The Enduring Problems of Religious Liberty: From November 30, 1985

Today, as when John Courtney Murray lived, the problems of religious liberty rank among the most serious in the world. Governments persecute more often than they tolerate. Some important religions fan the flames of war; others seek to make government the instrument of their creed. Within the Roman Catholic Church, we still have far to go in making the freedom of the Catholic community as obvious as the authority of the pope.

If Murray were with us today, he would still be wrestling with the problems of religious liberty. It is a subject, he once told me, for which he felt no natural attraction, but which the events and ideas of the day made it impossible for him to ignore.

Murrays greatest contribution to religious liberty was the part he played in conceiving and bringing about Vatican IIs Declaration on Religious Liberty. Other authors in this issue have told this story vividly and in enlightening detail.

Murray, however, also made at least two other important contributions to the specifically American understanding of religious liberty. In We Hold These Truths, published five years before Vatican II promulgated the Declaration on Religious Liberty, Murray made the definitive philosophical and theological case for the natural affinity of the American variety of religious liberty with traditional Catholic doctrine. While making that case, he also explined the historical intention and constitutional dynamic of the religion clauses in the First Amendment. His explanation remains valid and highly relevant today.

Murrays case for the compatibility of Roman Catholicism and American religious freedom needs no rehearsal here. The case has become part of conventional (indeed, conciliar) Catholic wisdom. His explanation, however, of the roots and dynamic of the religion clauses of the First Amendment deserves repetition and reemphasis, especially in light of certain recent Supreme Court decisions.

Murrays legacy also bears on three other still agitated questions of religious liberty: the proper relationship of religion and education, both public and private; the legitimacy of the political objectives of Christian fundamentalist and other religious organizations, and the relationship be­tween freedom and authority within the Roman Catholic Church.

During my preparation of this summary of the high points of Murrays teachings on religious liberty, my inner ear has often heard his familiar injunction: "Do not repeat what I have said. Improve on it. Extend it. Correct it. At­tack the problems that remain unresolved." Accordingly, in addressing those problems, I have followed two prin­ciples: Repeat only what Murray himself would repeat. Elaborate on Murray only when necessary.

In We Hold These Truths, Murray argues persuasively that, as a matter of historical record, the religion clauses of the First Amendment were proposed and adopted as "ar­ticles of peace" in a religiously pluralist society. The clauses embodied no ideology, religious or political. They were no more than an agreement by "We, the People of the United States" that in this country government had no competence to decide matters of religious doctrine. Government, more­over, could not punish or otherwise penalize anyone for the peaceful practice of his or her religion.

In particular detail, Murray shows the misreading of history by those who would inject an ideology (religious or secularist) about religion or government into the first two clauses of the First Amendment. Neither Roger Williams nor the Jacobins provided the political base or the legal content of the No Establishment and Free Exercise clauses. Social necessity, not secularism or Baptist theology, fathered the First Amendment.

In common with most historians, Murray lists four fac­tors that contributed to the social necessity in America for religious liberty and the separation of government and reli­gion. First, America had a great mass of the unchurched. Second, America had a great multiplicity of denomina­tions. Third, the economic factor was important: "Perse­cution and discrimination were as bad for business affairs as they were for the affairs of the soul." Finally, the widen­ing of religious freedom in England exerted pressure for a similar extension in the United States.

These four factors made it clear to the founders of our nation that under American conditions any other course but freedom of religion and separation of church and state would have been "disruptive, imprudent, indeed impossi­ble."

Murray, of course, understood and emphasized the political and moral consensus that lay behind the mandates of the First Amendment. Most late 18th-century American leaders agreed on the innate, God-given dignity, freedom and equality of man. They also agreed on the subjection of everything human to God and eternal law. Without that consensus, the whole American experiment in limited government and in the distinction between society and the state could not have occurred.

Moreover, as Murray notes, Catholic participation in the American consensus has been "full and free, unreserved and unembarrassed" because the contents of this consen­sus (the ethical and political principles drawn from the tradition of natural law) "approve themselves to the Catholic intelligence and conscience."

This consensus made it possible for the founders of our nation to agree on the social necessity of the No Establish­ment and Free Exercise clauses. What Murray insists upon--and correctly--is that social necessity required (and still requires) not just the two clauses, but two nonideological clauses. To write a religious or political ideology into the First Amendment would have been (and still would be) a contradiction in terms.

As always, Murrays thought is subtle. He was arguing against the notion, sporadically found in Supreme Court opinions and more frequently in secularist writings, that the American Constitution has made religion a purely private affair. He was also strenuously objecting to the proposition that the religion clauses are more than eminently rational and beneficial laws, that they have the content, truth and sanctity of dogma.

Murray was also firmly convinced that the framers and ratifiers never meant to write all the practical applications of the religion clauses in stone. Like the other great provi­sions of the Constitution, these clauses lay down certain grand principles. These principles are inherently subject to a historical dynamic requiring constant reinterpretation and new applications in the light of social, political and reli­gious developments.

"Our constitutional law," he wrote, "is a living law. It has, therefore, two characteristics. First, it must remain true to the inner spirit that animates all its provisions. I mean the idea that the American is a free man under a limited government whose actions are themselves subject to a higher law that derives from the Eternal Reason of the Creator of all things and is embodied in the very nature of man as Gods creature and image. Second, remaining true to this inner idea and spirit, our constitutional law must reckon with the changing realities of American life--­whether they be social or economic or religious realities. A constitutional development is truly dynamic when it reveals both of these characteristics."

Murray faulted the Supreme Court for distorting this dynamic in decisions on the relationship of government, religion and education. Indeed, he did not hesitate to call one of those decisions, the McCollum case of 1948, "the very opposite of dynamic development in the true American tradition." In McCollum, the Supreme Court held that the religion clauses forbid public schools to allow denominational teachers to come in during the regular public school day and give classes in religious instruction.

This decision, Murray argued, was wrong because it ex­alted separation over free exercise, and read a philosophy of hostility to religion into the concept of separation of church and state. The decision was also reactionary because it failed to take account of current educational, social and religious realities. Government is no longer John Adamss "plain, simple, intelligible thing, quite comprehensible by common sense." Government has become an "enormously complicated and sprawling thing that now organizes a great part of our lives, handles almost all education and much so­cial weifare."

The true American tradition is for government to accom­modate the free exercise of religion in areas where govern­ment has taken responsibility. Murray stressed that it is precisely in the area of education that the government has taken responsibility and that the spiritual needs of a reli­gious people are sharply felt. "Government cannot ignore these needs, on peril of a certain danger to itself; for the fortunes of free government are intimately linked to the fact of a religiously informed and virtuous citizenry."

Recognizing the difficulty of charting the line between permissible accommodation and impermissible establish­ment, Murray urged that facing this difficulty is exactly the type of "constitutional adventure" demanded by the nature of the American commonwealth. "It is a matter of having the intelligence and courage to make harmonious use of the principles available. The American tradition is a treasury. It is our responsibility to bring forth from it new things and old."

On the related question of government aid to education in parochial schools, Murray again insisted that the denial of such assistance was completely out of touch with current social realities. Both the principle of distributive justice and the changes in the sociological status of the American Cath­olic community required "some manner" of change in the educational funding policies adopted in the second half of the 19th century.

Murray did not venture to specify the nature of the re­quired change. He recognized that many complicated fac­tors had to enter into the political judgment. He simply em­phasized that "19th-century legislation does not solve the problem as it appears in mid-20th century."

Nothing has happened in the last 20 years that would cause Murray to alter any of these judgments. If anything, he would state them more emphatically. The spate of "school aid" decisions by the Supreme Court since 1970 would particularly disturb him, although he might take some wry intellectual enjoyment from the Courts increas­ing discomfort with its own opinions.

What he would not enjoy, most emphatically, is the ap­peal of some justices to "political divisiveness" as a reason for holding that the No Establishment clause forbids all public funding of teachers in parochial schools. Murray would certainly call this argument, especially as made by Justice Lewis F. Powell (whose constitutional statesman­ship Murray would otherwise greatly admire), one of the "bad arguments that intelligent men make."

The legal flaw in the argument is the supposition that the religion clauses were meant to eliminate political arguments about governmental accommodations of the free exercise of religion. The factual flaw is even worse. The program that the Court struck down, 5 to 4, last June had operated for 20 years in New York City without the slightest sign of civic unrest.

At the same time that Murray would vigorously de­fend the right and duty of all religious bodies to enter the public debate on matters affecting the common good, he would just as sternly emphasize two propositions.

First, America is even more religiously pluralist today than when the people adopted the First Amendment in 1791. Therefore the same, or even greater, social necessity still exists for the separation of government and religion and for the constitutional protection of free exercise. Any attempt to dismantle this constitutional arrangement violates human dignity. It also threatens the public peace.

Careful reading of Murrays writings detects an impor­tant shift in emphasis in his thinking. He started by arguing the defensibility of the American system of church-state relations. He ended by arguing its necessity for human dignity.

Murray, therefore, would certainly oppose the legitimacy of any attempt to convert the United States into a Christian state. He would have no difficulty with "In God we trust," but he would balk at "In Father, Son and Holy Ghost we trust."

The distinction is crucial. For Murray, the existence and sovereignty of God are knowable through reason. Indeed, Gods existence and sovereignty stand at the core of the consensus on which the American experiment has rested and must continue to rest if it is to endure.

"Without religion, society cannot progress toward a healthy secularity but must inevitably regress along the line of history that leads from the laicist totalitarianism of Jacobin ideology to the even more bleak and inhuman to­talitarianism of today, within which the values of truth, justice, love and freedom have reached the most advanced stage of corruption history has seen."

Government may represent the supreme religious truth of Gods existence and sovereignty. When it comes, however, to distinctively sectarian beliefs, government must represent the truth of society as it actually is. The truth is that American society is religiously pluralist. "The truth is lamentable; it is nonetheless true."

If, therefore, the true objective of the Moral Majority or any other religious group is to Christianize both the state and society, Murray would reject the governmental objec­tive as illegitimate. And I suspect that even if someone suc­ceeded in Christianizing most of American society, Murray would argue that the remnant was still entitled, on the basis of human dignity, to the separation of government and religion and to legal guarantees of free exercise (including no exercise).

The second proposition that Murray would insist upon in discussing the proper relationship between politics and religion is the proposition of "civility." Under this rubric he would group the characteristics of rationality, accuracy, attentiveness and courtesy.

Although Murray had a taste and flair for jugular polemics, he usually restrained himself (at least in public). He believed passionately in the tradition of civil argument, and constantly reiterated his conviction that political unity cannot survive without rational, polite and attentive dis­course.

After Vatican II was completed and the Declaration on Religious Liberty was securely in place, I asked Murray if he would do anything differently if he had it all to do over again. He hesitated slightly, then said firmly: "I would suffer fools more gladly. Again, a slight hesitation, and then: "I never gained anything from impatience or ridicule."

Civility in public debate, however, is much more than a matter of expediency, as Murray emphasized time and again in his writings. Civility is a matter of respect for human dignity, and it is the cement of society.

If Murray got permission for a short visit with the Catholic Church Militant in the United States today, he would surely repeat his stress on civility. Too many Ameri­can Catholics seem to have forgotten that preserving ortho­doxy does not justify forgetting Christs decisive admoni­tion: "By this will all identify you as my disciples--by the love you have for one another" (Jn. 13:35).

Murrays concern, however, for the whole church would lead him to reemphasize a different and more delicate theme: freedom within the church. This is the topic to which he turned much of his attention after Vatican II.

In "The Declaration on Religious Freedom: Its Deeper SignifIcance" (Am. 4/23/66), Murray begins with one of his characteristically forward-looking statements: "It would be a disastrous error to suppose that our major task at the moment is simply to do commentaries on the con­ciliar texts.... The council did not aim to turn the church in upon itself--to make it the complacent auditor of its own voice. The councils intention was to bring the church into courageous confrontation with the new moment of history."

In the last article he published before his death, "Free­dom, Authority, Community" (Am. 12/3/66), Murray identified freedom in the church as one of the new ques­tions (or more exactly, "the next question") inevitably raised by the doctrine and spirit of Vatican II. New reflec­tion on the relation between authority and freedom in the church was necessary because "presently this relation ex­hibits an imbalance."

The imbalance consists in the appearance that the only function of the faithful is obedience to the authority of the church. Vatican II, of course, returned to the tradition of a far greater role for the faithful, lay and clerical. This role, as Murray saw, could not be achieved without "a new development, doctrinal and practical," in the relations be­tween authority and freedom in the church.

Murray then argued that the concept of the Christian community provides the context for a reexamination of freedom and authority within the church. His argument was profound and complex, too carefully articulated for condensation here. Several of his conclusions, however, deserve quotation.

"The principle of the Declaration on Religious Liber­ty--that there should be in society as much freedom as possible and only as much restriction as necessary--applies analogously in the church. Only in necessary things’ is unity itself necessary."

"The demand for due process of law is an exigence of Christian dignity and freedom. It is to be satisfied as exactly in the church as in civil society (one might indeed say, more exactly)."

"The vertical relationship of command-obedience needs to be completed by the horizontal relationship of dialogue between authority and the free Christian community."

Murray recognized a perennial polarity between freedom and authority in the church, but he believed that the tension could be made healthy and creative. He would tell us to re­mind ourselves constantly that the basic task of all Cath­olics in this world is to share our talents, our energy and our love in accomplishing the temporal mission of the church. Only in this cooperative way, energized by the Spirit, can we "build the beloved community" that is destined to live forever.

At the heart of Murrays views on religious freedom lay his extraordinary grasp of the meaning of the freedom of the act of faith. This freedom was an essential aspect of his doctoral dissertation on the act of faith in the light of the theological arguments of Matthias J. Schbeen. What I know from personal experience is that respect for this free­dom animated his dealings with others.

I never had Murray in class, but he gave very generously of his time while I was studying theology at Woodstock College in Maryland. I had gladly joined the Society of Jesus after high school, and had completed my novitiate and my classical and philosophical studies. Then, instead of sending me to teach in high school, my superiors took mercy on the students and assigned me (as I had volun­teered) to study law at Georgetown University. During my legal studies, my doubts about the "proofs" for Christiani­ty grew and grew. I returned to Woodstock, determined to resolve (one way or the other) my doubts about Catholicism. I had looked forward to ordination for many years, but I knew that I could not accept it without resolv­ing my doubts. For the first two years, while I was still in the dark night of my soul, I spent several hours with Mur­ray one night every week.

Throughout that time he never pressured me in any way. He listened with exact attention to all my questions, answered them as best he could, and consistently treated me as though I were his intellectual equal. He gave me only two directions: Keep praying. Be "more of a Jew, less of a Greek." He meant that I should cling to the Rock even when I could not see the Light.

During those same two years, Murray performed countless acts of great thoughtfulness to relieve my ten­sions. He adopted me as his chauffeur. When I had delivered him to his destination, he told me to take the long way home. He would ask me to review drafts of his articles and lectures to make certain that his references to American law were correct. We played golf together, and once in a while he gave me the great treat of a dinner out--with dry martinis and no theology.

Gods gift of the renewal and reenforcement of my faith, my grace of partial enlightenment and total clinging, came suddenly one day as I was passing Murrays room. I went to the chapel and thanked God. I went back to his room that night and thanked him. Thereafter we worked together on many things. Our roles were well defined: "Youre the lawyer. Im the theologian."

Every time I left Murrays room, his final word was "Courage." When I had finished my studies at Woodstock and was about to leave, I finally had the courage to ask Murray what he meant. "Courage," he replied, "is more important than intelligence."

I did not understand his answer immediately. I was not privy in my Woodstock days to his own agony and sacrifi­cial obedience during the silence temporarily imposed by Rome on his church-state teachings. Later, when I became aware of the whole story, I realized what extraordinary courage it took for Murray to bring about the Declaration on Religious Liberty.

Still later, as I saw him losing the struggle with mortality but refusing to abandon the great enterprise of bringing Christian truth to bear on the problems of the day, I under­stood more deeply why courage is more important than in­telligence. Intelligence, like faith, is supremely important. But without courage, intelligence and faith are impotent.