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For immediate release: March 13, 2008
(Revised 3/18/08)
Invoking a fifth century pope and an Islamic jihadist with a seventh century worldview, and a whole host of 20th and 21st century Catholic and Mormon politicians, on the evening of March 12, Prof Doug Kmiec of Pepperdine Law School offered a penetrating and fascinating look at the different ways that notable figures have tried to relate religion and state. Prof. Kmiec holds the Caruso Family Chair in Constitutional Law, after having taught law for several decades at the Notre Dame Law School and at Catholic University of America. He delivered the Institute’s Fourth Annual Faith and Law Lecture at the University of Minnesota Law School.
Kmiec started by referencing Christ’s admonition to give to Caesar what is Caesar’s and to God what is God’s. Of course, Kmiec said, this leaves unspecified the detail of figuring out which is which. To help figure this out, Kmiec utilized as his baseline the sophisticated political thought of Pope Gelasius, who presided over the Catholic Church 492 AD. The "Gelasian Thesis" was developed in the wake of the Post-Constantine arrangement that gave the church complete freedom and which, earlier in the fifth century, had led to an overly cozy relation that was not healthy for either church or state. (E.g., the state was settling internal church disputes, appointing clergy) Gelasius argued that every person had dual citizenship; that is, there are over every person "two powers:" The first – that of the church – is responsible for salvation, including the emperor’s and is the "weightier" of the two. The second, is the earthly power over purely temporal matters, which, ought to be respectful of Divine authority, since Gelasias taught all authority on earth comes from God (even civil authority), and earthly power ought to be construed to facilitate rather than impede a person’s moral foundation.
This still did not answer what exactly was God’s and what exactly was Caesar’s, but at least, it clearly stated a priority for God.
The 16th century reformation – perhaps unintentionally – had the effect of challenging this priority, since Luther’s conception of a universal priesthood had the effect of reducing the deference to the Catholic church, and in the centuries that followed that lack of deference translated into a more pronounced state and a lesser church. Modern philosophers like Rousseau and Hobbes who denied man’s dual citizenship and who desired to put him squarely under the total will of the state aided and abetted this decline of the church.
Kmiec fast-forwarded to Pope Leo XIII who was the papal authority most responsible for modern Catholic social teaching in the late 19th century. Leo was deeply conscious that giving priority to state over church in modernity could produce, as it in fact did, monstrous ideologies, such as Facism and Communism, which actually came to oppress the church. Ideologies like Communism exalted state over God. This, of course, was error and Leo wanted the USA to avoid the error by having an established church like Ireland’s, and it was this backdrop which helps explain why John Kennedy was held in some suspicion when he ran for the presidency.
Kennedy would answer the suspicion by saying his faith would not influence his politics, and while this statement perhaps helped secure his election, was this the right priority between what was God’s and what was Caesar’s?
Shortly following Kennedy’s death, the Catholic Church accepted the USA’s tradition of a non-established church not out of denial of what the Catholic tradition believes is true, but out of respect for the dignity of all human persons and free will.
Kmiec said Kennedy’s expedient disclaimer didn’t matter much at first because it was expected for Catholics parish communities to have a robust freedom of the church to form the morals of its membership through its own teaching, and by extension, church families, church schools, and even some influence over (in terms of working conditions and family wage), the workplace.
Kennedy said state first, church second; but the reality of Catholic life still gave priority to God through the parish community.
Kennedy’s statement, however, coupled with a wide range of other social factors giving rise to widespread claims of individual autonomy led to a decline in the authority of parish communities. The hyper-individualism would now be only counterweight to the state. The church increasingly was no longer seen as a separate sovereign, but instead all of us were responsible to the omnicompetent authority of the state.
But, asked Kmiec, what happens now when the state – in matters of abortion, euthanasia, same sex marriage, and the like – fundamentally contradicts church teaching? Does the state have priority? Kmiec suggested that it should not, but rather, respecting that people of many faiths profoundly disagree on these topics, Kmiec speculated that it would be preferable for the state to not take any position on them until a moral consensus might emerge, leaving them to be resolved in the interim by the moral instruction each individual receives voluntarily in one’s church community. So if Roe v. Wade were overturned, the state should not enact a law either endorsing or prohibiting abortion unless a super-majority of people express confidence in a specific morally-informed outcome. This is why the decline of the robust presence of the church in moral formation is so troubling. Without churches exercising this instructive role, we have only the state to instruct us, and that is a denial of the Gelasian two sovereign thesis. Nevertheless, said Kmiec, it is not the state – for the most part – that is stopping individuals from reviving the church as moral educator, it is us – that is, modern men and women who believe we are strong enough to make morally informed choices out of individual conscience.
What happens when we look to the state to be moral educator. Kmiec gave his answer by focusing on several US Supreme Court justices. The central question that our justices must face is this: "Should religious convictions be privately confined or should they inform judicial decision?" Would Gelasius say church should have priority over state in judicial decision-making?
The Catholic church says "no." Kmiec illustrated with Catholic jurists like Samuel Alito and John Roberts. Both were asked a version of this question in their confirmation, and both said they would follow the law. Was this the same as Kennedy, disavowing religion for state? No, said Kmiec, because the Catholic church teaches that judges – unlike presidents and members of a legislative body – are not responsible for the laws they are tasked with interpreting. Roberts said he would recuse himself if there was a direct conflict, but as a matter of morality, this was not necessary. Thus, here the Gelasian thesis allows judges to give priority to state over religion, and the church focuses her attention on ensuring moral formation, including the moral formation of those who serve legislatively or in a public policy-making position like the presidency.
According to Kmiec, it is, surprisingly, the Mormon Mitt Romney who may have best exemplified the Gelasian thesis, when he said, a few months before the end of his failed campaign for president, that Freedom needs religion and religion needs freedom. This is a restatement of the Gelasian thesis, recognizing that only a moral people can remain free, but that freedom to believe (or disbelieve) is a precondition to grasping morality. This lack of freedom or coercion is why Bin Laden does not honor the Gelasian thesis. One is not "giving" to God what is God’s if what one gives is coerced. Coerced priority of church over state is no better than the improper subordination of church to state by modern secularity.
In the end, something like the Gelasian thesis is always necessary to resolve – in this life – what is owed to God and what is owed to Caesar.
Next year’s faith and law lecturer will be Judge Edith Jones of the 4th Circuit US Court of Appeals in Houston. This year’s lecture was co-sponsored with Mars Hill Students, the Christian Legal Society, the Federalist Society, and the Terence Murphy Institute at the University of St Thomas.
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