The Misunderstanding and, therefore, the Misuse of John Courtney Murray

 

In its March 5 issue, America magazine has a series of essays which fall within the caption “Religious Liberty at Risk?”. The question mark in the cover title suggests in the periodical, which bills itself as “the National Catholic Weekly”, that the issue of religious liberty at risk is a debatable one, at least for Catholics, in the United States today.

Some of the contributions in this issue of America argue that the concerns being raised these days about religious liberty by Roman Catholics, largely but not exclusively within the purview of the HHS mandate, necessitate a “balancing act” between the rights of the Church and “the rights of all.” Who the “all” are is never addressed (people who want birth control, abortion, and sterilization?), and the question surrounding what are the “rights” claimed is ambiguous in large part.

Several of the contributions rely on the thinking of John Courtney Murray, S.J. regarding the subjects of religious freedom, morality, and the law (civil). In this regard, I am sure that most folks who read carefully his work would agree that Murray, the Declaration on Religious Liberty, and international texts such as the Universal Declaration of Human Rights share the same view that authentic religious freedom is simultaneously a personal and communal right with both private and public dimensions that must be protected. But I detected from time to time that some of the conclusions in portions of the America articles cannot be supported by the thought of Murray as is suggested by several contributors. To comprehend what are the contentions that misuse of Murray, one must take stock of how Murray is brought into the neuralgic issues of the day (same-sex marriage, abortion, and contraception). Second, it is crucial to comprehend all of Murray rather than just some of Murray.

All of these issues of public policy involve some dimension of law promulgated by the temporal authorities of the United States. In addition, these issues also intersect reasoned moral concerns that are addressed by the Church’s teachings. It is also patent that there is polarization in the country today over what should public policy be regarding these neuralgic issues. But it would be a mistake to suggest that the polarization that exists is solely attributable to tensions and conflicts between Church teachings and public policies. Certainly the Church is not the responsible agent for there being “red” states and “blue” states. Still, there is polarization. What might be the responses of Murray to these disagreements about public life and policy which are manifest today?

First of all, Murray would have to acknowledge that while there is not identical overlap between the moral teachings of the Church and public policy that is codified in law, there is frequent intersection. One need only look at the elements of the Decalogue dealing with right-relation between people to see these precepts duplicated in public law that address theft, killing, perjury, and elder abuse. It is not the coincidence of the Church’s moral teachings (and the moral view of religion more generally) and the civil law that is the issue that is the concern in this posting. Rather, this posting deals with the issue of religious liberty today and how far should the state and its law interfere with the moral beliefs and practices of the religious person and religious communities that include the Catholic Church?

In regard to the controversy of the present moment about religious freedom, the distinction between public and private moralities is not the issue. This is an important topic that Murray was not adverse to addressing, but it has little or no application to the current debate between religious freedom and conflict with public law.

Rather, the concerns about religious freedom involve whether public law must coerce the religious believer and religious community to exercise publicly their moral teachings at their peril. The problem is not that the Church is imposing its beliefs on the temporal world. The problem is that the temporal authorities, which have secured in law morally problematic positions, are mandating that the religious believer and the religious community must be coerced into doing that which is morally unacceptable.  Some thinkers and writers have recently argued that Murray asserted that for the law to be effective, there must be consensus about underlying premises if the law addresses moral issues intersecting people’s conduct. I am sure that most folks would agree that laws prohibiting theft are morally acceptable, but the fact that there exists a minority which does not agree indicates that there is not a consensus on this matter. Murray would did not argue that consensus about a moral issue was crucial to the viability of legislating on or for the moral issue. His concern about consensus took a different path.

He understood that the consensus that was essential to the foundation of the United States and its legal regime was also common to Catholic teaching. But this consensus that was crucial to our nation’s foundation seems to be in short supply today as is evidenced by the absence of appeal to ordered liberty—not just for believers and Catholics but for all Americans. What Murray did say about consensus was this: American institutions of the second half of the twentieth century, including the American academy, have “long since bade a quiet goodbye to the whole notion of an American consensus, as implying that there are truths that we hold in common, and a natural law that makes known to all of us the structures of the moral universe in such wise that all of us are bound by it in a common obedience.”

Obedience and law frequently go hand in hand. In the present context of concerns about religious freedom and conflicts with the liberty to have an abortion, to participate in same-sex marriage, or to use birth control it is not these latter “liberties” that are threatened; rather, it is religious freedom which is. What is emerging more clearly with the passage of time is the fact that good citizens who are also good Catholics are being forced to put aside their moral beliefs and embrace against their religious convictions the amoral, the immoral, and the morally compromised.

Murray was a firm believer in the natural law as the exercise of human intelligence comprehending the intelligible reality that surrounds us. What gave him concerns two generations ago was the rise of “the voluntarist idea of law as will” that could push aside the objective reason of human intelligence comprehending intelligible reality. He foresaw the day when the “noble many-storeyed mansion of democracy” would be dismantled and “levelled to the dimension of a flat majoritarianism, which is no mansion but a barn, perhaps even a tool shed in which the weapons of tyranny may be forged.”

I submit that Murray saw what was beginning to happen to the enterprise of the authentic American consensus and the vital role that religious freedom has to exercise within the forming of this consensus. He issued his warning founded on the inextricable nexus between the moral outlook and the laws that must be made by a society that calls itself democratic. Democracy for him would fail when the moral perspective was forced to embrace the morally problematic in the formation of laws and public policy. This is why the Catholic bishops today are exercising their teaching authority to remind all people of good will about the non-derogable nature of religious freedom. The debate about religious freedom today does not entail the imposition of Catholic moral teachings on the rest of society; rather, it involves the imposition of immoral and amoral views on all, even those who are protected by the right of religious freedom, a right that preceded the state which is now being manipulated to impose views antithetical to religious liberty.

In regards to the future of the American consensus, Murray stated, “it would be for others, not Catholics, to ask themselves whether they still shared the consensus which first fashioned the American people into a body politic and determined the structures of its fundamental law.” I think Murray would be of the view that the U.S. bishops are taking a course that is consistent with his notion of religious freedom.

 

RJA sj