The Catholic Lawyer

Volume 11 Number 4 Volume 11, Autumn 1965, Number 4 Article 3

Freedom of Religion and the State

Orio Giacchi

Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl

Part of the Catholic Studies Commons

This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. FREEDOM OF RELIGION AND THE STATE'

ORIO GIACCHI*

Introduction

I WOULD LIKE TO BEGIN my treatment of the subject of religious liberty with a reference to an ancient text, the crude but picturesque lan- guage of which seems to express all the problems concerning the rela- tion between the State and religious freedom. The great King Nebuchadnezzar had three young Jews, Shadrack, Mishak and Abednego, thrown into a fire, but the flames did not harm them. Taken by surprise, impressed with the courage of the three young men, and in terror of a God more powerful than the King, Nebuchad- nezzar exclaimed: "Blessed be the God of Shadrack, Mishak and Abed- nego, He Who has sent His angel and freed His servants who, trusting in Him, have disobeyed the king and have risked their lives rather than serve or adore a God other than their own. I proclaim to all peoples and nations that all those who speak disrespectfully of the God of Shadrack, Mishak and Abednego be condemned and their homes be destroyed." In the first part of Nebuchadnezzar's brief statement, do we not recognize the language of the Edict of Constantine which praised the Christian heroes of the persecutions? Is there not also an obvious re- spect for courage such as that which inspired Napoleon to seek a Concordat with Pius VII? On the other hand, does not the second part of this discourse seem to suggest the undeniable oppression of religious liberties under the Christian Roman Empire and, later, under the Catholic princes of the Age of Absolutism? With respect to the history of religious liberty it is necessary, above all, to establish one essential fact. That is, there exist three different ways of understanding the principle of religious liberty and, if one confuses them, an understanding of the historical development of this great concept becomes impossible.

t Paper delivered on the occasion of the Fifth International Congress of Catholic Jurists at Salamanca, Spain, September 8-12, 1965. Spanish Manuscript translated by Martin I. Solomon, B.A., Queens College; M.S., St. John's University; and Anthony J. Indence, Jr., B.A., University of Notre Dame; LL.B., St. John's Uni- versity School of Law. * Professor, Catholic University of Milan. 11 CATHOLIC LAWYER, AUTUMN 1965

These three interpretations of religious lib- dom is understood by Christianity. This erty are as follows: interpretation has been given very explicit and clear recognition, especially in the I. Religious liberty conceived as a encyclical Pacem in Terris. Furthermore, natural right of the human being to it is a point that is definitely implicit in search for and uncover the truth. the teachings of the Church. This natural right is to be accorded respect, free from any temporal In the second sense, the understanding power or authority that would seek of religious freedom is directed strictly to to force the individual to support the object of thought and of the faith. It or accept a faith other than that is understood, above all, as freedom for to which he has been led by an the truth. Thus it is that the exclusion of exercise of his free will. force from the spiritual domain is, at least in the first instance, merely the result of II. Religious liberty considered merely the need for a voluntary adherence to the as the right of a man to give public thought and the faith wherein is reflected or private expression to the doc- the one truth. Furthermore, it is understood trines of the one true religion, to- that tolerance is accorded unbelievers for gether with a tolerance for those this reason and by factors of an extrinsic who in good faith remain outside and contingent character, such as historical the truth simply because they have and local circumstances. never received it. There is also The third interpretation of religious lib- tolerance with regard to heretics erty is closely linked with a particular con- and schismatics, when such is re- cept of religion and of thought, i.e., the quired by historical or local cir- sceptical idea that either truth does not cumstances and, then, always with- exist or that it is unknowable; or that it in the limits of the common good. is at least not one, but rather composed of III. Religious liberty understood as the several parts no one of which contains the right of each man to think, believe, whole. pray and otherwise worship in the The history of religious freedom begins belief that he has chosen, inasmuch with the affirmation of the principle as as there exists no truth, one and understood in the first of the three senses immutable, or it is at least not referred to above. In the Acts of the Apos- possible to derive, in the temporal tles, the statements of the Fathers of the order, any consequence from its Church during and after the persecutions, existence. and also in the Edict of Constantine, it has It can be said that, in the first sense, re- always been declared necessary that man ligious liberty is understood ex parte sub- obey God rather than other men. It has jecti and is considered a consequence of been stated that this is the natural right of the spiritual freedom of the individual. a man quod putaverit colere that unus- Such an interpretation of religious liberty quique nulla servitatis necessitate adstric- rejects the intervention of any influence of tus, integrum habeat vivendi arbitrium. a temporal nature in the domain of the This correct understanding of the prin- spirit. It is in this sense that religious free- ciple of religious freedom was courageously CONGRESS OF CATHOLIC JURISTS affirmed by the Church throughout the faith considered to be the only truth, main- first centuries and also after the persecu- tained, as had the decadent pagans, that the tions. It has found an evident and direct mystery of invisible truth was so great echo in Pacem in Terris, after having been and so profound that no man could reveal obscured since the time when St. Augus- it nor could any earthly authority teach it. tine verified the apparent efficacy of the These were the Anabaptists, the Socinians, use of civil authorities against heretical and the Arminians. movements that destroy, along with the It was only natural that, having these faith, all moral principles, whether indi- convictions, these groups would ask for and vidual or social. With Augustine there proclaim freedom for all religions. Some of appeared a second and very different inter- these groups, somewhat incoherently, pretation of religious liberty, based funda- limited this propagation of religious liberty mentally on the concept of "freedom for to Christian cults. To these affirmations of the truth," together with a regard for free- religious liberty have been attributed, to a dom in the act of faith, for the good faith large extent, the credit for having first an- of those in error and for the exigencies of nounced the great principle of religious the common good. freedom. However, it is not difficult to see By means of certain theological doc- that these statements were the logical re- trines that grew out of the development sult of a particular opinion (i.e., that truth of canon law, this limited recognition of was not one), rather than a broad affirma- freedom for unbelievers was still more tion of the individual's natural right to strictly and rigorously interpreted during pursue the truth freely. the twelfth and thirteenth centuries. St. In addition to the syncretic movements Thomas Aquinas, at least in certain re- mentioned above, the principle of religious spects, reacted against this tendency toward liberty was broadly asserted by the English strict interpretation and repeated, with liberals and by the revolutionary move- particularly important consequences, the ment in the American colonies. For Eng- reasons for tolerance toward those outside lish Liberalism, beginning with John the faith. Locke, religious freedom was merely the The Renaissance and the Protestant result of the separation of the State from Reformation did not bring any change to religion and the consequent indifferentism the very strictly limited understanding of of the State with respect to spiritual religious liberty. What is more, Luther and matters. In the New World, on the other Calvin, in different ways, made their own hand, the principle was understood more contributions to the already general climate in relation to the liberty of the individual of persecution regarding those who did not and the natural rights of the human being, think and believe as did the majority of the without postulating in any way the im- populace. possibility of absolute truth or the indif- Among the numerous groups that were ference of the State with respect to it. born during the Reformation, or rather In this sense, the most concrete decla- from the consequences of the fracture and ration of the principle of religious liberty separation that it had brought, there were was that formulated by the first Catholic- some who, far from defending a particular American colony, Maryland, in its Act of 11 CATHOLIC LAWYER, AUTUMN 1965

Tolerance, dated April 21, 1649. In a simi- the French Revolution, a State which, lar vein were the various declarations of while announcing itself totally agnostic rights later incorporated in the constitu- concerning religious matters, was never- tions of states such as Virginia, Pennsyl- theless unable to declare an absolute free- vania, North Carolina, Massachusetts, and dom of religion. During the short period of New Hampshire. the Restoration, religious liberty was During the same period there appeared strictly limited by the confesionismo of the in Europe, largely through the influence of State, considered to be the principal pro- the Dutch and German naturalists, a doc- tector and authority of the official religion. trine of religious freedom that underlined The subsequent installation of a "liberal" the fact that religious dissidence should not State carried with it the affirmation of a be considered a crime; that it is not a de- religious freedom that, while considered as fect of the will, but rather an exercise of the "equality of religions," was, in practical spiritual freedom. Furthermore, these natu- effect, principally an attack against the ralists underscored the dependence of the Catholic Church. Understood thus as the principle of religious liberty on the impos- "equality of religions," the principle of re- sibility of judging what the truth is, con- ligious liberty was used to justify a strug- sidering the multiplicity of means of ap- gle against the institutions and activities of proaching the gran secretum. Thus was ex- the Church, a battle provoked by the "sec- tended the third understanding of religious ular" State. The idea of religious freedom, freedom which, as we have seen, was understood as a consequence of the impos- founded on the concepts of scepticism and sibility of recognizing truth thus revealed syncretism. all the profound confusion and danger that It was possible to conclude from the was hidden in the fundamental error from events of the seventeenth and eighteenth which it was born. Understood in this per- centuries that the primary and true mean- verted sense, religious liberty was con- ing of religious liberty was that which arose verted into an enemy of the Catholic faith from an appreciation of the right of a hu- of the majority of the citizenry. man being to pursue the truth in freedom. Since the first decades of this century, As thus understood, the principle found its the true and essentially Catholic notion of true expression only in the American col- religious freedom, as the natural right of onies, although even there it was subject to the human person, has been constantly some restrictions. In continental Europe, proclaimed by ardently Catholic men, such the absolutist State applied, with some as Charles de Montalembert. However, the notable, if qualified, exceptions, the prin- lack of precision in the exposition of their ciple of liberty for the truth alone, together point of view, and the obvious danger of with a relative tolerance with respect to confusing it with certain "secular" ideas, dissidents and unbelievers. Meanwhile, the induced a large part of Catholicism to be- concept of religious liberty was also pro- come intransigent or even aggressively op- mulgated in Europe by a secularist and posed to their ideas, although the future in juridical doctrine that followed, almost fact rests in their point of view. This can exclusively, a syncretist and sceptic notion be demonstrated by the undeniable fact of truth. that their essentially Catholic point of Everyone knows that a State arose from view received important recognition in the CONGRESS OF CATHOLIC JURISTS great encyclicals of Leo XIII, although upon the great debate concerning the social subject to some prudent limitations and transformations to which our age has given reservations imposed by the historical at- birth or is giving birth. These transforma- mosphere which was still permeated with tions have to do with the concept of the the "confessional" ideas of the absolutist State and its practical activity, in relation State. to individuals and in relation to other so- The undeniable and clear affirmation of cial communities. These latter organiza- the principle of religious liberty, under- tions may be either subject to the State, stood as freedom for the human being, is equal to it, or in a certain sense superior to of very recent history. It was manifested in it (encompassing a higher order of things). some basic texts of Pius XI and Pius XII, With respect to this important subject, and it is revealed in all its clarity in the I believe that we will have to first eliminate proclamation of the encyclical Pacem in from our discussion an opinion which, Terris. This concept of religious liberty has while widespread and in conformity with now penetrated all levels of today's Cathol- certain superficial appearances of today's icism, notwithstanding certain exceptions world, expresses nothing new and is cer- due, principally, to the confusion of this tainly not completely true. I refer to the true meaning of religious liberty with that opinion that all the problems concerning which is propagated by the "secularists." the relations between the State and reli- gious faith, and consequently, the two im- The State and Religious Liberty mense subjects of the relation between the The important subject of religious liberty State and religion and freedom of religion, has frequently been discussed as essentially ought to be discussed in terms of what the problem of convincing by reason or would be considered the most decisive his- imposing by law, particularly but not ex- torical fact of our time, i.e., the end of the clusively on the Catholic Church, the aban- Constantine era. The latter is understood donment of the use of coercive influence or to signify: (1) the estrangement of religion material sanctions against the property of and all things sacred from every aspect of those who are in conflict with the Church. social living, (2) the declared and absolute It is undeniably true that part of the autonomy of the State with regard to any responsibility for the painful history of re- religious or moral norm, (3) the perhaps ligious freedom belongs to the Catholic still more significant open and militant con- Church, and perhaps to an even greater ex- solidation of atheism, and finally (4) the tent rests with certain Protestant and schis- tendency of political forces toward an ac- matic ecclesiastical communities. However, tivity dictated solely by considerations of a the actual problem, that which affects most utilitarian, economic and administrative deeply the very possibility of freedom of nature. In short, the problem is understood belief and worship, concerns the emergence as the total absorption of contemporary of that liberty within a social and political society in the secular and temporal sphere, order occupied by individuals and com- to the extent that religion finds itself munities who maintain a creed that is dis- necessarily reduced to a merely individual tinct from that which is followed by those or interior value. in power. It is obvious that if this were in fact the It is precisely at this point that we enter situation, not only the attitude of the 11 CATHOLIC LAWYER, AUTUMN 1965

Church with respect to the State, but also sion in literature, in the dreams of the an- the problem of religious freedom itself archists and in the elite forces of Fascism. would have to be considered strictly in However, for the most part, these ideas terms of this so-called new reality. The sit- disappeared with the decline of the society uation would have to be discussed in the to which they were completely bound-a language of the strictest partisans of sepa- society that had remained basically one ratist liberalism, that which acknowledges under two very different exterior aspects. the agnosticism of the State and is termed It was, in reality, the same society that per- "negative secularism." tained during the Age of Absolutism (espe- cially in its second phase) and during the However, I believe that we are dealing era of radical democracy (or individual with a totally erroneous understanding of liberalism). These epochs were dominated present conditions which, in reality, con- by the superior individual, either in the front us with some very different and op- form of a prince, demagogue or industrial posing characteristics. We are in fact wit- giant. When these individuals were in a nessing today a crisis of the myths of the "modern age," or the "end of modern superior position, as guides and artisans of a community's destiny, they considered times" as it is often called. The modem it their duty to transform the world, more age grew out of the Renaissance and wears radically, in order to effectuate their the special insignia of that great and fruit- or less purposes. The particular object to be ful epoch: (1) individualism, understood achieved naturally depended on a number as the objective and essential superiority of of interests, not to mention those of the a particular class of men (the cultured, the "elite") with respect to the uneducated and elite. However, above all, these men were inspired by a rational scheme, a model of barbarous masses, and (2) intellectualism, perfection which they considered it their according to which the object of all activ- obligation to imitate, and to realize in fact ity is the transformation of the present into as soon as possible. a new reality dominated by a rational scheme. If we reflect upon this fact, we The great socialist or universalist move- will realize that, from the fifteenth century ments of workers and peasants during the to the two world wars, western civilization past century brought this society to a crit- was dominated by these concepts. Natu- ical point. It has since been seriously af- rally, they did not manifest themselves fected by two fundamental facts of twenti- solely in the political order, but rather, eth century life: (a) universal suffrage, were reflected in all aspects of living, such and (b) the ever-increasing involvement as the area of economics. (We may well ask of the State in the social affairs of the ourselves if there is really any difference be- community. A third and most important tween the condottiere of the Renaissance factor in the disintegration of the old so- who made himself an absolute ruler, and ciety appeared principally after the Second the industrial magnate of the eighteenth World War. I refer to the undeniable ne- century who established himself in eco- cessity for a more or less profound union nomic primacy through his own efforts and with other communities of States and also by virtue of whatever means were at his with a world organization of States. disposal.) These ideas also found expres- With the advent of universal suffrage, CONGRESS OF CATHOLIC JURISTS

the difference between superior individu- belief and had afterwards had the power to als and the masses, based on intelligence, impose it on others not merely as the education and ambition, began to lose its source of its vitality or principal interpre- practical effect. With the involvement of ter of its content, but also as the instru- the State in the complexities of daily liv- ment of its general promulgation in the ing, a rationalization of the organization community, such that those governed be- of the State became more and more diffi- came more or less thoroughly imbued with cult. With the necessity for ties with other it. States and with an international community If we look a little beyond external ap- of States, the individualism of the State pear-.nces, we will realize that the State of either disappeared or was seriously weak- the late fifteenth century, that which would ened. It was precisely this individualismo a little later be transformed into an abso- de Estado that had ensouled the organiza- lute State was that State which elected a tion of the Western State and had cre- belief of which the ruler afterwards pro- ated the policy of imperialism. It was also claimed himself defender and protector. the concept that vivified the awesome eco- The struggles that followed the Protestant nomic phenomena which, juridically regu- Revolution not only broke the unity of the lated largely according to Roman Law, de- faith, but also brought individualism into veloped after the Industrial Revolution. a European society torn apart by religious With regard to this regime, the questions wars. This individualism was actually a we will ask are: what had been the posi- new unity, based on religion, but also a tion of religion in this State and what was product of the State itself. This new reli- the situation of the dominant faith? Fur- gious unity was strictly attached to a par- thermore, what religious freedom existed, ticular political structure and, from a hu- if any, for those individuals and communi- man point of view, it had no universality. ties that did not adhere to the dominant The authorities of the Catholic Church, faith? the only remaining authority that could, at On this subject, there was, of course, a least in theory, maintain a complete auton- tremendous difference between the abso- omy and continue to affirm a potestas indi- lutist States and those which were common recta in temporalibus, were not able to pro- to almost all of liberal Europe. However, vide a really effective limit on the authority it is also important to realize that the very of the State. This was not because such different regimes formed during the tragic would be considered outside the Church's years of the French Revolution, and dur- proper field of action, nor would the State ing the reformation which was attempted consider itself indifferent to the Church's by the Restoration reflected the same ideas spiritual power, but rather, for the opposite of individualism and intellectualism which, reason. That is, the State had become as we have said, characterized the entire "confessional," it had autonomously chosen modern age. Thus, whether confronted with its own religion or confession, and the civil the dominant religious faith or the domi- effect of the spiritual powers of the ecclesi- nant political ideology, the position of the astical authorities depended upon this State was the same, viz., that of one who choice alone. The names taken by the vari- had adopted a particular opinion, faith or ous Protestant and Catholic rulers of the 11 CATHOLIC LAWYER, AUTUMN 1965 late sixteenth century, such as "Defender ence of the enormous reality of the Catho- of the Faith," "Very Christian King," and lic Church, religious liberty, as thus inter- "Apostolic Majesty," were an external and preted, could never have resulted in a formal sign of this situation. The Sovereign struggle with the latter unless there did not had thus become religiously ungovernable. in fact exist, as in the United States, a con- He was the most worthy foundation of the cept of the State distinct and far removed faith and was the person in whom the reli- from that of the Renaissance and the epoch gion of the entire community was summa- we have discussed above. In the United rized. States, the Church prospered from a uni- When the structure of Absolutism was versal right of religious freedom which was destroyed by the Revolution of 1789, the never deformed at the expense of the State that was born bore the stamp of Na- Church. However, in Europe, a series of poleonic organization as well as, in its way, laws appealing to religious liberty attacked the mark of the "confessional" State. This exactly that religious freedom which was was true because this State had still another under the circumstances most important- credo, another faith chosen exclusively by Catholic liberty. the powerful elite, i.e., the liberal ideology. We must not allow these bitter memo- It was undeniable that the principle of re- ries to cause us to regard the temporal ligious liberty was a part of this ideology, powers with clerical or partisan sentiments. in fact, it was an essential element of it. There is no one as convinced as we that But, in what sense was religious liberty divine providence undoubtedly utilized understood? It was understood exactly in these oppressive laws and this hostile at- the sense that transformed it into an ingre- mosphere as both a cause and effect of the dient of the new "secular confessionality" purification and strengthening of the and thus rendered it compatible with the Church. In any case, as we have said be- discrimination for "religious" reasons fore, it is necessary to consider this aspect which had been a basic element of the con- of the development of religious liberty be- cept of the confessional State of the abso- cause it helps to explain, at least in part, lutist regime. the condemnations of it promulgated by the For the new liberal State, the proclama- ecclesiastical authorities during the past cen- tion of religious liberty was principally an tury and until the pontificate of Leo XIII. affirmation of the superiority of the State The problem of the position of the over any faith that claimed to transcend State with regard to religious liberty takes its "secularism." This resulted from the on different characteristics as a result of fact that at the pinnacle of human society the crisis in the concept of the liberal or (in all its aspects) there was an absolute "secular" State, i.e., the invasion of Europe and untouchable sovereign, one who recog- by universal suffrage, the increasing in- nized no other authority, even in the spiri- volvement of the State in daily affairs, and tual domain. the alteration of the idea of absolute sov- Religious freedom, understood as a pro- ereignty brought on by the need for jection of the sovereignty of the State, re- broader communities of States and for solved itself into the "equality of cults," some sort of world order. since the State regarded as insignificant any During this period, and precisely at the differences it had not created. In the pres- close of the Second World War, the State CONGRESS OF CATHOLIC JURISTS became for the first time democratic, in the power), there began to appear concrete sense that the masses began to form a true traces of a new State. This new State was part of it. Largely as a result of universal nourished by the ideals and desires of the suffrage, the people were becoming rulers, masses. It was a State that was aware, potentially at least, if not in fact. The rul- through daily experience, of the great lim- ing class was thus extended to the point itations imposed upon it by its obligations. that it lost all concrete form. He who di- It was a member of a community of States, rectly governed the State was forced to a fact that could not but limit its absolute consider the will of the people. This popu- and exclusive autonomy, and broaden its lar will, although poorly represented, con- vision in all areas, not merely in the po- fused and vague, was nevertheless an ac- litical sphere but also in the realm of so- tual fact. The application of a rational ciology and culture. scheme to a given problem was almost im- Ultimately, this new State was, there- possible if attempted independently of the fore, the negation of the "secular" State. sentiments of the people, and apart from In its new situation, the State constituted those deep currents that had been running the expression and formal organization of for centuries through their spiritual life. the aspirations, sentiments and traditions The obligations of the State became numer- of all the people. How could this popular ous and difficult and the machinery of the State hold itself aloof from responsibility State displayed an inability to perform to God and from respect for the moral law complex and various obligations which ran which was present in the soul of the peo- from industrial economics to high finance, ple? The simple and abstract concept that from social welfare to professional plan- the State could concern itself only with ning, and from the conciliation of labor ends, with goals to be achieved-that this disputes to the governing of urban areas. was its only law-had no efficacy when Since the fact was finally established that confronted with the great movements of no State could live in simple autonomy and popular opinion. Such an idea had relative completely independent, the concept of the validity only in a State ruled from behind State began to broaden. The fact that the closed doors by a restricted number of indi- State was in need of association with larger viduals. Whether in good faith or hypocriti- communities of States and thus shared an cally, the rulers of the new State were international responsibility, forced a re- forced to educate popular opinion through consideration of that unique concept of the presentation of moral arguments and the State as an absolute sovereign, incap- from the invocation of religious principles able of accepting any rule unless it be the taken from religious tradition, as well as source of such regulation; the complete from the utilization of generous, spiritually- imminence of all authority. inspired motives. In place of this concept of the "secular" It was certain that the new State had to State, utterly aloof and autonomous, in concern itself with the structure and func- place of this abstract fetish (born from the tions of society. Primarily, it was faced with dual influence on European philosophy of the problems presented by the social econ- idealism and positivism, which encouraged omy. In other words, it was forced to con- man to regard himself as superior to all sider and attempt to solve the problem of mystery and in possession of all spiritual social justice, i.e., the equitable distribution 11 CATHOLIC LAWYER, AUTUMN 1965 of the wealth of the society, an equal dis- Within this new political order, the most tribution of its burdens, the betterment of powerful defense of individual rights, the the lower classes and the poorer geographi- product of the profound social changes cal regions, the curing of those who were of our time, rests most securely on princi- ill and the repair of that which was deteri- ples that are "extra-estatales" or "pre- orated or disordered in society. estatles," i.e., on a foundation of ethical These arduous tasks, which involved the and religious standards derived from with- State in enormous difficulties, were im- out or above the State and imposed on the posed on the State by laws that originated latter by virtue of their own power. Their beyond its borders, in the name of justice independence is guaranteed by their source, and honor, rather than utility. This made even though they may be incorporated into the State the servant of the human being the juridical order by a free act of self- and of ideals that had their roots in the limitation on the part of the State. These spirituality and dignity of man. are the standards that will govern the play We will have a complete picture of this of forces within the social structure. new State, so very different from that Among the individual rights that are which appeared on the world scene just a thus protected, freedom of religion takes a few decades ago, when we add that its obli- place that is of primary and essential im- gations, beginning with that of religious portance. If we wish to examine a recent liberty, were to a great extent confirmed in constitution, for example, the Italian Con- the Universal Declaration of the Rights of stitution, we will see that religious liberty Man, approved by the General Assembly is recognized, in various ways and for dif- of the United Nations on December 10, ferent purposes. 1948. There exists within this new State a Art. 3: All citizens enjoy the same so- wide variety of other social organizations cial dignity and are equal before the law, without distinction as to with a definite and valuable function in the sex, race, language, religion, political opinions, or social posi- society. These are, for example, the politi- tion. It is the obligation of the Republic to cal parties and labor unions, the private overcome the economic and social obstacles monopolies and public economic struc- that, limiting the liberty and equality of tures, the completely private organizations citizens, impede the complete development and the government itself. The relation be- of the human personality and the effective participation of all those who work in the tween the State and -the individual is nec- political, economic and social structure of essarily altered by the presence of these the country. new social entities. The former relation had been principally formal and abstract. Art. 19: Everyone has the right to freely profess his own religious It left the individual completely alone in faith in any form, individually or in association with others; to his confrontation with the State (an abso- preach it and worship in it, publicly or lute sovereign), to such an extent that the privately, limited only by an attention and rights of the individual were considered as adherence to lawful conduct (las buenas "created" rather than recognized by the costumbres). State. These new and very diverse organi- Art. 20: The ecclesiastical characteristics zations limit the State in this area, while and purposes of a religious association or they infuse strength and vitality into it. institution can not be a basis for either spe- CONGRESS OF CATHOLIC JURISTS

cial legislative limitations or special taxes From a juridical and spiritual point of directed at its particular constitution, legal view, these norms of the Italian Constitu- status, or activity in whatever form. tion are not to be confused with the state- Art. 7: The State and the Catholic Church ments on religious liberty that have been are, each in its own order, independent and incorporated in certain other constitutions. sovereign. Their relations are governed by As found in the Italian Constitution, the the Lateran Pacts. Modifications of these Treaties, accepted by both parties, do not formulas we have quoted are dictated require any constitutional amendment. neither by a "secular" concept of the State, nor by a sceptic struggle with religions Art. 8: All religious confessions are equally free before the law. Religious faiths other considered oppressive by an individual who than Catholic have the right to organize finally finds the road open to "free-think- themselves according to their own laws, so ing." long as these are in conformity with the This fact is demonstrated very clearly, Italian law. Their relations with the State not only by the basic norm laid down in are governed, as of right, by agreements Article signed with their corresponding representa- 7-the recognition of the sovereign tives. autonomy of the Catholic Church in its order-but also by Article 8, which locates The first three articles quoted affirm: the non-Catholic confessions on a level (a) the equality of all citizens before the distinct from and superior to all other com- law, whatever their religion; (b) the free- munities and organizations subject to the dom of any citizen to profess his religious Italian State. However, it would be absurd faith under any form, to worship in it and to discuss the relation of the Italian State to propagate it; and (c) the exclusion of to religious freedom without a somewhat any limitations or special burdens based on more prolonged attention to Article 20. The the ecclesiastical organization or purpose of latter states that the ecclesiastical or reli- a religious association or institution. gious character of an association or insti- Articles 7 and 8, which seem to refer to tution cannot be sufficient reason for un- the principle of religious liberty less di- favorable dispositions with respect to it. rectly, should, on the contrary, be regarded The "secular" State, liberal only in name, as a coherent affirmation of this principle, maintained the equality of all beliefs as a examined in its essential meaning and his- premise, and prided itself on having first torical context. Article 7 confirms the in- enunciated the great principle of religious dependence of the Church in its order, that liberty. However, as the principal weapon is to say, the spiritual realm. Article 8 states in its anti-ecclesiastical struggle, the "sec- that all religious beliefs are equally free ular" State managed the suppression of the before the law, and adds that all non- juridical personality of religious institutions Catholic faiths have the right to organize and ecclesiastical-secular associations, while themselves according to their own rules, pressuring them out of existence principally limited only by the requirements of the by means of special taxes and patrimonial Italian juridical system. Furthermore, their conversions. Taking this into account, we relations with the State are "based on can readily see that the consideration of agreements," although such are interpreted the whole problem of religious liberty with according to unilaterally enacted legis- respect to the new State is something quite lation. different. 11 CATHOLIC LAWYER, AUTUMN 1965

To continue to linger with satisfaction Czechoslovakia, countries in which Cathol- on the prudent characteristics of the Italian icism has always been most active and system of relations between the State and closely in contact with the people. How- religious faiths and, consequently, between ever, as we have indicated, in other non- the State and religious liberty, would in no Communist and openly anti-Communist sense exhaust our subject. In the first place, countries, the position of the Catholic things are always in flux and it is therefore Church and of positive Christianity in gen- never safe to rely completely on the pro- eral is gravely compromised, precisely on tection of written regulations. Above all, the fundamental issue of religious liberty. this is because there exists today, in numer- This situation is the result of historical hat- ous states, a situation very different from red for Christian missionaries who did not that which pertains in Italy. always know how to clearly distinguish I refer not only to those states dominated their position with respect to the states by Communism, states which are very far which had colonized these areas. It is also removed from the recognition of religious the product of racial and nationalist senti- liberty, although some of these have written ments concerned with nothing more than this principle into constitutions that, on this the resurrection of ancient civilizations. subject and others, have no real obligatory Thus, the real problem of religious liberty effect. Rather, I refer also to the many new must be understood in a living historical states (born principally in Africa) which, context, rather than in simple juridical while recognizing the principle of religious formulas. freedom in its general and abstract form, As we said at the beginning, the problem offer no guarantee that is really respected. has long since ceased to consist in simply Among other things, this is because they convincing the Catholic Church or other are almost all one-party countries or at Christian religious communities that they least governed under a "directed democ- should abandon the principle that only the racy." They are political entities in which truth can be free. The Church has always there is no general recognition of freedom, excluded the use of force from her teaching due either to the necessities imposed by on the subject of conversion, insisting that their perhaps uncertain political structure, it be an interior act of the will. This is true or to the lack of indigenous political tradi- even though, in the course of history, the tions. It is natural, therefore, that they do Church has not always been able to pre- not effectively maintain the principle of vent the use of violence inflicted in the religious freedom. name of religion. Since the Pontificate of We witness in today's world an appli- Leo XIII, she has even more clearly stated cation of methods that seemed to have been her position with regard to religious liberty. definitively abandoned. To begin with, we In so doing, the Church has placed this are confronted, in the Communist coun- great principle on its surest foundation- tries, with a continuation of the violent the concept of man as a spiritual being and fraudulent oppression of all religion, who has the primary right to the pursuit beginning with the Christian faiths. This of truth and the corresponding right to remains true, even though there is some travel the road to it freely. cause for hope in Poland, Hungary and As thus interpreted, as a right derived CONGRESS OF CATHOLIC JURISTS from the nature of man as a spiritual I refer to (a) the desire to realize com- being, inviolable in his interior, freedom plete social justice by any means available, for the truth can in no way be made to including those most violent and oppres- exclude liberty in general and, consequently, sive, (b) the will to identify itself with the freedom for error. Of course, if the road racial, linguistic and mythical traditions of to truth proves somewhat difficult, the the people, and (c) the tendency to sacri- Church should be free to offer its loving fice every consideration to the formation of admonitions and lucid explanations. Co- a new popular community. Surrounded by ercive force, however, can never be allowed enemies, and in a constant struggle, these to be a substitute for free persuasion in that are the elements of the new State that can which concerns man's spiritual nature, for and actually do induce many states to sac- if such force were to be applied, it would rifice or considerably limit all liberty, be- be employed by that which possesses coer- ginning or ending with freedom of religion. cive means, i.e., temporal society. What is Confronted with this awesome and unde- more, it would constitute an affirmation of niable situation, it is superficial and false the primacy of force, and therefore matter, for the nations who are faithful to the con- with respect to the spirit. cept of freedom to resort to a sterile con- Since the Catholic Church freed herself demnation of the violation of this great from too close a union with the State, and principle or to attempt a moral boycott of since the separated Churches, in actual sorts. None of these methods could change fact, abandoned their status as "state reli- the direction of the path which the ardent gions," they have resolved the problem of and, above all, irreplaceable leaders of religious liberty by anchoring themselves these communities have traced. in this basic understanding of the principle As a matter of fact, in this political sit- of religious liberty. Today, the problem uation that is so full of potential for good concerns the relationship of the State to and evil, only one power can come to the the freedom of religion. As I have tried to defense, not only of religious freedom, but explain, the contemporary State no longer of freedom in general. This is the power places itself on a level of intellectual su- of the Church, above all the Catholic periority with regard to the "unformed" Church, which sometime in the future, and masses. It no longer considers itself su- by means as yet unknown to us, will bring perior to and removed from the religious about the unification of all the Christian faiths, nor is it totally indifferent to and Churches. The Catholic Church is both a beyond the jurisdiction of moral and reli- spiritual and an earthly entity. Deeply an- gious norms. On the contrary, having lost chored in the people, it teaches principles the status of a "secular" State, "secularism" of love and justice for all, principles which being understood to signify complete inde- constitute the most valid and substantial pendence from all external regulation, the substrate of the contemporary State. Fur- contemporary State has ideologically as- thermore, the Church is spread throughout sumed certain vital concepts that can, with the world and, consequently, is present in regard to religious liberty, place it in a the international order to which the con- position equally or perhaps more dangerous temporary State must be securely anchored. than that which it occupied in the past. This State should by all means seek an ac- 11 CATHOLIC LAWYER, AUTUMN 1965 cord with this flourishing and insuppressi- served by means of an accord between ble Church, a harmony whose first and these states and the Catholic Church, what essential note could not be other than free- is happening today in those countries hav- dom for the Church itself. ing a liberal and democratic tradition? We can be sure that this would seem During this last century, a new factor a supreme paradox to men of the past, and has manifested itself in these states. By to those who live by the ideas of the past- means of masses of Catholic voters (in that the best defense of freedom is an ac- some respects very different from the laity cord between the Catholic Church and the of the past), universal suffrage, extended State, the first principle of which is a rec- in almost all countries to include women, ognition of the Church as an entity en- has returned political power to the Church. dowed with a sovereignty derived from its At least since the Renaissance, and includ- own spiritual domain. It should be noted, ing the major part of its prior history, the however, that this theory constitutes one of Church has dealt solely with princes and the profound, if subtle, reasons for the un- their ministers, or with the small ruling justifiably maligned efforts of Pope John classes of the liberal society of the eight- XXIII in connection with the religious eenth century. It now finds itself faced situation in Russia and the Soviet satel- with the representatives of a people who lites, including the problem of the Russian are in large measure its own followers. Orthodox Church. If in fact an agreement Caesar wears a new face but, underneath, were to be reached tomorrow with these the traits of fidelity to the Church are obvi- countries, Russia in particular, the primary ous, at least in numerous European coun- advantage of such a presently improbable tries and their former colonies. They are accord, religious freedom, would be recog- particularly significant if we stop to con- nized not only on paper but in the fact of sider that the Catholic Church is the only the Russian Orthodox Church. The latter, religious society that affirms a sovereignty through the efforts of the Church of Rome, originating from within its own domain would achieve an indispensable means to- and which occupies a position of independ- ward a more intense life of its own-an ence that is recognized even in interna- actual opportunity for the reconquest of tional law. souls. The possible consequences are incal- The danger to freedom of religion is ob- culable, not only regarding a rebirth of vious in states hostile to the recognition of Christianity among the people who are re- liberty for their citizens. We wonder, how- stored -to it, but also for the prospects of a ever, if the situation in democratic coun- reunion with the largest separated Chris- tries is not even more fraught with dangers tian Church. to religious freedom. Viewed from a purely As we have seen, there are countries in mundane and external position, given the which freedom in general is rarely prac- situation of the Catholic Church in some ticed or where it has been given a totally of these states, is there not some danger distinct interpretation, such as "functional that religious liberty might come to be re- liberty," "popular freedom," or "controlled garded in a more or less restricted sense, liberty," instances in which the adjective as perhaps "the liberty of the Church," for- destroys the noun. If, in such countries, freedom of religion can scarcely be pre- (Continued on page 346)