The Catholic Lawyer

Volume 13 Number 3 Volume 13, Summer 1967, Number 3 Article 3

Vatican II on Religious Freedom

Msgr. John P. Kleinz

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MSGR. JOHN P. KLEINZ *

N 1948 the United Nations adopted a Universal Declaration of the Rights of Man. The World Council of Churches issued its Declaration on Religious Freedom at Amsterdam in 1948 and again definitively at New Delhi in 1961. Both proclaimed the individual person's human and civil right to form his own conscience according to his religious convictions and to determine his relationship to other churches. In 1965, at the end of the , another inter- national organization, the Roman Catholic , promulgated its own Declaration on Religious Freedom. Its title, from the first three words, is Personae. Its subtitle already restricts its scope: "On the right of the person and of communities to social and civil freedom in matters religious." Its central thesis is: "It is an injustice done to the human persons, and to the order laid down for men by God, if a man is denied the free exercise of in society; saving a just public order." All three declarations propose essentially the same juridical prin- ciple. American lawyers might want to translate the European term "juridical" as "constitutional guarantee." This principle is that every man has an inalienable personal right to determine his own religious attitudes within the limits of public order without any coercion on the part of civil authorities. There is a sense in which Americans might be tempted to remark that one of the they learned about the American way of life is that since 1791 this principle has been written into the First Amendment of the Bill of Rights of their . Indeed, the three international declarations merely repeat what is the common consensus of much of the modern world. Before the United Nations' and the World Council's statements of 1948, religious liberty had been guaranteed by more than fifty nations and since that time,

* M.A. (1942), Ph.D. (1944), Catholic University; Chairman, Department of , Pontifical College Josephinum, Worthington, Ohio. VATICAN II

fifty more of the nations emerging during this right to religious freedom was in- the past two decades have done the same. creasingly recognized.

The of Vatican II, whose final The Declaration which followed those vote for the Declaration was 2308 to 70, first lines on the dignity of man uses only were aware of this consensus. In noting a few thousand of the 103,000 words of the sixteen documents the "signs of the times" (a phrase they of Vatican II. Compared to the greater themes of the used in almost every document they longer and more fundamental Constitu- passed), they began their first paragraph: tions, it may even be called a minor issue A sense of the dignity of the human at the Council. But on December 7, person has been impressirng itself more 1965, at the end of the Council, and more deeply on the consciousness of Paul VI could tell the statesmen contemporary man. And the demand is of the increasingly made that men should act on world that it was "one of the major their own judgment, enjoying and making texts." As a symbol of the development use of a responsible freedom, not driven of , as a frank answer to Amer- by coercion but motivated by a sense of ican Protestants who had asked for a duty. The demand is also made that clear statement from the highest constitutional limits should be set to the authority powers of government, in order that there in the , for the American may be no encroachment on the rightful bishops and their theological experts who freedom of the persons and of associa- had worked unceasingly to have it passed, tions. for American Catholics in a pluralistic This demand for freedom in human society chiefly regards the quest for the , and surely for readers of values proper to the human spirit. It a journal called THE CATHOLIC LAWYER, regards, in the first place, the free exer- the Declaration on Religious Freedom cise of religion in society. [#1]' must rank as one of the most significant No previous Council of the Church achievements of the most momentous Catholic event of the twentieth century. had spoken of religious freedom. Vatican II turned to the subject for two reasons My purpose here is the modest one of especially. One was the violations of that introducing it to American Catholic law- freedom under Communist regimes. The yers by tracing some of the historical, other was the fact that in modern times political, philosophical, and theological implications of the Church's stand on religious liberty today. I shall treat, first, 1 The text of the Declaration on Religious Free- the development of the doctrine for the dom used in this article is in THE DOCUMENTS OF VATICAN II, 675 (Walter Abbott ed. 1966), past century and a half, then attempt to introduced and annotated by John Courtney define precisely what the Council meant Murray, and with a Protestant response by Franklin H. Littell. Fr. Murray has also by religious liberty, and at the end briefly annotated the text of the Declaration for an discuss its paramount importance for the edition published by The John LaFarge Institute rapidly developing spirit of ecumenism in (1966). (Note that the numbers in brackets refer to the suggested reading list.) the United States. 13 CATHOLIC LAWYER, SUMMER 1967

The Development of the Doctrine than the theory of doctrinal development Pope John XXIII drove the word implicit in it. "aggiornamento" into the consciousness In an important paragraph in the final of the whole world as a key to the pur- version, the bishops claim that the Church is faithful to the teachings of poses he hoped to achieve in calling the Christ and the apostles "when she recog- Council. One of the Council's finest ex- nizes and gives support to the principle ercises in aggiornamento was the Declara- of religious freedom as befitting the dig- tion on Religious Freedom which Pope nity of man and as being in accord with Paul VI promulgated on December 7, divine revelation," but they go on im- 1965. It reflects a climate of opinion that mediately to apologize for the periods in is new in conciliar debate. It could only her history when that principle was have been written at this stage of the violated: evolution of the Church's growing aware- In the life of the people of God as it ness of its own nature and the develop- has made its pilgrim way through the ment of its doctrine. vicissitudes of human history, there has at times appeared a way of acting that The bishops at looked at the was hardly in accord with the spirit of structures and practices of the Church in the Gospel or even opposed to it. [#2] a spirit of reform and even remorse; they were far more open to the concept of the Admittedly, then, the of re- development of doctrine than one would ligious freedom through the centuries has suspect from the theological textbooks been conditioned by history. There is they had studied. The Declaration on space here for only a glance at thd his- Religious Freedom is a prime example. tory of the doctrine since 1800, but with- It has broken the mold of a static and out that history one cannot understand rigid conception of religious freedom that the breakthrough into the modern world 2 had prevailed for the past 150 years in which the Declaration achieved. the Church. That conception had aroused the suspicions of the non-Cath- 2 survey of the recent theological olic world and had led to accusations of For a basic development, see , THE "Machiavellianism" against the Church. PROBLEM OF RELIGIOuS. FREEDOM (1965) and Happily, we are at the end of an era Murray, The Problem of Religious Freedom, 25 now. The Council, as it did in other THEOLOGICAL STUDIES '503 (1964). For the historical background, a basic work is- M. important areas of the Church's life and SEARLE BATES, RELIGIOUS LIBERTY: AN IN- doctrine, realized that it was no longer QUIRY (1945). ''See also 1 J. LECLER, S.J., possible to freeze a developing doctrine AND THE (1960); J. of religious liberty at a certain point in LECLER, S.J., THE Two SOVEREIGNTIES: A STUDY OF THE RELATIONSHIP BETWEEN CHURCH its history. It has been said that the AND STATE (1951). Under the sponsorship of bitter controversies which the Declaration the World Council of Churches, A. F. Carrillo written a fair-minded ac- evoked through three sessions of the de Albnornoz has count, in ROMAN CATHOLICISM AND RELIG10JS Council arose less because of its contents LIBERTY (1959). VATICAN II

The beginnings of the modern world the Syllabus of Errors of 1864, was the in which the Church wished to make answer from Rome. herself relevant were in the political, eco- Historically, it seems impossible that nomic, scientific, religious, and ideological the Church could have made any other revolutions at the start of the nineteenth decision. The new ideas were urged with- century. The profound changes which in a framework of of nat- these revolutions introduced into the uralism and secularism from which it was Western world were a threat to the type difficult to extricate them, given the static of Catholic culture in which the Church theology of the age. And the Church- had lived for over a thousand years. The State doctrine of the time, when the response of the Church was negative. It Church was allied to some of the most tried to preserve, as far as possible, the powerful nations of Europe, made any traditional forms in which it had lived so new theories of religious freedom and long. A theological consensus, defended separation of Church and State seem like by a Papacy that was increasingly cen- dangerous innovations. tralized at Rome, crystallized in a deci- One of the scholars who protested the sion by the Church to divorce herself standpat policy of the Church in France from a developing modernity which was a , Hugues-Felicite' Robert de seemed incompatible with the state of Lammenais. He called for a "" 3 Catholic doctrine at that time. in France that would separate Church A minority of Catholic intellectuals and State, proclaim full religious liberty protested this static stance of Catholic for all, and defend a democratic reform philosophy and theology and warned that, of society against the Monarchists. There if the revolutions continued to develop, were few who followed him, and the the Church would find herself more and tragedy of Lammenais, a man before his more isolated and irrelevant. The West- time, was completed in the condemnation ern world of science, philosophy, and of his in two encylicals of Pope culture would evolve without the influ- Gregory XVI, in 1832, and ence of the Church. The minority voices Singulari Nos in 1834. pleaded that Catholic thought should in- In Mirari Vos, his inaugural , corporate what was positive and good in Pope Gregory was harsh in his condem- the exploding modern scene. A whole nation of any change in the Church's series of condemnations and anathemas position on religious liberty: during the nineteenth century, notably We come now to a source which is, alas!, all too productive of the deplorable evils affecting the Church today. We have in 3 In his recent article, Have We Loved the Past mind indiflerentism, that is, the Too Long, Leslie Dewart (115 AMERICA 798 fatal opinion everywhere spread abroad (1966)) speaks of the "hellenization of the by the deceit of wicked men. . . . From Church" in this regard, and expands his thesis this poisonous spring of in the controversial THE FUTURE OF flows the false and absurd, or rather the (1966). His historical analysis has not gone mad principle, that we must secure and unchallenged. See 116 AMERICA 424 (1967). guarantee to each one liberty of con- 13 CATHOLIC LAWYER, SUMMER 1967

science; this is the most contagious of ments which were quoted in the footnotes 4 errors. of the Syllabus to explain the reason for the condemnations. But just as obviously, encylical Quanta Cura of In 1864, the there has been a tremendous development Pope Pius IX, who called liberalism the of the doctrine of religious freedom. "error of the century," carried as an ap- Pope Leo XIII took the first steps to- pendix the famous Syllabus of Errors. ward healing the breach between the "errors" condemned were: Some of the Church and the Europe of his day, not- 15. Every man is free to embrace and ably in the workingman's encylical, profess that religion which he, led by the Rerum Novarum, in 1891. He wanted, light of reason, thinks to be the true he said somewhere, to push the Church religion . .. into the twentieth century and advised 76. The abolition of the civil power which the Apostolic See possesses would French Catholics to accept the Republic. be extremely conducive to the liberty and But on religious liberty, in his famous prosperity of the Church. encyclical on the State in its relation to 77. In this age of ours it is no longer the Church (Immortale Dei, 1885), Leo expedient that the Catholic religion should still looked back to the golden days of be the only religion of the state, to medieval unity in the past rather than the exclusion of all other cults whatso- ever. forward to the future. Within his his- 78. Hence, in certain regions of Catholic torical perspective, "he could not but call name, it has been laudably sanctioned by for a return to a Christian unity once law that men immigrating there be al- possessed, to an ecclesiastical obedience lowed to have public exercises of any once rendered, to the matrix of a culture form of worship of their own. 5 once fertile of Christian forms." 0 Obviously, these condemnations whizh During the Modernist crisis in the pon- are so out of spirit with the declarations tificate of Pope St. Pius X, there could hardly be any advance in ecumenism and on Ecumenism and Religious Freedom at tolerance of religious freedom, but, in Vatican II must be understood within the 1939, when the great papal diplomat historical context of the times and eval- Eugenio Pacelli became Pope Pius XII, uated after reading the many papal docu- the way was open to new developments. In his Christmas messages and especially in an address to the Fifth National Con- 4Aubert, Liberalism and the Church in the Nineteenth Century, TOLERANCE AND THE CATHOLIC 49 (tr. George Lamb 1955). See also Aubert, Religious Liberty from "Mirari Vos" OJ. C. Murray, Church and State at Vatican to the "Syllabus," 7 CONCILIUM 91 (1965); E. I1, 27 THEOLOGICAL STUDIES 583 (1966). This HALES, Pio NONO ch. 7 (1954); E. HALES, THE article analyzes two conciliar documents, CATHOLIC CHURCH IN THE MODERN WORLD ch..6 Declaration on Religious Freedom, and The (1960); E. HUGHES, THE CHURCH AND THE Church in the Modem World, and finds that LIBERAL SOCIETY (1961). the "relevant principles have been stated with 5 H. DENZINGER, THE SOURCES OF CATHOLIC a new purity, previous confusions of the his- 437 & 442 (translated by Roy J. De- torical and doctrinal have been ruled out. ferrari 1957). Id. at 606. VATICAN II vention of the Union of Italian Jurists tember 29, 1963, in his magnificent ad- (Ci riesce, December 6, 1953) 7 with its dress opening the second session of the detailed analysis of "toleration," Pope Council, Pope Paul VI spoke of the many Pius XII was reading the "signs of the seats at that assembly that were vacant times" aright in his realistic assessment and asked: of the place of the Church in the modem In what conditions does religion exist in world. Ci riesce abandoned the retro- these territories? . . . What displeasure spective view and the medieval dream of to see that in certain countries religious his predecessors. liberty, like other fundamental rights of In the nineteen-sixties, the teaching man, is being crushed by principles and Church under Pope John XXIII, Pope methods of political, racial, or anti- Paul VI, and Vatican Council II con- religious intolerance! 10 firmed without the hesitancies of the past As the bishops of Vatican II assembled what the theologians had been saying for some time: that on November 19, 1963, to hear means not merely a toleration of error Emile de Smedt of Bruges, Belgium, in- and evil but that it is a natural right of troduce the first schema (draft text) of every man. The "neutrality" of the State the Declaration on Religious Freedom, is no longer condemned as indifferentism the contrast between 1864 and 1965 and the recognition of religious freedom could hardly have been greater. Instead for every man is advocated as necessary of the condemnations of religious freedom 8 to the dignity and freedom of man. by the of the nineteenth century, Between the end of the first session of they had heard two Popes of the nine- Vatican II and the beginning of the de- teen-sixties proclaim that religious free- bate on the Declaration on Religious Freedom in the second, two important statements were made. In Pacem in Ter- that has been discussed in ris (1963), Pope John XXIII wrote, un- for centuries. For an account of the different theological interpretations see the commentary der the rubric "rights of conscience," that on the Declaration by Louis JANSSENS, FREE- "every human being has the right to wor- DOM OF CONSCIENCE AND RELIGIOUS FREEDOM ship God according to the right norm of (1966). He is especially interesting in his analysis of the interpretations by St. Thomas religion his own conscience and to profess Aquinas and Francis Suarez. Cf. Eric D'Arcy, publicly and privately." And on Sep- CONSCIENCE AND ITS RIGHT TO FREEDOM (1960). V) Pope Paul VI, Opening Address at the 7 Ci riesce, 52 CATHOLIC MIND 244-51 (1954). Second Session, COUNCIL DAYBOOK & VATICAN Cf. Cardinal Lecaro, in II, SESSION 1 AND 2 143, 149 (1965). The Catholic Tradition, 58 CATHOLIC MIND (1960). Paulist Press in their Deus paperback series has 8 Cf. Roger Aubert, La Liberte religieuse du published some of the most important speeches Syllabus de 1864 a nos jours, PROBLEMES in the council hall in the debate on religious CHRETIENS SUR LA LIBERTE RELIGIEUSE (1963). liberty; COUNCIL SPEECHES OF VATICAN II (ed. 9 Encyclical Letter of Pope John XXIII, PACEM Kuing, Congar, O'Hanlon 1964); THIRD SES- IN TERRIS, § 14. The key phrase, "right norm SION, COUNCIL SPEECHES OF VATICAN I (ed. of his own conscience" is the recta conscienta Leahy, Massimini 1966). 13 CATHOLIC LAWYER, SUMMER 1967 dom is not merely the lesser of two evils enced the document advanced juridical to be tolerated for the sake of avoiding and political, but not purely pragmatic, greater evil; it was a strict right, and to arguments in its defense, while the theo- violate it is injustice. That right was logians of Europe, with the exception of claimed not merely for Catholics but is Jacques Maritain, were interested almost based on the objective truth of a person's exclusively in grounding the right on bib- belief and it is tied to a man's conscience. lical and theological arguments. Carrillo It did not merely cover a man's internal de Albornoz summarized the two ap- beliefs; it extended to the public profes- proaches in another context when he said sion of his faith. that the American approach is based on Before we turn now to an analysis of the conviction that, being one of the the definition of religious freedom form- "human rights," freedom of religion has ulated in the Declaration of Vatican II, no specific problems of its own and can we should realize that not all the ambi- be satisfactorily dealt with juridically, guities and varying interpretations of the canonically, and politically. The Euro- past have disappeared. The lines of argu- pean approach also grants that religious ment for religious freedom in the Dec- freedom is one of the "human rights," laration are not clear and sharp. We but a right with its own special character, have to remind ourselves, as Father John since it is immediately based on the ab- Courtney Murray implies in the title of a solute relationship between God and book of essays on the Declaration he man." edited, that the theological discussion be- These two approaches are evident in hind the now clearly acknowledged right the background of the various formula- of religious liberty is not an end but a tions of the Declaration at the Council as beginning. they emerged from the floor debates and the committee revisions. Before analyzing The Definition of Religious Freedom them briefly, it would be good to give an The term "religious freedom" can overall view of the contents of the final mean many things, and its meaning will Declaration as a whole. vary with the special interests of those In its introduction, the Declaration who use it. The focus of interest will grounds the right to religious freedom in change for the ecumenist, the analyst of man's intrinsic dignity as a human per- Church-State relations, the historians of son. Because of man's increasing aware- various epochs, the political scientist, the ness of this dignity, the problem of his constitutional lawyer, and in discussions religious freedom is raised in new terms of freedom within the Catholic Church today and, therefore, the Council feels itself. that it must make a specific declaration The Council's Declaration on Religious on the subject. It is responding to the Freedom reflects some of these ambigui- "signs of the times." ties, especially in the line of arguments 11Cf. Religious Freedom: used to defend it. In general, it may be Petrus Huizing, S.J., A Bibliographical Survey, 18 CONCILIUM 119 said that American experts who influ- (1966). VATICAN II

The first half ("The General Principles in the Light of Revelation") is a rich of Religious Freedom") is a general ac- and succinct statement of the central im- count of religious freedom and sketches a perative that man's response to God must philosophical argument for it. The em- be free. It reconsiders the essential as- phasis is restricted; the concern is with pects of religious freedom under the light the juridical and social order and the of Christian revelation. The Church validity of that order, of the human, and claims religious freedom and indepen- therefore civil right to the free exercise dence for herself; she must live in an at- of religion. Government should respect mosphere conducive to the acceptance of and favor the religious life of the citizen- God's revelation of the Christian faith. ry but should not command or inhibit The Council deplores the oppressive pol- religious acts. In preventing abuses, it icies of some governments. must act according to religious norms for This claim is not made for the Catholic the preservation of public order. Church alone. The conclusion is an ex- ercise in aggiornamento. Given the pres- The rational argument holds that man ent historical situation, religious freedom has an obligation to seek the truth and is necessary for the peaceful and decent embrace it where it is found, especially in coexistence of individuals, nations, and religious matters. Because of human dig- the political communities of the world nity, man in society must be free from society. At the end there is a note of joy all constraint, legal or extra-legal, in his that most nations in their pursuit of truth, in his religious belief, have declared religious liberty to be a worship, and practice, both privately and civil right and in the fact that it is recog- publicly. "Religious freedom . .. has to nized in important international docu- do with immunity from coercion in civil ments. There is a note of sadness, too, society." This leaves the traditional and the grim fact is noted that there still teaching of the moral claim of revelation exist regimes in the world under which, and of Christ's Church on man and the even though freedom of religious worship human community explicitly intact. The receives constitutional recognition, the document speaks of the "moral duty of powers of government are engaged in the men and societies toward the true religion effort to deter citizens from the profession and toward the one Church of Christ." of religion and to make life difficult for limita- 2 Then the norms for the legitimate religious communities.1 tions of this right, because of "public A glance at the history of the two obligation of gov- order," are given. The years of debate and revisions and rewrit- and foster religious ernments to protect ing of the draft texts will help us under- freedom is urged, a number of constitu- tive rights implicit in the basic right are 12 For this summary of the Declaration, see enumerated, and the implications for D'Arcy, Freedom of Religion, 6 NEW CATH. churches and religious communities are ENCYC. 107; Trisco, Vatican Council 11, 14 developed. NEW CATH. ENCYc. 563-72. See also J. C. Murray, The Declaration on Religious Free- The second half ("Religious Freedom dom, 15 CONCILIUM 3 (1966). 13 CATHOLIC LAWYER, SUMMER 1967 stand why the definition of Religious grounded on the obligation a person has Freedom which finally emerged at the to follow the dictates of his conscience, Council was such a limited one. In at- but a new concept of the "rights of the tempting to explain these limitations, I person" and an argument from human have drawn heavily on the many articles dignity began to emerge as fundamental. and commentaries which Father John The debates brought a basic confusion Courtney Murray, S.J., Professor of into the document. A rather drastic re- Theology at Woodstock College and Edi- vision led to a third text which was sub- tor of Theological Studies, devoted to the stantially the same as the sixth text which subject before, during, and, especially, was finally promulgated. It defined re- since the Council. He was a preeminent ligious freedom as a juridical concept; the proponent of the American point of view confusion began to clear because of the and took a leading role in formulating omission of some theological lines of the various versions of the Declaration. argument which were not yet settled and When Bishop Emile de Smedt of still subject to further debate and clari- 3 Bruges, speaking for the Secretariat for fication by theologians.1 the Promotion of Christian Unity which When the Declaration was published in prepared the text, introduced the conciliar its final form at the end of 1965, its debate on religious freedom on Novem- definition of religious freedom was re- ber 19, 1963, he presented the first draft stricted, for the most part, to the juridical as the fifth chapter of the on and political meanings of the term, al- Ecumenism and the line of argument was though some of the confusion caused by influenced by that fact. His relatio (a the different emphases of Anglo-Saxon technical term for an introduction of the and Continental approaches remains. The content and methodology of a draft text) definition now is written in the same was a declaration of "freedom of con- sense in which constitutional lawyers in- science" and had the pastoral purpose of terpret the right to religious liberty in the instructing Catholics in their conduct of American constitution. "[H]ere," asserts ecumenical activities. The first schema Father Murray, "it was on solid ground. stressed the moral, not juridical, aspects The definition is commonly accepted, and and its line of argument was theological in presenting Catholic doctrine of the freedom of the act of Christian faith. 13 John Courtney Murray has traced the thread of the debate through the last three sessions Toward the end, a juridical definition was of the Council in his essay, The Declaration introduced. on Religious Freedom: A Moment in its After a rewriting, a second schema Legislative History, RELIGIOUS LIBERTY: AN was debated publicly during the third ses- END AND A BEGINNING 15 (1966). For longer accounts, one may consult the works of XAVIER sion from September 23 to 25, 1964. It RYNNE, THE SECOND SESSION 223-34; THE was presented as an appendix to the THIRD SESSION 24-31; THE FOURTH SESSION decree on ecumenism and followed the 31-53. The last two DAYBOOKS OF THE COUNCIL, published by NCWC, reprint in some detail basic line of argument in the first text. the course of the debate through the last The right to religious freedom was still three sessions. VATICAN I it is not only technically correct from a science is absolutely autonomous. The juridical point of view, but also unex- theological implication was that religion ceptional from a moral point of view." 14 was a purely private affair, irrelevant to Before any further exploration of the any of the public concerns of the political Declaration's definition, it would be use- community. In current Catholic condem- ful to follow Bishop de Smedt's relatio nations of this attitude in the United as he employed the ancient logical tech- States, the term "secularism" is used to 1 5 nique of prefacing the definition of what identify this ideology. something is by first explaining what it is Bishop de Smedt then explained that not. When he introduced the first draft the document did not wish to identify in 1963 he seemed anxious to remove religious freedom with doctrinal relativ- some of the bitterness and confusion from ism: "Nor is it said that falsehood is to the debate by explaining that the term be considered on an equal footing with "religious liberty" was used in the docu- truth, as though there were no objective ment in a very restricted sense and that norm of truth." In an analysis of the it should not be stretched to cover other development of doctrine on this subject aspects of freedom. within the Church, Pietro Pavan re- First, he said, the term did not mean marked that one of the two central religious indiflerentism. "When religious themes (the other is the dignity of man) liberty is defended, it is not asserted that constantly recurring is this insistence on it is proper for man to consider the re- the existence of an objective moral order, ligious problem according to his own essentially unchangeable but with innum- whim without any moral obligation and erable gradations in its concrete applica- decide for himself according to his own tion. The Declaration did not ultimately will whether or not to embrace religion." base the right to religious practice on an Next, the term did not mean laicism: argument from "freedom of conscience" "Nor is it affirmed that the human con- (it does not use this term anywhere), science is free in the sense that it is as it possibly because the phrase is so often were outside the law, absolved from any used to imply that "I have a right to do obligation toward God." Laicism was a what my conscience tells me to do, sim- theory introduced by Continental Euro- ply because my conscience tells me to do pean opponents of the Church in uphold- it." This would be subjectivism (the cur- ing a principle of religious liberty which rent word is "situationism") and implies spoke of "freedom of conscience" and that in the end it is my own conscience, "freedom of cult." As they advocated and not objective truth, which determines these "freedoms," they were ideological, not juridical, statements of religious lib- erty and meant that the individual con- 15See, e.g., The Annual Statement of the Bishops of the United States on "Secularism," November 14, 1947, reprinted in OuR BIsHoPs 14J. C. Murray, The Declaration on Religious SPEAK 137 (Huber ed. 1952). See #4 of the Freedom: A Moment in its Legislative History, Declaration, where "secularism" is implicitly supra note 13, at 27. condemned. Supra at 102. 13 CATHOLIC LAWYER, SUMMER 1967 what is right or wrong, true or false. 16 and good. It is, however, true and good What, then, did the Declaration on that a man should enjoy freedom from Religious Freedom define? coercion in matters religious." 17 The doctrinal substance of the Declara- The right, or moral claim, which every tion is stated in two paragraphs at the man can make on every other man- beginning: individuals, groups, political and social powers-is here said to be twofold: no This Vatican Synod declares that the human person has a right to religious man can be forced to act contrary to his freedom. This freedom means that all religious beliefs (Catholic teaching has men are to be immune from coercion on always held this) and, secondly, no man the part of individuals or of social groups can be forcibly restrained from acting on and of any human power, in such wise his beliefs, "whether privately or public- that in matters religious no one is to be forced to act in a manner contrary to his ly." There is a clear advance here; the own beliefs. Nor is anyone to be re- right to public worship by non-Catholic strained from acting in accordance with religious groups had not been acknowl- his own beliefs, whether publicly or pri- edged by the older Catholic writers on vately, whether alone or in association religious liberty. It might be said that, with others, within due limits. The Synod further declares that the for the first time, the Anglo-Saxon con- right to religious freedom has its founda- cept of religious liberty and the American tion in the very dignity of the human principle of separation of Church and person, as this dignity is known through State have been clearly acknowledged in the revealed Word of God and by reason an official document from the highest itself. This right of the human person to religious freedom is to be recognized Catholic sources. in the constitutional law whereby society John Courtney Murray, the chief is governed. Thus it is to become a spokesman at Rome for what has been civil right. [#2] called the "pragmatic" approach of the This definition of religious freedom as Declaration and the principal drafter of a human and, therefore, civil right, is the version of the document debated dur- phrased negatively. It is a "freedom ing the fourth session, summed up the from" and not a "freedom for." This intent of the Declaration, as it was finally puts it into the tradition of the American promulgated, for an international theolog- Bill of Rights, which does not affirm that ical conference at Notre Dame in March, a man has a right to believe what is false 1966: or to do what is wrong, but does guar- The conclusion is that the doctrine of antee immunity from coercion in religious matters. "Neither error nor evil can be 17J. C. Murray, in his notes to the object of a right, only what is true the text in THE DOCUMENTS OF VATICAN 11, supra note 1. Pietro Pavan, one of the chief writers of the social of Pope John XXIII, has 16Bishop de Smedt's relatio during the second written of the definition in the Declaration in session is printed in COUNCIL SPEECHES OF The Right to Religious Freedom in the Con- VATICAN 11,supra note 10, at 237-54. ciliar Declaration, 18 CONCILIuM 37-52 (1966). VATICAN II

the Declaration forms an organic whole. presenting it. They reflect the funda- All of it hangs suspended from the su- mental concern for a more theoretical preme principle of the dignity of the approach which European members of human person. Inherent in this dignity drafting committee had upheld. But is the exigence that a man should act the on his own initiative and responsibility, certainly the Declaration is not a purely not under coercion, but from inward pragmatic statement, and just as surely motivation, by his sense of duty toward the dialogue between the theologians is the transcendent order of truth and mor- not ended, but hardly begun. It seems ality. This exigence in turn founds the that all the commentators would agree on political principle that the freedom of the person is to be respected as far as that. possible and restricted only in cases of Murray's own satisfaction at the pri- necessity. The equality of this exigence mary emphasis given the juridical and in all men, who are equal in their dignity political aspects of religious freedom in as human persons, founds the further juridical principle of the equality of all the Declaration is part of his conviction citizens before the law. And from these that the positive values inherent in re- two principles in conjunction two sets ligious belief, profession, and practice, of conclusions follow with equal imme- however great their religious, moral, and diacy. The first juridical conclusion is social significance, are juridically irrel- that the full immunity of the human He holds that a harmony exists person from coercion in religious matters evant. is the object of a genuine human right. between religious freedom in the juridico- The corresponding first political conclu- social sense and Christian freedom in the sion is the duty of government itself to various senses of this latter concept as respect this right and to ensure respect they emerge from scripture and from the for it in society. The second juridical conclusion is that the exercise of the doctrine of the Church. The Declaration, right to religious freedom is to be as he says, merely suggests that the two free as possible. And the second political kinds of freedom are related; it does not conclusion is that government or legal undertake to specify more closely what limitation of the exercise of the right is 19 their precise relationship is. warranted only by the criterion of neces- sity.18 19 For Father Francis J. Canavan, S.J., looking Some commentators on the Declaration at the Declaration from the viewpoint of a political scientist, the argument in the Declara- are unhappy with the emphasis on the tion fails to appreciate fully the political juridical and political aspects of religious dimension. He thinks that the ancient "prin- freedom which Murray finds (and helped ciple of consent" would have strengthened it at one point, and at another, full use of the to insert) in the document. Their objec- juridical principle of "equality before the law." tions are not to the idea of religious He also sees the scheme as tinged with sub- jectivism, wants even more emphasis on the liberty as such but to the method of political order, and more development of the relationship between religious freedom and con- stitutional government. Canavan, S.J., The 38J. C. Murray, The Declaration on Religious Catholic Concept of Religious Freedom as a Freedom, VATICAN II: AN INTERFAITH APPRAISAL Human Right, RELIGIOUS LIBERTY: AN END 576 (ed. J, Miller, 1966). AND A BEQINNINQ 65 (ed. J. C. Murray 1966). 13 CATHOLIC LAWYER, SUMMER 1967

Pope John XXIII wanted the Council At the beginning of the discussion in to be pastoral, and the Declaration on the Council, the argument for religious Religious Freedom is a practical pastoral freedom was basically theological. The document. This does not mean that it first drafts argued from freedom of con- has no doctrinal content. There is in it science in religious matters to the jurid- an ethical doctrine of religious freedom ical right to religious liberty. The second as a human right, both personal and col- draft argued from human dignity and lective. There is a political doctrine man's highest good to a constitutional about the role of governments in relation demand for liberty. These theological to religion in the state. There is also a arguments were largely the work of Euro- theological doctrine which claims freedom pean thinkers influenced by contemporary for the Church, and this principle regu- philosophies of personalism and existen- lates the relations between the Church tialism. In several of his commentaries, and the socio-political order. [# 4] Father Murray shows his uneasiness The Declaration on Religious Liberty about the validity of some of these argu- did not intend to be a full discussion of ments which proceed from the order of the theology of religious freedom, nor did ethics and theology and from conscience it treat fully the whole question of "free- and human dignity to the juridical order dom of conscience," as that term was of constitutional guarantees. Father Mur- used in Catholic theology in the many ray opposed the Europeans who helped earlier treatments of a person's right to prepare the draft when their arguments religious liberty. To put that liberty into proceeded too quickly on an abstract, the far wider context of a whole theology metaphysical plane of deduction from an of freedom would have been more profit- eternal unchangeable nature of man. 20 able, perhaps, but much more difficult. The development of the doctrine has not It would seem that John Courtney yet reached the stage where it could be Murray, who has spent a theological life- done handily. time researching and writing on the his- torical development, the constitutional For some books and articles reporting and statements, and the theology of religious commenting on the Declaration by European authors, a handy list is found in Petrus Huiz- freedom, was able to draw on the tradi- ing's bibliographical survey cited in 18 CON- tion of American law and pragmatic ap- CILIUM (1966). He also lists many articles that appeared during the 'Council. Especially plication of the law to furnish a valuable intere'sting is a sympoium edited by Murray corrective to a too abstract treatment of in FREEDOM AND MAN (1965), with essays by religious liberty. Again, one can sense men like Hans Kfing, , Piet Fransen, C. Malik, and Daniel Callahan. his satisfaction in all the commentaries 20 Murray has listed "four major themes" which he has written that the final version of he said would have to be developed for a full theology of religious freedom. Murray, The the Declaration was more a beginning Declaration on Religious Freedom, 15 CON- than an end of the dialogue on religious CILIUM 3 MURRAY, (1966). See also J. VATICAN freedom in which the Church has en- 11: AN INTERFAITH APPRAISAL 577-85 (ed. J. Miller, 1966), . _:p gaed the modem world, VATICAN II

The: Impact in America system of separation of Church and State. When he first introduced the text They knew that Catholic spokesmen, be- which eventually became the Declaration ginning with Bishop John Carroll in co- on Religious Liberty, Bishop Emile de lonial times, welcomed the provision of Smedt of Bruges listed four reasons why the first amendment which forbade the the Council should clearly explain and the congress to make any law favoring defend the right of all men to religious the establishment of one religion over liberty. The first reason was simply that another. They knew that American Cath- it was true that this freedom is a human olic historians and theologians were real- right-and the Church should defend the istically aware that, despite the record of truth. Next, religious freedom is an in- periodic intolerance against their Church, tegral part of the dignity of man and it she had grown and prospered under the was up to the Church to proclaim it first amendment and were convinced that openly at a time when almost half the a system of separation of Church and human race was deprived of religious State was a better guarantee for the liberty by atheistic materialism of various growth and freedom of their Church than kinds. Thirdly, he said, this is a world any European system of union of Church of and the Church and State. must light the way to peaceful coexistence Through all the stress and strain in the for men of different religious beliefs or of conflicts between Protestants and Cath- no belief at all. And finally, there was olics over such issues as the parochial ecumenism: schools, Catholics realized that their Prot- Many non-Catholics harbor an aversion estant and Jewish neighbors did not really against the Church or at least suspect her doubt that they were devoted to the con- of Machiavellianism because we seem to stitutional provisions for religious free- them to demand the free exercise of re- dom for all. But there was always ligion when Catholics are in a minority the suspicion of what Bishop de in any nation and at the same time re- Smedt had called "Machiavellianism." fuse and deny the same religious liberty American Jews and Protestants were when Catholics are in a majority. legitimately concerned over the fact that Catholics, who are a minority in a the religious freedom which Catholics pluralistic United States where the prin- professed and defended in the United ciples of the Declaration on Religious States had never been clearly defined and Freedom had been commonplace for al- defended in official documents from most two centuries, will appreciate that Rome. last reason most of all. Non-Catholics in the United States did American Protestants and Jews for the not reject Archbishop McNicholas of Cin- most part have acknowledged that their cinnati when in 1948 as the chairman of Catholic fellow citizens staunchly upheld the Administrative Board of the National the right to religious liberty and defended, Catholic Welfare Conference he solemnly with their lives at times, the America1 promised; "If tomorrow Catholics rora- 13 CATHOLIC LAWYER, SUMMER 1967 stituted a majority in our country, they If anything is needed to demonstrate would not seek a union of Church and the development of doctrine from Leo State. They would then as now uphold XIII to Paul VI, it might well be the the Constitution and all its Amendments." glaring difference in tone between such But they knew that there were passages statements and the sixth section' of the in Pope Leo XlII's encyclical epistle to Declaration on Religious Freedom: the bishops of the United States in 1895 which generously praised the American If, in view of the peculiar circum- government's attitude and laws about re- stances obtaining among certain peoples, special legal recognition is given in the ligion, but immediately added: constitutional order of society to one re- Yet, though all this is true, it would ligious body, it is at the same time im- be very erroneous to draw the conclusion perative that the right of all citizens and that in America is to be sought the type religious bodies to religious freedom of the most desirable status of the should be recognized and made effective 23 Church, or that it would be universally in practice. lawful or expedient for State and Church to be, as in America, dissevered and Here the Declaration which Pope Paul divorced. . . . Catholicity in America is in good condition, nay, is even enjoying promulgated in 1965 still holds out the a prosperous growth . . . but she would possibility of some kind of union of bring forth more abundant fruits if, in Church and State, but it puts that pos- addition to liberty, she enjoyed the favor sibility in rather weak hypothetical terms of the laws and the patronage of public 2 1 and insinuates that establishment of a re- authority. ligion by the State, from a Catholic point There were passages in Pope Leo's of view, is a matter of historical circum- 1885 encyclical on "The Christian Con- stance, not of theological doctrine. stitution of States" which seemed to write There are other important implications off the American experience as merely in that paragraph. One is the acknow- "tolerable," and pages in Catholic text- ledgment that there has been a decisive books on political science like Ryan and development of doctrine between the Boland's Catholic Principles of Politics Syllabus of Errors of 1864 and the Dec- which theoretically could advocate the re- laration of 1965. This recognition of de- peal of the first amendment while saying velopment, here and in other sections of that, realistically, such an act was exceed- the Declaration, will have repercussions 22 ingly improbable. in theological thought in many other areas.

21 Encyclical Letter of Pope Leo XIII, Long- inqua (1895). This is reprinted in 12 AMER. ECCLESIASTICAL REV. 346-56 (1895); J. T. ELLIS, STATE 90 (1960); J. T. Ellis, Church and State: DOCUMENTS OF AMERICAN CATHOLIC HISTORY An American Catholic Tradition, 207 HARPER'S 514-17 (1956). MAG. 63 (Nov. 1953). 22 J. RYAN & F. BOLAND, CATHOLIC PRINCIPLES 23See Murray's notes to this passage in OF POLITICS 315, 320-22 (1947). See also J. Declaration on Religious Freedom, supra ) KERWIN, CATHOLIC VIEWPOINT ON CHURCH ANI note 1, VATICAN II

It is more important for our purposes As the doctrine appeared in Catholic here to realize that the significant mod- textbooks of theology and philosophy for ification of the traditional attitude on the the past hundred years, the "thesis" relation of Church and State means that meant the ideal situation of a union be- the Church has truly read the "signs of tween the Roman Catholic Church and the times," has acknowledged its minor- the State, with the implication that wor- ity position in the modern world, and has ship by non-Catholic groups should be abandoned the "thesis-hypothesis" theory private and limited. The "hypothesis" of the relation of Church and State which meant a situation where the Catholic re- dominated Catholic thought for the past ligion was in a minority status within a hundred years. This is the theory implicit nation; in that case separation of Church in Leo XIII's encyclicals, in Ryan and and State could be "tolerated" for reasons Boland's textbook, and in dozens of of expediency. The practical result, as Church-State treatments in the Catholic noted above, was a frequent charge of manuals up to the present. The "hypoth- "Machiavellianism" against the Church. esis" that separation of Church and State Catholics were accused of demanding was merely to be "tolerated," especially freedom for themselves when they were in countries where Catholics were in a the minority, but of being unwilling to minority, has become the "thesis," that extend a genuine freedom to non-Cath- is, the normal situation, the only one that olics where they were the majority. counts. The "thesis-hypothesis" issue was an The "thesis-hypothesis" doctrine, which important part of a rather celebrated con- until recently was presented as if it were troversy between Father John Courtney an ancient dogmatic principle of the Murray and a group of Catholic Univer- Church, is really only a hundred years sity theologians at the beginning of the old. Historians trace it back to an article nineteen-fifties. In response to a series of in the Jesuit periodical, La Civilta' Cat- articles in which Father Murray argued tolica, at the time of the First Vatican that "thesis-hypothesis" was not defined Council, although the idea itself can be by the Church as Catholic doctrine, they traced back to St. Thomas Aquinas in wrote that it was a recent innovation and the thirteenth century and was extended not truly part of the long tradition of to the Protestant churches from the six- Catholic doctrine on the issue, and that 24 teenth century. the American principle of separation of Church and State was an equally and, indeed, more valid theological conclusion. 24J. Lecler, S.J., Religious Freedom: An His- The American system, in other words, torical Survey, 18 CONCILIUM 10 (1966). See M. Bevenot, Thesis and Hypothesis, 15 THEO- LOGICAL STUDIES 440-46 (1954). G. Weigel, S.J., The Church and The Democratic State, defends). The abandonment of the "thesis- 27 THOUGHT 165 (1952) makes an interesting hypothesis" position is taken for granted in distinction between the static expositors of the Vatican I's PASTORAL CONSTITUTION ON THE doctrine on Church and State and the dynamic CHURCH IN THE MODERN WORLD (Gaudium et expositors (Murray's position, which Weigel Spes) 76. 13 CATHOLIC LAWYER, SUMMER 1967 was not a purely pragmatic device of thing they were sure of was that the "sacred expediency for the Church, but could be principle" of the union of Church stated as a principle in its own right. and State would never be discussed or The Declaration on Religious Freedom of denied. A century later, during the Sec- 1965 is a source of considerable satisfac- ond Vatican Council, an editorial in the American magazine, The Commonweal, tion to the followers of Father Murray in said that "it is absolutely vital that the his controversy with a rather formidable Church be on record, in a way that Cath- and powerful array of American Catholic 2 5 olics over the world cannot contravene, theologians. as a firm supporter of religious liberty. In 1870, at the time of the First Vat- This can only be done by a pronounce- ican Council, an editorial in the Catholic ment which grounds religious liberty and Dublin Review admitted that the editors the nature of man in faith as a free gift did not know for sure just what would of God." be discussed at the Council, but the one Happily, the Church is on record with her Declaration on Religious Freedom. She has answered the legitimate questions 25 Some of the key articles by Murray in this of American supporters of religious lib- controversy were printed in the journal THEO- erty who had asked for an official inter- LOGICAL STUDIES, which he edits: Freedom of Religion: Contemporary Orientations of Catho- pretation of the Church's view of re- lic Thought on Church and State in the Light ligious freedom in the modern world. In of History, vol. 6,. 1945; Current Theology on this area, she has responded to Pope Religious Freedom, vol. 10, 1949; The Problem of State Religion, vol. 12, 1951. Important John's call for aggiornamento. also is J. C. Murray, Governmental Repression of Heresy, PROCEEDINGS OF THE CATHOLIC THEOLOGICAL SOCIETY OF AMERICA 26 (1949). Some Suggestions for Further The attacks on Murray's "dynamic" position Reading for Catholic Lawyers on made by various "static" professors at Catholic "Religious Freedom": University (Joseph C. Fenton, Francis Con- nell) and by George W. Shea and Cardinal 1. Father John Courtney Murray holds Ottaviani appeared in THE AMERICAN ECCLESI- an altogether unique place in the dis- ASTICAL REVIEW, volumes 123-28 (1950-53). Fr. Murray replied in the same journal to Fr. cussions before, during, and since the Shea in the 1951 volume, pp. 327-52. Fr. Council. Many other articles in pro- Joseph Fenton published The Status of a fessional and popular journals, both Controversy, in the same volume, pp. 451-58. American and European, could be A good bibliography of the whole controversy appeared in 1 THEOLOGY DIGEST 173-75 (1953). added to those already quoted--in the Murray's article, This Matter of Religious notes. In the Spring, 1952, issue of Freedom, 112 AMERICA 40 (1965), is a sum- THOUGHT (27 THOUGHT 6), Fr. mary of several talks he gave as a peritus to the Council Fathers. In PETER AND CAESAR Victor R. Yanitelli published an an- (1965), E. A. GOERNER, a Catholic political thology of his writings in an article scientist, wrote a critical study of Murray's entitled, A Church-State Anthology: approach and doctrine and the Council's com- petency and wisdom in speaking on religious The Work of Father Murray. The freedom. author gives a bibliography as of that VATICAN II

date. Thomas T. Love, a Protestant MAN AND (1943); theologian, has written a sympathetic CHRISTIANITY AND DEMOCRACY and understanding synthesis of the (1944); THE PERSON AND THE thought of Fr. Murray. LOVE, JOHN COMMON GOOD (1947); THE COURTNEY MURRAY: CONTEMPORARY THINGS THAT ARE NOT CAESAR'S CHURCH-STATE THEORY (1965). (1939). There is a lengthy bibliography of E. D'ARCY, CONSCIENCE AND ITS books and articles containing all the RIGHT To FREEDOM (1961). A pertinent material to illuminate the revised and augmented edition important controversy in the early was published in French in 1964. Fifties in this work. R.J. REGAN, S.J., AMERICAN 2. 'THE NEW CATHOLIC ENCYCLOPEDIA, PLURALISM AND THE CATHOLIC published in 1967, has several valu- CONSCIENCE (1963). able articles which give a succinct but J.G. KERWIN, CATHOLIC VIEW- comprehensive background on the POINT ON CHURCH AND STATE ,Declaration and its application for (1960). American lawyers. Especially recom- FREEDOM AND MAN (J.C. Mur- mended are the following sections: ray ed. 1965). Vol. 3 Church and State 726-38, A.P. STOKES, CHURCH AND STATE articles by M.R.P. McGuire, D.J. IN THE UNITED STATES (1950), Herlihy, M.J. Havran and J.N. a monumental, three volume Moody. work that has been called "de- Vol. 3 Church and State Legal finitive." History in the United States 742- T.G. SANDERS, PROTESTANT CON- 58, articles by T.O. Hanley, M.J. CEPTS OF CHURCH AND STATE Mullaney, Jr., J.C. Polking, and (1964). R.J. Regan. 4. Some useful articles on religious lib- Vol. 6 Freedom of Religion 107- erty in the United States: 14, by E. D'Arcy. E. Duff, S.J., Church-State in the Vol. 6 Freedom of Religion, U.S. American Environment: An His- Law of 114-22, by G.E. Reed. torical And Legal Survey, SOCIAL Vol. 13 Freedom of Religion, ORDER, (1960) (published by the Papal Teaching on 352-61, by P. National Jesuit Social Science Pavan. Center). In the index volume (15) various 197 THE CATHOLIC WORLD 280 cases on the United States Law (1963) with a symposium, of Freedom of Religion are in- The Meaning of Religion in the dexed on page 483. First Amendment, containing the 3. Some books worth consulting: proceedings of the 1963 First J. MARITAIN, THE TRUE HUMAN- Amendment Conference. ISM (1938); THE RIGHTS OF (Continued on page 266) 13 CATHOLIC LAWYER, SUMMER 1967

VATICAN II 30 (1953-4) (reprinted in THE (Continued) CATHOLIC MIND 338 (1954)). J.A. Hardon, S.J., Cooperation of Cardinal Augustin Bea, Religious Church and State in American Freedom, THE CATHOLIC MIND Legislation, 57 THE HOMILETIC 4-15 (1964). AND PASTORAL REVIEW 309 Bennet, A Protestant Views Re- (1967). ligious Liberty, 201 THE CATH- J.A. Hardon, S.J., Cooperation of OLIC WORLD 362 (1965). Church and State in the Supreme Canavan, The Declaration on Re- Court, 57 THE HOMILETIC AND ligious Liberty, AMERICA, Nov. 20, PASTORAL REVIEW 419 (1967). 1965 at 635. See also Canavan, Church, State, and Council, J.A. Hardon, S.J., Cooperation of ECUMENISM AND VATICAN II 44- Church and State in American 62 (O'Neill ed. 1964). Education, 57 THE HOMILETIC Giacchi, Freedom of Religion and AND PASTORAL REVIEW 523 the State, 11 CATHOLIC LAW. (1967). 271 (1965). D.R. Russell, English and Ameri- Sheerin, C.S.P., The Nature of can Democracy and The Papacy, Relqious Liberty, 201 THE CATH- 72 THE DOWNSIDE REVIEW OLIC WORLD 356 (1965).

IN OTHER PUBLICATIONS for illegitimates is a convincing one. The (Continued) child is an unwitting victim of a situation In seeking to attain the application of over which he could exercise no control. the equal protection clause to the laws on There seems little justification for punish- illegitimacy, the author advocates that, at ing him for this fact by giving him second- one end of the spectrum of legislation, class legal rights. Although he will never the illegitimate should be given all the be free of social stigma, there is no support rights of a legitimate child. The sound justification for denying him the other extreme would be paternal affection, legal rights of all citizens. While Mr. a matter which the author feels cannot be Krause's explanation of the "real" reason legislated in the illegitimate's favor. Other for discriminatory legislation is somewhat matters of legislation, such as intestacy, oversimplified, it seems clear that an il- welfare, and the use of the paternal name legitimate child's rights outweigh other would fall somewhere in between. considerations for such discriminatory The author's argument for legal equality legislation.