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Bishop Lori's Testimony on Religious Liberty

Bishop William Lori, head of the newly created ad hoc committee on religious liberty at the USCCB, testified before Congress yesterday. His presentation was a fine one, and I wish to focus on one particular section.

Bishop Lori said:

But religious freedom also belongs to churches and other religious institutions, comprised of citizens who are believers and who seek, not to create a theocracy, but rather to influence their culture from within. The distinction between Church and State, between God and Caesar, remains “fundamental to Christianity” (Pope Benedict XVI, Deus Caritas Est, No. 28). We look to the State not to impose religion but to guarantee religious freedom, and to promote harmony among followers of different religions. The Church has “a proper independence and is structured on the basis of her faith as a community the State must recognize” (Ibid.). An indispensable element of this independence is the right of churches “not to be hindered, either by legal measures or by administrative action on the part of government, in the selection, training, appointment, and transferral of their own ministers” (Second Vatican Council, Dignitatis Humanae, No. 4). We are grateful that federal courts in the United States—at least to date—have uniformly recognized this core protection under the Religion Clauses of the First Amendment.

Here is a giant Pandora’s box for both American politics and religion in the United States.

The founders, like us all, were certainly imbued with ideas drawn from the ambient culture and that culture was deeply religious. It was also specifically religious: It understood religion in terms of Protestant Christianity. For them, religion was an individual and private affair, to which citizens had every right, to be sure, but they did not endorse the idea of the libertas ecclesiae, the freedom of the Church. This idea was, for them, too wrapped up in notions of wealthy ecclesiastics, living off of benefices, refusing to contribute to the commonweal. The Catholic Church was, to eighteenth century American eyes, part of the ancien regime they intended to overthrow. The Battle of Culloden was no more distant from their experience than the Vietnam War is from ours. The Quebec Act of 1774, which extended religion and civil rights to Catholics in Canada, was among the “Intolerable Acts” against which the colonists protested, resulting in the decision to convoke the First Continental Congress. They had been raised singing “Rule, Britannia,” and when they sang the chorus – “Britons never will be slaves” – the words did not bespeak the fear that they might wake up the next morning to find themselves black and in the South. The “slavery” in question was the fear that they would be like those French Catholics who lived under what they believed was civil and religious tyranny. This history is important because I fear that some conservative Catholics wish to ally the Church with a Republican Party for whom all this is not only opaque but highly inconvenient. They talk about America being a “Christian nation” and claim that the founders were deeply religious, but they obfuscate as much as they illuminate and, if we are to build on solid ground, rather than sand, we need to get our history right.

The notion of rights that emerged from the founders, shaped by Enlightenment ideas, also cohered neatly with Protestant ideas about religion. Freedom was understood in individualistic terms exclusively by the founders and in America today it still is. This came up in one of the recent GOP debates when former Sen. Rick Santorum differentiated his position from that of Congressman Ron Paul by insisting that family’s have rights and suggesting a more Catholic notion of the individual as a social animal. Paul’s response was clearly in the mainstream of Enlightenment thought: “Well, I would like to explain that rights don’t come in bunches. Rights come as individuals, they come from a God, and they come as each individual has a right to life and liberty.” No libertas ecclesiae there.

I am not a lawyer, still less a constitutional scholar, but reading recent court decisions, I get the sense that many jurists do not even recognize religious freedom as a distinct freedom. It seems more like an extension of freedom of speech and/or freedom of association. The idea that religious freedom is, as Bishop Lori said echoing Pope Benedict, in a certain sense the primary freedom, even a prior freedom, gets into some deep ideas about theological anthropology where, again, our Catholic worldview is quite at odds with current jurisprudence and political philosophy. More on this in a bit.

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These issues were raised in a truly provocative and important essay by Lew Daly to which I have called attention before. Daly used the idea of libertas ecclesiae to focus on the issue of union rights. His views were far more consonant with Catholic ideas about how subsidiarity and solidarity (and let those two words always be written together!) than with the libertarianism that colors so much of our political culture, on both left and right.

But, I have a yet deeper concern that how our faith interacts with our legal culture. If we see freedom in uniquely individualistic terms, if we adopt the allergy of the founders to the libertas ecclesiae, this will, in turn, affect our self-understanding as a Church. It is way too easy for Catholic Americans to join with their non-Catholic brothers and sisters in viewing the Church as essentially a voluntaristic association in which like-minded people come together, free to come and free to go. Of course, in terms of government inteference, we should all be free to come and go ecclesiastically as we wish. But, if we view the Church as a kind of glorifed, theologically informed version of the Rotary Club, we have cut the heart out of our foundational theology about grace. We are not Catholics because we decided to be Catholics. We are Catholics because God called us to His Church. Our volition is involved, we must say “yes,” to God’s invitation, but the initiative is God’s and the claims He makes upon us are not subject to human bylaws.

If you doubt that this kind of self-perception has infected the Church, look at the words of a particularly popular, and especially dreadful, folk song often sung in Catholic churches. “Let us build the City of God.” I get the impulse, but I think it is more accurate to say that we discover the City of God, we do not build it, or that God builds His City by sending His grace into our hearts, or that we cooperate, by grace, in God’s building of His City. There is something essentially Pelagian in American Christianity that is deeply connected to this idea, reflected in our cultural and legal understandings, that the Church is a voluntaristic association that happens to concern itself with God rather than neighborhood beautifcation or improving local schools, but that it really is little different from the PTA or the Garden Club.

Bishop Lori, then, and whether he intended it or not, is raising an issue that is part of the New Evangelization and it does so in three ways. (I know, I know, I link everything to the New Evangelization.) First, the New Evangelization requires that we look at the Gospel with fresh eyes, that we get past some of the cultural encrustations that have acquired in the same way we have acquired habits like reading the newspaper in the morning. Second, the New Evangelization requires, if I understand it properly, that we engage Modernity with a view towards rescuing its undoubted achievements from its often faulty underlying anthropology. Finally, and very practically, the New Evangelization requires that we place ideas like this one raised by Bishop Lori before the law faculties at our Catholic universities. We need Catholic constitutional lawyers, not just bloggers, to read Bishop Lori’s testimony and invite them to think, and think deeply, about the issues it raises. The libertas ecclesiae is an old idea whose time has come again, breaking into our received understandings of the way things should be. So, too, the New Evangelization is built upon an old event, the death and resurrection of Jesus Christ, whose time is always breaking into the world anew.

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