a pregnancy. But the theory of rights that undergirds Western-style secular constitutions

faces difficult choices when it seeks to enshrine in law that all pregnancies must be carried to

completion under criminal penalty. Fetal stem cell research is another liminal case that points to

a similar difficulty. Secular constitutional have difficulty recognizing a fetus, who cannot

exercise any rights of citizenship and who is not a moral agent that can incur criminal penalties

31 John Courtney Murray, The Issue of Church and State at Vatican II, Theological Studies26 (Dec. 1966),

580.


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for her or his own acts, as a person possessing right enshrined in law.32

In both of these cases we

face challenging moral problems that offer no temptingly clear solutions that can accommodate

easily both the demands of the objective moral order and the legal architecture of the civil state.

Even more challengingly, that civil architecture, in a way the Church has endorsed under

Dignitatis Humanae, enshrines the civil liberty of the non-believer not to believe in the truth of

the objective moral order at least so far as the non-believer cannot be penalized. The fact of

pluralism, as Murray, observed, is a part of Church teaching. Thus, in these liminal cases under

a political system that permits a plural social order to flourish, the state is caught between the

rigors of the objective moral order and the preferences of a morally-various population who

enjoy rights of popular self-government under a Constitution that privileges no one church. As

the problem is framed today, the only resolution possible under Church teaching is to defer to the

moral judgments of bishops as they teach the Catholic faith. That is the full meaning of the

syllogism. There is no ground in Catholic teaching on which the prudent, competent lay state

may stand to offer an explanation for why the grave evil of abortion must be tolerated in our

political system. The Second Vatican Councils Declaration on Religious Liberty laid no

groundwork toward such a possibility in chief because Murrays silencing prevented the critical

theological preparation needed to shape a theological and ecclesiological understanding that

would permit it.

Indeed, in the present circumstances of the argument over Obamacare, we face a

particularly perverse outcome. The U.S. Catholic Bishops today offer claims to a right of

religious liberty that, in fact, are a means to invoke the authority of the state (through the courts)

to defend the authority of the Church in public spaces. Obamacare also offers one of these

32 Associate Justice Antonin Scalia of the U.S. Supreme Court memorably told a 60 Minutes interviewer in

2008 that a constitutional person is a walking-around person. It is difficult even for an ardently pro-life Catholic

to deal legally with abstract persons who cannot act.


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difficult, liminal cases. Final rules concerning contraceptives and other reproductive services, by

every indication we have seen in the development of the rule, were reached out of a concern to

serve the overall objective of Obamacare: to broaden the availability of healthcare and health

insurance by lowering costs. Each of the items in the final rule from the Department of Health

and Human Services to which the bishops object is something linked through long study and

longitudinal data to the prevention of disease. The greater the number of churches, universities,

hospitals, and other agencies who, as employers, can opt-out of the requirement to provide these

services on religious grounds, the greater the number of diseases, statistically, that will not be

prevented. Thus, healthcare costs will not be reduced so far as expected and the overall goals of

the Patient Protection and Affordable Care Act are jeopardized. This is a classic example of a

case that calls for balancing, a liminal case where competing goods must be weighed against one

another. That is precisely what a prudently competent lay state should do, weigh these things.

But there is no harbor in Church teaching for prudence against the absolute assertion of the

objective moral order, nor of the Churchs claims of religious liberty that support its ability to

project Church teaching, the interpretation of the moral law, into the public spaces of a pluralist

republic.

A theology of a competent, prudent lay state, as Murray has observed, requires an

ecclesiology, an understanding of the Church as a supernatural mystery and a hierarchical

structure, which determines the boundaries and terms of its relationship to the secular world.33

33 The Pastoral Constitution on the Church in the Modern World (Gaudium et Spes) does take up The Role

of the Church in the Modern World. Here the Churchs relationship to the secular world frequently is described in

terms of dialogue, exhort[ation], andhonest discussion. The role of the Church is to proclaim the Gospel, to

assist men and women, especially the needy, and to promote all the true, good, and just elements at work in

secular society(40-42). Secular duties and activities belong properly although not exclusively to laymen.[But

let] the layman not imagine that his pastors are always such experts, that to every problem which arises, however

complicated, they can readily give him a concrete solution(43). The Church requires the special help of those

who live in the world, are versed in different institutions and specialties, and grasp their innermost significance in

the eyes of both believers and unbelievers(44). This is a promising beginning so far as it sets forth the interests


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This would be, to say the least, a novel theological undertaking, an innovation. It would begin

surely from the tradition in its Scriptural origins and would include that Thomist foundation in

the dual order of sacred and secular duties. But such an ecclesiology also would need to cast

many things aside, as Murray had begun to do before his silencing.

Murray returned to these questions after the Council as problems of freedom, authority,

and communityall centering on the ecclesiological question of when and how the Church acts

with authority, a question (as our opening syllogism makes clear) that cannot be separated easily

from social and political questions in the secular world. In a pair of essays near the end of his

life, Murray began anew to lay the groundwork for this theology. First, he described more

candidly and fully than he could have done before the Council how theological development in

light of historical contingency could describe our problems. Beginning with the era of the

Reformation, the problem of freedom arose in the Church.34

But in that time there was a

failure on the part of the Church, her magistery, and her people, chiefly the intellectuals. There

was a failure to recognize the signs of the times, to look beneath the surface of error and

deviation and to discern the genuine human aspiration that was at work.35 When we overlook

the consequences of that error in the teaching of the Church, we can see past it to the genuine

human aspiration for freedom that is consonant with Catholic doctrine. Looking back now, we

can see that the teaching of the Church in the nineteenth and early twentieth centuries was one-

and competencies of the Church in the secular world. But it does not fully disclose an ecclesiological understanding

to guide the Church in the modern world when pluralism brings forth a conflict over the correct, most prudential

course in human affairs. A beginning for that discussion is found here and inDignitatis Humanae, as much as in the

whole theology of the Council. But begun fifty years ago, the present state of the Catholic engagement with

American politics suggests there remains a yawning, enormous distance yet to travel.34 John Courtney Murray, Freedom in the Age of Renewal, American Benedictine Review18 (Sept. 1967),

321.35 Ibid., 321.


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sided, but we need not live forever with the consequences of those historically-conditioned

teachings.36

We can penetrate history, and find an animating principle that is more vital.

It is in the second essay where we see Murray agreeing with our fundamental claim here,

that the Church faces what he called a crisis of community, and not a crisis created by the

Council but one with its roots deep in the past.37

The Council brought the crisis into the

open, and now it is possible to see the need for a theology that describes the respective claims

of freedom that the Church makes on the secular world and the secular world on the Church.38

Murray is keen to begin conceptualizing this problem not from its antipodally opposed

commitments to freedom and authority, but from the perspective of communityan idea at

home with the ecclesiology of Vatican II (koinonia) and a practically-useful beginning that

presumes intramural struggles over whether ecclesial authority is strictly hierarchical (Those

who hold office make the decisions, doctrinal and pastoral.) have been settled by the Council:

the Church now can focus on resolving its relationship to secular authority, with the internal

discussion of ecclesial authority now settled by the Council.39

We now, since the Council, are

able to view the issue of freedom and authority in the new perspectives created by the signs of

the timesthat is, to view the issue within the context of community, which is the milieu

wherein the dignity of the person is realized.40

There is, perhaps, another discussion to be had about whether Murrays vision of the

relationship between freedom and authority inside the structure of the Church has unfolded since

the Council along these lines. He could not have foreseen the centralization of authority inside

the Church that has taken place in the more than-four decades since his death. Yet, what seems

36 Ibid., 322.37 John Courtney Murray, Freedom, Authority, Community, AmericaMagazine 115 (3 Dec. 1966), 734.38 Ibid., 734.39 Ibid., 735.40 Ibid., 736.


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inescapable is that no serious theological conversation about a competent, prudent lay state can

take place before the crisis of community is resolved inside the ecclesial community of the

Church. Only once the role of the whole Christian community in the authority of the Church is

clarified in the light of the Council can the role of those who live in the world, are versed in

different institutions and specialties, about whom we read in Gaudium et Spes, become clearer

in a lay state that entrusts to lay Catholic women and men the judgments about what political

actions are most prudent, even when they entail to toleration of some evil. As the Fortnight for

Freedom makes obvious, that day is not here.

This essay takes its title perhaps a bit cryptically from a chapter in We Hold These Truths.

Should There Be a Law? is a question Murray asks about censorship. Is our moral

disapprobation for pornography sufficient justification that it should be illegal in the secular

order of civil law? Should government censor such things because they offend the objective

moral order? In fact, the relation of that question to this essays larger aims should be quite

apparent. Murray argues for minimal moral aspirations in law, that Law seeks to establish

and maintain only that minimum of actualized morality that is necessary for the healthy

functioning of the social order.41

Here, Murray takes far more seriously the rigors and demands

of pluralism than he did in his first sally toward the problem in 1945 that saw him grant the civil

state the right to restrict the propaganda of atheism or secularism and the practice of

immorality. By 1967, his approach had come round full circle, through the Council and

Gaudium et Spes, to where it began in his lectures on The Construction of a Christian Culture

with an emphasis on the vital role of the laity. Now five decades since the Council and a year

since the Fortnight for Freedom, the Church awaits the fruition of these ideas.

41 John Courtney Murray, We Hold These Truths: Catholic Reflections on the American Proposition (Kansas

City: Sheed & Ward, 1960), 166.

Documents

Should There Be a Law?: Catholic Theology, The Modern State, and John Courtney Murray, S.J