Eternal Greve rule: never, ever talk about religion or the Bill of Rights—not on a blog, not in law school, not in FedSoc forums. There’s no law there; and on the mystery of life and the universe, I have no comparative advantage over Justice Kennedy. (He has the advantage: a black robe.) But there’s an exception to every rule, and a point where you have to push back.
Those who have learned about the Catholic position on church and state only from the study of European history or from Enlightenment commentaries upon it may surprised to read—and wary to accept—the assertion that “American Catholics have been advocates for religious liberty” from the earliest days of the country’s European settlement. But this claim, which introduces the recently released statement of the United States Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, “Our First, Most Cherished Liberty,” can indeed be documented, both by the 1649 Toleration Act in Maryland, which the bishops cite, and the published writings of the first Catholic bishop in the United States, John Carroll, who complained about remaining religious establishments in 1789 that “the constitutions of some of the States continue to entrench on the sacred rights of conscience; and men who have bled and opened their purses as freely in the cause of liberty and independence, as any other citizen, are most unjustly excluded from the advantages which they contributed to establish.”[i]
Catholics’ insistence is not in the first place for exemptions from generally applicable law or “conscience clauses” that allow individuals to stand aloof from common practice on religious grounds—allowing nurses who object to abortion, for example, from having to assist in the procedure, and allowing doctors to forego abortion training as part of medical school—though they will accept such exceptions when they lose the policy debate. The Church, after all, treats the Christian conscience not as autonomous voices but as a shared inheritance, making the formation of consciences one of the central tasks of her ministry. At stake for Catholics is the ability to live the faith freely in the midst of society, not only in worship, but in business, sport, education, entertainment, politics, and everything else. “That is the teaching of our Catholic faith,” the bishops write, “which obliges us to work together with fellow citizens for the common good of all who live in this land. That is the vision of our founding and our Constitution, which guarantees citizens of all religious faiths the right to contribute to the common good together.”[ii]
The bishops sound alarm—they call their statement an “urgent summons”—because of several developments across the political spectrum, and they feature two in particular which, as they are associated with opposite political parties, might insulate their complaint from charges of partisanship.