Separating Church and State

Separating Church and State

Glenn W. Olsen

The distinguished Hungarian-American historian, John Lukacs, recounts the outcome of the poll of Catholic college women he remembers Will Herberg to have reported in the 1950s.1 They simply were asked whether they thought of themselves first as Americans or as Catholics. Ninety-eight per cent of them thought of themselves as Americans first. The position I would like to advance here is no one's but my own, for I would be counted with the two per cent. Because I am an adult convert to Catholicism I have not directly participated in that deep yearning of the immigrant to be accepted at virtually any cost into the larger culture, to be thought a good American. This yearning, one form of which is caught in Frank Capra's movies and life, seems to me central to the history of religion in America.2 I do not think America is the "best country there ever was," and I am not particularly enamored of the American legal tradition.3 Therefore, although an American, I speak as an outsider, and as someone skeptical about "the American experience." I suspect my analysis will look as strange to many of my coreligionists as their sharing of premises with the world around them, what I would call their profound secularization, seems to me.

The story is told that earlier in this century George Santayana while at Harvard was asked about Catholicism in America. The genial non-believer responded that he had met no Catholics in America, only some Protestants who prayed the rosary (a dated response that!). The position I wish to mount _ this is the first step of my argument _ rests on the observation that humans are by nature religious animals. I suspect that in a society in which all assimilated groups, from the framers of the Constitution to contemporary assimilated Jews, have taken into themselves the dominant Protestant world view, such an observation is, as they say, off the screen.4 Most people in our culture take for granted the classical Protestant understanding of the separation between faith and reason, and assume for instance that both religion itself and the moral life pertain to faith and somehow are a world apart from that of science and reason, which latter are the instruments by which a neutral public and secular sphere of life may be constructed.5 Some such assumption must lie behind the otherwise baffling Louisiana court decision which recently held that an abstinence- based sex education curriculum was, as Planned Parenthood had claimed, "religiously based because it talked about abstinence but did not mention birth control."6 Such a claim seems to take it for granted that positions on questions like abstinence come from one's religion, which they do in classical Protestantism, but completely ignores philosophical naturalism, the various natural law claims, and indeed any philosophical position which holds that reason unaided by revelation has a word to speak on such matters. They proceed as if the Protestant way of looking at such issues is the only way.

Groups like Planned Parenthood, the ACLU, indeed in good measure the courts themselves, seem to me not at all neutral in matters of religion but in this sense profoundly Protestant, or what we might call culturally Protestant, because tacitly assuming a Protestant separation of faith from reason.7 Thus according to the Kathryn Kendell in arguing that Utah officials should separate "their religious views from their public responsibilities," pointed to Mario Cuomo as doing just that on the abortion question.8 Here Ms. Kendell, along with Gov. Cuomo, assumes a "Protestant" understanding of the nature of abortion, which she takes to be a religious question; gives no indication of understanding why the Catholic Church, if not Gov. Cuomo, considers this to be a question of natural justice; and having herself worked from Protestant premises, has the temerity to criticize Utah officials for intruding religion into the public sphere, that is, doing what she has done. One would have hoped for a glimmer of self-understanding in all this, and that it would have been seen that the lesson to be learned is that all questions of law are also questions of philosophy and many of theology also, and that therefore a strict separation of church and state is impossible, in principle as well as in fact.

The irony is that the so-called separationist position is only possible on a Protestant understanding of the separation of faith and reason, and therefore itself is a theological position.9 This separation has made possible the very notion, central to those who would build a high wall between church and state, of a common ground, sometimes as in Alex de Tocqueville's analysis, denominated "society," itself neither church nor state but so-to-speak between these two.10 Officially this common ground, on this view, takes no religious position, and on it we live a shared political life, irrespective of our private religious notions. One's ideas about (even) moral matters are commonly taken to come, on such a view, from one's religion, and thus to be private matters which should not be intruded into the public sphere. As they say, "You can't [i.e., shouldn't] legislate morality."11 If the stray Catholic argues that, no, his or her opposition to, say, abortion is based not on a specific religious revelation but on rational notions of justice open to any human being, the argument is met with incomprehension. If the proposed Freedom of Choice Act is opposed because hospitals ethically opposed to abortions will face serious legal penalties if they refuse to perform them, that is act against conscience, the ACLU is not likely to give support.12 The most prestigious newspapers of record will continue to treat such questions as being about revealed religion rather than as about social justice, and fail to see that their way of regarding the issue expresses the cultural Protestantism of the country, that is, a form of bigotry in which no effort is made to understand or take seriously traditions very different from Protestantism.13

In arguing that man is by nature a religious animal, I want to suggest a very different way of looking at the matter.14 Aristotle, in approaching the question of how man is to be defined, saw that like anything else humans are defined by that which is unique to them. Aristotle found this in mankind's rationality, above all in the ability to examine the validity of one's own reasoning processes. Aristotle was not wrong in defining human beings as rational animals, but his definition was incomplete or narrow. For instance, without gainsaying Aristotle, one could just as well hold, with that very special meaning which Plato gave to eroticism in the , that humans are erotic animals. That is, that very rationality in man which Aristotle prized was in turn rooted, as Aristotle partly saw, in an erotic impulse which drives humans outside themselves in quest of truth to see the world and reduce it to understanding. One could give cultural reasons _ for instance the general uneasiness of many Greek philosophers in the presence of any form of passion _ for Aristotle's blind spot here. The point is that, in the spirit of the observation in the , 4, that man is the most imitative of animals, Aristotle could have enlarged his definition of man as rational to see him as also clearly possessing to drive himself out of himself in a way that no other animal can. In a similar fashion, while showing in the that the rational man concludes to the existence of God; and while with Plato recognizing the origins in religion of everything from drama to philosophy itself; Aristotle had another blind spot in not seeing clearly that contemplation, the highest act of the reason for him and that which is closest to the divine in us, is very closely related to worship and prayer. By the very fact that man is a rational animal he is a praying or religious animal. Undoubtedly this second blind spot resulted from Aristotle's failure to realize that if God is rational, what he called self-thinking thought, he must also be personal. His inferior in so many ways, Cicero, here saw more clearly.

I cannot linger over the meaning of either "religion" or "natural." In her portrayal of Lavrans in , Sigrid Undset caught perfectly a naturally religious mind and piety. My observation simply is that an unprejudiced view of man sees that, both across the cultures and in himself, one of the things distinctive to man, without any specific religious revelation as understood by the religions of the Book, is that he is a praying, worshipping, pious kind of being. I am not claiming that each member of the species is religious, or that each culture or period is religious in the same measure _ although I am inclined to think of a so-called secular age like our own as simply having transmuted its forms of religious expression.15 No, I would no more make that argument than hold that, because human beings have the capacity for mathematics, any given person or culture knows that 2 and 2 are 4. Self-described irreligious people are no counter-evidence to what I am proposing. A person or an age may have its form of blindness or incapacity. I am simply saying that, just as humans as a species have the capacity for mathematics, they have the capacity for religion. It is part of their nature, of what they might become.

My next observation is that the nature of religion, if its full development is allowed, is to be public, because finally religion is about the cosmos, our attitude and response to being. By "public" I do not simply mean visible, but with a standing in the law, what a separationist would call some degree of establishment, although I am not talking here of revealed religion, and believe what I intend is compatible with the First Amendment. We are _ as again Aristotle saw _ social animals and naturally wish to make common affirmations and live in a shared public space. We are made to communicate the truth to one another, and to want to affirm it in common, which includes in legislation. Here I will not linger over the privatizing of religion in recent centuries, one form of which is the already mentioned American distinction between state and society. This privatizing makes it difficult to understand our essential nature, and strict separation of church and state attempts to make the distinction between state and society permanent. My point is that religion, because it is about our understanding of our place in being, naturally fills the life of the religious person. Left to its own devices, it creates a public sphere of shared perceptions of God and the world, and issues in public art, architecture, music, liturgy and law. One wishes to share one's deepest understanding and appreciation with others, above all to create a public order in which the forms of culture themselves will communicate truth about the world to those around oneself, above all one's children.16 A Roman public cult, a Christendom, a Confucian public order, is the working out in history of the logic of man's being religious.17

The second step of my argument can be briefly stated. Because the function of government is to foster the common good, all governments have the natural obligation to foster religion.18 I intend here the common good as the classical philosophers understood it, as the sum of all those goods needed for human natural development. This is very far removed from what the expression "the common good" has come to mean in Anglo-Saxon thought, in which habitually this idea is associated with the will of the majority. Only a pragmatist, that is, someone in despair of truth, could think that what the majority wants is what is good for them.19 The classical common good of which I speak is that good which is good even for the person who refuses to recognize it as good. No more than the truth is the common good determined by a show of hands. Using this definition, my claim then is simply that because man is of his nature religious, and government is obliged to seek all the goods which pertain to man's natural development, government must foster, rather than separate itself from, religion. Prayer, to put it in the words of Jean Cardinal Daniélou, will always be a political problem because prayer is a part of the political properly understood.20

What can this mean in a pluralistic society? Even those who would agree that the argument thus far has not in principle gone astray will have trouble understanding what its practical implications could be for today's world. If even in Daniélou's France, divided for centuries between a Catholic majority and a Calvinist minority, the now huge party of the areligious vies with voices that once expressed the Other, such as Islam, what are we to make of American pluralism? Here we come to the third step of the argument. It seems to me a simple point of logic that the more pluralistic a society is, the more difficult it will be to specify the manner in which its government is to fulfill its natural obligation to foster religion. Indeed, every other natural good will be in the same position, for one of the things "pluralism," what I have elsewhere called pluralism of world-views or "deep pluralism," designates is lack of agreement about the good.21 It would take us too far afield to consider here in depth whether such pluralism is not simply another name for hell, that is for "all coherence gone," but it should give even those the most optimistic about the American experiment long pause. In a brilliant series of talks in my diocese, Owen F. Cummings showed that in a society such as ours people do not know how to stylize the most central points of their lives, because there is no consensus about the meaning of life or its stages.22 There is no social consensus to tell us when we are old, or how we should die; indeed rather than dealing with death in a human way, looking it in the face, talking about it, and preparing our souls, we hope death will be quick and painless, that is, subhuman, and the last thing we want to acknowledge with a dying person is his or her impending death. Not for us those early warning signals of pain and faltering that make the , dying well, possible. As I have said elsewhere, pluralism is more than piñatas and espresso; deep pluralism means that beings made for society must live in the atomized horror a liberalism centered on the autonomous individual confuses with a human life.23 Still, the point that we must focus on here is that for us deep pluralism is part of the given: it is not likely to disappear, and so all analyses must come to terms with it.

But here is the rub. My earlier list of the Roman public order, Christendom, and the Confucian public order as examples of religion given public expression, gave, in spite of a myriad of possible objections, relatively benign examples of embodied religion compared to other examples which could have been chosen. What if instead I had chosen the triad Bosnia, Sudan, and India? Even if we set aside the question of pluralism in its American form, we must admit that religion's role in forming corporate life also has lead to grave evils, to various forms of clash, internal and external. It may well be true, as George F. Kennan has observed in comparing the Balkan crises of 1913 and 1993, that aggressive nationalism has in many cases been more directly the cause of war than religion, but religion nevertheless has been set to unworthy causes.24 This obvious fact has fed the development of the liberal tradition, especially since that great sign of the breakdown of cultural identity in the West, the Wars of Religion of the seventeenth century.25 I presume that it lies both instinctively and explicitly behind attempts to construct a high wall between church and state. Such responses to our obviously deeply flawed human natures, to the ways our highest instincts often result in our greatest moral failure, must earn deep sympathy. Yet I think as they are found today in the attempt to construct a high wall between church and state they are profoundly misguided, and only exacerbate the problem of an adequately human public life.

Yet, I repeat, such responses earn my respect, for on a reading of the facts pretty close to my own, they are correct. That is, Booth Fowler and the "existential communitarians" seem rightly to hold that our sinful nature and the tragic dimensions of life make community an ever desirable and ever elusive goal, more something for which we forever strive than something possessed in any very fulsome way. I would only add that the quest for even a modestly shared life is made especially difficult for us in the United States by the lack of a natural law tradition. In such conditions it becomes plausible to view the churches as a refuge from the larger society. Further, in the light, say, of Islamic fundamentalism, we need worry in turn about the churches' potential destructiveness if allowed into the political order. The proper response to both threats seems the construction of as high a wall as possible for the protection of both society and the churches themselves.26 I say, I am pretty close to sharing this reading of our public life, but only with two provisos which make high separationism an improper conclusion.27 First, because we are political animals, it is better to struggle to exercise this capacity and fail than not to struggle. More importantly, especially in a media-dominated world, there is no refuge from public life.28 Inevitably what the world is the churches largely become. Therefore to the end we must remain involved in the public order as, for instance, we must in matters of the environment.

There seems to me a great lack of imagination across the American political spectrum in these matters. First, the politics of many, right and left, see the goal of government as the maximization of human freedom. Granted that goal, those on the left with a "thin" notion of the common good, that is who largely abandon the notion of a shared public life built on cultural consensus, seem to have logic on their side both in wishing to expand the rights of individuals and in seeing government as essentially an arbitrator of rights between individuals. Those on the right, in reaction to a certain diminishment of all that is communitarian in life by the program of the left, often try to have their cake and eat it too, that is to say that they are for both liberty and community. The program of the libertarian left is in fact a prescription for society's dissolution in a kind of unending pluralism which tends as a limit to reduce society to autobiography, to largely solitary lives linked only to the select few. I do not mean that society is about to collapse, though there are many attempts "to impose the spirit of Yugoslavia on us."29 Elsewhere I have shown that under the guise of neutrality that form of liberalism espoused by John Rawls in fact attempts to construct a new orthodoxy.30 A newly emerging triumvirate (Souter, Kennedy, and O'Connor) on the Supreme Court indeed has insisted in that social peace in the matter of abortion is such an overriding consideration that is to stand simply because it has been in place for twenty years.31 Clearly prudential considerations _ the old Constantinian "above all, resolve the problem" _ here outweigh all else in the mind of the Court majority.

For all I know we can go on for a very long time caught, as on a New York City street, between the delights and dangers of pluralism (I would want to attribute most of the delights to cultural pluralism, the dangers to deep pluralism). But we cannot avoid and have not avoided the trivialization of the life of the mind and spirit in such circumstances, in which, because there are few shared notions about even how to mount a valid argument, human interchange is reduced to talk of baseball, movies, and food. Churches become a refuge from a dehumanizing public space inhabited by antagonistic ideological positions facing on one another with few principles of mediation _ but a refuge only different in degree from the public space because, as suggested above, in a media-dominated society there is no refuge.32 The program of the communitarian right is a healthy but ineffective reaction against this dissolution of the public order, a reaction in the name of social solidarity, perhaps of a nostalgic quest for the return of neighborhoods or of community standards. The left will want a high wall separating church and state; the right, if its goal is the fostering of intermediary social institutions including churches, a low wall, but neither sees the way actually to foster religion, that is the heart of being human, in a pluralistic environment.

To suggest opportunities missed in the above dialectic, we must turn from this ping-pong game in which especially the libertarian right and left end up emphasizing the maximization of liberty as the goal of government to a reconsideration of the classical understanding of the common good.33 Here government exists to advance, irrespective of class, race, sex, or the advantages or disadvantages of historical accident, all the natural goods of human beings, one of which is the life of religion. In a sense there is no answer to the American objection to this project, that is to the objection coming from the pluralism of a society in dissolution, "who determines what is natural to man and good for him?" The obvious answer is the same as to the question "who determines that 2 and 2 are 4," namely anyone who reasons aright. But this will have small impact in a society which has lost its grip on rules of evidence and logic, that is decreasingly believes that one can actually establish the truth by an argument. For a historically Protestant society which commonly sees notions of the good coming from religion, or in Lawrence Tribe's secularized form of Protestantism centered on the autonomous self and without a natural law tradition, there is little notion that the unaided reason might really be able to discover those goods which then the state should foster.34 Nor is there much idea that public life is in part a great debate about the truth. A generation ago Walter Lippmann could hope for such a public philosophy, not realizing that such a hope was, like that of Arthur Schlesinger, Jr., today, a hope that pluralism could be limited.35 I would be the last to deny that such a project appears increasingly Quixotic, but would argue for an accommodationist position on the church-state question in the following way.

Obviously the classical project, whether in its pagan, Catholic, or Islamic historical expressions, was at once the product of and a source of social unity, the feeling of the obligation to live according to what seemed shared public truths, a shared view of the world. This seems largely closed to us, and the establishment clause of the First Amendment seems necessary for self-protection. Obviously I do not consider this a social advance, but a necessity. Still, and this is the last step of my argument, I would argue that not all is lost if we see that our current situation is not an inevitable development of some constitutional logic, but a doctrinaire imposition. It is important here to remember that it was only in 1947 with that strict separationism established itself as a dominating tradition. Before there has indeed been a growing tendency to reconceive the prohibition of establishment to include any giving of aid to "church." Still, an earlier hope for active cooperation between church and state in the promotion of social goods lingered. Only the establishment of a state-church was absolutely prohibited: this left much ground for cooperation between church and state short of favoring any one religion in particular. Then, according to , religion was to be separated from public life.36

For a half-century we have been developing a constitutional tradition in which the friendly separation and accommodation of church and state widely hoped for from the First Amendment has become a dim memory.37 Originally no more than any of the other rights was separation understood absolutely, but now for a half century cooperation of state with church in fostering social goods has been severely limited. Yet, more generous arrangements still exist elsewhere, and, as Mary Ann Glendon continues to point out, we may fuel our imaginations as to the road not taken by looking at other Western societies which have less opted for our current path.38 I am interested in an imitation of, a learning from, how other countries have dealt with this problem in ways more generous to religion than the high separationist tradition. I have already mentioned France: let me here simply allude to the German or Canadian pattern of public funding of a higher educational system composed of church-related faculties or institutions. Each of the colleges of the public University of Toronto, for instance, is church-related, and I sometimes wonder whether the wonderful cultural diversity of Toronto, tied to a very low rate of crime in comparison to the United States, is not partly accounted for by the Canadian notion of letting various religious groups share the public space.39 If you let groups, religion and all, share in the public space, there seems some likelihood that they will not be alienated from this space, will have a sense of proprietorship toward it. In America we tend to set the groups against one another.

The principle here is that it is good that as many possible sub-groups in the population be able to educate their children and young people by their own best lights, and that each religion be treated in accord with its position in the population. This was one goal of nineteenth century Catholic liberalism as represented by Charles le Comte de Montalembert (1810-70). Freedom of religion did not exist for him simply to protect the individual, but groups, associations, and churches. Obviously lines have to be drawn somewhere for practical reasons, and groups that are small minorities will probably have no claim to public monies. And obviously such a system will be easier to administer in a relatively homogenous society as Germany than in the more diverse Canada, and again be easier to administer in Canada than in the United States. But if religion is a part of man's natural constitution, it is wrong to solve the problem of the place of religion in a pluralist society prematurely by simply constructing the wall of separation as high as we can. Our lives are in principle humanized in the degree in which we can find ways for religion not just to influence the public order in the ways we each can as individuals, but to express itself in that order institutionally, for instance in the form of church-related schools.

There is a lot in the matter of attitude here. In regard to public prayer, for instance, if our basic attitude is gratefulness for the embodiment of truth we find in the lives of others, why not take turns in the offering or non-offering of public prayer? It has always seemed to me an ungrounded argument to assert that some right is violated if I must be present at the prayer or non-prayer of someone of another or of no religion. I would much rather hear an explicitly Mormon prayer at one graduation, and _ to pursue a _ have no prayer at all at another because it was the atheists' turn, than hear the lowest common denominator prayers that are the result of trying to find the impossible, something acceptable to all on each occasion. At one level I have some trouble giving the atheist here his or her due. If the existence of God can be proved by reason alone, which it seems to me it can, giving atheists their turn in the matter of (abstention from) prayer is a bit like celebrating the failure of someone to learn math. In addition, to return to an earlier theme, to abstain from having public prayer is as much a theological statement as praying: both portray how we conceive our nature and destiny, how we define our humanity. Still, it is clear that in our civilization a fair number of people become atheists because of the way in which God or some specific religion has been presented to them. Their atheism may express their own sense of the truth, and thus is worthy of some respect.

My argument is that government is to encourage all forms of religion compatible with its other natural goals. This means not simply that the state has no competence to judge between the truth claims of revealed religions, but that it has more power to outlaw certain religious practices than is generally accorded it in American thought _ but only if we abandon the notion that all morality is rooted in revelation. From a natural law point of view, it is quite possible for the state to condemn certain religious practices as against right reason. Our justice system is so ignorant of and antagonistic toward what it is ignorant of, natural law positions, that an obvious candidate for the application of such reasoning, the or Santería case, was in fact resolved on quite other criteria.40 Nevertheless, if for instance, a religion claimed to have received the revelation that some group in the population was to be murdered by them, it certainly seems to me that the state has the right to outlaw this religion on the grounds that it (at least on this point) is false. This is not simply because for reasons of public order homicide trumps freedom of religion, but because the state has the responsibility of pursuing natural justice. It therefore must stop any person or group which claims the right to take away the lives of people who have done nothing to forfeit their lives. The state has the right to declare a religious practice illegal, not when the religion makes claims that go beyond the order of natural justice, but when it makes claims that violate the order of justice. For now such a proposal is made simply to provoke the imagination, not with the hope that such a way of looking at things will be invoked in the near future.

Others have shown just how tendentious the reading of American history by the high separationists is.41 The argument here has been that their positions, especially the ACLU, express not a disinterested reading of the Constitution, First Amendment, and constitutional tradition but a which effectively is a form of religious intolerance. Without reformulation of the problem of church and state along a line something like that given here, it is not likely that such intolerance can be abated, nor a healthier common life in society pursued.

Glenn W. Olsen is Professor of History at the University of Utah and an authority on the thought of Christopher Dawson.

ENDNOTES

1 "Bare Ruined Choirs (Ample Parking in Church Yard)," 8, 4 (April 1973), 22-24 at 24. Curiously, Lukacs since has written of a very similar poll, asking the same question and also set in the 1950s, but now taken by himself of his own students with all of them responding that they think of themselves as Americans who happen to be Catholics: "Christians and the Temptations of Nationalism," in 59 (Nov. 1992), 12-18 at 12. The present paper originated in an opening statement of position in a debate, "Separating Church and State," between myself and Kathryn D. Kendell, staff attorney of the Utah chapter of the American Civil Liberties Union, given April 20, 1993, in the McDougall Lecture Series sponsored by the Cathedral of the Madeleine, Salt Lake City.

2 Luc Sante, "American Pie," (hereafter NYRB) 40, 3 (January 28, 1993), 17-19 at 17 writes of Capra, "He had spent his life and career attempting to deny his origins and to become American in the most mainstream, unshaded way."

3 George F. Kennan, (New York, 1993), has many wise things to say in this regard: see with the review by Arthur Schlesinger, Jr., "The Radical," NYRB 40, 4 (February 11, 1993), 3-8. Paul Kennedy, "The American Prospect," NYRB 40, 6 (March 4, 1993), 42-53 at 46 makes suggestions about how positions asserting America's "specialness" bear on America's future, and at 53 makes an argument that because America is so large and in some degree an "escapist" culture, there is much to be said for fostering policies which are "differentiated, decentralized, and individualistic, `muddling through' rather than a coordinated, centralized attack upon the problems." Kennedy notes that such a policy, which in some ways parallels that advocated in the present paper, implies long-term decline; but perhaps underestimates the ways in which American political culture forecloses the alternative of "coordinated attack."

4 But see Will Herberg, (Chicago, 1960).

5 I have treated this question especially in "The Meaning of Christian Culture: A Historical View," in , ed. David L. Schindler (Notre Dame IN, 1990), 98-130, and in "1492 in the Judgment of the Nations" (to be published). One conclusion to be drawn from this latter article and from my "The ethics of conquest: The European background of Spain's mission in the New World," 19 (1992), 619-34, is that a strict separation of Church and state would involve the state giving up such ideas as "person" and "universal human rights," which historically originated with Christianity. Jacques Maritain, , tr. Doris C. Anson (New York, 1947), 47, wrote: "Under the . . . active inspiration of the Gospel, the secular conscience has understood the dignity of the human person and has understood that the person, while being a part of the State, yet transcends the State, because of the inviolable mystery of his spiritual freedom. . . ." In , tr. Joseph W. Evans (New York, 1968), 95-98, Maritain also made the historically plausible argument that the very distinction between spiritual and temporal orders, the latter presupposing the former, comes from Christianity. As I argue below, groups like the ACLU of necessity use such distinctions, without realizing their Christian origins, and that the positions of the ACLU thus are not religiously neutral but express at least a "cultural Christianity." See also Roy A. Clouser, (Notre Dame IN, 1991), David G. Dalin, ed., (Washington DC, 1992), and Naomi Cohen, (New York, 1992), with the informed review of the latter by David G. Dalin, "Still Strangers," #37 (Nov. 1993), 32-35.

6 Quoted from the description of the case in "Ban on teaching abstinence in Louisiana baffles Utahns," , March 28, 1993. Classical Protestantism simultaneously rejected the grounds for natural law positions, and continued to make natural law arguments. Therefore we should not find surprising the reaction of one Utahn quoted in this article, "If you want to talk about abstinence being a religion, then somebody's lost their marbles." That is, in Protestant cultures it is common to find explicit rejection of natural law thinking along with de facto retention of scraps of such thinking. This parallels the retention of "natural rights" thinking in Protestant cultures which have largely abandoned "natural law" thinking. The former is an attenuated form of the latter. Christopher Dawson, "Natural Law in the Protestant and in the Catholic World," 10, 4 (Fall 1992), 4-5 (reprinted from [New York, 1942], 51-56), makes more distinctions that I can here, differentiating, for instance, between the fate of natural law in Lutheran and Calvinist cultures. See also above n. 5 (Olsen, "Judgment"), and the exchange in beginning with Carl E. Braaten, "Protestants and Natural Law," #19 (Jan. 1992), 20-26 (letters in #22 [April 1992], 4-5).

7 I have discussed aspects of "cultural Protestantism" in the articles listed above n. 5, and see below n. 30. The approaches to the discussion of abortion taken by Ronald Dworkin, (New York, 1993), and T.M. Scanlon, "Partisan for Life," NYRB 40, 13 (July 15, 1993), 45-50, are good examples of framing a question in culturally Protestant terms. Both define the question in "sanctity of life" terms, taken to be a "religious" category (i.e., a claim which, coming from revelation, can neither be established nor refuted by philosophical or natural argument), and virtually ignore natural law/Catholic approaches. Having defined abortion as a "religious" issue, Dworkin, ch. 6, is able to argue that for the government to take any position on the question would be for it to impose religious beliefs. See the critique by Damian P. Fedoryka, " `Dworking' the Abortion Issue," Crisis 11, 1 (December 1993), 50-54.

8 Mike Carter, "Prayer debate heightens religious tension in Utah," January 27, 1993. This article describes Gov. Cuomo, who has been criticized for his views by the Cardinal Archbishop of New York and others, as a "staunch Catholic." Gov. Mike Leavitt of Utah, in his claim that his "personal [sic, apparently `official' is meant] statements have nothing to do with the [Mormon] church," seems as naive as Kendell in thinking one can have a position on a matter such as public prayer which does not express some theological and philosophical point of view. See below n. 9.

9 People who have no trouble seeing that the "multiculturalists" are right in saying there is no such thing as an objective or neutral curriculum or canon, that every selection of what to teach is freighted with philosophical (and, I would say, theological) assumptions, continue to hold the naive view that legislation is different: see above n. 6 and below n. 11. When I say "only possible on a Protestant understanding" I include as "Protestant" all positions which do not recognize a natural order sufficiently distinct from revelation to be able to generate some ideas of the good. Etienne Gilson, (New York, 1938) called these "Primacy of Faith" positions, and they are found in all revealed religions in the degree to which these have not articulated a distinction in principle between reason and revelation. Cf. Richard H. Akeroyd, (Macon GA, 1991).

10 I have expressed my reservations about Tocqueville's belief that religion would flourish at the social level if disestablished at the state level more than once: for the argument that this was true in the short, but not the long, run, see below n. 11, and in addition "The Catholic Moment?" 15 (1988), 474-87 at 486. John Courtney Murray shared Tocqueville's faith as apparently does J. Leon Hooper in his review of , ed. Robert P. Hunt and Kenneth L. Grasso (Grand Rapids MI, 1992), in 54 (1993), 184-86. This review and book will introduce the reader to current discussion.

11 See my response to such notions in "You can't legislate morality: reflections on a bromide," 2 (1975), 148-62, and see further Michael J. Perry, (New York, 1991), and Robert P. George, (New York, 1993).

12 Of the articles on FOCA in the , January 1993, see especially Cardinal Roger Mahony, "FOCA: No `Freedom of Choice' For Catholic Hospitals."

13 For one more example of the inability of to present fairly the Catholic position, see its extended treatment of the tensions between the Catholic hierarchy and the Clinton administration in the issue of February 3, 1993. The editor of the lay Catholic , Margaret O'Brien Steinfels, devoted a signed opinion piece in the March 12, 1993 issue to the anti-Catholic bias displayed by the throughout the recent controversy over Joseph Fernandez, the former Chancellor of the New York public schools. The , as in its treatment of abortion, continues to single out Catholics for religious identification and refused to portray accurately their objections to Fernandez' policies. The controversy is described in "Commonweal editor accuses New York Times of anti-Catholic bias," , March 26, 1993.

14 Cf. Ernest Becker, (New York, 1973), as at 174-75, 178, 190, 200.

15 In addition to my "Meaning of Christian Culture," I develop this idea in "Cultural Dynamics: Secularization and Sacralization," a lecture to be published by the Wethersfield Institute in a volume on the Thought of Christopher Dawson.

16 Michael Medved, (New York, 1992), counters the "big lie" that "if you don't like it, you can turn it off," which seems an argument developed by those with no experience of children. In a lecture at the University of Utah, Medved commented, "To say to people that if you don't like the popular culture, just turn it off, is like saying if you don't like the smog, stop breathing." (Jeffrey D. Jonsson and Sean McBride, "Critic's book exposes Hollywood's three big lies," , March 5, 1993).

17 Louis J. Hammann and Harry M. Buck, eds., with Michael McTighe, (Chambersburg PA, 1988), presents a variety of approaches.

18 Cf. the argument for teaching religion in public schools and state universities in John Courtney Murray, , ed. J. Leon Hooper (Louisville KY, 1993).

19 The tradition of pragmatism, specifically John Dewey, is considered in the article listed above n. 11. Robert B. Westbrook, (Ithaca NY, 1991), attempts a defense of Dewey. Christopher Dawson, (Manchester NH, 1985), 66, provocatively analyzes "that moral pragmatism which is the essence of modern Protestantism," commenting on Harnack's famous that "the Reformation is only completed when " David Bromwich, (New Haven CT, 1992), follows David Hume in arguing, in the words of one reviewer, "that we can have common standards without a foundation beyond the common features of human life": Alan Ryan, "Invasion of the Mind Snatchers," NYRB 40, 4 (February 11, 1993), 13-15 at 14. How silly of Socrates to think, metaphysically speaking, that the unexamined life was not worth living!

20 I refer to Daniélou's great , tr. J.R. Kirwan (New York, 1967). Douglas G. Jacobsen, (Brooklyn, 1991), attempts to show how a vague "public piety" was constructed from the "private pluralisms" of the denominations, and how this prefigured the future. For the developments to the passage of the First Amendment, see Thomas J. Curry, (New York, 1986).

21 See above n. 5, and "Deconstructing the University," 18, 1 (1992), 53-85. George Kateb, (Ithaca NY, 1992), is part of a growing literature which attempts to defend democratic individualism against the communitarian critique, but which hardly engages the point made here.

22 Especially "The Mystery of Evil and Suffering: the Contribution of Stanley Hauerwas," given March 22, 1993, at the Cathedral of the Madeleine, Salt Lake City, with special reference here to the thought of Daniel Callahan, (New York, 1987). Cf. Becker, , 159-60; and the account of the development of Philippe Ariès's study of death by Philippe Carrard, (Baltimore, 1992), 47-48, 51, 201.

23 "Deconstructing," p. 237.

24 "The Balkan Crisis: 1913 and 1993," NYRB 40, 13 (July 15, 1993), 3-8 at 6.

25 See the argument of Jeffrey Stout, (Notre Dame IN, 1981) used in the article listed below n. 30.

26 See below n. 32, and most recently Robert Booth Fowler, (Lawrence KS, 1991), esp. ch. 9, with 154-61 on existential community. I am deeply grateful to Prof. Fowler for a very thoughtful letter he sent me about these matters following his illuminating participation in a Church-State Conference sponsored by the Humanities Center of the University of Utah in February, 1993.

27 I note how close Fowler's reading of the situation is to my conclusions in the article listed below n. 32.

28 The media receive a ferociously funny treatment by Robert Hughes, (New York, 1993).

29 Alfred Kazin, "The Way We Live Now," NYRB 40, 8 (April 22, 1993), 3-4 at 3, reviewing the book by Robert Hughes listed above n. 28.

30 In addition to "Deconstructing," see my "John Rawls and the Flight from Authority: The Quest for Equality as an Exercise in Primitivism," to be published in 21 (1994).

31 See the splendid editorial, "Abortion and a Nation at War," #26 (October, 1992), 9-13. The potential of a legal tradition based on precedent rather than jurisprudence for the exercise of "raw judicial power" is particularly clear in Casey, which hardly attempts a justification going beyond the quest for social harmony. The triumvirate seem to think that national division can be ended without facing the issues, and their stance reveals the intrinsic tendency to irrationalism of a precedent-based legal system not held in check by a natural law theory. In effect they have said that what is crucial is not truth but submission, that is, categories of power. Similarly, the refusal by the Democratic National Convention of 1992 even to allow Governor Robert Casey to present his views about abortion, and President Clinton's subsequent statement that having a pro-choice position would be a litmus test for any new Supreme Court justice continue the attempt to achieve a new orthodoxy by force. Robert S. Alley, (New York, 1988), and Terry Eastland, ed., (Lanham MD, 1993), give helpful introductions to the constitutional cases.

32 As I argued in "The City in Christian Thought," 66 (1991), 259-78, the church inevitably takes on the shape of the surrounding "city." Therefore, it is always short-sighted for the church or for Christians to abandon the attempt to influence the city. There are of course degrees here, but even monastic movements have inevitably been shaped by their surroundings. Distinction should be made between the clash of opinion in society, which is often healthy, and the clash of opinion in a society of deep pluralism, where by definition there are no agreed on rules for mediation. The great question is whether some form of limited democracy is possible; otherwise the clash of opinion seems to lead to deep pluralism.

33 Kenneth Pennington, (Berkley, 1993), dramatically recasts parts of the history of these subjects, showing that the origin of ideas central to due process such as the innocence of the accused are not, as commonly believed, in the English common law, but older and continental.

34 Tribe has recently argued that the authors of the joint opinion in have finally acknowledged the intellectual dead-end of the attempt, so central to supreme court decisions from through and beyond , to ground such rights as the right to contraception and to abortion in an ever-expanding privacy doctrine. Tribe approves of this acknowledgment, and believes the three justices have set out on a new path to a more principled rights doctrine built on the autonomous individual who chooses his or her form of life, the good for him or her. The right to abortion is necessary "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (quoted from in the analysis in "Abortion and a Nation at War [above n. 30]," 9). "Liberty" replaces "privacy" as the controlling idea. The triumvirate and Tribe seem to me merely to be replicating the logic of the historical development of liberalism.

35 See the bibliography above nn. 11, 32, for expansion on Lippmann. Critics have noted that Schlesinger never really understands how much his form of liberalism is the cause of many of the problems he criticizes in (New York, 1992).

36 John Courtney Murray, "A Common Enemy, A Common Cause," #26 (October 1992), 29-37, a previously unpublished address in response to and (1948), is incisive and prescient. I am barely alluding to Justice Reed's important distinction, appropriated by Murray, between the original and developed meaning of the First Amendment.

37 See on all this Murray, "Common Enemy."

38 See most recently Mary Ann Glendon, (New York, 1991), and "Religion and the Court: A New Beginning?" #21 (March 1992), 21-26.

39 In studying a parallel question, John D. Blum, "Ontario Health Care: A Model to be Emulated or Avoided?" 73, 3 (Summer 1993), 41-44 at 43, traces differences in health care to different conceptions of community. Articles making adverse comparisons between American and other societies are standard fare in the daily press: see in the wake of the slaying of another German tourist in Miami the syndicated article by Rheta Grimsley Johnson, "Is America spinning out of control?" , April 18, 1993. The range of constitutional possibilities is very large: see Gary Jacobsohn, (Princeton NJ, 1993).

40 Still, as David G. Savage of the Los Angeles Times pointed out in analyzing three of the 1993 rulings on religion in "Supreme Court taking `neutral' tack on religion," , June 20, 1993, there is some suggestion of a drawing back from strict separationism interpreted as discrimination against religion. See on this Raul F. Yanes and Mary Ann Glendon, "Religion and the Court 1993," #37 (Nov. 1993), 28-30.

41 See Ellis Sandoz, (Baton Rouge LA, 1990).

This article was taken from the Winter 1994 issue of "Faith & Reason". Subscriptions available from Christendom Press, 2101 Shenandoah Shores Road, Ft. Royal, VA 22630, 703-636-2900, Fax 703-636-1655. Published quarterly at $20.00 per year.