Separating Church and State
Glenn W. Olsen
The distinguished Hungarian-American historian, John Lukacs, recounts the
outcome of the poll of Catholic college women he remembers Will Herberg to have
reported in the 1950s.1 They simply were asked whether they thought of themselves
first as Americans or as Catholics. Ninety-eight per cent of them thought of themselves
as Americans first. The position I would like to advance here is no one's but my own,
for I would be counted with the two per cent. Because I am an adult convert to
Catholicism I have not directly participated in that deep yearning of the immigrant to
be accepted at virtually any cost into the larger culture, to be thought a good American.
This yearning, one form of which is caught in Frank Capra's movies and life, seems to
me central to the history of religion in America.2 I do not think America is the "best
country there ever was," and I am not particularly enamored of the American legal
tradition.3 Therefore, although an American, I speak as an outsider, and as someone
skeptical about "the American experience." I suspect my analysis will look as strange to
many of my coreligionists as their sharing of premises with the world around them,
what I would call their profound secularization, seems to me.
The story is told that earlier in this century George Santayana while at Harvard
was asked about Catholicism in America. The genial non-believer responded that he
had met no Catholics in America, only some Protestants who prayed the rosary (a
dated response that!). The position I wish to mount _ this is the first step of my
argument _ rests on the observation that humans are by nature religious animals. I
suspect that in a society in which all assimilated groups, from the framers of the
Constitution to contemporary assimilated Jews, have taken into themselves the
dominant Protestant world view, such an observation is, as they say, off the screen.4
Most people in our culture take for granted the classical Protestant understanding of
the separation between faith and reason, and assume for instance that both religion
itself and the moral life pertain to faith and somehow are a world apart from that of
science and reason, which latter are the instruments by which a neutral public and
secular sphere of life may be constructed.5 Some such assumption must lie behind the
otherwise baffling Louisiana court decision which recently held that an abstinence-
based sex education curriculum was, as Planned Parenthood had claimed, "religiously
based because it talked about abstinence but did not mention birth control."6 Such a
claim seems to take it for granted that positions on questions like abstinence come from
one's religion, which they do in classical Protestantism, but completely ignores
philosophical naturalism, the various natural law claims, and indeed any philosophical
position which holds that reason unaided by revelation has a word to speak on such
matters. They proceed as if the Protestant way of looking at such issues is the only way.
Groups like Planned Parenthood, the ACLU, indeed in good measure the courts
themselves, seem to me not at all neutral in matters of religion but in this sense
profoundly Protestant, or what we might call culturally Protestant, because tacitly
assuming a Protestant separation of faith from reason.7 Thus according to the Kathryn Kendell in arguing that Utah officials should separate "their religious
views from their public responsibilities," pointed to Mario Cuomo as doing just that on
the abortion question.8 Here Ms. Kendell, along with Gov. Cuomo, assumes a
"Protestant" understanding of the nature of abortion, which she takes to be a religious
question; gives no indication of understanding why the Catholic Church, if not Gov.
Cuomo, considers this to be a question of natural justice; and having herself worked
from Protestant premises, has the temerity to criticize Utah officials for intruding
religion into the public sphere, that is, doing what she has done. One would have
hoped for a glimmer of self-understanding in all this, and that it would have been seen
that the lesson to be learned is that all questions of law are also questions of philosophy
and many of theology also, and that therefore a strict separation of church and state is
impossible, in principle as well as in fact.
The irony is that the so-called separationist position is only possible on a
Protestant understanding of the separation of faith and reason, and therefore itself is a
theological position.9 This separation has made possible the very notion, central to
those who would build a high wall between church and state, of a common ground,
sometimes as in Alex de Tocqueville's analysis, denominated "society," itself neither
church nor state but so-to-speak between these two.10 Officially this common ground,
on this view, takes no religious position, and on it we live a shared political life,
irrespective of our private religious notions. One's ideas about (even) moral matters are
commonly taken to come, on such a view, from one's religion, and thus to be private
matters which should not be intruded into the public sphere. As they say, "You can't
[i.e., shouldn't] legislate morality."11 If the stray Catholic argues that, no, his or her
opposition to, say, abortion is based not on a specific religious revelation but on
rational notions of justice open to any human being, the argument is met with
incomprehension. If the proposed Freedom of Choice Act is opposed because hospitals
ethically opposed to abortions will face serious legal penalties if they refuse to perform
them, that is act against conscience, the ACLU is not likely to give support.12 The most
prestigious newspapers of record will continue to treat such questions as being about
revealed religion rather than as about social justice, and fail to see that their way of
regarding the issue expresses the cultural Protestantism of the country, that is, a form of
bigotry in which no effort is made to understand or take seriously traditions very
different from Protestantism.13
In arguing that man is by nature a religious animal, I want to suggest a very
different way of looking at the matter.14 Aristotle, in approaching the question of how
man is to be defined, saw that like anything else humans are defined by that which is
unique to them. Aristotle found this in mankind's rationality, above all in the ability to
examine the validity of one's own reasoning processes. Aristotle was not wrong in
defining human beings as rational animals, but his definition was incomplete or
narrow. For instance, without gainsaying Aristotle, one could just as well hold, with
that very special meaning which Plato gave to eroticism in the , that
humans are erotic animals. That is, that very rationality in man which Aristotle prized
was in turn rooted, as Aristotle partly saw, in an erotic impulse which drives humans
outside themselves in quest of truth to see the world and reduce it to understanding.
One could give cultural reasons _ for instance the general uneasiness of many Greek
philosophers in the presence of any form of passion _ for Aristotle's blind spot here.
The point is that, in the spirit of the observation in the , 4, that man is the most
imitative of animals, Aristotle could have enlarged his definition of man as rational to
see him as also clearly possessing to drive himself out of himself in a way that
no other animal can. In a similar fashion, while showing in the that the
rational man concludes to the existence of God; and while with Plato recognizing the
origins in religion of everything from drama to philosophy itself; Aristotle had another
blind spot in not seeing clearly that contemplation, the highest act of the reason for him
and that which is closest to the divine in us, is very closely related to worship and
prayer. By the very fact that man is a rational animal he is a praying or religious
animal. Undoubtedly this second blind spot resulted from Aristotle's failure to realize
that if God is rational, what he called self-thinking thought, he must also be personal.
His inferior in so many ways, Cicero, here saw more clearly.
I cannot linger over the meaning of either "religion" or "natural." In her portrayal
of Lavrans in , Sigrid Undset caught perfectly a naturally
religious mind and piety. My observation simply is that an unprejudiced view of man
sees that, both across the cultures and in himself, one of the things distinctive to man,
without any specific religious revelation as understood by the religions of the Book, is
that he is a praying, worshipping, pious kind of being. I am not claiming that each
member of the species is religious, or that each culture or period is religious in the same
measure _ although I am inclined to think of a so-called secular age like our own as
simply having transmuted its forms of religious expression.15 No, I would no more
make that argument than hold that, because human beings have the capacity for
mathematics, any given person or culture knows that 2 and 2 are 4. Self-described
irreligious people are no counter-evidence to what I am proposing. A person or an age
may have its form of blindness or incapacity. I am simply saying that, just as humans as
a species have the capacity for mathematics, they have the capacity for religion. It is
part of their nature, of what they might become.
My next observation is that the nature of religion, if its full development is
allowed, is to be public, because finally religion is about the cosmos, our attitude and
response to being. By "public" I do not simply mean visible, but with a standing in the
law, what a separationist would call some degree of establishment, although I am not
talking here of revealed religion, and believe what I intend is compatible with the First
Amendment. We are _ as again Aristotle saw _ social animals and naturally wish to
make common affirmations and live in a shared public space. We are made to
communicate the truth to one another, and to want to affirm it in common, which
includes in legislation. Here I will not linger over the privatizing of religion in recent
centuries, one form of which is the already mentioned American distinction between
state and society. This privatizing makes it difficult to understand our essential nature,
and strict separation of church and state attempts to make the distinction between state
and society permanent. My point is that religion, because it is about our understanding
of our place in being, naturally fills the life of the religious person. Left to its own
devices, it creates a public sphere of shared perceptions of God and the world, and
issues in public art, architecture, music, liturgy and law. One wishes to share one's
deepest understanding and appreciation with others, above all to create a public order
in which the forms of culture themselves will communicate truth about the world to
those around oneself, above all one's children.16 A Roman public cult, a Christendom,
a Confucian public order, is the working out in history of the logic of man's being
The second step of my argument can be briefly stated. Because the function of
government is to foster the common good, all governments have the natural obligation
to foster religion.18 I intend here the common good as the classical philosophers
understood it, as the sum of all those goods needed for human natural development.
This is very far removed from what the expression "the common good" has come to
mean in Anglo-Saxon thought, in which habitually this idea is associated with the will
of the majority. Only a pragmatist, that is, someone in despair of truth, could think that
what the majority wants is what is good for them.19 The classical common good of
which I speak is that good which is good even for the person who refuses to recognize
it as good. No more than the truth is the common good determined by a show of hands.
Using this definition, my claim then is simply that because man is of his nature
religious, and government is obliged to seek all the goods which pertain to man's
natural development, government must foster, rather than separate itself from, religion.
Prayer, to put it in the words of Jean Cardinal Daniélou, will always be a political
problem because prayer is a part of the political properly understood.20
What can this mean in a pluralistic society? Even those who would agree that the
argument thus far has not in principle gone astray will have trouble understanding
what its practical implications could be for today's world. If even in Daniélou's France,
divided for centuries between a Catholic majority and a Calvinist minority, the now
huge party of the areligious vies with voices that once expressed the Other, such as
Islam, what are we to make of American pluralism? Here we come to the third step of
the argument. It seems to me a simple point of logic that the more pluralistic a society
is, the more difficult it will be to specify the manner in which its government is to fulfill
its natural obligation to foster religion. Indeed, every other natural good will be in the
same position, for one of the things "pluralism," what I have elsewhere called pluralism
of world-views or "deep pluralism," designates is lack of agreement about the good.21
It would take us too far afield to consider here in depth whether such pluralism is not
simply another name for hell, that is for "all coherence gone," but it should give even
those the most optimistic about the American experiment long pause. In a brilliant
series of talks in my diocese, Owen F. Cummings showed that in a society such as ours
people do not know how to stylize the most central points of their lives, because there
is no consensus about the meaning of life or its stages.22 There is no social consensus to
tell us when we are old, or how we should die; indeed rather than dealing with death
in a human way, looking it in the face, talking about it, and preparing our souls, we
hope death will be quick and painless, that is, subhuman, and the last thing we want to
acknowledge with a dying person is his or her impending death. Not for us those early
warning signals of pain and faltering that make the , dying well,
possible. As I have said elsewhere, pluralism is more than piñatas and espresso; deep
pluralism means that beings made for society must live in the atomized horror a
liberalism centered on the autonomous individual confuses with a human life.23 Still,
the point that we must focus on here is that for us deep pluralism is part of the given: it
is not likely to disappear, and so all analyses must come to terms with it.
But here is the rub. My earlier list of the Roman public order, Christendom, and
the Confucian public order as examples of religion given public expression, gave, in
spite of a myriad of possible objections, relatively benign examples of embodied
religion compared to other examples which could have been chosen. What if instead I
had chosen the triad Bosnia, Sudan, and India? Even if we set aside the question of
pluralism in its American form, we must admit that religion's role in forming corporate
life also has lead to grave evils, to various forms of clash, internal and external. It may
well be true, as George F. Kennan has observed in comparing the Balkan crises of 1913
and 1993, that aggressive nationalism has in many cases been more directly the cause of
war than religion, but religion nevertheless has been set to unworthy causes.24 This
obvious fact has fed the development of the liberal tradition, especially since that great
sign of the breakdown of cultural identity in the West, the Wars of Religion of the
seventeenth century.25 I presume that it lies both instinctively and explicitly behind
attempts to construct a high wall between church and state. Such responses to our
obviously deeply flawed human natures, to the ways our highest instincts often result
in our greatest moral failure, must earn deep sympathy. Yet I think as they are found
today in the attempt to construct a high wall between church and state they are
profoundly misguided, and only exacerbate the problem of an adequately human
Yet, I repeat, such responses earn my respect, for on a reading of the facts pretty
close to my own, they are correct. That is, Booth Fowler and the "existential
communitarians" seem rightly to hold that our sinful nature and the tragic dimensions
of life make community an ever desirable and ever elusive goal, more something for
which we forever strive than something possessed in any very fulsome way. I would
only add that the quest for even a modestly shared life is made especially difficult for
us in the United States by the lack of a natural law tradition. In such conditions it
becomes plausible to view the churches as a refuge from the larger society. Further, in
the light, say, of Islamic fundamentalism, we need worry in turn about the churches'
potential destructiveness if allowed into the political order. The proper response to
both threats seems the construction of as high a wall as possible for the protection of
both society and the churches themselves.26 I say, I am pretty close to sharing this
reading of our public life, but only with two provisos which make high separationism
an improper conclusion.27 First, because we are political animals, it is better to struggle
to exercise this capacity and fail than not to struggle. More importantly, especially in a
media-dominated world, there is no refuge from public life.28 Inevitably what the
world is the churches largely become. Therefore to the end we must remain involved in
the public order as, for instance, we must in matters of the environment.
There seems to me a great lack of imagination across the American political
spectrum in these matters. First, the politics of many, right and left, see the goal of
government as the maximization of human freedom. Granted that goal, those on the
left with a "thin" notion of the common good, that is who largely abandon the notion of
a shared public life built on cultural consensus, seem to have logic on their side both in
wishing to expand the rights of individuals and in seeing government as essentially an
arbitrator of rights between individuals. Those on the right, in reaction to a certain
diminishment of all that is communitarian in life by the program of the left, often try to
have their cake and eat it too, that is to say that they are for both liberty and
community. The program of the libertarian left is in fact a prescription for society's
dissolution in a kind of unending pluralism which tends as a limit to reduce society to
autobiography, to largely solitary lives linked only to the select few. I do not mean that
society is about to collapse, though there are many attempts "to impose the spirit of
Yugoslavia on us."29 Elsewhere I have shown that under the guise of neutrality that
form of liberalism espoused by John Rawls in fact attempts to construct a new
orthodoxy.30 A newly emerging triumvirate (Souter, Kennedy, and O'Connor) on the
Supreme Court indeed has insisted in that social peace
in the matter of abortion is such an overriding consideration that is to stand
simply because it has been in place for twenty years.31 Clearly prudential
considerations _ the old Constantinian "above all, resolve the problem" _ here outweigh
all else in the mind of the Court majority.
For all I know we can go on for a very long time caught, as on a New York City
street, between the delights and dangers of pluralism (I would want to attribute most of
the delights to cultural pluralism, the dangers to deep pluralism). But we cannot avoid
and have not avoided the trivialization of the life of the mind and spirit in such
circumstances, in which, because there are few shared notions about even how to
mount a valid argument, human interchange is reduced to talk of baseball, movies, and
food. Churches become a refuge from a dehumanizing public space inhabited by
antagonistic ideological positions facing on one another with few principles of
mediation _ but a refuge only different in degree from the public space because, as
suggested above, in a media-dominated society there is no refuge.32 The program of
the communitarian right is a healthy but ineffective reaction against this dissolution of
the public order, a reaction in the name of social solidarity, perhaps of a nostalgic quest
for the return of neighborhoods or of community standards. The left will want a high
wall separating church and state; the right, if its goal is the fostering of intermediary
social institutions including churches, a low wall, but neither sees the way actually to
foster religion, that is the heart of being human, in a pluralistic environment.
To suggest opportunities missed in the above dialectic, we must turn from this
ping-pong game in which especially the libertarian right and left end up emphasizing
the maximization of liberty as the goal of government to a reconsideration of the
classical understanding of the common good.33 Here government exists to advance,
irrespective of class, race, sex, or the advantages or disadvantages of historical accident,
all the natural goods of human beings, one of which is the life of religion. In a sense
there is no answer to the American objection to this project, that is to the objection
coming from the pluralism of a society in dissolution, "who determines what is natural
to man and good for him?" The obvious answer is the same as to the question "who
determines that 2 and 2 are 4," namely anyone who reasons aright. But this will have
small impact in a society which has lost its grip on rules of evidence and logic, that is
decreasingly believes that one can actually establish the truth by an argument. For a
historically Protestant society which commonly sees notions of the good coming from
religion, or in Lawrence Tribe's secularized form of Protestantism centered on the
autonomous self and without a natural law tradition, there is little notion that the
unaided reason might really be able to discover those goods which then the state
should foster.34 Nor is there much idea that public life is in part a great debate about
the truth. A generation ago Walter Lippmann could hope for such a public philosophy,
not realizing that such a hope was, like that of Arthur Schlesinger, Jr., today, a hope
that pluralism could be limited.35 I would be the last to deny that such a project
appears increasingly Quixotic, but would argue for an accommodationist position on
the church-state question in the following way.
Obviously the classical project, whether in its pagan, Catholic, or Islamic
historical expressions, was at once the product of and a source of social unity, the
feeling of the obligation to live according to what seemed shared public truths, a shared
view of the world. This seems largely closed to us, and the establishment clause of the
First Amendment seems necessary for self-protection. Obviously I do not consider this
a social advance, but a necessity. Still, and this is the last step of my argument, I would
argue that not all is lost if we see that our current situation is not an inevitable
development of some constitutional logic, but a doctrinaire imposition. It is important
here to remember that it was only in 1947 with that
strict separationism established itself as a dominating tradition. Before there
has indeed been a growing tendency to reconceive the prohibition of establishment to
include any giving of aid to "church." Still, an earlier hope for active cooperation
between church and state in the promotion of social goods lingered. Only the
establishment of a state-church was absolutely prohibited: this left much ground for
cooperation between church and state short of favoring any one religion in particular.
Then, according to , religion was to be separated from public life.36
For a half-century we have been developing a constitutional tradition in which
the friendly separation and accommodation of church and state widely hoped for from
the First Amendment has become a dim memory.37 Originally no more than any of the
other rights was separation understood absolutely, but now for a half century
cooperation of state with church in fostering social goods has been severely limited.
Yet, more generous arrangements still exist elsewhere, and, as Mary Ann Glendon
continues to point out, we may fuel our imaginations as to the road not taken by
looking at other Western societies which have less opted for our current path.38 I am
interested in an imitation of, a learning from, how other countries have dealt with this
problem in ways more generous to religion than the high separationist tradition. I have
already mentioned France: let me here simply allude to the German or Canadian
pattern of public funding of a higher educational system composed of church-related
faculties or institutions. Each of the colleges of the public University of Toronto, for
instance, is church-related, and I sometimes wonder whether the wonderful cultural
diversity of Toronto, tied to a very low rate of crime in comparison to the United States,
is not partly accounted for by the Canadian notion of letting various religious groups
share the public space.39 If you let groups, religion and all, share in the public space,
there seems some likelihood that they will not be alienated from this space, will have a
sense of proprietorship toward it. In America we tend to set the groups against one
The principle here is that it is good that as many possible sub-groups in the
population be able to educate their children and young people by their own best lights,
and that each religion be treated in accord with its position in the population. This was
one goal of nineteenth century Catholic liberalism as represented by Charles le Comte
de Montalembert (1810-70). Freedom of religion did not exist for him simply to protect
the individual, but groups, associations, and churches. Obviously lines have to be
drawn somewhere for practical reasons, and groups that are small minorities will
probably have no claim to public monies. And obviously such a system will be easier to
administer in a relatively homogenous society as Germany than in the more diverse
Canada, and again be easier to administer in Canada than in the United States. But if
religion is a part of man's natural constitution, it is wrong to solve the problem of the
place of religion in a pluralist society prematurely by simply constructing the wall of
separation as high as we can. Our lives are in principle humanized in the degree in
which we can find ways for religion not just to influence the public order in the ways
we each can as individuals, but to express itself in that order institutionally, for
instance in the form of church-related schools.
There is a lot in the matter of attitude here. In regard to public prayer, for
instance, if our basic attitude is gratefulness for the embodiment of truth we find in the
lives of others, why not take turns in the offering or non-offering of public prayer? It
has always seemed to me an ungrounded argument to assert that some right is violated
if I must be present at the prayer or non-prayer of someone of another or of no religion.
I would much rather hear an explicitly Mormon prayer at one graduation, and _ to
pursue a _ have no prayer at all at another because it was the
atheists' turn, than hear the lowest common denominator prayers that are the result of
trying to find the impossible, something acceptable to all on each occasion. At one level
I have some trouble giving the atheist here his or her due. If the existence of God can be
proved by reason alone, which it seems to me it can, giving atheists their turn in the
matter of (abstention from) prayer is a bit like celebrating the failure of someone to
learn math. In addition, to return to an earlier theme, to abstain from having public
prayer is as much a theological statement as praying: both portray how we conceive
our nature and destiny, how we define our humanity. Still, it is clear that in our
civilization a fair number of people become atheists because of the way in which God
or some specific religion has been presented to them. Their atheism may express their
own sense of the truth, and thus is worthy of some respect.
My argument is that government is to encourage all forms of religion compatible
with its other natural goals. This means not simply that the state has no competence to
judge between the truth claims of revealed religions, but that it has more power to
outlaw certain religious practices than is generally accorded it in American thought _
but only if we abandon the notion that all morality is rooted in revelation. From a
natural law point of view, it is quite possible for the state to condemn certain religious
practices as against right reason. Our justice system is so ignorant of and antagonistic
toward what it is ignorant of, natural law positions, that an obvious candidate for the
application of such reasoning, the or Santería case, was in fact resolved on quite other criteria.40 Nevertheless, if
for instance, a religion claimed to have received the revelation that some group in the
population was to be murdered by them, it certainly seems to me that the state has the
right to outlaw this religion on the grounds that it (at least on this point)
is false. This is not simply because for reasons of public order homicide trumps
freedom of religion, but because the state has the responsibility of pursuing natural
justice. It therefore must stop any person or group which claims the right to take away
the lives of people who have done nothing to forfeit their lives. The state has the right
to declare a religious practice illegal, not when the religion makes claims that go
beyond the order of natural justice, but when it makes claims that violate the order of
justice. For now such a proposal is made simply to provoke the imagination, not with
the hope that such a way of looking at things will be invoked in the near future.
Others have shown just how tendentious the reading of American history by the
high separationists is.41 The argument here has been that their positions, especially the
ACLU, express not a disinterested reading of the Constitution, First Amendment, and
constitutional tradition but a which effectively is a form of religious
intolerance. Without reformulation of the problem of church and state along a line
something like that given here, it is not likely that such intolerance can be abated, nor a
healthier common life in society pursued.
Glenn W. Olsen is Professor of History at the University of Utah and an authority on the
thought of Christopher Dawson.
1 "Bare Ruined Choirs (Ample Parking in Church Yard)," 8, 4 (April 1973),
22-24 at 24. Curiously, Lukacs since has written of a very similar poll, asking the same
question and also set in the 1950s, but now taken by himself of his own students with
all of them responding that they think of themselves as Americans who happen to be
Catholics: "Christians and the Temptations of Nationalism," in
59 (Nov. 1992), 12-18 at 12. The present paper originated in an opening statement of
position in a debate, "Separating Church and State," between myself and Kathryn D.
Kendell, staff attorney of the Utah chapter of the American Civil Liberties Union, given
April 20, 1993, in the McDougall Lecture Series sponsored by the Cathedral of the
Madeleine, Salt Lake City.
2 Luc Sante, "American Pie," (hereafter NYRB) 40, 3
(January 28, 1993), 17-19 at 17 writes of Capra, "He had spent his life and career
attempting to deny his origins and to become American in the most mainstream,
3 George F. Kennan,
(New York, 1993), has many wise things to say in this regard: see with the review by
Arthur Schlesinger, Jr., "The Radical," NYRB 40, 4 (February 11, 1993), 3-8. Paul
Kennedy, "The American Prospect," NYRB 40, 6 (March 4, 1993), 42-53 at 46 makes
suggestions about how positions asserting America's "specialness" bear on America's
future, and at 53 makes an argument that because America is so large and in some
degree an "escapist" culture, there is much to be said for fostering policies which are
"differentiated, decentralized, and individualistic, `muddling through' rather than a
coordinated, centralized attack upon the problems." Kennedy notes that such a policy,
which in some ways parallels that advocated in the present paper, implies long-term
decline; but perhaps underestimates the ways in which American political culture
forecloses the alternative of "coordinated attack."
4 But see Will Herberg, (Chicago, 1960).
5 I have treated this question especially in "The Meaning of Christian Culture: A
Historical View," in , ed. David L.
Schindler (Notre Dame IN, 1990), 98-130, and in "1492 in the Judgment of the Nations"
(to be published). One conclusion to be drawn from this latter article and from my "The
ethics of conquest: The European background of Spain's mission in the New World,"
19 (1992), 619-34, is that a strict separation of Church and state would
involve the state giving up such ideas as "person" and "universal human rights," which
historically originated with Christianity. Jacques Maritain, , tr. Doris C. Anson (New York, 1947), 47, wrote: "Under the . . . active
inspiration of the Gospel, the secular conscience has understood the dignity of the
human person and has understood that the person, while being a part of the State, yet
transcends the State, because of the inviolable mystery of his spiritual freedom. . . ." In
Joseph W. Evans (New York, 1968), 95-98, Maritain also made the historically plausible
argument that the very distinction between spiritual and temporal orders, the latter
presupposing the former, comes from Christianity. As I argue below, groups like the
ACLU of necessity use such distinctions, without realizing their Christian origins, and
that the positions of the ACLU thus are not religiously neutral but express at least a
"cultural Christianity." See also Roy A. Clouser, (Notre Dame IN, 1991),
David G. Dalin, ed., (Washington DC, 1992), and Naomi Cohen, (New York, 1992), with the informed
review of the latter by David G. Dalin, "Still Strangers," #37 (Nov. 1993),
6 Quoted from the description of the case in "Ban on teaching abstinence in Louisiana
baffles Utahns," , March 28, 1993. Classical Protestantism
simultaneously rejected the grounds for natural law positions, and continued to make
natural law arguments. Therefore we should not find surprising the reaction of one
Utahn quoted in this article, "If you want to talk about abstinence being a religion, then
somebody's lost their marbles." That is, in Protestant cultures it is common to find
explicit rejection of natural law thinking along with de facto retention of scraps of such
thinking. This parallels the retention of "natural rights" thinking in Protestant cultures
which have largely abandoned "natural law" thinking. The former is an attenuated
form of the latter. Christopher Dawson, "Natural Law in the Protestant and in the
Catholic World," 10, 4 (Fall 1992), 4-5 (reprinted from [New York, 1942], 51-56), makes more distinctions that I can
here, differentiating, for instance, between the fate of natural law in Lutheran and
Calvinist cultures. See also above n. 5 (Olsen, "Judgment"), and the exchange in beginning with Carl E. Braaten, "Protestants and Natural Law," #19 (Jan.
1992), 20-26 (letters in #22 [April 1992], 4-5).
7 I have discussed aspects of "cultural Protestantism" in the articles listed above n. 5,
and see below n. 30. The approaches to the discussion of abortion taken by Ronald
Dworkin, (New York, 1993), and T.M. Scanlon, "Partisan for Life," NYRB 40, 13 (July
15, 1993), 45-50, are good examples of framing a question in culturally Protestant terms.
Both define the question in "sanctity of life" terms, taken to be a "religious" category
(i.e., a claim which, coming from revelation, can neither be established nor refuted by
philosophical or natural argument), and virtually ignore natural law/Catholic
approaches. Having defined abortion as a "religious" issue, Dworkin, ch. 6, is able to
argue that for the government to take any position on the question would be for it to
impose religious beliefs. See the critique by Damian P. Fedoryka, " `Dworking' the
Abortion Issue," Crisis 11, 1 (December 1993), 50-54.
8 Mike Carter, "Prayer debate heightens religious tension in Utah," January 27, 1993.
This article describes Gov. Cuomo, who has been criticized for his views by the
Cardinal Archbishop of New York and others, as a "staunch Catholic." Gov. Mike
Leavitt of Utah, in his claim that his "personal [sic, apparently `official' is meant]
statements have nothing to do with the [Mormon] church," seems as naive as Kendell in
thinking one can have a position on a matter such as public prayer which does not
express some theological and philosophical point of view. See below n. 9.
9 People who have no trouble seeing that the "multiculturalists" are right in saying
there is no such thing as an objective or neutral curriculum or canon, that every
selection of what to teach is freighted with philosophical (and, I would say, theological)
assumptions, continue to hold the naive view that legislation is different: see above n. 6
and below n. 11. When I say "only possible on a Protestant understanding" I include as
"Protestant" all positions which do not recognize a natural order sufficiently distinct
from revelation to be able to generate some ideas of the good. Etienne Gilson, (New York, 1938) called these "Primacy of Faith"
positions, and they are found in all revealed religions in the degree to which these have
not articulated a distinction in principle between reason and revelation. Cf. Richard H.
Akeroyd, (Macon GA, 1991).
10 I have expressed my reservations about Tocqueville's belief that religion would
flourish at the social level if disestablished at the state level more than once: for the
argument that this was true in the short, but not the long, run, see below n. 11, and in
addition "The Catholic Moment?" 15 (1988), 474-87 at 486. John Courtney
Murray shared Tocqueville's faith as apparently does J. Leon Hooper in his review of
, ed. Robert P. Hunt and
Kenneth L. Grasso (Grand Rapids MI, 1992), in 54 (1993), 184-86.
This review and book will introduce the reader to current discussion.
11 See my response to such notions in "You can't legislate morality: reflections on a
bromide," 2 (1975), 148-62, and see further Michael J. Perry, (New York, 1991), and
Robert P. George, (New
12 Of the articles on FOCA in the , January 1993, see
especially Cardinal Roger Mahony, "FOCA: No `Freedom of Choice' For Catholic
13 For one more example of the inability of to present fairly the
Catholic position, see its extended treatment of the tensions between the Catholic
hierarchy and the Clinton administration in the issue of February 3, 1993. The editor of
the lay Catholic , Margaret O'Brien Steinfels, devoted a signed opinion
piece in the March 12, 1993 issue to the anti-Catholic bias displayed by the
throughout the recent controversy over Joseph Fernandez, the former Chancellor of the
New York public schools. The , as in its treatment of abortion, continues to
single out Catholics for religious identification and refused to portray accurately their
objections to Fernandez' policies. The controversy is described in "Commonweal editor
accuses New York Times of anti-Catholic bias," , March 26,
14 Cf. Ernest Becker, (New York, 1973), as at 174-75, 178, 190,
15 In addition to my "Meaning of Christian Culture," I develop this idea in "Cultural
Dynamics: Secularization and Sacralization," a lecture to be published by the
Wethersfield Institute in a volume on the Thought of Christopher Dawson.
16 Michael Medved, (New York, 1992), counters the "big lie" that "if you don't like it,
you can turn it off," which seems an argument developed by those with no experience
of children. In a lecture at the University of Utah, Medved commented, "To say to
people that if you don't like the popular culture, just turn it off, is like saying if you
don't like the smog, stop breathing." (Jeffrey D. Jonsson and Sean McBride, "Critic's
book exposes Hollywood's three big lies," , March 5, 1993).
17 Louis J. Hammann and Harry M. Buck, eds., with Michael McTighe, (Chambersburg PA, 1988), presents a variety of
18 Cf. the argument for teaching religion in public schools and state universities in John
Courtney Murray, , ed. J. Leon
Hooper (Louisville KY, 1993).
19 The tradition of pragmatism, specifically John Dewey, is considered in the article
listed above n. 11. Robert B. Westbrook,
(Ithaca NY, 1991), attempts a defense of Dewey. Christopher Dawson, (Manchester NH, 1985), 66, provocatively analyzes "that moral
pragmatism which is the essence of modern Protestantism," commenting on Harnack's
famous that "the Reformation is only completed when " David Bromwich, (New Haven CT, 1992), follows David Hume in arguing, in the words of one
reviewer, "that we can have common standards without a foundation beyond the
common features of human life": Alan Ryan, "Invasion of the Mind Snatchers," NYRB
40, 4 (February 11, 1993), 13-15 at 14. How silly of Socrates to think, metaphysically
speaking, that the unexamined life was not worth living!
20 I refer to Daniélou's great , tr. J.R. Kirwan (New
York, 1967). Douglas G. Jacobsen, (Brooklyn, 1991), attempts to show how a vague "public piety"
was constructed from the "private pluralisms" of the denominations, and how this
prefigured the future. For the developments to the passage of the First Amendment, see
Thomas J. Curry, (New York, 1986).
21 See above n. 5, and "Deconstructing the University," 18, 1 (1992),
53-85. George Kateb,
(Ithaca NY, 1992), is part of a growing literature which attempts to defend democratic
individualism against the communitarian critique, but which hardly engages the point
22 Especially "The Mystery of Evil and Suffering: the Contribution of Stanley
Hauerwas," given March 22, 1993, at the Cathedral of the Madeleine, Salt Lake City,
with special reference here to the thought of Daniel Callahan, (New York, 1987). Cf. Becker, , 159-60; and
the account of the development of Philippe Ariès's study of death by Philippe Carrard,
(Baltimore, 1992), 47-48, 51, 201.
23 "Deconstructing," p. 237.
24 "The Balkan Crisis: 1913 and 1993," NYRB 40, 13 (July 15, 1993), 3-8 at 6.
25 See the argument of Jeffrey Stout, (Notre Dame IN, 1981) used in the article listed below n.
26 See below n. 32, and most recently Robert Booth Fowler, (Lawrence KS,
1991), esp. ch. 9, with 154-61 on existential community. I am deeply grateful to Prof.
Fowler for a very thoughtful letter he sent me about these matters following his
illuminating participation in a Church-State Conference sponsored by the Humanities
Center of the University of Utah in February, 1993.
27 I note how close Fowler's reading of the situation is to my conclusions in the article
listed below n. 32.
28 The media receive a ferociously funny treatment by Robert Hughes, (New York, 1993).
29 Alfred Kazin, "The Way We Live Now," NYRB 40, 8 (April 22, 1993), 3-4 at 3,
reviewing the book by Robert Hughes listed above n. 28.
30 In addition to "Deconstructing," see my "John Rawls and the Flight from Authority:
The Quest for Equality as an Exercise in Primitivism," to be published in
31 See the splendid editorial, "Abortion and a Nation at War," #26
(October, 1992), 9-13. The potential of a legal tradition based on precedent rather than
jurisprudence for the exercise of "raw judicial power" is particularly clear in Casey,
which hardly attempts a justification going beyond the quest for social harmony. The
triumvirate seem to think that national division can be ended without facing the issues,
and their stance reveals the intrinsic tendency to irrationalism of a precedent-based
legal system not held in check by a natural law theory. In effect they have said that
what is crucial is not truth but submission, that is, categories of power. Similarly, the
refusal by the Democratic National Convention of 1992 even to allow Governor Robert
Casey to present his views about abortion, and President Clinton's subsequent
statement that having a pro-choice position would be a litmus test for any new
Supreme Court justice continue the attempt to achieve a new orthodoxy by force.
Robert S. Alley, (New York, 1988), and
Terry Eastland, ed., (Lanham MD, 1993), give helpful introductions to
the constitutional cases.
32 As I argued in "The City in Christian Thought," 66 (1991), 259-78, the
church inevitably takes on the shape of the surrounding "city." Therefore, it is always
short-sighted for the church or for Christians to abandon the attempt to influence the
city. There are of course degrees here, but even monastic movements have inevitably
been shaped by their surroundings. Distinction should be made between the clash of
opinion in society, which is often healthy, and the clash of opinion in a society of deep
pluralism, where by definition there are no agreed on rules for mediation. The great
question is whether some form of limited democracy is possible; otherwise the clash of
opinion seems to lead to deep pluralism.
33 Kenneth Pennington, (Berkley, 1993), dramatically recasts parts of the history
of these subjects, showing that the origin of ideas central to due process such as the
innocence of the accused are not, as commonly believed, in the English common law,
but older and continental.
34 Tribe has recently argued that the authors of the joint opinion in have finally acknowledged the intellectual dead-end of the
attempt, so central to supreme court decisions from through
and beyond , to ground such rights as the right to contraception and to
abortion in an ever-expanding privacy doctrine. Tribe approves of this
acknowledgment, and believes the three justices have set out on a new path to a more
principled rights doctrine built on the autonomous individual who chooses his or her
form of life, the good for him or her. The right to abortion is necessary "to define one's
own concept of existence, of meaning, of the universe, and of the mystery of human
life" (quoted from in the analysis in "Abortion and a Nation at War [above n.
30]," 9). "Liberty" replaces "privacy" as the controlling idea. The triumvirate and Tribe
seem to me merely to be replicating the logic of the historical development of
35 See the bibliography above nn. 11, 32, for expansion on Lippmann. Critics have
noted that Schlesinger never really understands how much his form of liberalism is the
cause of many of the problems he criticizes in (New York,
36 John Courtney Murray, "A Common Enemy, A Common Cause," #26
(October 1992), 29-37, a previously unpublished address in response to and
(1948), is incisive and prescient. I am barely alluding to Justice Reed's
important distinction, appropriated by Murray, between the original and developed
meaning of the First Amendment.
37 See on all this Murray, "Common Enemy."
38 See most recently Mary Ann Glendon, (New York, 1991), and "Religion and the Court: A New Beginning?" #21 (March 1992), 21-26.
39 In studying a parallel question, John D. Blum, "Ontario Health Care: A Model to be
Emulated or Avoided?" 73, 3 (Summer
1993), 41-44 at 43, traces differences in health care to different conceptions of
community. Articles making adverse comparisons between American and other
societies are standard fare in the daily press: see in the wake of the slaying of another
German tourist in Miami the syndicated article by Rheta Grimsley Johnson, "Is America
spinning out of control?" , April 18, 1993. The range of constitutional
possibilities is very large: see Gary Jacobsohn, (Princeton NJ, 1993).
40 Still, as David G. Savage of the Los Angeles Times pointed out in analyzing three of
the 1993 rulings on religion in "Supreme Court taking `neutral' tack on religion,"
, June 20, 1993, there is some suggestion of a drawing back from strict
separationism interpreted as discrimination against religion. See on this Raul F. Yanes
and Mary Ann Glendon, "Religion and the Court 1993," #37 (Nov. 1993),
41 See Ellis Sandoz, (Baton Rouge LA, 1990).
This article was taken from the Winter 1994 issue of "Faith & Reason". Subscriptions
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