Monday, February 27, 2006
Here is a link to a helpful and thoughtful piece by MOJ-friend Paolo Carozza (Notre Dame), called "Free Church and Limited State," on how "[t]he religious character of American culture and the role of the Church in public debate reveal why a concordat between Church and State is superfluous in the USA." Here is a bit:
Our law respects and protects that central role that religion has played in our collective life. We have a capacious understanding of freedom of religion, which recognizes that an important part of the liberty of religious communities is the capacity to speak and act publicly on questions of common concern. At the same time, the dominant American notions of freedom of speech are substantially more unrestricted than the prevailing European ones. Much of our tolerance for the presence of religiously informed views on controversial social issues is the consequence of the idea that all speech is given space to be heard in the public square, even if it is unpopular or offensive to some others. This is especially important given the great pluralism of religious identity and commitment among Americans. It is not the role of the state to be the arbiter of what is acceptable as public discourse, and so the law protects the liberty of all to express their views–even, or perhaps especially, those whose views are informed by their religious convictions.
Here there is a close connection between American views of the place of religion in public and American views of the state. While the legacy of nineteenth-century constitutional theories in continental Europe emphasizes the monopoly of the state as the embodiment of the public interest, the United States belongs to a constitutional tradition much more inclined to see the state as a limited actor in the social fabric. From this side of the Atlantic, a Concordat appears to be a response to the need to establish certain protections for the Church against the state’s claim of exclusive and ultimate power and authority. But in a context such as ours, where the freedom of the Church is largely guaranteed by the structural limitations of the state to interfere in her affairs, a Concordat seems to be superfluous. To give a specific example: there is no need for a special agreement ensuring the right of the Church to establish its own educational system, because the state does not have a monopoly of power over education to begin with and so cannot prohibit the creation and operation of religiously affiliated schools.