“The state must be lay. Confessional states end badly. That goes against history.” So said Pope Francis in a 2016 interview with the French Catholic newspaper La Croix — a pithy statement often referenced when the Vatican’s commitment to liberal pluralism seems dubious. Yet, the Catholic Church’s disenchantment with the confessional state is a fairly recent development, and one that an American theologian, Jesuit John Courtney Murray (1904-1967), played a major role in bringing about. As an expert consultant to the Second Vatican Council (1962-1965), Murray helped draft the Declaration on Religious Freedom “Dignitatis Humanae.” With it, the Catholic Church officially embraced religious freedom as a right rooted in the dignity of every human being. Civil governments, the document maintains, have no business infringing upon that right, not even in defense of the “one, true” faith.
Dignitatis, however, was not without ambiguities. Repudiation of the confessional state (i.e., a state that constitutionally privileged the Catholic faith and abided by it in its legislation) did not equal unreserved enthusiasm for the lay state. Today, Vatican II’s legacy of religious freedom is rejected by so-called neo-integralists. But even Catholics who claim Murray as their champion often disagree on just what kind of religious politics Dignitatis calls for, and what demands, if any, it makes on the lay state for the sake of religion. The terms of the question may well have shifted—as Carlo Invernizzi Accetti noted—from open confrontation between religion and liberalism to religion striving to condition liberalism from within. But this shift did not per se solve the problem of how truth and freedom should relate in a non-confessional framework.
If we let go of the confessional state, what exactly will replace it? Materials within the newly opened Pius XII-era archives in Rome reveal that this was also the central question that Vatican officials queried Murray about in the 1950s. The American Jesuit had been trying to persuade Rome to embrace religious freedom for almost twenty years before the Council. His argument hinged on an apology for the American church-state arrangement, long considered suboptimal by the Vatican. The First Amendment to the US Constitution, which prohibits laws that establish religion and prevent its free exercise, seemed too far from the confessional state model. In 1954, tensions between Murray and Vatican authorities escalated into a decree of censorship issued by the Holy Office (the Inquisition of old). My archival research in Rome led me to discover the never-before-seen records of Murray’s Vatican trial, stored at the Holy Office archive. These documents show that many Church officials acknowledged that Murray’s argument was a good-faith attempt at disentangling Catholicism from a political paradigm (the confessional state) that appeared inadequate for increasingly pluralistic societies. It was Murray’s counterproposal—i.e., principled embrace of the lay state—that left everyone unpersuaded. In Murray’s view, states that judged religious truth had historically posed a problem for the Church, either because they disfavored Catholicism or because their patronage entangled the Church with questionable authority figures and policies. But for Vatican officials, “lay” spelled trouble. Unbounded, would a state feel obligated to take Catholic values into account in its legislation?
Murray’s position reflected his understanding of American constitutional principles. He emphasized that the lay character of the US state did not automatically prevent civil legislation from embodying Catholic values. “The lay State is subject to the sovereignty of God,” Murray wrote in a memorandum for Vatican officials, “and it recognizes that its acts and legislation ought to be in harmony with the law of God; but the political form of the State requires that this harmony be effected by the people.”1 What would that mean? Murray’s Roman censors pressed the point. How would a lay state go from an “ought to” to concretely achieving harmony between civil and religious law, if it had to defer to unpredictable popular will? Confessional states solved the problem by a priori (i.e., constitutionally) subtracting some topics such as marriage and bioethics from the realm of democratic negotiation. How would a lay state treat these and other topics?
Murray’s answer to that question is not the only one to emerge from the Holy Office records. While the American Jesuit could offer little more than his optimistic trust in the ultimate soundness of popular deliberations to assuage Roman fears, other US Catholic leaders proposed different solutions. They, too, had the American “experiment in ordered liberty” in mind, but interpreted it differently. New York’s Francis Cardinal Spellman, for example, argued that the American state needed only maintain “the position promulgated by our Founding Fathers that our Country believes in God and in Divine Providence, and should never be ashamed publicly to invoke the name of God.” The Cardinal was suggesting that America, too, had a constitutional framework that not only protected religious belief, but assigned it a robust public role. And not just in generic terms. Spellman and his closest episcopal associates had often gone on record for attributing specific convictions to the Founders, including the belief that topics such as euthanasia were “undebatable, as matters of fundamental morals on which God has spoken.”2 America was not, nor would ever dream of being, a fully-fledged confessional state. But surely it would act like one, the Cardinal implied, when it came to fundamentals.
Of course, Spellman’s, too, was its own kind of naive optimism. His dismissal of fellow Americans who would “quibble” about the First Amendment “to imply that government must be separated from God”3 was an increasingly embattled view. The meaning and scope of US constitutional provisions—including the religion clauses—were contested ground. To uphold his vision, Spellman engaged in the very sort of public activism that Murray saw as the only legitimate way for the Church to ensure its position in a democratic society: persuading a majority of consciences. Ultimately, the two only disagreed on whether the Church should be content with this approach. Murray was comfortable with it, believing it to be the most desirable approach even from a principled standpoint, and wanted to bring Rome on board. Spellman had his doubts.
Vatican opinion was no less fractured. Murray’s democratic answer remained suspicious in Roman circles, but influential Holy Office consultants appreciated the seriousness and urgency of the questions he raised. Some of them worked from the inside to narrow the terms of Murray’s censorship. Yet, they remained in the minority. A first draft of the Holy Office decree outright forbade Murray to ever write or lecture on the church-state question again. When Pope Pius XII reviewed the draft, however, he found such prohibition excessive. It was enough, the Pope decided, that Murray submit any writings to the Jesuit General Curia for a thorough review. Hence came the censorship verdict with which scholars of Murray are familiar. We now know that it had a rather tortured path. The Vatican wanted to keep the American Jesuit on a shorter leash, but Rome, too, wondered if the church-state conundrum required new solutions. Could the American regime of religious freedom offer any clues?
The newly released Vatican documents show that, on the eve of the Second Vatican Council, Catholics on both sides of the Atlantic struggled to square religious truth with personal and political freedom. It would seem they still do. “It is in Parliament that one needs to discuss, debate, explain, reason,” Pope Francis concluded in the 2016 interview. But, he added, “[o]nce a law is voted the state needs to respect consciences.” Rome is no longer committed to one church-state paradigm—much less to using the state as the “secular arm” propping religious truth—but it is also past Murray’s delusion that democratic majorities are easily attainable. The aegis of the law is still invoked over religious believers, in the form of protection for conscientious objections. But whether such protection is warranted in a liberal regime, and to what extent, remains the subject of lively debate. And the US jurisprudential landscape is once again serving as a privileged testing ground, with scholars discussing religious exemptions and their constitutional grounding and limitations, most recently in the context of Covid-19 vaccination mandates.
At their root, all these issues touch on a single question: to what extent, in a liberal regime, could or should religious believers rely on the law to secure a place for religion in the public square? Murray’s greater or lesser ability to answer this question persuasively was key to his reception in Rome.
John F. O’Hara, “Address to the Knights of Columbus,” 22 Feb 1943. University of Notre Dame Archives, COHA 8/17 (7-8).↩
Francis J. Spellman, “Address at Holy Name Rally.” Archives of the Archdiocese of New York, S/A-21 f. 2.↩