The Third Plenary Council of Baltimore, held in 1884, included a spirited discussion of the compatibility between the American system of limited government and the religious liberty which the Church in the United States was enjoying. The Council Fathers were not all of one mind. All were churchmen of the first order who deeply loved the Church and were devoted to her mission. All were loyal, patriotic, American citizens who loved their country as a land of opportunity and freedom.
Yet some, such as Bishop Bernard McQuaid of Rochester saw dangers to religion in the American form of government and he and his colleagues were cogent and forceful in defending their point of view. For one thing, they had reservations about religious pluralism, believing that a multiplicity of faiths with competing claims tended to water down the fullness of Christian teaching found only in the Roman Catholic Church. They questioned to what extent the Church could accommodate herself to a secular state without compromising or even endangering her mission. With European Church-State relations in ferment, these bishops had begun to wonder aloud how the Holy See viewed the uncharted waters of America’s version of Church-State separation.
This view has to be seen in the context of the times. American culture in the 19th century was marked by a virulent anti-Catholicism, from groups such as the Know-Nothings, and others. At the time of the Third Plenary Council, Grover Cleveland had narrowly defeated Senator James Blaine for President. We remember Senator Blaine as the author of the Blaine Amendment, which stipulated that no public funds would ever be used for Catholic schools.
Nonetheless, a more optimistic view of religious freedom in the United States was cautiously advanced by then-Archbishop James Gibbons of Baltimore. With an influx of immigrants from Europe, the Church was growing by leaps and bounds. Magnificent cathedrals were being built, parish churches opened, schools established, along with hospitals and organized charities. The number of seminarians and priests was on the rise and religious orders were flourishing on our soil. So, as 14 archbishops and 61 bishops convened at St. Mary’s Seminary on Paca Street, the Church was becoming a major player on the American scene in spite of a deep and pervasive prejudice against Catholicism.
I would venture to say that most of those prelates believed that the Catholic Church was experiencing such growth and vitality precisely because it was not entangled with the government and because it was engaged in its mission in an atmosphere where all religions could flourish. By and large, those bishops moved across a cultural scene where most people did not doubt the role of virtue & religion in a democratic society.
All this led Cardinal Gibbons to comment on behalf of his brother bishops: “We consider the establishment of our country’s independence, the shaping of its liberties and laws, as a work of special Providence, its framers ‘building better than they knew,’ the Almighty’s hand guiding them. We believe that our country’s heroes were the instruments of the God of nations in establishing this home of freedom; to both the Almighty and to His instruments in the work we look with grateful reverence. And to maintain the inheritance of freedom which they have left us, should it ever–which God forbid—be imperiled, our Catholic citizens will be found to stand forward as one man, ready to pledge anew ‘their lives, their fortunes, and their sacred honor.’”
Gibbons and the prelates who gathered with him saw in the establishment of this country the hand of Divine Providence. They also perceived an enduring compatibility between the constitutional foundations of America and the Church’s understanding of the natural law – that innate if flawed understanding of the fundamentals of right and wrong that is a part of the “standard equipment” with which we are endowed by the Creator. Even so, Gibbons did not say that the framers built the best possible system, only that ‘they built better than they knew’ – . . . drawing on more wisdom than perhaps they knew and creating a country of freedom and opportunity that exceeded their expectations.
In the mid-twentieth century this view seemed to be vindicated as more and more Catholics were assimilated into American culture and as the Church continued along a path of unprecedented growth. This view was also confirmed by the work of Fr. John Courtney Murray, S.J., whose reflections on religious freedom were influential in the development of Dignitatis Humanae, the document on religious freedom of the Second Vatican Council. But its vindication has recently been called into question, as we shall now see.
II. An Old Problem in a New Key
Soon after my appointment to Baltimore, a keen observer, noting my activity in defense of religious freedom, asked if I were not behaving more like McQuaid than Gibbons. I thought for a moment and answered, “I’m behaving like McQuaid in order to defend the vision of Gibbons.”
Of course, I pale in comparison to either prelate. The point is that we are once again at a crossroads in how religious freedom is understood and exercised in our country. Some things remain the same today as in the days in Gibbons. We remain a nation where most people still value some form of religious faith. Largely because of an influx of immigrants from Central & South America, & Asia, the Church in the United States continues to grow, at least in some places. And we still live in a country that Abraham Lincoln rightly described as “the last best hope on earth”.
Yet this is a time very different from the days of Gibbons and McQuaid. For one thing, the place of religion in American society is slipping. While a solid majority of Americans still believe in God and describe themselves as Christians, fewer people in almost all denominations practice their faith, and this is true especially among the young. Denominational loyalty is also much less firm than once it was and churches, including ours, are marked by internal divisions and scandal. Many Catholics have joined other churches or have become un-churched. It is estimated that only 27 per cent of Catholics attend Mass regularly while the number of sacramental marriages has declined steadily in recent decades. All this and more is part of the challenge of the New Evangelization to which Pope Benedict has called us in this Year of Faith and beyond, and it relates directly to the challenges to religious freedom that we face. If throughout the country our churches were filled to capacity and all Catholics were vibrantly evangelized and systematically catechized, religious freedom would not be challenged so readily by bad laws, judicial decisions, and administrative regulations.
As people stop going to church and religious faith becomes less of an influence in their daily lives, many people question whether there are basic moral truths discoverable by reason and binding upon all. This is very different not only from the days of Gibbons but also from our experience growing up as many of us did in the 1950’s and 60’s when it was still widely assumed that our country shared a common moral code and that religion, morality, and virtue were necessary for the formation of citizens well-equipped to participate in a democratic form of government. Today many assert that there is no such thing as the natural law; and in some circles the view prevails that religion and religious institutions which persist in resisting the prevailing trends of an increasingly permissive society should be made to conform or else be reined in.
This is one of things at issue in the Health and Human Services mandate struggle. Even in their current proposed form, the HHS rules in effect limit full religious freedom mainly to worship and the teaching of doctrine. Catholic universities, hospitals, and social service agencies are not exempt but subject to a complex accommodation by which their employees would be provided abortion inducing drugs, sterilization, and contraception through insurers or third party administrators. While the Administration has adjusted the HHS rules, they remain problematic, especially because they give no relief to conscientious private for-profit employers. That we are even engaged in this long struggle over the HHS mandate goes to the larger points that we are losing our freedom to create a workplace rooted in Catholic values such as respect for human life from conception until natural death, and that religion is increasingly regarded almost as a foreign element in an open society where there are no fixed truths or values to guide the journey.
This is key to understanding the threats to religious freedom against which the Church and many people of good will are struggling, whether it’s eliminating religious symbols and prayer from public places, or ending conscience clauses protecting medical professionals from having to perform immoral procedures, or forcing conscientious for-profit employers to include immoral “services” in their health insurance plans. As a sunny, optimistic bishop, I am tempted to think that if the HHS mandate could just be rolled back to the status quo ante, if conscience clauses and religious exemptions could be restored, then for the Church all would be right with God and the world, and that the pax Americana of a Gibbons or a Denis J. O’Connell would be restored.
Alas, it’s not that simple if only because many fellow Catholics and citizens do not perceive that religious freedom is threatened, especially those who do not agree with some of the Church’s moral teachings. To be sure, we have to do a better job of evangelizing and catechizing Catholics, especially with regard to marriage and family life. We need to ensure that our schools, charities, and healthcare institutions have a Catholic heart and soul, so that these institutions are not Catholic in name only. And how hard we must pray and work for the unity of the Church, even as in God’s grace we seek authentic reform, ecclesia semper reformanda. Yet we also have to face head on the hard truth that the Church in America finds herself in a new and challenging situation that is larger than the sum of the individual religious freedom threats that our Church or any other church may be facing.
For conventional wisdom about religious freedom has begun to change profoundly. The founding documents are the same but increasingly they are being pressed into the service of an aggressive secularism which seeks to undermine the place of religion in American life. To some it would seem that the framers constructed the founding documents ‘worse than they knew’ – not better – worse because they view human rights and freedoms in a way that is antithetical to a classical understanding of natural law, not consonant with it. But where is the truth to be found?
III. The Founding Fathers’ Political Philosophies
On occasion, even the great Gibbons and along with him lesser lights have been accused of trying to “baptize” the founding documents by injecting into them a nearly Catholic understanding of natural law. Those who persist in finding traces of the Catholic intellectual tradition in the foundational documents of our country are said to be deluding themselves. Instead, it is asserted that the founding Fathers were themselves individualists and secularists with a surprisingly contemporary outlook: irreligious champions of amoral liberties for individuals, liberties of which the government is both the source and referee. Indeed, we cannot draw a straight line from the thinking of the founding fathers back to the natural law theory of St. Augustine or St. Thomas Aquinas. Rather natural law theory is rather like a mansion with many rooms through which the framers ambled. In the end, it would be unrealistic for us to imagine that the Catholic intellectual tradition, so fundamental for the construction of Western culture, played no role in the thinking of those who framed our founding documents.
But what is the Christian understanding of natural law? In general, it hinges on the fundamental truth that God created the world in wisdom and love with man as its pinnacle. Created reality reflects God’s wisdom and love and thus has meaning; and God endowed man with an inner apparatus, a conscience, to perceive something of the wisdom and love he etched in his handiwork, namely, a law inscribed on the human heart that gives rise to fundamental moral principles which have the Ten Commandments as their privileged expression. Thus a sense of right and wrong, albeit flawed and limited, is accessible to all, even without the aid of divine revelation.
Now to fast forward to the 17th and 18th centuries! Here it must be admitted that the Enlightenment and post-Enlightenment period produced a variety of views on political philosophy and natural law, including various approaches to the notion of what is called the “social contract”. Thomas Hobbes (1588-1679), for example, did not think that government was based on anything resembling divine or natural law. Rather, he believed that the state came into being when rugged, miserable, isolated, individuals ceded some of their rights to the state which they formed as a matter enlightened self-interest. For its part the state would create laws to regulate how people ought to interact with one another. It would serve as arbiter of the conflicting rights of individuals all vying for survival, prosperity, and happiness. Hobbes departed from the ancient philosophical understanding of man, as a social and moral being, reflected in Scripture and Tradition. As such Hobbes is a sort of forecast of modern thought which sees the state as a referee of conflicting human rights, many of them unhinged from a shared morality and only recently discovered, yet now seen as somehow essential for human happiness and well-being.
On the other hand, John Locke (1632-1704), while rejecting the notion of innate ideas, nonetheless held that individuals are endowed with inalienable rights and at the same time bound by “The Law of Nature”. The state was formed to protect the rights of individuals even as these individuals are obliged to fulfill the duties that attend their rights. Locke held that state received its legitimacy from the governed; yet the governed brought more than conflicting rights to the table. If they brought rights they also brought a sense of right and wrong and of duty. Whatever differences exist between Locke’s understanding of the Law of Nature and the Christian understanding of the natural law, nonetheless, there is more than a thread of continuity here a current of thought reflected in the founding documents of our country.
If there were a common source through which our founding fathers would have been exposed to a more or less classical understanding of natural law, it was William Blackstone (1723-1780) whose Commentaries on the Law of England was widely read in colonial America. For him God is the author of all authentic law whether divine or human; as he put it: “Upon these two foundations, the law of nature and the law of revelation, depend all human laws … That is to say, no human laws should be suffered to contradict these.” No doubt his thought influenced the development of the framers’ thinking.
Natural law theory also figured in early American constitutional law. Justice Joseph Story, (1779-1845) an early member of the Supreme Court, relied on natural law in framing many of his decisions; as he wrote: “Natural Law, or, as it is commonly called, the law of nature, is that system of principles which human reason has discovered to regulate the conduct of man in all his various relations. In its largest sense…it comprehends man’s duties to God, to himself, to other men, and as a member of political society.” He added: “The obligatory force of the law of nature upon man is derived from its presumed coincidence with the will of his Creator … .”
All this means it is mistake to rule out the profound influence of an understanding of natural law with Catholic roots on the thinking of our founding fathers who ‘built better than they knew’ amid the intellectual and political currents of their day.
IV. The Framers’ Religious Views
Turning to the religious views of the founding fathers, they were indeed diverse. Some of the founding Fathers were Anglicans and Congregationalists, as you know, there was one Catholic in the mix, Charles Carroll. A number tended toward Deism, that is to say, they believed in a Deity who ordered the universe according to (immutable) laws, set it in motion, and otherwise remained uninvolved with it. Thomas Jefferson, manifested an Enlightenment-style skepticism of miraculous claims in the Gospels and so edited his own “demythologized” version. However, it would be a bridge too far to think of the founding fathers as atheists, secularists or individualists in our contemporary understanding of those words, if only because of their shared dedication to the common good of the res publica.
Because of his extraordinary role in framing the Constitution let us take the example of James Madison. By all accounts he was an advocate for a strict separation of church and state and for that reason many believe that “he was hostile to religion and felt its effect on society to be a pernicious one.” To be sure, his religious views were colored by the rationalism of the day yet there is ample reason to suggest that he believed in a personal God who judges us and calls us to a hereafter that transcends present experience. As he wrote in 1772 to William Bradford (who would become the second Attorney General of the United States): “ … a watchful eye must be kept on ourselves, lest while we are building ideal monuments of renown and bliss here, we neglect to have our names enrolled in the annals of heaven … ” (Cf. Robert S. Alley, James Madison on Religious Liberty, pp. 181-89).
So while Madison and others held for a strict separation of church and state, and some were skeptical of the claims of the Christian religion, in the main they were far from hostile to religion. Rather, they saw religious toleration and freedom as a great achievement and the separation of church and state was meant to protect that freedom, not to hem it in or to eliminate it. They also saw a relationship between rights and moral obligations and thus understood the value of virtue, morality, and religion for democracy. As George Washington said in his Farewell Address: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports … ”
V. The Contemporary Discussion
A different picture emerges as contemporary jurisprudence takes shape with the thought of Justice Oliver Wendell Holmes (1841-1935). At the base of Holmes’ thought was the view that the law could take no recognition of the true nature of whatever exists in the world. In his own words: “I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or to a grain of sand … ” … chilling words which reject the ability of reason to know the truth and which buttress judicial decisions that have attacked innocent human life. In place of a universally binding moral code, Holmes substituted the will of the majority, again to use his own words: “The ultimate question is, what do the dominant forces of the community want or do they want it hard enough to disregard whatever inhibitions may stand in the way?” Here the stage is being set for what Pope Benedict would famously term, “the dictatorship of relativism” where the powerful impose their opinions on others without reference to a common morality.
In 1951 a less well-known jurist, Supreme Court Chief Justice Fred Vinson (1890-1953), appointed by President Harry S Truman, summed up the relativist philosophy which deeply influences modern jurisprudence: “Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which give birth to nomenclature … all concepts are relative … .” Thus did the good Chief Justice absolutize relativism!
Once human rights, our founding documents, and our legal system are divorced from any attachment to the real world, created by God with in-built meaning, and thus detached from any sort of common moral code, then the path is cleared for human rights to expand exponentially: for new rights to be discovered in the founding documents that are not grounded in that truth and goodness which lead to human flourishing. Among the most infamous of these so-called rights which have no textual basis in the Constitution and no basis in our moral tradition is the “right” to an abortion with Roe v. Wade some 40 years ago. Now there is “right” to abortifacients, sterilization, and contraception funded and/or facilitated by most employers. There is also the relatively recent notion of a “right” to so-called gay “marriage”. These trends gain the status of “rights” not because they are consonant with human nature but because “the dominant forces of the community…want it hard enough to disregard whatever inhibitions may stand in the way … ” to repeat the words of Justice Oliver Wendell Holmes.
By contrast, the modern civil rights movement was rooted in deep convictions about the dignity of the human person whose rights and freedom are to be recognized and guaranteed by law. Again and again Dr. Martin Luther King Jr. spoke out in biblical terms and in his Letter from a Birmingham Jail he referenced the natural law as understood by St. Augustine and St. Thomas Aquinas. Drawing the distinction between just and unjust laws, Dr. King wrote: “A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law … ”
Those seeking to expand human rights to include behaviors heretofore deemed immoral have their reasons for reading out of our founding documents any reference to the Creator and his will, or to words and distinctions that define reality. They have their reasons for excising from these documents any notion of a common morality discoverable by human reason, or any reference to values that flow from human dignity and human nature. By “freeing” our founding documents and our system of laws from such “inhibitions” they make it possible to continue expanding the list of human rights, often at the expense of the essential human rights which the framers wisely identified & enshrined in the Declaration of Independence, the Constitution & the Bill of Rights.
But where does this leave religious freedom, our first and most fundamental freedom? The short answer is that this unhinged and ever expansive world of human rights does not merely hamper religious freedom; it imperils it. This is especially true when a given religion has the courage to question whether newly discovered “rights” have a foundation in reality, or whether new “rights” are bad for individuals and society, or whether they relate to behaviors that are in fact always and everywhere immoral. Thus, conscientious individuals and religious institutions are now more and more finding themselves in the crosshairs of a hardened secular culture dominated by the views of a powerful few. The downward spiral goes like this: Religious and moral teachings, once shared by almost everyone, are first scrutinized and then efforts are made to shift public opinion away from them. Then laws are enacted and regulations issued that are contrary to values and teachings that society once held in common. Next allowances are made for such teachings through exemptions and carve outs. At length these exemptions are narrowed or removed as some religious and moral teachings are branded as a form of intolerable bigotry. When I testified before a congressional committee last year, I was confronted by a comparison between Jim Crow laws and the Church’s teaching on same sex marriage. It was hard to miss where that conversation was leading!
V. Conclusion: Bearing Walls of a Free and Democratic Society
Blessed John Paul II used to say to us, “Be not afraid” and Pope Benedict XVI stands on the world stage as a principled and courageous defender of human rights and dignity; indeed, our Holy Father knows and cares about the religious liberty challenges we are facing the United States. His Holiness reminds us of truth’s resilience and of the Lord’s abiding presence, even as he guides our prayer and reflection regarding religious freedom. He terms the right of conscientious objection a “frontier of liberty” and teaches us that it “touches upon principles of an ethical and religious character, rooted in the very dignity of the human person” . . . principles that are “the bearing walls of any society that wishes to be truly free and democratic” (Address to Diplomatic Corps, January 7, 2013).
In the spirit of the New Evangelization, may I invite you to exercise what Blessed John Henry Newman called “the apostolate of personal influence” – to engage your network of family members, colleagues, and friends to understand more profoundly how religious freedom is threatened and to think of our political system with more than enlightened self-interest. Rather, let us and those around us allow Holy Spirit to light our minds with Christ’s truth and to warm our hearts with his love, so that we be that generation of believers and citizens who call our country back to its founding ideals, who understand that the framers did indeed build better than they knew and in doing so demanded of us the very best.
Thank you for listening! May God bless you and keep you in his love.