An "ungracious silence": the influence of Catholic thought upon the First Amendment and its impact upon the interpretation of the Free Exercise Clause.

Author:Tompkins, Joseph
 
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INTRODUCTION

When many people think of the greatness of America and the principles it was built upon, they would undoubtedly identify America and its form of government or Constitution with Protestantism. However, according to the Protestant James Wilson, who is considered to be the "second most influential" person behind the Constitution and was one of the first Supreme Court Justices appointed by President George Washington, (1) there has been an "ungracious silence" to the Catholic influence of religious freedom in this country. (2) This silence unfortunately means that two of the most significant tests to have ever interpreted the First Amendment's "free exercise" of religion clause (3) are flawed. Since both tests failed to account for the Catholic understanding of the relationship between religious freedom and the common good, the Supreme Court has jeopardized a person's right to exercise freely his or her religion in America.

Perhaps the reason for this silence is due to the fact that since the American Founding and until the late Twentieth Century, there has been a general "fear, distrust, and hostility" toward the Catholic Church. (4) These sentiments partially stemmed from the idea that the Catholic Church and "the American way of life" (Americanism) were fundamentally incompatible. (5) The Church's teaching that "error has no rights" (6) was viewed by Americans as meaning that the Church would only nominally support fundamental American freedoms (e.g., religion, speech, press and association), until it could influence government to use its "coercive power ... to deny legal existence to beliefs which the Church regarded as erroneous." (7) Thus, since it was once believed that Catholicism was incompatible with the First Amendment, it may come as a surprise that Catholic thought helped enrich and shape the First Amendment.

The first part of this Note will proceed through history briefly examining the works of St. Augustine, Pope St. Gelasius, Pope Gregory VII, and Pope Boniface VIII in order to see a strain of Catholic thought that viewed the Church and State as two separate, but mutually beneficial spheres. Moreover, the writings of St. Thomas Aquinas and St. Thomas More will continue this vein of Catholic thinking not only regarding the relationship of Church and State, but also regarding how freedom of conscience and religion promotes the common good. This strand of Catholic theology will ultimately provide the basis for the implementation of Catholic values in the New World.

The second part of this Note will show the first realization of Catholic thought in America through the lives of the first two Lords Baltimore (George Calvert and Cecil Calvert). Through their influence, Maryland not only passed The Act Concerning Religion, which was the first document to use the "free exercise of religion" clause in the colonies, (8) but also became the true "land of sanctuary" for those suffering from religious persecution. (9) Charles Carroll of Carrollton and Daniel Carroll, two of the finest Catholic American Representatives, continued to implement this tenet of Catholic reasoning and ultimately influenced the framing of the First Amendment.

The third part of this Note will examine the impact that the Catholic influence on the First Amendment should have on the Supreme Court's interpretation of the Free Exercise Clause. Lastly, this Note will conclude with a brief reflection upon what the Catholic influence on the First Amendment means for all Americans, especially Catholics, today.

Since Catholic thought influenced the First Amendment, the Supreme Court should use Catholic thought to help interpret the original meaning of the Free Exercise Clause. Currently, the Supreme Court's interpretation of the Free Exercise Clause is flawed because its "neutral" and "generally applicable" test, as formulated in Employment Division v. Smith, (10) does not adequately account for the Catholic theory behind the free exercise of religion. This failure inevitably leads to the Court missing what was inherent in the strand of Catholic thinking that was influential in shaping the Free Exercise Clause--the common good. Furthermore, even if the Supreme Court returned to the "compelling interest" test originally laid out in Sherbert v. Verner, (11) and partly reinvigorated by Congress in the Religious Freedom Restoration Act of 1993 (RFRA), (12) it would still not adequately account for the Catholic ideas behind the Free Exercise Clause.

Therefore, a more accurate interpretation would embody the Catholic thought that influenced the First Amendment by allowing government to only prevent religious conduct that is detrimental to the common good. Due to a narrowly construed understanding of common good in Catholic thought, it would actually impose greater limitations upon the State before it could justify interfering with religion as seen below. (13) The basic definition of common good is directing man toward his final end, happiness. (14) Not happiness in the subjective sense ("Just do whatever makes one happy"), but the natural right to pursue happiness, i.e., man's final fulfillment or end with God, (15) as shown in the Declaration of Independence. (16) Since the Supreme Court established two flawed tests to interpret the Free Exercise Clause, it has consequently come to wrong legal conclusions. Therefore, until the Supreme Court factors into its analysis what has been there all along and ends its "ungracious silence" toward Catholicism, the Court will continue to misinterpret the Free Exercise Clause.

  1. CATHOLIC THOUGHT ON THE CHURCH-STATE RELATIONSHIP AND RELIGIOUS FREEDOM

    Unlike some branches of American thought, Catholicism has never held that there should be an absolute "wall of separation" (17) between Church and State. (18) Rather, the Catholic Church teaches that the Church and State should work together to build a unified and virtuous society striving toward justice and the common good. (19) This common good is achieved through the Church contributing to the legislative process by advising the State on how to make laws that conform to the natural law and ultimately the divine law. (20) Conversely, the State has a duty to make and uphold the laws, punish wrongdoing, and respect the rights of individuals in order to promote the common good. (21) However, in a democratic political state where religious pluralism and "We, the People," are sovereign, it seems counter-intuitive to argue that the hierarchical Church could have ever influenced the First Amendment. (22) Nevertheless, by examining Catholic thinkers like Augustine and Aquinas on the Church-State relationship and religious freedom, one can comprehend how Catholic thought influenced the First Amendment's Free Exercise Clause.

    1. Catholic Thought on the Church-State Relationship

      1. St. Augustine's Contribution to the Church-State Relationship

        St. Augustine viewed the Church-State relationship in terms of the City of God and the City of Man. The City of God consisted of love of God and neighbor. (23) It was an eternal place where perfect justice and virtue were found. (24) The Church and certain men and women lived in this realm. (25) In contrast, the end of the City of Man was man himself (26)--a temporal place (secular realm) where the Church and man also dwell but where there is no perfect justice due to man's sinful nature. (27) Thus, whenever one is a member of the human community, one is a part of the City of Man. (28) This dichotomy between the two cities shaped St. Augustine's understanding of the Church-State relationship.

        The Church and State were ultimately to exist in a symbiotic relationship. (29) The Church's role was directed at the highest good (God) by helping man become moral and virtuous--a member of the City of God. (30) This virtuous man would ultimately help the State achieve order by increasing honest interactions and contracts between men, decreasing violence, and ultimately achieving obedience to the State. (31) The Church also benefits from the State because it needs a level of peace and stability in society in order to fulfill its divine mission. (32) Thus, for St. Augustine, there is no absolute separation of Church and State; rather, the City of God and the City of Man can mutually support each other to effectuate the common good of man and his ultimate end--happiness. (33)

        Although it would be ideal for the City of God and the City of Man to support each other, St. Augustine speaks about the potential conflict between the two realms. On the one hand, this conflict finds form when the State tells the Church or an individual person to support indirectly or directly something contrary to his faith, or when the Church's freedom and autonomy are taken away. (34) On the other hand, there is also a problem when the Church becomes too involved in the State and then uses the State as a tool to coerce faith. (35) As St. Augustine explained, and Pope Leo XIII emphasized in his encyclical Immortale Dei, neither the Church nor the State should coerce another to "embrace" the faith, because "'[m]an cannot believe otherwise than of his own will.'" (36) Augustine, therefore, wants to uphold the role of the secular order unless it is undermining the precepts of God and the Church.

        Through the dichotomy of the Two Cities, St. Augustine highlights that there is a real danger to the common good when the State interferes with spiritual affairs, because it inevitably pits the State against religion instead of promoting a mutually beneficial relationship. (37) Thus, St. Augustine contributed to the Catholic understanding of the Church-State relationship and their roles in the world.

      2. The Contributions to the Church-State Relationship from Pope St. Gelasius, Pope Gregory VII, and Pope Boniface VIII

        From the fifth century until the thirteen century, Pope St. Gelasius I, Pope Gregory VII, and Pope Boniface VIII provided a consistent strand of...

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