Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, July 24, 2013

Garnett on "The Freedom of the Church"

I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church."  I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc.  Others -- including Michael Moreland, Patrick Brennan, Tom Berg, Steven Smith, etc. -- have, too (and better).  Anyway, the paper is called "'The Freedom of the Church':  (Towards) an Exposition, Translation, and Defense."  Here is the abstract:

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.

As Legal Theory king Larry Solum would say, "download it while it's 'hot'".  


Garnett, Rick | Permalink


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Professor Garnett, at the end of The Day, Truth matters, which is why The Catholic Church has always taught that God desires conversion, not ecumenism.
There Is only One, Holy, Catholic, and Apostolic Church because there Is only One Word of God.

Posted by: Nancy | Jul 25, 2013 8:29:59 AM


A question: what if the “One, Holy, Catholic, and Apostolic Church” has gotten the “One Word of God” wrong; who would decide whether such a matter were true? Would you have the right to disagree with the “decider”? OK, that’s two questions...

Another: It may be that the “The Catholic Church has always taught that God desires conversion [to Catholicism], not ecumenism”; if true does that not mean that the Catholic Church is opposed to religious liberty?

sean s.

Posted by: sean samis | Jul 25, 2013 4:21:05 PM

Sean, Christ would not found His Church and not ensure The Word of God remains consistent. The Catholic Church is the guardian of The Deposit of Faith.

Posted by: Nancy | Jul 25, 2013 7:54:25 PM

Professor Garnett, perhaps an additional question to ask when applying the second part of the Lemon test is: Why should anyone be concerned if a particular policy or official action which serves the Good of all persons, endorses or advances a particular religion, when that particular Faith recognizes the truth about the inherent personal and relational Dignity of the human person, to begin with?

Posted by: Nancy | Jul 26, 2013 9:44:21 AM

Nancy, inconsistency has already happened.
Perhaps Protestantism exists because the Catholic Church got the “One Word of God” wrong; so Protestants said/say.
Perhaps Protestantism introduced the inconsistency.
And of course there are all the other Christian traditions; some about as old as Roman Catholicism.
How does an uncertain person decide?

Who decides whether the Catholic Church really is the guardian of The Deposit of Faith? I am not saying they are not; I approach this from the standpoint of the unchurched and unconverted; how do they figure this out?

sean s.

Posted by: sean samis | Jul 26, 2013 11:30:00 AM

Regarding your question to Prof. Garnett, the problem is that there is no universal agreement about what constitutes “the truth about the inherent personal and relational Dignity of the human person”. To follow your advice is to destroy religious freedom.

sean s.

Posted by: sean samis | Jul 26, 2013 11:30:17 AM

Sean, the truth about the human person, is not a matter of opinion; we are husbands, wives, fathers, mothers, sons, daughters, brothers, sisters...

Posted by: Nancy | Jul 26, 2013 12:03:52 PM

We can know through Sacred Tradition, Sacred Scripture, and The Teaching of The Magisterium, that Christ, Himself, Was Baptized into His One, Holy, Catholic, and Apostolic Church and promised never to leave us.

Posted by: Nancy | Jul 26, 2013 12:08:35 PM