Religious Liberty

On Dec. 7 we commemorate the 40th anniversary of the promulgation of the “Declaration on Religious Liberty” (known also by the opening words of the Latin text, Dignitatis Humanae). No other decree of the Second Vatican Council was so controversial, underwent so many trials and setbacks (six separate drafts) or loomed so spectrally large as the crucial litmus test case for the success or failure of the council. No other document called forth letter campaigns from leading progressive bishops, involved several interventions of Pope Paul VI at the council or became the focus of such dramatic events as the famous “black Thursday,” Nov. 19, 1964, when—in what seemed a maneuver of the Roman curial conservatives—a vote on the document was peremptorily stalled. During the debates, the declaration called forth 600 written interventions, 120 public speeches, several consultations between sessions of the council and some 2,000 modi or proposed amendments. It was finally approved 2,308 to 70. Forty years on, we can ask three questions about the document: What was at stake at Vatican II in approving the declaration? What are its achievements but also its limits, flaws and lacunae? And how does a retrospective reading of the text and its history provoke new questions about religious liberty today?

What Was at Stake?

Readers interested in a detailed history of how the declaration emerged first as a chapter in the proposed decree on ecumenism, became later a separate appendix of the ecumenism document and, then, as an autonomous document underwent successive drafts—in which, alternately, the right to religious liberty was rooted in tolerance coupled with charity, later in the freedom of conscience, again later in the vocation of the human to seek the truth and finally in the objective nature of human dignity—can pursue these vagaries of the text in standard histories of the council.

The declaration became a theological football in turf wars between the council’s theological commission, chaired by Cardinal Alfredo Ottaviani, and the Secretariat for Christian Unity, chaired by Cardinal Augustin Bea, S.J. Ottaviani thought any treatment of religious liberty belonged in the document on the church, entrusted to the Theological Commission, since religious liberty entails issues of church and state. Ottaviani, of course, had published a standard text, Institutiones Juris Publici Ecclesiastici, which defended a traditional Catholic position that “error had no rights” and that the state had an obligation (where Catholics were in a majority) to recognize Catholicism as the established religion and merely tolerate private religious acts of non-Catholics. Non-Catholic public displays or witnessing to their “errors” could and should be curtailed. Where Catholics were a minority, as a kind of hypothesis, religious pluralism could be tolerated as a lesser evil. Ottaviani presented this argument as an accurate reflection of the forceful rejection of separation of church and state and religious liberty expressed in the encyclical of Pius IX, The Syllabus of Errors and Benedict XIV’s Quanta Cura. Bea argued, on his part, that the declaration legitimately pertained to his Secretariat for Christian Unity, since religious liberty was a major and seemingly insurmountable stumbling block to ecumenical rapprochement.

What was at stake for the progressives was made clear in comments made by Emile de Smedt, bishop of Bruges, who served as the relator of the document to the council: “Many non-Catholics harbor an aversion against the church or at least suspect her of a kind of Machiavellianism, because we seem to them to demand the free exercise of religion when Catholics are in a minority in any nation and, at the same time, refuse and deny them the same religious liberty when Catholics are in a majority.” In an intervention toward the end of the council, Cardinal Joseph Ritter of St. Louis noted that the decrees on ecumenism and the church would “remain worthless and deprived of any sense” unless the council promulgated the declaration.

For the progressives, a new situation for church and state and a growing acknowledgement by secular societies of the right to religious liberty called for an implicit development of doctrine, building on some remarks about religious liberty found in Pope John XXIII’s encyclical Pacem in Terris. But supporters of religious liberty were at odds about how best to ground it and whether it should be rooted fundamentally (as the French bishops and Yves Congar, O.P., argued) in a deeper theological account of the freedom of the act of faith, rather than in the largely “natural law” and juridical defense of religious liberty found in the final text. In the end, however, John Courtney Murray, S.J., could say of the document, which he largely wrote: “The church came late to a war that was already won.” It merely adopted “a principle accepted by the common consciousness of men and civilized nations.” He said: “In all honesty, it must be admitted that the church is late in acknowledging the validity of the principle.”

For the conservative opponents (who maneuvered time and again, even until the last session, to remove it from the council agenda, such that only a direct intervention by Paul VI in the final session forced a vote), the stakes were also high. Archbishop Marcel Lefebre caught well the brunt of their argument: “If what is being taught is true, then what the church has taught is false.” Murray once famously remarked that the opponents really objected more to “the affirmation of progress in doctrine that an affirmation of religious freedom necessarily entails.”

Opponents remained unpersuaded by Murray’s reading of history (admittedly somewhat tortured), according to which Pius IX’s condemnation of religious liberty was really only a rejection of indifferentism in religion, relativism and the triumph of subjectivism. The opponents argued that Pius IX saw religious liberty as necessarily entailing all these. They faulted the overturning of received papal teaching and worried that the declaration, in espousing freedom, scanted the human obligations to God and truth. To be sure, to say “error has no rights” is a logical category mistake, since only persons have rights. But persons also have duties to the truth: to seek it, to acknowledge it, to proclaim it and to protect it. Even some supporters of a declaration on religious liberty, such as Krakow’s Karol Wojtyla, faulted the final document for its jejune treatment of the importance and claims of truth in the exercise of freedoms.

Achievement and Limits of the Declaration

In the end, Dignitatis Humanae remained limited in its purposes. Its subtitle captures this limit: “On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious.” A relatively short document, it consists of a preamble and two chapters. The preamble evinces a growing historical consciousness of human freedom as a sign of the times and a concomitant demand for a limited state. Dignitatis Humanae states that it “intends to develop the doctrine of recent popes on the inviolable rights of the human person and on the constitutional order of society” (No. 1). It also notes: “The truth cannot impose itself except by virtue of its own truth, as it makes its entrance into the mind at once quietly and with power. Religious freedom, in turn, which men demand as necessary to fulfill their duty to worship God, has to do with immunity from coercion in civil society. Therefore, it leaves untouched traditional Catholic doctrine of the moral duty of men and societies toward the true religion and toward the one Church of Christ” (italics mine).

Chapter 1 sets out the core teaching that no one is to be forced to act in a manner contrary to his or her personal beliefs and that no one is to be restrained from acting on those beliefs, whether privately or publicly. The text avoids the subjectivism of an appeal only to conscience by stating: “The right to religious freedom has its foundation, not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it. Nor is the exercise of this right to be impeded, provided that the just requirements of public order are observed” (No. 2).

The social nature of the human person assumes that the right to religious freedom is not just personal, but also involves religious bodies. Such persons and bodies have a right to public witness to the truth, but should avoid proselytism, in the sense of any abusive or coercive form of witnessing. If the declaration is clear on free exercise, it waffles on the subject of an establishment: “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. Finally, government is to see to it that the equality of citizens before the law, which is itself an element of the common welfare, is never violated for religious reasons” (No. 6).

Chapter 2, “Religious Freedom in the Light of Revelation,” evokes the example of Christ as a noncoercive teacher and posits the freedom of the church. In a somewhat airbrushed historical excursus, the document says: “Throughout the ages, the Church has kept safe and handed on the doctrine received from the Master and from the apostles. In the life of the People of God as it has made its pilgrim way through the vicissitudes of human history, there have at times appeared ways of acting which were less in accord with the spirit of the Gospel and even opposed to it. Nevertheless, the doctrine of the Church that no one is to be coerced into faith has always stood firm” (No. 12).

Because of its limited character, the document displays several failings. No one reading it would ever guess there was an Inquisition or that, in fact, the church had argued it could legitimately coerce the faith of heretics by the secular sword, even to the point of execution—a position defended both by Augustine and Thomas Aquinas. Only the unbaptized were immune from such coercion. In a dramatic intervention in favor of the declaration, Prague’s Cardinal Josef Beran reminded the fathers of such atrocities as the burning of John Hus and how, after the Battle of White Mountain, Czech Protestants had been forcefully reconverted. These historical failures, said Beran, “left a certain wound hiding in the hearts of the people” and hindered the credibility of a free proclamation of Catholic faith. Beran called for a statement of profound repentance in the church in more robust terms than the document’s.

John T. Noonan Jr., in his book The Lustre of Our Country (University of California Press, 1998), notes three large inadequacies in the declaration: “the failure to deal with history, the failure to deal with the implications of an establishment, the vague and tangled treatment [because of the declaration’s undefined concept of ‘public order’] of the civil power’s right to limit actions, based on religious convictions.”

I would add three other conspicuous lacunae. While it evokes a development of doctrine, it fails to state and justify any explicit theory of development of doctrine. Second, it completely avoids the telling issue of freedom within the church. In DeSmedt’s presentation of the declaration in 1964, at the third session, the bishop noted that a number of fathers wanted an introductory statement about this broader issue of Catholic freedom in the church. While De Smedt’s commission found some merit in these proposals, it ultimately decided to stay with a much more limited mandate. Prudence, undoubtedly, suggested that explicitly raising this issue of freedom within the church might have stirred up for the document, always under siege, a new hornets’ nest.

Writing after the council, Murray, while acknowledging that Dignitatis Humanae never addressed the issue of religious freedom within the church, predicted that “inevitably, a second great argument will be set afoot now—on the theological meaning of Christian freedom.” In 1966 Murray conceded that “the issue of freedom within the Church is neuralgic today.” It is, perhaps, even more neuralgic and remains a fundamental issue today.

New Questions About Religious Liberty

The tension in the declaration between the duties toward truth on the one hand and, on the other, the objective grounding of freedom in human dignity also remain unresolved. In a magisterial essay, “Commentary on Dignitatis Humanae” (in Kenneth Himes, et al., Modern Catholic Social Teaching, Georgetown Univ. Press, 2005), legal scholar Leslie Griffin points out that in the recent postconciliar period, the emphasis on truth tends to eclipse the role of freedom. Pope John Paul II, Griffin contends, did not share Murray’s commitment to a relatively autonomous, religiously neutral state. “Instead [John Paul II’s] writings identify moral truths (on a range of topics from abortion to capital punishment, homosexuality, marriage, social justice, contraception) that must become civil law. The result is a theory of civil law that is excessively entangled with theological doctrine. This stance that the church’s teachings must become established law—is reminiscent of the pre-conciliar ‘error has no rights’ position; it holds that non-Catholics must be governed by Catholicism’s moral teaching.” In effect this represents a kind of quasi-establishment position for the church’s moral teachings as civil law. The dangers of any establishment (to the church, the state and genuine religious freedom) still need to be addressed.

The situation may not now be ripe to raise these questions. Still, if Griffin is correct, public ecclesial bickerings and controversies over whether to refuse Communion to Catholic politicians who do not vote to establish the church’s moral teachings in civil law, demand some fresh return to these questions about freedom as part of human dignity, its relation to a vocation toward truth and the declaration’s contention about the religious incompetence of the state.

Similarly, disputes about the obligation to the truth of revealed or authentically enunciated magisterial teaching and the freedom of theological inquiry will never be adequately addressed without returning to the issue Murray rather purposefully avoided: the meaning of Christian freedom within the church and the role of public debate and free speech in furthering the truth.

So hurray for what Dignitatis Humanae achieved: social and civil religious freedom grounded in a Catholic theological account. A mere commemoration of what happened 40 years ago, however, is not enough. Deeper, unresolved theological questions remain.