I recently attended the third annual Canon Law Conference for Canonists and Civil Attorneys hosted by His Eminence Raymond Leo Cardinal Burke at the Shrine of Our Lady of Guadalupe in La Crosse, Wisconsin. Truly, it was an excellent conference made all the more so by the opportunities for spiritual refreshment and prayer at arguably the most beautiful shrine in the United States.
One of the presentations at the conference was on religious liberty. The presenter, a noted canonist and excellent scholar, however, left me a bit perplexed. To be fair, his presentation was largely an articulation on the current state of affairs regarding the state and religious liberty both in Europe and the United States. To illustrate this state of affairs, he briefly traced the historical reality of religious liberty in Europe, the difficulty of defining “religion,” the jurisprudence of the United States Supreme Court, the decisions of the European Court for Human Rights and the decisions of various European nations on the topic. All well and good. Then he articulated the role of the state with regard to religious liberty. He noted that there were six points that were the role of the state: (1) Neutrality (2) No Interference in Internal Affairs (of official religious organizations) (3) Protection Against Outside Aggressors (4) Obligation to Act (5) Limited Restrictions to Religious Liberty and (6) Conscience Protection. This is where I raised the proverbial judicial eyebrow.
The constraints of space prohibit me from an exhaustive look at each point. The point I wish to highlight and which the good professor did not give a satisfactory answer is on so-called state “neutrality” on religion. I suppose my objection to his position could be summed up with the fact that he seemed to be satisfied with the status quo of jurisprudence in the United States. From a Catholic scholar with–as Fr. John Courtney Murray, S.J. noted–a wider and deeper tradition at his disposal, I would have hoped for a more critical approach to the status quo and recommendations more in line with reality. Instead, I perceived a hint of pragmatism and practical surrender to the reigning secularism.
My query was thus: Can the State truly remain neutral with regard to the existence of God? I asked this as the problem seems to be in some ways definitional. “Religion” has been de facto defined in contemporary Supreme Court jurisprudence as being theistic and non-theistic [cf. Torcaso v. Watkins 367 U.S. 488 (1961)] and a position of so-called neutrality by the state was in fact not a neutral position: a position of functional atheism (at least, agnosticism) or secularism. To be fair, I suppose he may not have been prepared for a question that involved several other issues, namely: metaphysics, natural law, constitutional interpretation, and hermeneutics. At the same time, it seems to me that a Catholic lawyer and scholar should have a sound legal philosophy that can harmonize first principles and make sound recommendations even in the midst of the reality of our modern secular states.
The answer I received was a bit of a dodge; he reiterated the fact of the pluralistic society and the need to remain neutral with regard to religion. He also suggested that the government shouldn’t take a position on the existence of God as that would allow Christians and Buddhists (and presumably other non-theistic religions) to join hands together and fight government encroachments on religious liberty. In a subsequent private conversation on the same point, he noted that he didn’t think that neutrality meant a functional atheism. When I further distinguished between “neutrality between sects” vs. “neutrality on the existence of God” and pointed out the further distinction between the federal and state dynamic of the US Constitution, he seemed to be too readily accepting of the current jurisprudence and contemporary society. To his credit, he admitted that he would need to read and think more about the problem. I hope that he does, as his can be a powerful voice for the Church. Yet, I left thinking that his legal philosophy was overly pragmatic and philosophically unsound because it was not rooted in the reality of God and the truth of the human person. Indeed it appeared to be incompatible with the natural law, something both reasonable and recommended from time immemorial by the Magisterium.
I am reminded of the eminent Heinrich Rommen on this point:
The idea of natural law obtains general acceptance only in the periods when metaphysics, queen of the sciences, is dominant. It recedes or suffers an eclipse, on the other hand, when being and oughtness, morality and law, are separated, when the essences of things and their ontological order are viewed as unknowable. The natural law, consequently, depends on the science of being, on metaphysics (The Natural Law, 141).
Then-Cardinal Joseph Ratzinger, in his celebrated address “The Crises of Law,” makes the same point:
The “end of metaphysics,” which in broad sectors of modern philosophy is superimposed as an irreversible fact, has led to juridical positivism which today, especially, has taken on the form of the theory of consensus: if reason is no longer able to find the way to metaphysics as the source of law, the State can only refer to the common convictions of its citizens’ values, convictions that are reflected in the democratic consensus. Truth does not create consensus, and consensus does not create truth as much as it does a common ordering. The majority determines what must be regarded as true and just. In other words, law is exposed to the whim of the majority, and depends on the awareness of the values of the society at any given moment, which in turn is determined by a multiplicity of factors. This is manifested concretely by the progressive disappearance of the fundamentals of law inspired in the Christian tradition (Joseph Cardinal Ratzinger, “Crises of Law” Address to the LUMSA Faculty of Jurisprudence , November 10, 1999).
In the United States, the problems with the State being “neutral” on the question of God, are many: (1) it is impossible for the state to be “neutral,” by attempting to do so it chooses a secularist and, at best, agnostic position which is defined as a “religion” by the Torcaso decision; (2) the state is unreasonable as it ignores the ultimate reality and the truth of the human person, with the implications regarding the essence of law being an ordinance of reason; (3) the state becomes the highest standard assuming the role of arbiter of reality, thus leading to relativism; and (4) the state further compartmentalizes religion as a purely private affair.
This is a real problem. While appeal may be made to the Supreme Pontiff’s position that religious liberty is “the first of human rights, not only because it was historically the first to be recognized but also because it touches the constitutive dimension of man, his relation with his Creator” (“Address of His Holiness Pope Benedict XVI to Members of the Diplomatic Corps,” January 10, 2011), explicit in the Pope’s statement is that there is a God. Religious liberty makes no sense without the truth of the existence of God. In our efforts to respect man’s free choice to make an act of faith–which is the essence of what is being protected–we need not afford or accord unreality the same status. Indeed, if we do, we tacitly–if not explicitly–endorse the “sweet mystery of life passage” of Planned Parenthood v. Casey (1992): ”At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This is the mantra of totalitarianism. Catholic lawyers, scholars, and jurists must be at the forefront of promoting a jurisprudence that is philosophically sound and humble enough to acknowledge the existence of God–not as a private affair, but as the only secure foundation for a just state. Let us end this critique with the words of the Supreme Pontiff himself, applicable to the misguided jurisprudential notions of religious freedom:
The primal error of…a radicalized will to freedom lies in the idea of a divinity conceived as pure egoism. The god thought of in this way is not a God, but an idol….The real God is by his very nature entirely being-for (Father), being-from (Son), and being-with (Holy Spirit). Man, for his part, is God’s image precisely insofar as the “from,” “with,” and “for” constitute the fundamental anthropological pattern (Joseph Cardinal Ratzinger, “Truth and Freedom” in Communio 23 (1996)).