Early actions and statements suggest that, in keeping with his namesake, the new pope will adopt a more humble, ascetic style, and work to reorient the church toward a fuller embrace of its mission to serve the poor. But critics have also pointed out that Francis remains bound to the same conservative positions on questions of sexuality, gender, and reproduction upheld by his predecessors. Moreover, questions have been raised about the new pope’s relationship to the military junta responsible for Argentina’s “dirty war” in the 1970s and 80s, when Bergoglio served as provincial for the Jesuit order in Argentina.

Does the election of Francis I signal a major shift in Vatican policy, structure, or doctrine? How significant is Francis’ status as an “outsider” to the Roman Curia, especially his background as a Latin American and a Jesuit? Is this status likely to position him as an agent of change within the Church, or do his theological continuities with his predecessors and the entrenched Vatican bureaucracy guarantee that any reform he initiates will be largely cosmetic?

Our respondents are:

Michele Dillon, Professor of Sociology and Chair of the Department of Sociologyx, University of New Hampshire

John L. Esposito, Professor of Religion and International Affairs and of Islamic Studies, Georgetown University

Jeffrey Guhin, Ph.D. candidate in Sociology, Yale University

Cecelia Lynch, Professor of Political Science and Director of International Studies, University of California, Irvine

James Martin, S.J., Author and Editor at Large at America

J. Michelle Molina, John W. Croghan Assistant Professor in Catholic Studies, Northwestern University

Sarah Shortall, Ph.D. candidate in History, Harvard University

______

Michele Dillon, Professor of Sociology and Chair of the Department of Sociology, University of New Hampshire

The election of Pope Francis, an Argentinian Jesuit who has many years of experience ministering to and living amidst the poor is refreshing. It sends a symbolic reminder to the world that the Catholic Church is geographically universal and that its ethnically, culturally and economically diverse members enact an on-the-ground catholicity that continues the living tradition of Catholicism. Closer to home, it is also particularly significant to the growing number of Hispanic Catholics who are putting their imprint on American Catholicism that the new pope is from their home region and speaks their language. Symbolism alone, of course, does not produce institutional change. But change, I would argue, is an ever-present fermenting possibility in the Church. I know it is easy to point to the encrusted ways in which the church operates and to the many well-established doctrinal and institutional mechanisms it uses to resist the tides of social and cultural change in the name of Tradition. Yet, as Benedict’s resignation itself underscores, where there is a will to do things differently, it can be legitimated within the confines and with the imprimatur of the Church. The Second Vatican Council (1962-1965) is the most obvious and the most transformative case in point; and yet it, too, was fully in continuity with already existing doctrinal strands in Catholic thought (a point recently reaffirmed by Benedict).

The many legitimation problems confronting the Church today call out for a willfully bold response from Francis. For example, the acute shortage of priests in the U.S. and its implications for the celebration of the Eucharist strike at the theological and the communal core of what it means to be Catholic. While some will resolutely resist change in the Church’s understanding of ordination for political and doctrinal reasons, the larger question demanding Francis’s leadership is whether the Catholic tradition can continue as a living tradition if its members cannot participate in its core ritual. Sometimes, particularly over the course of a long and pluralistic tradition like Catholicism, a discontinuity with settled practices (e.g., changes with respect to who may be ordained) may be necessary in order to sustain more important continuities (e.g., the Eucharist, which according to the Catholic Catechism is the vital source and summit of Catholic life).

Back to top

______

John L. Esposito, University Professor and Professor of Religion and International Affairs and of Islamic Studies, Georgetown University

The election of Argentinian Cardinal Jorge Mario Bergoglio, a relative unknown and conservative initially seemed par the course, given all the conservative cardinal candidates appointed by John II and Benedict XVI. However, statements he made as a cardinal indicated a potential openness to change regarding issues like celibacy and gay marriage: “For the moment I’m in favor of maintaining celibacy, with its pros and cons, because there have been 10 centuries of good experiences rather than failures. It’s a question of discipline, not of faith. It could change.” And while he did publicly opposed the Argentinian government’s move to legalize gay marriages, he did eventually indicate support the Church’s recognition of civil unions for gay couples.

While Liberals or Progressives welcome a move away from Benedict XVI’s retrenchment and retreat from the spirit of Vatican II, Francis’ conservative theological opposition to married clergy, women’s ordination, and abortion/birth control are all significant hurdles. However, Pope Francis could lay the groundwork for future change. With regard to women in the Church, while he may not alter his opposition to women priests, a first step, based on recent scholarship that demonstrates women had prominent leadership roles in the early Church, would be to support their ordination as deacons. Given recent Vatican appointments, the Vatican decision last year to place Leadership Conference of Women Religious (LCWR), the main representative group of U.S. Catholic sisters, under the control of bishops, which was made without consultation or knowledge of Congregation for Religious, the Vatican office that normally deals with matters of religious life, may well be reversed.

Back to top

______

Jeffrey Guhin, Ph.D. candidate in Sociology, Yale University

If you want a pope who’s going to support abortion, women’s ordination, and gay marriage, Pope Francis is going to disappoint you. (If you want him to spend a lot of time opposing them, you’ll be disappointed too.) I don’t think those issues bother him, which, well, bothers those folks—liberal and conservative, Catholic and non-Catholics—whose first priorities are pelvic. While these are not “first world” problems (gay rights, women’s rights, and sexual health matter everywhere), glance at the global church and you’ll find they can sometimes obscure others: war, environment, poverty, and corruption, to name a few. Through its tradition of Catholic Social Teaching, the Church has maintained its Gospel commitments to peace and the poor, even if these teachings’ sometimes low priority make them the Church’s “best kept secret.” Because of his experience in the Global South and because his order vows to be loyal to the Vatican’s teachings but not tempted by its trappings (their founder Ignatius was sometimes misrecognized in Rome because of his filthy robe), Pope Francis will change things. Like that earlier Francis, he will lead by example, cleaning up Vatican careerism, striving to make our world cleaner and safer for this and future generations, and modeling a concern for the poor, whether blocks away or around the world. He will make a difference on gender as well: he’s appointing women to key Vatican positions, washing women’s feet, and attempting unprecedented though not uncanonical innovations. Pope Francis’s radical commitment to Gospel values might not be the precise political goals of estadounidense liberals and conservatives, but I hope I can be forgiven for believing, with that first Francis and this one, that a recommitment to Christ’s values of poverty, peace, and compassion might be enough.

Back to top

______

Cecelia Lynch, Professor of Political Science and Director of International Studies, University of California, Irvine

As a non-Vatican insider (thank heaven!), all speculation about the degree of Pope Francis I’s departure from the conservatism of his two immediate predecessors seems to be just that. However, an analogy with not-too-distant history of a different kind may be apt. I’m thinking of the Mikhail Gorbachev analogy—someone who was supposed to shake things up just enough, provide some new thinking, but not change the order of things. And of course Gorbachev himself intended to rejuvenate an ossified governing structure and alliance without bringing the whole edifice down. Yet Gorbachev helped set in motion a series of events that in the end went far beyond his vision or his control, opening spaces for restive social movements to grow, innovate, and initiate the end of the Soviet Union and its Eastern European alliance.

We can only hope that this Pope’s current initiatives, however modest at the moment, might open just enough space to engender a similar and perhaps even more revolutionary awakening of restive Catholics and Catholic theology in the world. It is unlikely that Francis will initiate a revolution in Catholic social teaching himself. Nevertheless, the theological and social resources are present for such a revolution, but each and every opening needs to be better articulated, acted upon, and expanded by Catholics across the globe. Such activism should not remain warehoused in either social or economic agendas, but should combine both in an across-the-board insistence on the transformational potential of Catholic teachings on “catholic” love and human dignity, if only they can genuinely include the poor and people of all genders and sexuality as equals.

Back to top

______

James Martin, S.J., Author and Editor at Large at America

Pope Francis has already initiated change in the Vatican. But when looking for “change” we should be careful to consider not only words, but also symbolic actions, which carry enormous weight in Christian and especially Catholic circles. Remember that Jesus did not only teach with words, but with his actions as well. The first Jesuit pope ever elected (itself a sign of change within the College of Cardinals) chose the name Francis, as a sign of his commitment to the poor and to what he would later call “a church that is poor.” So far he has eschewed many of the trappings of his papal office—setting aside some of the more elaborate vestments that popes have worn, choosing to move out of the grand Apostolic Palace (aptly named) into a small two-room suite, and also referring to himself not as “pope” but as the “Bishop of Rome.” On Holy Thursday, when priests traditionally wash the feet of parishioners to emulate Jesus’s washing the feet of the disciples at the Last Supper, and as a reminder that the true leader is the one who serves, Francis broke with tradition. Instead of celebrating this Mass at a grand church in Rome and washing the feet of priests, he went to a youth detention center and washed (and kissed) the feet of young inmates, including two women and a number of Muslims. Pope Francis’s unexpected liturgical action was a vivid symbol of his desire to do whatever is needed to spread the Gospel in new ways to a world hungry for authenticity. Will changes come to the Vatican? They already have.

Back to top

______

J. Michelle Molina, The John W. Croghan Assistant Professor in Catholic Studies, Northwestern University

In these early days of Francis’s papacy, change seems to be in the air. Yet the ethereal currents are impossible to chart, in part given the flimsiness of available categories. “Liberal,” “conservative,” “radical,” “outsider,” “entrenched,” are tin sign-posts that, in often too breezy assessment, rattle rather uselessly.

What is possible with a Jesuit as pope? We can best grasp the inability to easily capture this man and this moment if we approach “possibility” as framed by the philosophical practice that is the Spiritual Exercises. This program of spiritual renewal offers the means through which every Jesuit finds his vocation; he also takes up these meditative practices to shape his attitudes and actions in everyday life.

The purpose of undertaking the Spiritual Exercises is to know and overcome oneself in an effort to find God—in particular, the Jesuit seeks to discern God’s will as he evaluates his life in terms of the past, present and future. The question “what ought I do for Christ now?” is how every Jesuit—Pope Francis included—tests himself.

In other words, we would be wise to be attuned to how Francis prays. For Jesuits, prayer and meditation signal that life is full of possibility. As Bergoglio wrote in a recent publication: “To pray is an act of freedom.” To pray, he continues, is to take leave of self, of the desire for control, or any effort to gain the upper hand with God. And this meditative experience must find its full expression in the world as the Jesuit looks for God in all things. Or as Bergoglio says in the same publication, “My experiences with God are found on the road, located in the search itself, in the act of giving myself over to the search.”

If we inhabit a moment of suspense in these early moments of his papacy, so does Francis. Yet he has been trained to live in that tension, to avoid easy categorization, to discern signs, to listen, to test. Francis, as a Jesuit, is necessarily experimental, paying attention to the ordinary as he discerns what might be possible within the Church he now leads.

Back to top

______

Sarah Shortall, Ph.D. candidate in History, Harvard University

Like many people, my first reaction to the news of Cardinal Bergoglio’s accession to the papacy was “Who is that?” By no means one of the much-discussed frontrunners singled out in the lead up to the conclave, Pope Francis is something of an unknown quantity. This has in many ways inflated the expectations of Catholics across the ideological spectrum, who see in Francis an answer to the grave challenges currently confronting the Church.

A new translation of the dialogue between then-Cardinal Bergoglio and Rabbi Abraham Skorka provides some indication of the direction the new pope may take. These pages reveal to us, as John Allen puts it, a “moderate realist” whose unimpeachable orthodoxy on the major doctrinal questions is tempered by a characteristically Jesuit sense of flexibility and practicality. Citing the late Cardinal (and fellow Jesuit) Henri de Lubac, Pope Francis calls upon the clergy to avoid the temptations of both politicization and quietist retreat into a private faith that ignores the central religious significance of social engagement.

It will be interesting to observe how Francis squares these commitments with his new role as both a temporal and spiritual sovereign. I suspect that the main features distinguishing his papacy from that of his predecessor will remain at the level of personal style and symbolics. While Francis’ impressive humility and personal piety may help to rebuild the spiritual stature of an institution that has been severely damaged by revelations of sex abuse, corruption and curial infighting, the new pope is unlikely to push through the kind of substantive doctrinal reforms for which many liberal Catholics worldwide have been clamoring. At best, we are likely to see some reforms to the bureaucratic structure of the Curia and a more collegial leadership style. The appointment of the “G8”—an advisory commission of eight cardinals representing every continent—signals the new pope’s desire to reorient the Vatican towards a more global outlook that is responsive to the concerns of the local churches. It also signals a shift in the balance of power away from the Secretariat of State, which took on an expanded role under Benedict XVI. However, the new pope is unlikely to inaugurate a “Vatican Spring” of the kind Hans Küng called for in a powerful editorial penned on the occasion of Benedict’s resignation.

Back to top

______

The rhetoric of the bishops’ statement is familiar to anyone who has followed conservative Christian activism around the cause of religious freedom in the United States over the last two decades or so, though the recourse of Catholic officials to such language is a relatively recent innovation. Meanwhile, their definition of “religious freedom” or “religious liberty” remains both opaque and expansive—again, in imitation of conservative Christian activism tout court. The bishops note the priority of the first amendment to the U.S. Constitution, and the priority of (“our first…liberty”) religious freedom among the freedoms guaranteed by that amendment. Acknowledging that Americans are not alone in their claims concerning freedom (“freedom is not only for Americans”), they nevertheless see the United States as exceptional in its relationship to it (“we think of it as something of our special inheritance”), seeing Americans as the particular guardians of freedom (“we are stewards of this gift, not only for ourselves but for all nations and peoples who yearn to be free”).

The bishops go on to enumerate specific examples of “religious liberty under attack.” By the logic of priority, the mandate issued earlier in the year by the Department of Health and Human Services requiring health insurance coverage for contraception (which the document calls “HHS mandate for contraception, sterilization, and abortion-inducing drugs”), part of the administration’s efforts to assure compliance with the ACA (aka health care reform), holds pride of place in the list of instances of religious freedom under siege. But the bishops cite a number of other domains of constraint: the refusal by state and local authorities to use the foster care or adoption placement services of Catholic Charities because of the organization’s unwillingness to place children with cohabiting or same-sex couples; the state of Alabama’s punitive anti-immigrant legislation; the denial of official recognition of a Christian student group at the University of California Hastings College of Law (because of the group’s requirement that its leaders be Christian and abstain from extra-marital sexual activity); New York City’s discontinuation of the practice of renting public school buildings in New York City to churches for weekend services. Religion (a category represented in the statement exclusively by Christian examples) is under siege, the argument runs, on the federal, state, and local levels, and on many different fronts.

But if the document seeks to catalog the wide range of threats to religious liberty, it is nevertheless primarily concerned with undergirding the bishops’ campaign against the inclusion of contraceptive coverage under the ACA. The document sets the terms of the debate agonistically and dramatically. Although the ACA (along with subsequent regulations issued by the Department of Health and Human Services in the spring of 2012 to assure compliance with the law) is nowhere named explicitly, it certainly resides behind the characterization of “an unjust law [that] cannot be obeyed,” a law that imposes the will of the state upon religious institutions and individuals. Arguing by analogy, the bishops juxtapose the need to disobey such an unjust law—a duty Catholics “must discharge…as a duty of citizenship and an obligation of faith”—to the religiously inflected arguments and actions of the U.S. Civil Rights movement of the 1950s and 1960s, using Martin Luther King Jr.’s “Letter from a Birmingham Jail” as their prooftext. Strikingly, the bishops also take care to distinguish between “conscientious objection” to a societal requirement (unspecified, but one might think of conscientious objection to military service) from the requirement to resist an unjust law. One can imagine that the bishops are seeking to sidestep the question of all of the other ways in which tax dollars, for example, are used to support militarism, capital punishment, or other forms of state-sponsored violence to which religious individuals or institutions might object. Opposition to these kinds of institutionalized forms of state violence does not apparently rise to the status of opposition to “unjust law,” which “cannot be obeyed.”

Framing their opposition to the health care mandate in terms of religious freedom, it needs to be emphasized, is a strategic move that narrows the terrain significantly: to oppose the bishops’ opposition to the health care mandate requires one to take a position against religious freedom. Well played, bishops.

The problem, of course, is that while the bishops speak of religious freedom and seek to portray a consensus that aligns themselves with evangelical Protestants and Orthodox Jews, they conveniently exclude from the conversation other co-religionists who do not share their ethical assessments of the particular issues under debate (e.g., access to medical services, reproductive freedom, etc.) nor their political agenda. (Consider, as just one example, the Religious Coalition for Reproductive Choice, which includes the Episcopal Church, most of the mainline Protestant denominations, the Unitarian Universalist church, virtually all of the Reform, Reconstructionist, and Conservative Jewish governing bodies, and numerous Christian and Jewish national organizations.) Moreover, while advocating for a public square in which religious arguments and actors move freely, the bishops disingenuously frame the issue as one that sets in opposition a “naked public square” (“stripped of religious arguments and religious believers”) against a “civil public square” (“where all citizens can make their contribution to the common good”), carefully disavowing any claim that they desire a “sacred public square” (“which gives special privileges and benefits to religious citizens”). “At our best,” they write, “we might call this an American public square.” Framed in this way, the very presence of religious arguments and believers is precisely what makes the public square “American.” Their absence is, on its face, un-American. And yet, if the public square is a space of deliberation and debate, a space where arguments are evaluated and contested, it seems as though “religion” itself remains somehow immune to contestation and critique—in the public square, but not of it.

One could engage in an extended exploration of the way in which the bishops’ framing of these issues, clearly beholden to nearly two decades of evangelical Protestant activism around religious freedom, depend upon a theoretical incoherency (whereby institutions protecting religious freedom must inevitably define and thereby delimit what counts as “religion”) and revisit debates over the uneasy truce between religion and politics, church and state, that has been forged by recourse to the Protestant secular. But what I prefer to do here is to engage in an imaginative exercise: What would it mean for the bishops to put their money where their mouths are and to defend religious freedom in their own polity—that is, within the Catholic church itself?

Because, on another Catholic horizon, the Vatican has decided that the exercise of what one might well call religious freedom on the part of American women religious—the exercise of conscience—is a problem requiring episcopal oversight. In other words, the sisters are in need of some church-sponsored discipline and a reining-in of their faithful enactment of their own conscience. This action has been undertaken by the Congregation for the Doctrine of the Faith (Congregatio pro doctrina fidei), the modern incarnation of the Inquisition, which has issued a “Doctrinal Assessment of the Leadership Conference of Women Religious,” the culmination of a process of critical investigation initiated by the Vatican beginning in early 2009, focused on the LCRW, an organization that represents 80% of Catholic nuns in the United States. Accused of “a rejection of faith [that] is also a serious source of scandal and … incompatible with religious life,” objectionable “policies of corporate dissent” (on issues of women’s ordination and homosexuality), and “radical feminist themes,” the LCRW has become the target of disciplinary action.

This is not the place to parse all of the details of the Doctrinal Assessment, which seeks “to implement a process of review and conformity to the teachings and discipline of the Church, the Holy See, through the Congregation for the Doctrine of the Faith.” But in the context of the US bishops’ expression of a deep commitment to the notion of religious freedom, it might be a worthwhile imaginative exercise to ponder the following question: What would a defense of religious freedom look like, if the LCWR were considered “religion” in this case and the Vatican were considered “the state”?

Of course, the authors of the Doctrinal Assessment—all American cardinals, I have been told—would reject the question as I have framed it since they insist that faithful religious life can only be lived in “allegiance of mind and heart to the Magisterium of the Bishops,” as they put it in the opening paragraph of the Assessment, where they quote from John Paul II’s 1996 Post-Synodal Apostolic Exhortation, Vita consecrata. In doing so, however, they rather show their hand. Religious freedom emerges as nothing more than a mode of shoring up the authority of the Magisterium of the Bishops, not a set of values that shelters and protects the acts of conscience undertaken by Catholic women religious in the United States. Yet ironically, recourse to a robust notion of personal conscience is an unambiguously orthodox position in Catholic theology and a fully justifiable exercise of religious freedom on the part of the nuns.

The widespread outrage among Catholics in the U.S. in response to the Doctrinal Assessment’s attack on the LCWR—outrage that has produced numerous thoughtful essays about the profound value and integrity of the actual work of Catholic nuns, vigils of support in cities across the country, and even the satirical Twitter hashtag #radicalfeministthemes—has made it clear that the actions of the Congregation for the Doctrine of the Faith does not pass a simple smell test.

In their statement on religious liberty, the Conference of Bishops writes, “The Christian church does not ask for special treatment, simply the rights of religious freedom for all citizens.” To which the supporters of the Catholic sisters in the US might simply respond, “The Catholic women religious and their allies in the church do not ask for special treatment, simply the rights of religious freedom for all members of the church.”

Evaluating the resulting history in any sort of objective manner is perplexingly difficult, for the history of toleration, like toleration itself, is a deeply partisan phenomenon. Far from being a stable category or experience, toleration is fundamentally a relationship, and inherently an ongoing, ever-evolving relationship, the content of which varies significantly depending on the parties involved. For example, one can say that there was toleration in the Ottoman Empire as well as the British Empire, but one bolstered a form of rule dominated by Muslims, while the latter did the same for Anglicans. Each group lived in a situation of tolerance, but would have found itself living in very altered circumstances in the other’s system. Does that make one or the other less tolerant?

The tendency to see toleration in singular fashion—as “the idea of toleration” (for example in Perez Zagorin, How the Idea of Religious Toleration came to the West) or a distinguishing feature of, say, Dutch, British, or American history—obscures the partisan dimension of toleration. We continue to take a single manifestation or interpretation of toleration (most popularly, in theories of liberalism, that of John Locke) as representative of the whole rather than as what it is: merely one manifestation among many. In the case of Locke and the Anglo-American world it is, of course, a highly influential version of toleration. However, to assume that it is then a universal model by which all others, past and present, can and should be evaluated is to confuse the general with the particular: the main problem with the history of toleration I am highlighting here.

Another indication of the partisan dynamic unwittingly preserved in the history of toleration is the tendency to look for a person or place that best embodies the ideal of toleration. Here too, one’s answer depends on one’s predilections. Was it the era of convivencia in Medieval Spain? The Dutch Republic? Sixteenth-century Poland-Lithuania? France under the Edict of Nantes? Britain after the Glorious Revolution? Pennsylvania? Mughal India? Roger Williams? Sebastien Castellio? Erasmus? Pierre Bayle? Baruch Spinoza? The predominance of early modern European history and Protestant thinkers in the scholarship on the history of toleration betrays its close alliance to the history of the rise of Protestantism as well as the rise to global dominance of Europe and the United States. Indeed, into the twentieth century many thinkers made little distinction between the two.

Traditionally, Roman Catholicism has played the role of great antagonist in such histories of toleration. Indeed, many of the earliest histories of the rise of toleration were crafted as denunciatory histories of the Inquisition. Roman Catholics have tended to embrace the cause of religious toleration (or, nowadays, religious freedom) only when they have been a minority faith: Elizabethan England, for example, or colonial Maryland. One need not hold this as a reproach against Catholics, for many of the great advocates of religious toleration have been belonged to a minority faith agitating for greater rights and recognition: Jews and Quakers in Cromwellian England; Lutherans in the Dutch Republic; Baptists most anywhere before the nineteenth century.

One of the great transitions between the early modern and the modern period is the role that toleration, or religious freedom, has come to play in various groups’ battles for wider recognition, acceptance, or power. In the earlier period, it was rare for someone to argue in favor of toleration or religious liberty per se, without attaching it to the cause of a particular group. At the same time, when an individual did do so, such as Baptists or Separatists who regularly spoke in favor of toleration of Jews, Muslims, and a variety of Christians, it clearly fit their partisan needs as members of a group that either had given up pretensions towards universal appeal or, in the case of the early Quakers, were convinced of the persuasive power of their message in any situation free of constraint. Likewise, when members of a Protestant establishment, such as Hugo Grotius or William Chillingworth, spoke up in favor of tolerating a variety of opinions, it was also with the assumption that eventually the variety of opinions would coalesce around the truth, which they never doubted resided more in their official church than any other.

Ever since the Age of Revolutions in the late eighteenth century, figures have increasingly spoken out in favor of religious tolerance and freedom per se. However, here too one can easily detect a partisan dimension. American Protestants did not fervently advocate religious freedom in the nineteenth century because they anticipated the flourishing of Buddhism in the United States but rather because it helped to justify the predominance of Protestants in a nation without an established church and a growing Roman Catholic minority. Likewise, Roman Catholics have not now embraced the cause of religious freedom because they believe it will diminish their position within the United States. None of this is pointed out in an effort to discredit or demean the various advocates of religious liberty. It is simply to point out that they are not all advancing the same cause, their use of similar terminology notwithstanding. The struggle over religious freedom today has significantly different connotations than it did in 1780s Virginia or 1650s England or 1520s Saxony.

By treating toleration as a distinct, identifiable phenomenon rather than a problem that needs to be explained, we are in danger of depriving toleration of any analytical power while preserving it as the polemical tool that it has always been. My point is not to say that others have it wrong and I (or some particular philosopher) have “it” right. Rather, it is to just emphasize how unstable a category toleration is. And that should not be surprising given the relational nature of toleration. I doubt if there ever can be a situation in which what is really at stake is an abstract quality that stands above the constituent parties. That would simply be a different twist to the relationship (like the self-proclaimed secular state in India or Turkey or France). To deploy the term tolerance without specifying the context and make-up of the toleration in question is simply to adopt and champion a particular partisan stance, often one with deep roots in European history. It is not to employ a powerful, never mind objective, category of analysis.

The partisan dimension of religious tolerance need not be read as a sign of hypocrisy or a fatal flaw in thinking. Rather, it should be accepted as inherent in the topic of toleration itself. For toleration, however described, whether as an ideal state of being, or religious freedom, religious liberty, secularism, or pluralism, is not an objective status or transcendent condition. Toleration is a relationship—and a deeply, inescapably partisan one, for it involves a relationship between two or more different parties, none of whom will all be equally satisfied with whatever their particular relationship happens to be at a given moment. It is extremely difficult if not downright impossible to write a history of toleration that is not partisan. The least we can do, I would suggest, is be honest and open about this difficulty.

There is, of course, a history of toleration out there. Anyone can immediately conjure up certain associations and images when that phrase is invoked. However, exactly what comes to mind would, I am certain, vary significantly depending on the mind in question. Is it the struggle of Jews for recognition in Pieter Stuyvesant’s New Amsterdam? Of Catholics in Ireland? Of Mennonites in Switzerland? Remonstrants in the Dutch Republic? Greek Orthodox in the Ottoman Empire? Episcopalians in Scotland? Muslims in English Tangiers? Hindus in Portuguese Goa? Or Dutch Protestants in Japan? And so on. Is it really our job to champion one narrative over the other?

Rather than evaluate the relations (some more fraught than others) between different religious groups along a presumed universal scale of tolerance, we should focus on the specifics of the situation at hand. Once we can appreciate how the “rise” of tolerance in a particular place, such as Ireland, would affect the relationship between the various groups involved (in this case, a demographic majority of Roman Catholics versus smaller populations of various Protestants, including Presbyterians, Baptists, Quakers, and the Church of Ireland—but not, before the nineteenth century, Jews, Muslims, or other non-Christians), then we can embark on a fuller discussion of what it is we are talking about when we talk about religious freedom (as Saba Mahmood suggests with regard to the Middle East).

The challenge for today’s world, in which global awareness and implications are unavoidable in a way they were not in the sixteenth century, is to come up with a method to approach the history of toleration that can capture its perpetual, ongoing, and, I would say, never-ending nature. However widespread and powerful religious unity and conformity was in medieval Europe, one can still find exceptions—bits of diversity that kept questions of toleration alive long before the appearance of Protestants. And if one goes back further, to the late Antique period, then one returns to a world of religious diversity in which the Roman Catholic Church was but one of many contenders (indeed for the fervently Christian Roger Williams everything went downhill once the emperor Constantine converted and fused his church with his empire). Toleration in some form or another has been around for a long time. It will not go away, though it will change. We need to move away from models of rise and fall, progress and decline, and towards a way to capture the perpetual motion machine that tolerance really is. Only then will the ideas of long-gone Protestants retain relevance in a world where it is now Catholics who are taking the lead as advocates of religious freedom.

The current “peril” for religious freedom is global, given forces like communism and Islam that often trample it. On unclear evidence, the statement goes so far as to say that “the greatest period of persecution in the history of Christianity” is occurring right now. It calls for a response abroad, in how “the foreign policy of the United States and Canada” are conducted. But religious freedom is also threatened within.

All this is very interesting. Rooted in the vision of the founder of First Things, the late Father Richard John Neuhaus, and imbued with the spirit of his resounding complaint that the public square is naked in this country, the statement portends a continuing period of strife over the very meaning of religious freedom and the everyday management of the secular public space.

It is important that the group situates itself historically. Religious freedom is deeply rooted in the West, the statement explains. The group offers a “genealogy” (its term) of the principle, starting from Jesus and running through Lactantius, Roger Williams, and Martin Luther. And then, rather remarkably, it leaps to the last half of the twentieth century, most especially Vatican II’s Dignitatis Humanae (1965).

I want to take up some of that history in this short post—but first let’s consider the contemporary politics of the statement.

It may have appeared too late to welcome the Supreme Court’s “ministerial exception” case that, in January, limited the scope of antidiscrimination law in the name of religious freedom. With perfect timing, the statement coincided with the politics of the accommodation President Barack Obama famously offered (and continues to seek in new versions), constricting reproductive choice in view of objections based on the same principle. Some might see those developments as illustrating the considerable force of religious sentiment, and the power of the norm of religious freedom, in American public affairs. Outside the United States, the Lautsi v. Italy case decided last summer by the European Court of Human Rights suggests a similar conclusion. A prominent American law professor invoked Neuhaus’s slogan in his appellate defense of the continuing presence of crucifixes in Italian schoolrooms, and the Court’s decision to side with him shows that religious freedom and public Christianity maintain a healthy communion.

This coalition of American Christians, however, is still worried, as it explains in a crucial paragraph:

Proponents of human rights, including governments,” it writes, “have begun to define religious freedom down, reducing it to a bare ‘freedom of worship.’ This reduction denies the inherently public character of biblical religion and privatizes the very idea of religious freedom, a view of freedom such as one finds in those repressive states where Christians can pray only so long as they do so behind closed doors. It is no exaggeration to see in these developments a movement to drive religious belief, and especially orthodox Christian religious and moral convictions, out of public life.

In view of such fears, I write to ask how serious a “genealogy” of this coalition’s preferred understanding of religious freedom is required to understand its own current advocacy. It may seem strange, especially on this blog, to bracket a currently influential critique of secularism, in order to investigate instead the lineage of the worry that privatization of “orthodoxy” is normatively misguided or practically discriminatory. In view of the coalition’s statement, however, this agenda seems pressing. Where did the strategy of insisting on the “inherently public” character of religion come from, especially one grouping some Catholics in alliance with American evangelicals?

It’s important to recall that the defense of Christianity as an “inherently public” religion is nothing new; but until very recently Catholicism—and especially conservative Catholicism—considered the principle of religious freedom to be the disease rather than the cure. The failure of various mid-twentieth century political attitudes led to an Americanization of Catholicism in which religious freedom made unprecedented inroads. It did so, however, as the new way that “inherently public” religion was pursued—one in which American Protestantism suddenly became model rather than stigma.

Most people know—though the statement doesn’t mention—that Catholic authorities generally rejected religious freedom prior to Vatican II. In its scandalous indifference to truth, religious freedom, Pope Leo XIII explained in Immortale Dei (1885), is little more than slavery to falsehood. According to this encyclical on “the Christian constitution of states,” Catholicism must stand against the:

theory that all questions that concern religion are to be referred to private judgment; that every one is to be free to follow whatever religion he prefers, or none at all if he disapprove of all. From this the following consequences logically flow: that the judgment of each one’s conscience is independent of all law; that the most unrestrained opinions may be openly expressed as to the practice or omission of divine worship; and that every one has unbounded license to think whatever he chooses and to publish abroad whatever he thinks. Now, when the State rests on foundations like those just named … it readily appears into what and how unrightful a position the Church is driven.

In the crisis in the middle of the twentieth century, when liberal democracy was destroyed, it was therefore not out of nowhere that Catholics frequently voted with their feet in favor of explicitly Catholic states in crisis circumstances (in Austria, Portugal, and Spain before World War II, and then Croatia, Vichy France, and Slovakia during it) and fascist states when this first best option was not available (in Germany and Italy before World War II and most of Europe during it). Indeed, forsaking state capture still seemed radical in the 1940s, when  powerful Vatican forces remained stalwart in its defense of the older view that an endorsement of religious freedom made sense only as a “hypothesis” in those situations in which Catholics were in the minority—as in the United States—rather than a general principle or “thesis.” (Leo XIII proceeded this way, for instance, in first taking note of American Catholicism in his encyclical Longinqua Oceani [1895].)

The end of World War II famously gave birth to a widespread new compatibility of Catholicism with liberalism, including liberal rights. Yet through the 1950s, and in fact through Vatican II, the Roman Catholic Church as a whole still opposed religious freedom, against a strong set of dissidents like Jacques Maritain and others. After the war, figures like Cardinal Alfredo Ottaviani (last head of the millennial inquisition) continued to inveigh against religious freedom, offering Spain, where clericofascism in a majority Catholic country had survived, as the ideal model. Indeed, Ottaviani and his allies, in a once dramatic set of events, nearly derailed Vatican II’s declaration on religious freedom, which was the most high-profile and visible part of its work precisely because it was by no means uncontested.

In short, the idea of religious freedom as the key buttress of inherently public religion was painfully acquired—thus allowing today’s coalition. Among Catholics, it had to be developed against those who insisted that “inherently public” religion needed to be immunized against the idea of religious freedom, with its Protestant, liberal, and privatizing implications. Long censured as a principle that brought ruin on Christianity, religious freedom now seemed a tool to buttress it.

It is not obvious why the switch happened. Those interested should be sure to read a new book by Emile Perreau-Saussine, a scholar who died tragically young a couple of years ago, for one important account. In my somewhat different opinion, it was a process in which the geopolitics of the Cold War mattered most, as certain principles like freedom of conscience once denounced by a reactionary church got a second look. The stimulus for this to occur was provided by a frightening secularist enemy against which the United States now stood as principal opponent, after an interwar period in which different choices—and serious mistakes—were too often made. Once tasked in Catholic political thought as a catalyst of secularism, religious freedom found itself recuperated as a crucial tool to stave secularism off. No wonder, then, that in privatizing faith, liberalism in the United States still seems analogous, for this coalition, most of all to communism. (As the statement explains, “the totalitarian temptation … seems to exist in all forms of political modernity.”)

The adoption of religious freedom in the face of the totalitarian danger also allowed an unprecedented move in the direction of Protestantism, once denounced as the source of modern ills. It also permitted American life to become a model—though many Catholics had commonly associated it with modern, individualist, and materialist error. Catholics like Maritain, for example, promoted America on the grounds that it showed how religious freedom promoted rather than undermined Christianity. In the nineteenth century, Catholic thinker Alexis de Tocqueville’s attitude towards Protestant America was that it had figured out, by disestablishing the church, how to make Christianity more publicly powerful than ever. His message to Catholic reactionaries at home who denounced America as godless was that they needed to know how strong Christianity can become precisely among those who have given up the campaign to capture the state. “I shall wait until they come back from a visit to America,” Tocqueville wrote of his reactionary opponents. Maritain, who had once attacked America too, spent World War II there, forging alliances with theologians like John Courtney Murray who followed him in marginalizing the thesis/hypothesis model. Murray, under Maritain’s influence, became the most pivotal figure in Vatican II’s work on religious freedom.

That conservative Catholics and evangelical Protestants rally around religious freedom together is nothing like a smooth continuity from Tocqueville’s America. Yet this is not simply because Tocqueville lost the argument in his time, with the unedifying politics of the twentieth century following, and the Cold War finally prompting the Catholic pivot. It is also because, after World War II, mainline Protestants in the United States turned religious freedom into a more genuinely liberal and privatizing principle than ever in this country’s history. If the Catholic transformation with respect to religious freedom was fateful, this mainline Protestant move was equally so. For in making it, mainline Protestants may have sealed their doom—and provided a short-term boost to privatizing liberalism that did not secure it in American life for long. After all, the evangelical ascendancy away from mainline coastal fortresses, which are today so depopulated, opened the door to the other side of the equation for today’s conservative coalition—not to mention to the rise of American conservatism generally.

The strange fact today, in summary, is that the principal defenders of American religious freedom defined as recognition of the “inherently public” role of faith could not have been in coalition at any other time. Even in postwar America, the coalition was not inevitable, and ending the story at Vatican II also leaves aside the very recent years when this coalition came together in what some have seen as a disturbing pact—one that certainly didn’t follow from a deeply rooted past.

Attractively, the group pauses at the start of its text, mindful of the injunction about casting the first stone. It alludes vaguely to some prior period when “Christians have also employed the state as an instrument of religious coercion.” But this passing allusion doesn’t interfere with the spotty history the statement goes on to give. After its acknowledgment that mistakes have been made by politicized Christians, the statement concludes that “memory of Christian sinfulness … gives us all the more reason to defend the religious freedom of all men and women today.” But everything then turns on what the “inherently public” forces deploying the principle of religious freedom really aim to achieve.

History won’t settle America’s debates about what religious freedom means. But its uncomfortable bits matter fully as much as its inspirational bits in showing that the principle is far from straightforward: for it is as much a novel tactic as it is an eternal truth.

—Elizabeth Shakman Hurd and Winnifred Fallers Sullivan, TIF guest editors

In November 2011 the United States Conference of Catholic Bishops announced the creation of a new Ad Hoc Committee on Religious Liberty to be led by William Lori, Bishop of Baltimore. Addressing his “brothers” in the conference, and citing a wide range of authorities including John F. Kennedy, George Washington, Alexis de Tocqueville, Pope Benedict XVI, and Learned Hand, Lori explained the need for the new committee:

For some time now, we have viewed with growing alarm the ongoing erosion of religious liberty in our country . . . Aggressive secularism is also a system of belief. In failing to accommodate people of faith and religious institutions, both law and culture are indeed establishing un-religion as the religion of the land and granting it the rights and protections that our Founding Fathers envisioned for citizens who are believers and for their churches and church institutions . . . Together, we will do our best to awaken in ourselves, in our fellow Catholics, and in the culture at large a new appreciation for religious liberty and a renewed determination to defend it.

From the evidence of this and other calls to arms by the American Catholic bishops, as well as the ringing endorsement they have received from a remarkably wide range of public figures, it seems that many Americans truly believe that a zombie-like phenomenon called “un-religion” stalks the land, promoted alike by “law” and “culture,” peddling aggressive secularism and displacing the rights the “Founding Fathers envisioned for citizens who are believers and for their churches.” What is needed, these bishops say, is recognition that “the freedom of religious entities to provide services according to their own lights, to defend publicly their teachings, and even to choose and manage their own personnel, is coming under increased attack.”

There is much that could be said about the history of the Catholic Church and its dedication to the defense of religious freedom. What interests me about the formation of a new Ad Hoc Committee on religious freedom at this time is the company that the bishops are keeping today—and why the bishops’ bellicose language accusing the Obama administration of mounting a war on religious liberty seems to make sense to such a disparate and varied group. Beyond the obvious self-interest, there is a genuine urgency to the bishops’ appeal, one that is legible to a surprising number of Americans.

The bishops are not alone in their anxiety. In the last couple of decades, numerous projects have been launched to advocate for religious freedom, in the U.S. and elsewhere, many warning of the dire consequences of failure. Suddenly, it seems, it is the protection of religious freedom that stands between us and descent into nihilistic oblivion. How did it come to be that so many current concerns are being traced to a lack of religious liberty?

It is not just Americans. Advocacy for religious freedom is a global phenomenon today, as my colleagues and others have detailed. And we have been here before. Religion and freedom are intertwined in the stories told about government in complex ways throughout history. A full accounting has yet to be done. Its salience now is also deeply and problematically connected to a post 9/11 politics of fear. In this post I will confine myself to the recent U.S. domestic context—and to only one thread in the multiple genealogies that I think have led us to this perplexing moment.

It is a commonplace in the academic study of religion to observe that the word religion is manifestly conditioned by the history of its use and that it is deeply problematic, epistemologically and politically, to generalize across the very wide range of human cultural goings-on that are now included in this capacious term. To speak of religion is to elide and conceal much that is critical to understanding the deeply embedded ways of being often denoted by the short-hand term “religion[s].” It is also common to note the very specific difficulty of definition that faces interpreters and enforcers of legal instruments purporting to protect and regulate the freedom of “religion.”

American Catholic bishops have had their own fraught history with religious freedom. They both wish to claim it for their own and distance themselves from its implications. By associating themselves with others they are always too in danger of losing control of the narrative and falling into what the anti-modernists in the Church identified as the sin of indifferentism.

There is a sense in which this all began anew two decades ago when the U.S. Supreme Court decided Employment Division v. Smith. Justice Antonin Scalia’s opinion for the majority in Smith (known as the peyote case) held that the free exercise clause of the First Amendment to the U.S. Constitution does not mandate a religious exemption, or accommodation, from neutral laws of general application that impinge on the activities of religiously motivated folks, even if such laws effectively outlaw acts that are understood by them to be religious duties—even sacraments.

The Smith decision was widely received by religious conservatives in the U.S. as effectively and finally revealing the implacable (and widely suspected since the school prayer decisions in the 1960s) hostility of the federal government towards religion. But, much more importantly, the coalition of more than sixty religious groups that came together—and quickly and successfully lobbied Congress to overrule Smith with passage of the Religious Freedom Restoration Act (RFRA) in 1993—included both liberals and conservatives. Indeed it included groups from across a very broad American spectrum, politically and theologically.

Baptists, evangelicals, Jews, Seventh-day Adventists, Presbyterians, Unitarians, Pentecostals, Quakers, and more. All agreed that religion itself—religion-in-general—was under threat as a result of the Smith decision. All recognized that what bound them together was that they were all threatened by the secularism made evident by Smith. What united them and enabled them to speak across the historical and cultural gaps that had previously divided them was that they were all “religion.” They needed to bury the hatchet and confront the enemy. Doing that was made easier by the fact that the ground had been prepared, and the consolidation of this alliance facilitated, by the emergence and popularization of a certain style of religious studies as a lingua franca for speaking about religious difference in the U.S. context. A lingua franca promoted by Huston Smith and others. Protestant-Catholic-Jew and Judaeo-Christian had morphed into “here comes everyone.”

Smith was a wake-up call. Smith suggested that religion in the U.S. had become complacent about its irenicism, inevitability and cultural entrenchment.

The effective institutionalization of the post-Smith politics changed the legal and political language about religious freedom in the U.S. and abroad. RFRA was specifically intended to reinstate the compelling interest test for religious exemptions. While subsequently declared unconstitutional with respect to the states, RFRA was followed by a raft of other more carefully drafted legislation, including the Native American Graves Protection and Repatriation Act (NAGPRA), International Religious Freedom Act (IRFA), and Religious Land Use and Institutionalized Persons Act (RLUIPA) at the federal level, as well as dozens of state laws—or as they are sometimes known, mini-RFRAs—all designed to provide robust protection for religion.

The aftermath of Smith also saw the development of a vigorous and well-funded specialized bar promoting the rights of religion.

While Smith most obviously led to a shift from constitutional appeals to the drafting of legislation (at every level—even local school boards), it has also arguably provoked a now further shift away from reliance solely on selective accommodations from secular law to robust jurisdictional demands for church autonomy or even church sovereignty. In a series of cases considering the constitutionality of school voucher programs and the faith-based initiative, the Court has held that the establishment clause does not prohibit the recognition and direct funding of religious institutions by government. There is a new accommodation between the two clauses, giving institutional religion—what might once have been considered “established” or “sectarian” religion—new legal definition and relevance.

American religious politics is not, of course, entirely produced by Supreme Court jurisprudence. But it is plausible, I think, to see Smith as a turning point in the consolidation of a broad religious alliance that is at work today, one which collectively opposes secularism while each member aggressively seeks to shore up its own ecclesiological position. There is a sense in which Smith’s comprehensive rejection of religious reasons invented religion anew—and gave new life to un-religion. Smith, in part because of the high-handed rhetorical violence of the majority opinion, and its refusal even to discuss Native American peyote use beyond a brief half-sentence reference, seemed to dismiss a carefully nurtured U.S. religious multiculturalism with the back of a hand. The response of U.S. religious groups has been impressive.

To what extent does a legal and political commitment to religious freedom imply a need for formal legal recognition of churches and other religious institutions? The most recent decision by the Court, Hosanna-Tabor v. EEOC, is interesting in part because it brings to the fore a troublesome leftover issue for Americans—and for others who would promote religious freedom—an issue with a long U.S. pedigree but one made newly relevant by the challenge of Smith. A radical version of U.S. disestablishment—never realized—suggests that churches in the U.S. are and have, from the beginning (whether in Puritan New England or at the time of the Constitution), been understood ideally to be entirely voluntary and private organizations that survive or not due to the enthusiasm and pocketbooks of their congregants (and God’s will), not trans-historical entities or public institutions legally defined and supported by the state. The fragile voluntarism of the free church now seems a slender reed on which to build a bulwark against un-religion. Older, tougher, ecclesia are being looked to.

A remarkable number and range of religious institutions filed amicus briefs on Hosanna-Tabor’s behalf. Briefs were filed by some regular filers in religion clause cases, others less so, some represented by well known First Amendment lawyers and advocacy organizations, others newer to the scene—many of them very strange bedfellows indeed. These organizations, like the RFRA coalition, represent a very wide range of religious positions, including evangelical Christians, Hindus, Muslims, Catholics, Mandaeans, Methodists, Presbyterians, Afro-Carribean religions, Jews, Mormons, and Lutherans. What seems to have brought them together is not so much the right of religiously motivated individuals to a conscientious exemption from laws that burden their religious practice, but a robust assertion of their corporate jurisdictional autonomy from the state.

The muscular hierarchical demand of the rights of churches and other religious authorities is arguably the world that Smith made. While some national and international human rights regimes may have moved toward a more individualistic model of protecting religious freedom, one that focuses on the sincerely formed consciences of individuals, religiously motivated groups in the U.S. may be moving the other way, back towards what in the U.S. used to be called establishment—that is, government support of “pervasively-sectarian” institutions—in a curious embrace of those churches, and the folks who run them, which once seemed the very antithesis of American evangelical religion.

There is a tragic quality to this situation. A broad-based critique of secularism feeds a romantic yearning for the presumed holism of intact and homogenous religious cultures. Churches and other religious authority structures can no longer rely on the conscientious dissent of their followers from majority cultures. They are demanding secular backup in their efforts to impose discipline. Many religious individuals meanwhile worry about whether the interests of organized religions can continue to serve as a proxy for their own interests.

The U.S. situation has a particular history, one that might be best described as one without a church or a state—and without the anticlerical politics that succeeded the legally established churches and absolute monarchies of Europe. It is “we, the people” who are in charge of both. Perhaps that is why Americans can be so naively cavalier about the reinstatement of the rights of religious authority by political authority—in the name of religious freedom—at a time when both are being undermined elsewhere by revolutions that do not fear so much un-religion as un-democracy. Promotion of religious freedom today may be undermining democracy, here and abroad. Not because democracy is necessarily secular, but because the religion defended by the bishops and other warriors for religious liberty, is autumnal rather than vernal.

The idea that people of faith should not be permitted in the public square to influence public policy is antithetical to the First Amendment, which says the free exercise of religion – James Madison called people of faith, and by the way, no faith, and different faith, the ability to come in the public square with diverse opinions, motivated by a variety of different ideas and passions, the perfect remedy. Why? Because everybody is allowed in.

And on This Week, Santorum affirmed an earlier statement about his reaction to President John F. Kennedy’s 1960 speech on his religion:

To say that people of faith have no role in the public square? You bet that makes you throw up. What kind of country do we live that says only people of non-faith can come into the public square and make their case?

In light of Santorum’s recent comments, we asked a small handful of scholars about the status of these and related claims regarding religion in American political life. Just how “naked” is the American public square? What is the appropriate place of religion in the public sphere?

This page was updated on 3/8/2012—ed.

Our respondents are:

Abdullahi Ahmed An-Na’im, Charles Howard Candler Professor of Law, Emory University School of Law

Michele Dillon, Professor of Sociology and Chair of the Department of Sociology, University of New Hampshire

John L. Esposito, Professor of Religion and International Affairs and of Islamic Studies, Georgetown University

John H. Evans, Professor of Sociology and and Chair of the Department of Sociology, University of California, San Diego

Philip S. Gorski, Professor of Sociology and Religious Studies and Co-Director of the Center for Comparative Research, Yale University

R. Marie Griffith, Director of the John C. Danforth Center on Religion & Politics and Professor in the Humanities, Washington University in St. Louis

Cristina Lafont, Wender-Lewis Research and Teaching Professor of Philosophy, Northwestern University

Nancy Levene, Associate Professor of Religious Studies, Indiana University

Nadia Marzouki, Jean Monnet Fellow, European University Institute

Ebrahim Moosa, Professor of Religion and Islamic Studies, Duke University

Justin Neuman, Assistant Professor of English, Yale University

John Schmalzbauer, Associate Professor and Blanche Gorman Strong Chair in Protestant Studies, Missouri State University

______

Abdullahi Ahmed An-Na’im, Charles Howard Candler Professor of Law, Emory University School of Law

Rick Santorum seems to want to have his cake and eat it too, by privileging his religious views at the expense of other views in the public square. It is neither true nor practically possible in the United States to prevent religious views from coming into the public square to influence public policy. There is no prior censorship or “policing” of views in the public square, to permit non-religious and exclude religious views. What is not and should never be permitted is to protect any views from contestation because some of us believe them to be “religious.” If any views are to influence public policy, they must do so by being persuasive to all citizens, regardless of religious belief or lack of it. The logic and process of reasoning in the public square should be accessible to all citizens and not only to religious believers on their internal terms. Calling views religious emphasizes their inaccessibility to non-believers, thereby insulating them from critical evaluation. The rhetoric of disenfranchised religion seeks to perpetuate an establishment of one religion under the guise of saving it from unfair exclusion. The way forward for all Americans is to acknowledge and regulate the connectedness of religion and politics in order to ensure effective disestablishment of any religion by the state. The pretense of unfair exclusion of religion from politics is the Trojan horse of the establishment of religion.

Back to top

______

Michele Dillon, Professor of Sociology and Chair of the Department of Sociology, University of New Hampshire

Each passing week of the Republican primary season brings an amplification in rhetorical appeal to the highly, or should I say severely, conservative base dominated by white evangelical voters. When insurance-mandated contraception coverage for employees in Catholic colleges and hospitals can get co-opted as an issue of religious liberty (notwithstanding the brutal irony that since the 1970s the vast majority of American Catholics use contraception and believe that one can be a good Catholic without adhering to the Vatican’s opposition to contraception), we should be on high alert for other instances in which democratic ideals are strategically hijacked for partisan gain. Rick Santorum’s recent comments about religion in public life and how he was sickened by JFK’s call for the separation of religion and politics can be seen in this vein. In the current political landscape portraying Democrats as anti-religion, Santorum struck a blow against President Obama (whom earlier in the week he accused of a “phony theology”), the Democrats, and their iconic figure JFK. The same comments also quite efficiently struck against his immediate rival, Mitt Romney, whose minority religious views as a Mormon continue to be a source of concern for many evangelicals. Not coincidentally, Romney has dealt with the looming shadow of his religious identity by emulating the tack used by JFK; namely, asserting the differentiation of church and state as legitimate separate spheres.

Claims regarding religion in American political life always have to be understood in context. JFK had to say what he said in 1960 if he were to have any legitimacy among highly skeptical and indeed prejudiced Protestants who were long accustomed to thinking of Catholicism as  anti-democratic and anti-American, and who feared that JFK would enact policies only if they had Rome’s imprimatur.  It was strategic of JFK and indeed a bold move.  It anticipated a key doctrinal shift subsequently made by Catholic bishops at the Second Vatican Council (1962-1965) when they eloquently elaborated principles of religious freedom, individual conscience, and the rightful differentiation of church and state.

Differentiation, theoretically, produces integration, not exclusion. The differentiation of church and state does not mean that religious individuals or institutional voices have no place in politics or the public sphere. Quite the contrary. They have the same democratic right as secular individuals and organizations to articulate views about the issues at hand.  The democratic procedural expectation, however, is that they do not merit exemptions or opportunities denied to the non-religious. The public square can never be naked; it is inevitably clothed in the religious and religio-cultural strands woven into any given societal context and this shapes who speaks, what is said, and what makes sense. The challenge is to make room for and listen to the Other and to refrain from accusing others a priori of phony religious theologies or secular ideologies.

Back to top

______

John L. Esposito, University Professor and Professor of Religion and International Affairs and of Islamic Studies, Georgetown University

Statements like, “To say that people of faith have no role in the public square? You bet that makes you throw up” and “What kind of country do we live in that says only people of non-faith can come into the public square and make their case?” reveal the extent to which Rick Santorum plays to the religious right. He remains an ideologue and demagogue whose outbursts and rhetoric play on and appeal to the prejudices, fears, and emotions of people, like his propensity for Islamophobia.

Santorum seems to have missed American history classes in school and to have been asleep for the past few decades of American politics. While America has an institutional separation of church and state, it most certainly has not witnessed a separation of religion and politics or public policy. We have had ordained ministers such as Jesse Jackson and Pat Robertson run for president, had robust debates in Congress and society over birth control, abortion, school prayer, and stem cell research, in which religious actors and organizations have been influential participants. The Christian Right and similar groups have played active roles in these issues as well as other religious issues in electoral campaigns and have weighed in on appointments to the Supreme Court.

Santorum’s strategy, while attractive to many voters in Iowa and South Carolina, will backfire nationally among moderate Republicans, Independents, and Democrats.

Back to top

______

John H. Evans, Professor of Sociology and Chair of the Department of Sociology, University of California, San Diego

Rick Santorum recently said that then presidential candidate John F. Kennedy’s statement on the separation of church and state made him want to throw up because he claimed that Kennedy wanted no influence by religious people in public life. This is typical campaign hyperbole aimed at motivating the religious right through allegiance to one of its founding myths—that religious conservatives are increasingly and literally barred as religious citizens from participating in the public sphere. I could deconstruct this and find a much more subtle and limited truth-claim in Santorum’s statement, but I think that what is most interesting is that Santorum felt he could repudiate his fellow Catholic’s statement about church and state.

Kennedy made this statement to assuage the anxiety of conservative Protestants in voting for a Catholic president. The Pope, it was claimed at the time, would pull the strings of Kennedy the marionette. Now, fifty years later, not only does Santorum not need to claim that he is independent of the Pope, but by rejecting Kennedy’s statement he actually scores points with conservative Protestants. This not only represents the decline of anti-Catholicism, but the declining importance of background theological conceptions to conservative Protestants.  As long as Santorum takes the substantive policy positions they agree with, conservative Protestants apparently do not care that he takes inspiration from the Catholic Magisterium and not directly from the Bible as they do. Perhaps if Romney had been consistent on conservative social issues they would not oppose his underlying Mormonism. So, I’ll take this kerfuffle as evidence of limited progress towards religious tolerance in the U.S. If the religious right has indeed learned to get beyond their deeper theological differences, in my more utopian moments I wonder if they could use this experience to become more tolerant of additional religious traditions underlying people’s policy stances, such as Obama’s mainline Protestantism or Islam.

Back to top

______

Philip S. Gorski, Professor of Sociology and Religious Studies and Co-Director of the Center for Comparative Research, Yale University

Rick Santorum has a point. People of faith should be allowed into the public square, and they should not have to check their faith at the gate. Those liberal secularists who claim that “America was founded on the separation of church and state” and that religious people must adopt a (purportedly) “neutral” language of “public reason” in the political realm have a poor understanding of the First Amendment and an illiberal understanding of political speech. Legal and intellectual historians such as Noah Feldman, Philip Hamburger, and Steven Green have convincingly shown that the doctrine of “total separation” is an invention of the 20th century, not the legacy of the framers. And philosophers and theologians such as William Connolly, Nicholas Wolterstorff, and Jürgen Habermas have persuasively argued that discursive restraints on religious speech cannot be defended on liberal grounds.

But Santorum is also running through an open door. The doctrine of total separation may still have some purchase within the judiciary, and some diehard defenders within the academy, but it is a minority view within the broader society. This is an extraordinary development. In 1960, when John F. Kennedy gave his speech on faith and politics, leading universities such as my own still had Jewish quotas, and American Catholics were still viewed as a fifth column. A half century on, the Supreme Court is dominated by Catholic conservatives and Jewish liberals, and a Mormon and a Catholic are the leading candidates for the Republican nomination. These days, it is people of no faith who are most likely to be locked out of the public square.

Back to top

______

R. Marie Griffith, Director of the John C. Danforth Center on Religion & Politics and Professor in the Humanities, Washington University in St. Louis

Rick Santorum’s blatant distortion of John F. Kennedy’s historic speech reveals the paranoid underside of far-right Christianity in the U.S. People of faith play major roles in all arenas of public life, including policy making; just because they do not share Santorum’s particular brand of theology doesn’t erase them from view. What Santorum wants is a theocracy in which Catholic dogma is the rule of the land—something, incidentally, that the vast majority of U.S. Catholics do not want. What an irony that Santorum singled out the nation’s first Catholic President as his scapegoat. Among other grave dangers, Santorum now risks rekindling the latent anti-Catholicism of the American religious and secular left—a move that would do his Church and its people far more harm than good.

Back to top

______

Cristina Lafont, Wender-Lewis Research and Teaching Professor of Philosophy, Northwestern University

Rick Santorum is certainly right when he claims that “the idea that people of faith should not be permitted to make their case in the public square in order to influence public policy is antithetical to the First Amendment.” He appeals to the “free exercise of religion” clause, but simply on “freedom of speech” grounds it seems that the case is closed. This indicates that what is at issue in this debate is not whether citizens of faith are permitted to make their case in the public square but rather what it takes for citizens to legitimately make their case in order to influence public policy. The issue is not that citizens of faith should exclude their religious convictions from public debate, but that appealing to religious convictions alone is insufficient to justify the imposition of coercive policies on secular citizens and citizens of different faiths who have an equal right to be co-legislators but do not share those convictions. Thus, citizens of faith who participate in political advocacy in the public square can appeal to religious reasons in support of the policies they favor, provided that they are prepared and able to show that these policies are compatible with treating all citizens as free and equal and thus can be reasonably accepted by everyone. Citizens of a constitutional democracy cannot make their case in favor of coercive policies on the basis of their religious convictions alone, since they are constitutionally bound to only support those policies that can be shown to be compatible with the constitutional principles of freedom and equality (i.e. with the equal protection of the fundamental rights of all citizens). Thus, citizens of faith who participate in the public square in order to influence public policy must ultimately rest their case on the basic democratic values that they share with secular citizens and citizens of different faiths.

Back to top

______

Nancy Levene, Associate Professor of Religious Studies, Indiana University

“I have often wondered that men who make a boast of professing the Christian religion, which is a religion of love, joy, peace, temperance, and honest dealing with all men, should quarrel so fiercely and display the bitterest hatred towards one another day by day, so that these latter characteristics make known a man’s creed more readily than the former… In seeking the causes of this unhappy state of affairs, I am quite certain that it stems from a widespread popular attitude of mind which looks on the ministries of the Church as dignities, its offices as posts of emolument and its pastors as eminent personages. For as soon as the Church’s true function began to be thus distorted, every worthless fellow felt an intense desire to enter holy orders, and eagerness to spread abroad God’s religion degenerated into base avarice and ambition. The very temple became a theater where, instead of Church teachers, orators held forth, none of them actuated by desire to instruct the people, but keen to attract admiration, to criticize their adversaries before the public, and to preach only such novel and striking doctrine as might gain the applause of the crowd… Surely, if they possessed but a spark of the divine light, they would not indulge in such arrogant ravings, but would study to worship God more wisely and to surpass their fellows in love, as they now do in hate.” —Baruch Spinoza, Tractatus Theologico-Politicus.

“[F]or he who loves God without faith reflects upon himself; he who loves God in faith reflects upon God.” —Søren Kierkegaard, Fear and Trembling.

Back to top

______

Nadia Marzouki, Jean Monnet Fellow, European University Institute

“Everybody is allowed in,” says Rick Santorum…so long as, one might add, their views and conducts do not disturb me. Rick Santorum has been one of the most vocal supporters of the anti-Sharia campaign and claims that: “Sharia is incompatible with our jurisprudence and our constitution.” He participates in the movement launched by pundits and activists  such as Pamela Geller, Frank Gaffney, and Brigitte Gabriel to recast the past distinction between good and bad Islam into an even more incendiary distinction between  Sharia as a political-legal system and “spiritual Islam.” There is something sadly ironical to Santorum’s call for the inclusion of religions in the public sphere, when he so clearly advocates for a complete invisibilization and neutralization of Islam.

Moreover, although Santorum poses as the defender of those who want to make communitarian arguments against the so-called hegemony of secular-liberal individualism, he actually reinforces the very worldview that he claims to combat. First, his statement is based on the assumption that there is an obvious distinction between the full and rich realm of faith, and the deserted field of non-faith/secularism. In a very Platonistic perspective, he imagines the possibility of a naked public square that is waiting to be covered and filled with faith-based values, even though such a “naked” space has never existed outside of the embattled fantasies of secular and religious extremists.  Second, this understanding of the relation between faith and the public square reaffirms a typically neoliberal vision of the public sphere as a free market of ideas, where  any individual can and should fight for her inner convictions. By suggesting that the improvement of American politics entirely rests on the rights of (some) individuals to express their faith, Santorum skillfully eludes the more pressing issue of the structural inequalities that keep so many out of the public square.

Back to top

______

Ebrahim Moosa, Professor of Religion and Islamic Studies, Duke University

I do not like Rick Santorum’s politics. Nor do I understand the moral credo underlying his views on reproductive rights. I leave it to the public to reward or punish him for his views at the polls. Yet, his provocative and hyperbolic comments challenge prevailing orthodoxies of Euro-American political philosophy: the inability to have an honest debate about the place of religion in the public sphere. The words of an eleventh century thinker, Abu Hamid al-Ghazali, resonate. “An intelligent adversary,” Ghazali said, “is preferable to a naive friend.”

Most thinkers inadvertently or intentionally become statist in their preferences when it comes to discussing the place of religion in the public square. How? By adopting a definition of religion that serves the paramount interests of the nation-state. That view relegates performed religion to the private or communal spheres. In reality this is just a case of smoke and mirrors. This is going to happen more frequently as strong evaluations, to cite Charles Taylor’s felicitous phrase, are pursued by a variety of publics. The nation-state and its defenders might want to get their act together without suffocating debate by retreating various artifices at its command.

A variety of publics are no longer satisfied with generic “store-brand” versions of political and social morality. A public sphere that does not entertain the substantive value commitments of citizens is like driving in bad weather where the smoke has turned into unbearable smog. Accidents are bound to happen.

Is it not transparent that our public sphere is replete with theological doctrines and faith claims laundered as the secular? That kind of dissimulation has indeed perverted secular political and cultural discourses. Often, for opportunistic reasons, politicians pretend to be secular when their proclamations are deeply religious. Newt Gingrich is exhibit number one of this fraudulence. When he claims that Sharia is the enemy of the constitution, what he really wants to say is that he hates Islam and Muslims. At least Santorum had the courage to say what he believes. Then, at least, we can substantially engage him for his beliefs, ideas and values.

Back to top

______

Justin Neuman, Assistant Professor of English, Yale University

It bears reminding, given the sensitivity of Rick Santorum’s gag reflex, that nothing in the Constitution (or even in Mitt Romney’s recent speeches) can be construed as limiting the presence or the voice of people of faith in the public square. Despite his claims on Meet the Press, no one—least of all Mitt Romney—has said that “people of faith should not be permitted in the public square.” Santorum’s strident critique of political secularism thus rests upon a series of deliberate misreadings, straw men, and manufactured affects. On our last time around the Ferris wheel of the Republican primary process, when he was having an even harder time courting a skeptical electorate, Mitt Romney’s “Faith in America” speech affirmed the importance of religion in public and private life while assuring voters, like Kennedy before him, that specific doctrines and Church authorities would not be the basis of his public policies. In his analysis of Romney’s speech in a column for the Philadelphia Enquirer in 2007, Santorum favorably compared Romney’s position to Kennedy’s, though he faulted Romney for not having adequately addressed the specificity of his Mormonism. What has changed in the intervening years? Alleging that his opponents want to keep people of faith out of the political process may be an effective way for Santorum to marshal the indignation of conservative Christians, but it is not an honest one. While religion will undoubtedly remain a visible and divisive part of the American political process, someone should remind the candidate that vomit, however, has no place on the public square.

Back to top

______

John Schmalzbauer, Associate Professor and Blanche Gorman Strong Chair in Protestant Studies, Missouri State University

For presidential candidate Rick Santorum, the university is the enemy of Christian America. Arguing that professors “teach radical secular ideology,” Santorum claims that “62 percent of children who enter college with a faith conviction leave without it.” Opposing President Obama’s efforts to expand access to higher education, he criticizes the “indoctrination that occurs in American universities.”

To this date, nobody has been able to locate Santorum’s statistic. While LifeWay’s Ed Stetzer reports that 70 percent of regular attenders drop out of church (35 percent subsequently return), he notes there is no statistical difference between college students and other young adults.

Sociologists Mark Regnerus and Jeremy Uecker suggest that Santorum has it exactly backwards. In an essay commissioned by the Social Science Research Council, they report that “young adults who never enrolled in college are presently the least religious young Americans.”

This was not always the case. In the past, researchers found that college eroded religious participation. At the tail end of that era, Rick Santorum went to Penn State.

Much has changed in American higher education. Since 1990 Campus Crusade has tripled in size, while Hillels and Chabads have proliferated across the land.

At Santorum’s alma mater, the Pasquerilla Spiritual Center welcomes three dozen religious groups, including the Latter Day Saint Student Association and InterVarsity Christian Fellowship. Though American faculty remain less pious than the general public, people of faith are a growing presence in higher education. While born-again Christians make up one-fifth of the professoriate, two-thirds of elite natural and social scientists describe themselves as spiritual. At Princeton University’s James Madison Program, political scientist Robert P. George presides over a “Catholic renaissance.”

Far from a naked public square, the campus has become a bustling religious marketplace. Santorum should quit channeling God and Man at Yale and go back to school. He might like what he sees.

Back to top

We’ve invited a small handful of scholars to comment on how the debate highlights enduring and nascent issues involving claims to multiple rights made in the context of American public life.

Our respondents are:

Finbarr Curtis, Instructor of Religious Studies, University of Alabama

Mark Hulsether, Professor and Director of American Studies Program, University of Tennessee

Derek E. Karchner, Attorney at Law, The Catholic University of America, Columbus School of Law

Daniel Maguire, Professor of Theology, Marquette University

Kathleen Sands, Associate Professor of American Studies, University of Hawaii at Manoa

Kevin M. Schultz, Assistant Professor of History and Catholic Studies, University of Illinois at Chicago

______

Finbarr Curtis, Instructor of Religious Studies, University of Alabama

The Catholic Church’s rhetoric in the recent contraception controversy pits public health policy against private constitutional rights. But what is unclear is exactly whose rights are violated. No Catholics would be forced to take contraception. Rather, the Church’s claim is that its liberty is violated if it has to affirm the religious liberty of its employees, who may be Catholics as well as people with no religious affiliation or with different religious affiliations. In other words, “religious liberty” does not protect individual freedom (whatever that may be) but allows organizations to police the religious convictions of their employees. What is remarkable, at least politically, is that employees could include many conservative Evangelicals for whom contraception within marriage is fine. This means that, say, a married Southern Baptist who takes a job at a Catholic university would have her healthcare choices influenced by Papal teachings with which she does not agree. For much of American history, this kind of ecclesiastical assertiveness would have ignited anti-Catholic fury. But drawing historical parallels is tricky here because the Church now insists that it has jurisdiction over the consciences of non-Catholics, which is a long way from earlier defenses of American Catholic freedom. Yet many conservative Protestant groups have come to the defense of the Church in a way that demonstrates a shared investment in expanding the power of private institutions. This vision of religious freedom confirms Winnifred Sullivan’s post on the Hosanna-Tabor decision, in which a “church” has first amendment rights. One could note an analogy between this language of religious freedom and the Citizens United ruling that grants corporate entities the rights of persons. In both cases, the rhetoric of freedom works to expand the power of private institutions acting beyond the scope of democratic deliberation and accountability.

In this rhetoric, religious freedom is realized as long as government interference is minimized. To take the example of the Baptist working in a Catholic college, the response of the Church (and its Baptist apologists) would be that her religious freedom is not violated because she took the job knowing that it did not provide contraceptive benefits and she is free to pay for them herself or to seek other employment. In other words, the market will provide whatever freedom she needs. In practice, then, the rhetoric of private freedom that draws its persuasive force from its claims to protect individual liberty actually works to empower corporate entities that are free to do whatever they want without having to consider competing visions of public goods.

Back to top

______

Mark Hulsether, Professor and Director of American Studies Program, University of Tennessee

Jurisprudence on religion—and by extension public discourse about religions, social policies, and cultural norms—clearly involves rights in conflict. For example, everyone agrees that a right to “freely exercise” a religious calling to murder is trumped by the right not to be murdered. We also agree that many religious practices should be freely practiced without discrimination unless there is a compelling public counterargument. Conflicts wind up in court and on television when there are gray areas, and the resulting common sense about what counts as religious anarchy versus discrimination has varied widely over time.

Since I have little to add to current wrangles about paying for contraceptives, I will address two background issues. One gray area concerns the standing of theological convictions when deciding where to set a legal threshold for the “murder” of embryos. Everyone agrees that late-term abortions are over this line unless the mother is in grave danger. What about early miscarriages or the use of morning after pills by rape victims? Should every such event trigger a full-scale funeral for the unfortunate zygote, plus a criminal investigation to see whether the mother’s behavior rose to a level of “negligent homicide”? Even extreme pro-lifers rarely go this far. In other words, virtually everyone presupposes that “life” or “full human rights” is not a simple “on-off switch” at the moment of conception—no matter how loudly some deny this. Of course where the threshold is set has immense consequences, especially for women.

Suppose we posit that abortion is an evil but sometimes a tragic lesser evil (with pregnant women, not the state, in the best position to judge this matter). If so, one major reason for access to contraceptives is precisely to minimize abortions. We can acknowledge that Catholic bishops posit a different logic about contraception—and that they have a right to believe it—while still denying that their logic is persuasive, especially as public policy. Doesn’t their thinking seem muddled and hypocritical? Aren’t their background assumptions more about controlling women’s bodies and devaluing all forms of sexual expression except between married heterosexuals who are trying to conceive—as opposed to “defending life”?

Back to top

______

Derek E. Karchner, Attorney at Law, The Catholic University of America, Columbus School of Law

The debate over the contraception mandate is a debate about conscience and whether one’s conscience must yield to another’s personal reproductive rights or the nation’s public health priorities. My answer to both is a profound NO. Conscience has enjoyed a robust space in the discussion of American rights. It should remain so.

This idea that conscience underlies our notion of rights is not new. John Rawls expressed the idea, in A Theory of Justice, that we all share a basic equal liberty of conscience which is central to developing a fully adequate scheme of liberty and one who holds conscientious beliefs “regards them as binding absolutely in the sense that he cannot qualify his commitment to them for sake of . . . promoting other interests” such as economic or social benefit. In this way, conscience informs all actions or, as Thomas Aquinas wrote in the Summa Theologica, conscience spurs one to action or causes one to abstain from action in response to the acquisition of knowledge, which has shaped one’s views about the proper course of action. It is not simply a belief. Rather, conscience involves an advancing of one’s beliefs through action or avoiding action that would compromise those beliefs.

American rights jurisprudence is based on the notion that an individual’s conscience should be largely free from state coercion. Indeed, an animating force behind the reproductive rights movement was the sense that government was making choices for citizens when it comes to sex, to the use of contraceptives, and the like. That is, the state was encroaching on conscience.

However, the contraception mandate is part of a broader effort to erode the right to exercise of one’s conscience. At first, having contraception grew out of an individual’s right to exercise his or her conscience with regard to reproduction. The contraception mandate and similar debates on the state suggests that certain favored liberties will be transformed into rights that can be enforced by the state against those who refuse to facilitate their exercise. This is hardly the death of conscience as we know it, but it portends a radical shift in how we view and respect conscience. While certainly conscience should yield to certain paramount social priorities, this is hardly one of those priorities.

Back to top

______

Daniel Maguire, Professor of Theology, Marquette University

Galileo would have welcomed the bishops’ current fixation on sexual-reproductive issues. In his day their focus was on the stars; their attention has shifted to the pelvic zone where they are once again stumbling and bumbling, claiming authority on issues where they have no privileged expertise. Increasingly, Catholic laity no longer dance to their music, especially on sexual reproductive issues where they and their theologians have long since had a change of mind. On issues like birth control the bishops are effectively in schism.

Their current zeal and bullying tenor has more than a tinge of panic. Their seminaries are emptying, clergy sexual crimes and hierarchical cover-ups are being exposed, whole dioceses are going bankrupt. Time for a little diversionary stress on birth control?

Unfortunately, Catholic disarray is not just church business. The bishops are would-be amphibians, demanding sectarian privileges, while playing big and tough in the public square. They are awash in inconsistencies, wanting and needing public finances for their institutions but violating the consciences of the diverse publics they serve in their tax-supported institutions.

They base their case on a fallacy, grasped and supported by the religious right and Republican hopefuls. “Religious freedom” is their bogus cry. They claim “religious freedom” to violate the religious freedom and conscience rights of all who are served in their establishments.

All this hierarchical ruckus may serve to raise the overdue question of whether Catholic hospitals should face the sunset rule. They began before the state saw its obligation to bring health care to the poor. They can no longer provide for the poor without massive state aid, including tax-exempt status. (Tax exempt = tax shifted, meaning someone else has to pay).

Before the state saw its duty to respond to fires, Catholic monks rose to the need. They stopped when the state took over. Otherwise we would have Catholic firehouses, such as, for example, The Immaculate Conception Fire Company. The question is: are Catholic hospitals, like Catholic firehouses, anachronistic and anomalous remains of a mission no longer theirs?

Back to top

______

Kathleen Sands, Associate Professor of American Studies, University of Hawaii at Manoa

The contraception dispute is about power. Who has to pay and who rides free? Who controls reproduction and who is controlled? Whose beliefs can determine public policy—or veto it—and whose beliefs don’t matter? “Religion” cannot adjudicate the fair distribution of power, because the word is always already a prisoner of power.

Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.

And what about other religions (say, Christian Science or Jehovah’s Witnesses) that object to other elements of health care? Or the huge businesses (say, Walmart or Whole Foods) whose devoutly religious owners might like their own set of exemptions? Should they get “religious liberty”? And if so, wouldn’t universal coverage become completely impracticable?

For some, that’s the goal: their “religious liberty” metastasizes into a demand that all employers, simply by invoking “religion,” could exempt themselves from any element of health care coverage. They’re part of the alliance that now owns “religion”: conservative evangelicals, Tea Partisans, and a Catholic hierarchy trying to reassert authority after the exposure of its own catastrophic moral failures.

In public discourse, religion is what “religion” does. And this is what “religion” is doing here and now. So, while elected officials dare not question “religious freedom,” scholars must be more discerning.

Back to top

______

Kevin M. Schultz, Assistant Professor of History and Catholic Studies, University of Illinois at Chicago

First, let me say this wouldn’t be an issue if it weren’t an election year. My mother works at a Catholic hospital whose insurance has covered birth control for years. The nuns who oversee the moral direction of the hospital haven’t complained once. So it seems there is some posturing going on now that has a lot to do with timing. This speaks volumes about the increasing importance of “the Catholic vote,” although that’s not what we’re here to discuss.

Regarding rights claims, there will always be a tension between individual rights (and/or minority group rights) and the fact that we all belong to a broader society that requires us to check some of our claims when we participate in it. To this point, it’s worth remembering that no church is being compelled to pay for birth control here (they get exceptions), just the auxiliary services nominally provided by a church that reach out into greater society, for example hospitals like my mother’s (which happens to employ more non-Catholics than Catholics). We all make compromises when we participate in society, and we should argue with compassion about the compromises we’re asked to make. But it seems a small compromise to make to have one’s insurance cover the cost of birth control pills for your auxiliary employees (Catholic or not) in order to maintain tax-exempt status and continue to receive millions of federal tax dollars to support your auxiliary services, like Catholic Charities.

Finally, it strikes me as particularly ironic that the Catholic Church, which, for the past 150 years has been making consistent communitarian arguments against the perceived acids of liberal individualism, is now turning the tables to say a “common good” argument has no merit when it compels their group to make compromises when they choose to branch out into broader society. More obnoxiously, their use of vitriolic cultural wars language does the Church, and the country it has thrived in for more than two hundred years, a great disservice.

Back to top

The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming for the first time the constitutional status of the ministerial exception, the Chief Justice declares that “(t)he church must be free to choose those who will guide it on its way.” Not “persons” must be free to choose their own ministers, but “the church” must be free. What is “the church?” Christians mean different things at different times when they use the definite article in speaking of church—when they speak of “the church.” Sometimes they are referring to the church on the corner, or a particular church organization, such as the Presbyterian Church USA, one of any number of churches. (That is how the Court uses the phrase at various points, when referring to Hosanna-Tabor in particular, as on page 5, or when it refers specifically to the Church of England, as on page 7, and so on.) In legal and political contexts, “the church” may be opposed to “the state,” vaguely throwing a circle around all religiously motivated activity. The Court in Hosanna-Tabor is not speaking in these ways in its last sentence. The Court is speaking theologically, and dogmatically, as it does several pages earlier in describing the purpose of the ministerial exception: “The exception . . . ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly eccle­siastical’—is the church’s alone.”

Theologically speaking, “the church” refers to what might be termed the mystical church—also known in Christian doctrine as the “body of Christ”—that is, the communion of all Christian believers across space and time, alive and dead, unified through apostolic succession. Christians have differed about how the visible church on earth should be governed and have related in different ways with political authorities. The Roman Catholic Church understands itself to be a universal church—that is, as embodying all Christians, on heaven and on earth. Protestants have had a range of theological readings of the church, derived in part from their new readings of the New Testament beginning in the sixteenth century, a range that is reflected in the range of ecclesiologies among American colonial proponents of religious freedom. But a distinguishing feature of the United States, arguably, is that after 1791, the unity of Christendom expressed as “the church,” whether in Roman Catholic or Protestant guise, no longer has legal personality. It is the people who are in charge.

Take Roger Williams, for example, the seventeenth-century founder of Rhode Island and colonial hero of many a current religious defender of the rights of churches in the United States. For Williams, the church was to be found, if at all, in those local few “gathered in his name,” without any bureaucratic superstructure. At the end of his life, Roger Williams, skeptical of Christian claims of biblical authority to found churches and of the hypocrisies of what he derided as Christendom, belonged to no church. One could even argue that it was Williams’ skepticism about organized religion rather than any desire to protect religious institutions that most presages constitutional religious disestablishment. Williams, pious Christian though he was, thought political life in a diverse community could be organized without reference to religion.

The majority opinion in the unanimous decision from the Court in the Hosanna-Tabor case affirming the constitutional status of the ministerial exception as a right of the church is supported by a curious mash-up of religious and political history. The villain of the piece is Henry VIII. Before the Act of Supremacy, we are told, the church in England had been free, at least since 1215, thanks to King John and Magna Carta. The church was free because King John had agreed that the church had the freedom of election to church offices. According to the Court, Henry VIII interrupted that freedom with his break from Rome. The church was not free again until the Puritans and the Quakers arrived in the New World. The freedom of the church, both in England during the time between King John and King Henry, and after 1607 in the English colonies, but particularly since ratification of the First Amendment, can be summed up, as the Court describes it, in the capacity of the church to select its own ministers, free of political interference.

Profound differences in Roman Catholic, Reformation, and Anabaptist ecclesiologies and understandings of the freedom of Christians are finessed in this breezy historical account. Slipping back and forth between “religious organization,” “religious institution,” “religious group,” and “church,” as well as posing the relationship of each to an also homogenized and ahistorical “state,” the Court manages to avoid the enormously fraught issue of what “the church” is and who speaks in its name at various times and in various places. King John, Henry VIII, James Madison, and William Penn, members of very different churches, are all understood to be speaking of the same special freedom for “the church” to select its own ministers.

Church history stops then for the Chief Justice in 1791. After the truncated account of English church history, what is most striking in his opinion is the entire lack of acknowledgment of the remarkable changes to the churches that occurred in the American colonies. Disestablishment, division, revivalism, populism, and immigration profoundly changed American religion. After 1791, official Americans, when speaking of American religion, arguably can no longer descriptively—or constitutionally—speak, as the Court does, of “the church” and its rights. The church had been disestablished.

Precedent for the majority’s reading of the rights of the church is also found in what are known as the church property cases, a set of US cases that address disputes over future ownership and use of churches when their congregations have a split in doctrine. This is a complex line of cases but one difficulty with using the church property cases as establishing the right of “the church” to choose its ministers is that, by definition in such cases, there are at least two groups of people who lay claim to a right to define who is a minister and to choose their own minister. In each case, after the courts decided the issue, one group did not get to select its own minister or it had to abandon the church in question and found its own new congregation in order to do so. In each case, the Court sided with what it took to be the hierarchy.

The Court concludes this section of its decision with an announcement of the rule that “‘the First Amendment commits [resolution of the property cases] exclusive­ly to the highest ecclesiastical tribunals’ of the Church.” Citing its decision in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, the Court explains that the First Amendment “permit[s] hierarchical religious organi­zations to establish their own rules and regulations for internal discipline and government, and to create tribu­nals for adjudicating disputes over these matters.”

Evidence for the Court’s transcendent ecclesiology, that is, its theory of the church and of church governance, can also be found in the way it distinguishes Smith—the peyote case. Smith held that the free exercise clause of the First Amendment does not provide a constitutional exemption for religiously motivated persons from laws of general application because secular laws fall equally on the religious and the non-religious. The alternative, as Justice Scalia explained in his decision for the majority in Smith, is that each person would be a law unto his own. The Smith rule does not apply in Hosanna-Tabor, the Chief Justice explains, because, the issue is not one of the right of religious individuals to a special exemption from neutral laws—a right defended by many as being founded in the respect accorded to individual conscience in liberal legal theory—but of the right of “the church” itself:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

It is worth looking at this paragraph very closely. What the Court says is that while the free exercise clause of the First Amendment provides no constitutional exemption from laws of general application for individual believers who engage in “physical acts” consistent with their religious beliefs—what many Christians term sacraments—the establishment clause provides an exemption for “the church” from such laws because by interfering with church governance the Court is interfering with “the faith and mission of the church itself.”

Here the Court speaks of the doctrinal priority of “the church,” and presumably, therefore, of its current earthly would-be representatives. Acknowledging that the ADA would seem to be a law of general application from which religious actors would not be exempt, Roberts explains that Smith concerned the constitutional status of “only outward physical acts.” The Court here seems to be saying that, as Douglas Laycock, representing Hosanna-Tabor, did at oral argument (see my previous post), that “the church” is prior to the sacraments because the church forms the consciences of individuals. Preserving the hierarchical discipline and right to autonomy of the church is structural to the US Constitution evident in the priority which disestablishment (read as a rejection of Henry VIII’s rejection of the Pope in the Act of Supremacy) has to free exercise in the ordering of the religion clauses in the First Amendment itself, while acts performed in obedience to the religious conscience of the individual must bow to secular law.

By reading its version of church history into the First Amendment, the Court is enabled to give priority to the rights of some Christians through its evocation of “the church.” But that history also enables a denial of rights to other Christians as well as to non-Christians. Freedom from hierarchical church discipline arguably accorded to American Christians by the religion clauses is disregarded in favor of a strong assertion of the rights of the church.

Most significantly, though, in the current moment, is that there is arguably no analogy to “the church” in its mystical sense outside Christianity. While other religious communities speak of the body of the faithful in various ways, the Court’s opinion would seem to suggest that its doctrine is tightly and very specifically bound to a history of the Christian church and its assertions of its rights in the context of a particular reading of English history.

Founded in its reading of English church history, the constitutional right articulated by a unanimous court in this decision is “the freedom of a religious organization to select its ministers.” While the Court acknowledges that it might occasionally prove difficult to decide who qualifies as a minister for these purposes, it nowhere mentions the difficulties of determining what a religious organization is. Justice Alito’s concurring opinion, evincing a careful concern for the Christian exclusivism of the majority opinion, begins the project of expanding the discussion beyond the church. “Minister,” Alito states, is a term that is mostly limited to the Protestant churches. His solution to this problem is to define minister functionally and universally, assuming that such a role can be found in all religious traditions—and beyond.

Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the United States today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”

Perich was an elementary school teacher at Hosanna-Tabor when she developed narcolepsy and went on disabilities leave. Although the school promised she would be able to return to her job, after Perich received a doctor’s clearance to return to work school officials asked her to voluntarily resign her position. She refused and threatened to file an ADA complaint with the Equal Employment Opportunity Commission (EEOC). Perich was then fired in direct retaliation for her threat to sue.

Perich’s case went to court only as a retaliation lawsuit; she and the EEOC did not sue for the underlying disabilities discrimination. Only late in the litigation did the church argue that it had religious reasons to fire Perich: because good Lutherans do not sue, Perich was spiritually unfit for her job. That theological position appeared to be at odds with the school’s employment manual, which expressed the Lutheran Church’s commitment to the antidiscrimination laws.

The potential religious dispute between Hosanna-Tabor and Perich over whether good Lutherans may sue set up an interesting contest between religious freedom and secular law: could religious employers keep their employees out of court if they had a religious doctrine against filing lawsuits? In my last post about this case, I phrased the legal question as whether religious institutions are allowed to disobey the law if it conflicts with their religious commitments. Does religious belief trump secular law?

Astonishingly, in dismissing Perich’s lawsuit, the Court handed an even more sweeping victory to religious employers than to give them license to fire employees solely for religious reasons. Instead, the First Amendment now gives religious employers freedom to fire their ministers for religious or non-religious reasons. According to Chief Justice John Roberts’ opinion for a unanimous Court: “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical,’ [citation omitted]—is the church’s alone.” In other words, the First Amendment protects a religious employer’s absolute right to fire its ministers even when no religious controversy is involved.

That ruling is a complete defeat for secular law as applied to religious organizations. If Perich-2 alleged disabilities discrimination, her case would be dismissed even though the church did not have a theological belief in disabilities discrimination. If Perich-3 alleged age discrimination, her case would be dismissed even though the church did not have a theological belief in age discrimination. If Perich-4 alleged sexual harassment or hostile work environment discrimination, her case would be dismissed even though the church did not have a theological belief in sexual harassment or hostile work environment discrimination. And so forth.

The Court identified some possible situations where ministers might be able to sue, namely “actions by employees alleging breach of contract or tortious conduct by their religious employers,” but left the specific details of such cases for another day. Good lawyers are left to litigate what lawsuits remain to ministers as well as who qualifies as a minister. Unfortunately, many federal and state courts have repeatedly dismissed lawsuits by school teachers and principals, college and university professors, so presumably their claims will continue to fail now that the Court has given its imprimatur to the ministerial exception. Moreover, the concurrences by Justices Thomas, Alito, and Kagan make clear that some justices want the term minister to be broadly defined in a way that is extremely deferential to religious institutions’ authority to define their own clergy.

For now the hard question—at least for those of us who supported Perich and the EEOC—is to figure out why the decision was so sweeping and unanimous that not even one justice recognized an employee’s civil rights against a religious employer. Not even Congress, which frequently follows the political winds about religion, has so broadly exempted religious employers from the ADA’s coverage. Moreover, in the disabilities context, Congress’s actions made constitutional sense. Why give any employer the right to discriminate on the basis of disabilities? Perhaps the rare “We-Believe-God-Hates-the-Disabled Church” would pose a constitutional challenge, but why should a church that opposes disabilities discrimination be allowed to dismiss disabled ministers?

The answer from the Court is that ministers are different. History played a heavy role in the opinion as the Court reached back to Magna Carta to paint a dangerous English history of government-appointed ministers that the First Amendment was drafted to protect. The constant theme of the opinion is that “government appointment of ministers” was such a bad thing in the past that all ministers must lose the protection of the employment laws in the present.

The Court’s reasoning demonstrates the dangers of historical analogy and originalism in resolving contemporary problems. Absent from Hosanna-Tabor is any consideration of constitutional history suggesting that the First Amendment was designed to protect individuals from the powers of the churches as well as the states. Moreover, the idea that government appointment of ministers in Europe should resolve the case of a disabled elementary school teacher in Michigan lacks common, moral, and legal sense. Many of the ministerial exception cases have involved women clergy in Christian denominations in which women’s ordination was not even imaginable at the time of the nation’s founding. To conclude that their pregnancy discrimination cases should be automatically dismissed under a ministerial exception rule rooted in Magna Carta is unacceptable.

Also present in the Court’s opinion was a secondary argument about old case law holding that courts should not take sides in theological disputes. The Court falsely believes it stayed out of theological disputes; in fact it opted always to take the side of religious employers, even in non-theological disputes. This huge victory for religious freedom was freedom for the employer’s side only—and a loss for all the individuals who thought they enjoyed some First Amendment protection within their churches.

In its briefs and at the oral argument, the EEOC valiantly argued that the Court should resolve Perich’s case under the freedom of association protected by the First Amendment. The advantage to rooting the churches’ freedom in association, not religion, is that equal rights would be “enjoyed by religious and secular groups alike.” The Court vigorously rejected the EEOC’s argument as “untenable”:

It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. [citations omitted] That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

It is an equally remarkable view that the labor union or social club is held to the antidiscrimination laws while the religious employer is not. And it is equally remarkable to conclude that religious freedom entitles organizations to disobey the secular law.

Religious employees are now left to the moral obligations of their employers not to discriminate against them. But churches, like all the other institutions whose powers were limited by the Constitution, are not perfect. Secular legal systems are necessary whenever religious moral systems fail. The Framers of the Constitution understood that. The Court forgot that lesson of history when it decided Hosanna-Tabor.

In Hosanna-Tabor, Lutheran elementary school teacher Cheryl Perich was preparing for a new school year when she became ill at a summer church picnic. Although Hosanna-Tabor granted Perich a disabilities leave, school officials asked her to resign voluntarily after her doctor cleared her to return to teaching. Perich refused to resign and filed a disabilities discrimination claim with the Equal Employment Opportunity Commission (EEOC). Hosanna-Tabor then fired Perich in retaliation for filing the disabilities claim. Even though the school’s employment manual pledged its commitment to the antidiscrimination laws, Hosanna-Tabor argued that good Christians do not sue and that her EEOC claim disqualified Perich from being spiritually fit to teach at Hosanna-Tabor Evangelical Lutheran Church and School.

Perich then proceeded with a retaliation lawsuit against the school. The major civil rights laws, including the Americans with Disabilities Act (ADA), have antiretaliation provisions that prohibit employers from retaliating against employees who assert their protected legal rights. If the ADA applies, Perich should easily win her case; the school has already stated straightforwardly that it fired her because she filed a claim with the EEOC. That is direct evidence of retaliation. The Supreme Court must decide whether the ministerial exception blocks Perich’s claim or if she can have her day in court to prove the facts of the retaliation lawsuit.

At the oral argument, Justice Stephen Breyer shrewdly focused on the question of whether Perich was informed that good Lutheran employees may not sue:

JUSTICE BREYER: I mean, does anyone explain to her, which she might not have known, that this is a religious doctrine that you are supposed to go to the synod or whatever, and you’re not supposed to go to court? Of course they wanted to fire her because she threatened to sue them. But what I’m wondering is, is there anywhere before the motion for summary judgment where someone explains to her, our motivation here is due to our religious tenet?

Justice Breyer’s question is important because it focuses on employees’ reasonable assumptions that secular employment law should protect their rights. Supporters of the ministerial exception too easily assume that religious employees understand and accept that they abandon their legal rights at their employer’s door.

In contrast, schoolteachers like Perich, as well as the numerous teachers, principals, professors, organists, administrators, and music directors whose lawsuits for race, gender, age, disabilities, national origin, and equal pay discrimination have been dismissed under the ministerial exception, should be entitled to the protections of secular law. For that reason I filed an amicus brief on behalf of Cheryl Perich in this case.

One recurring justification for the ministerial exception has been the “problem” of women priests. The specter of the Roman Catholic Church being forced to ordain women priests has repeatedly haunted discussions of the ministerial exception. Catholic women priests are wrongly used as a justification for the exception. It was unfortunate that the women priests issue became part of the oral argument in Hosanna-Tabor, as it distracts attention from the more important issues at stake in the exception. Four justices—Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer and Samuel Alito—raised questions connected to the issue of Catholic women priests.

Let me be clear. No one argues that the courts can force the Catholic Church to ordain women. That argument is a red herring. In the forty years that the ministerial exception has existed, I count only one court case of a Catholic woman who (unsuccessfully) sued to become a priest, but at least ten cases of Catholic women who knew with absolute certainty they were not priests. Yet those women were suddenly ordained ministers when they went to court to enforce their employment contracts against Catholic employers.

In Weishuhn v. Catholic Diocese of Lansing, for example, a case with a cert. petition currently pending before the Court, a Catholic elementary school teacher reported possible sexual abuse of a student’s friend to state authorities as required by Michigan law. Weishuhn was fired for not informing the school principal of her actions. In another case, a Catholic school principal was fired after complaining to the bishop that her priest-supervisor assaulted and battered her. The church successfully asserted that those teachers—who could never be ordained priests—were ministers whose claims could not be reviewed by secular courts. Cases of race and age discrimination, sexual harassment and hostile work environment, and disabilities discrimination and retaliation have met a similar fate. In such cases the ministerial exception protects discrimination instead of religious freedom.

The all-male Catholic priesthood can be protected easily by First Amendment freedom of association and/or a bona fide occupational qualification [BFOQ] in employment law. The Catholic Church teaches that women cannot represent the male person of Jesus Christ. That teaching seems easily to qualify for the expressive association protected by the First Amendment. It also offers a really strong argument for a BFOQ where gender is allowed to be a requirement for the job.

Creating the broad ministerial exception to deal with the issue of an all-male priesthood is like swatting a fly with a sledgehammer. It also distracts attention from the legal protection of women clergy in churches that do ordain women. In the very first ministerial exception case, a female Salvation Army minister sued for equal pay. In later cases, Baptist and Methodist ministers and Jewish rabbis have sued for pregnancy and disabilities discrimination. Male and female ministers have sued for sexual harassment, hostile work environment, and race and age discrimination.

The ministerial exception handles those cases with ease. It says simply: courts may not review employment cases involving ministers.

Why not?

The ministerial exception asserts that clergy should fall completely outside the protection of the employment laws. Why? Why should women clergy be barred from bringing pregnancy discrimination suits? Or male and female clergy be prohibited from suing for disabilities discrimination and retaliation? In worrying about threats to an all-male priesthood the ministerial exception neglects to protect clergy who suffer unlawful treatment. It is troubling to think the First Amendment could be interpreted to rob clergy of the protections of secular law enjoyed by their fellow citizens.

The Court’s controversial decision in Employment Division v. Smith held that religious individuals must obey neutral and generally applicable laws. Now we wait to see if the Court will hold religious institutions to the same standard when it issues its opinion in Hosanna-Tabor.