When the U.S. Senate approved the appointment of William A. Wilson as
the U.S. ambassador to the Holy See at the end of 1983, most people expected
the debate over diplomatic relations with the Vatican to fade away. Not
so. The fight has merely moved from the executive and legislative branches
of government to the judiciary.
Americans United for Separation of Church and State, the American Baptist
Churches in the U.S.A., the National Association of Evangelicals, the
National Association of [Catholic] Laity and a number of other organizations
filed suit in the Federal District Court of Philadelphia alleging that
diplomatic relations with the Holy See violates the establishment clause
of the First Amendment and the liberty and equal protection clauses of
the Fifth Amendment.
The Justice Department summarizes the plaintiffs' complaints that the
appointment of an ambassador to the Holy See "creates a formal official
relationship between the United States" and a church; "prefers one religious
denomination over all others;" "creates a special benefit for one religious
organization and a corresponding detriment for all others;" "provides
the potential for excessive governmental entanglement between church and
state," and "results in political and religious divisiveness." The plaintiffs
also argue that the Holy See is not a state but a church and that the
Fifth Amendment prohibits "the creation of any permanent church-state
linkage."
The Justice Department, in its brief responding to these allegations,
defends the right of the U.S. Government to have diplomatic relations
with the Holy See. First, it argues that the court should not even hear
the case because the plaintiffs have failed to show any actual, concrete
injury as a result of the Government's action. They, therefore, lack "standing"
to challenge it in court. No church has lost members or revenues as a
result of the appointment. The injuries alleged are wholly speculative,
about possible injuries in the future.
Second, the Justice Department argues that the court should not hear
the case because the recognition of states and the appointment of ambassadors
are political issues left by the Constitution to the executive and legislature.
The judicial branch should not interfere in political issues.
The Justice Department hopes that the court will dismiss the case either
because it is political or because the plaintiffs lack standing, but just
in case, it also argues the substance of the issues in its brief. It notes
that the first representative (a consul) to the Holy See was appointed
by George Washington in 1797. This consular office was upgraded to a legation
by President Polk in 1848, and four different ministers, all confirmed
by the Senate, served until 1867. From the time of the absorption of the
Papal States by Italy until the appointment of Myron Taylor as President
Roosevelt's special envoy in 1939, there was no U.S. representative to
the Holy See. Mr. Taylor held office until 1950, and Presidents Ford,
Carter and Reagan all appointed special envoys. The Justice Department
argues that there is no substantive or constitutional difference between
the appointment of Mr. Wilson as ambassador and the earlier appointments.
The Justice Department admits that the Holy See is part of the Catholic
Church, but it is also the sovereign authority of Vatican City, a state
with international character. The Justice Department asserts that U.S.
diplomatic relations with the Holy See are with it as sovereign of Vatican
City and not with it as head of the Catholic Church. It notes in passing
that the United States has diplomatic relations with the Court of St.
James even though the Queen is head of the Church of England. The only
difference between diplomatic relations with the Holy See today and in
the 18th and 19th centuries is that the territory ruled by the Holy See
is smaller. It notes that the United States and the Holy See are signatories
to numerous international treaties and agreements.
Many experts in international law, including the Holy See itself, would
disagree with this interpretation of the Holy See's status under international
law. The Holy See has argued that even without its Vatican lands it would
be an international entity with the right to diplomatic relations with
nations. The Justice Department admits this when it briefly notes that
Vatican City need not be recognized as a state in order for the United
States to conduct diplomatic relations with its sovereign. "An entity
need only have an internationally recognized juridical personality for
nations to carry on diplomatic relations with it." And it points to the
United Nations, which has no land but receives ambassadors.
The plaintiffs made much of a speech by Archbishop Pio Laghi, the papal
pronuncio to the United States, in which he said that the Holy See's authority
is spiritual and moral, and is not dependent on temporal power. The Justice
Department's response here is enlightening: "Whatever the source of the
authority of the Holy See, or the view of the Holy See as to the source
of its world influence, that source is irrelevant. The fact is that however
the Holy See views itself, it is a highly influential player on the stage
of world diplomacy. The first amendment does not require the President
to ignore diplomatic realities in order to avoid contact with an internationally
recognized entity that views its part in world affairs as primarily religious."
What the Justice Department seems to be saying is that the Holy See can
claim whatever it wants as the source of its authority, but the United
States does not have to agree with it's claim in order to have diplomatic
relations. For example, if the United States wished to it could have diplomatic
relations with Iran even though the Ayatoyla would claim that his authority
comes directly from God.
The rationale behind U.S. diplomatic relations is purely pragmatic and
secular, it is American self-interest. As the Justice Department brief
states, "To the extent that the views of the Holy See command respect
and attention on the world scene, it is imperative that the positions
and interests of the United States be communicated and understood before
the views of the Holy See are formulated and aired to the world." It cites
the Pope's meeting with Yassir Arafat and his involvement in disarmament,
Central America and the dispute over the Beagle Channel.
Finally, the Justice Department argues that "the mere fact that the foreign
policy interests of the United States might in some cases coincide with
the religious interests the Holy See represents is not in itself sufficient
to violate the establishment clause."
For Catholics, the most disconcerting section of the Justice Department
brief is its response to the National Association of Laity. The N.A.L.
in its brief complained of "the potential for Government intrusion into
the internal affairs of the Roman Catholic Church" thus reducing their
input into church affairs. The Justice Department responds that such fears
are "pure speculation," but that if "the effectiveness of plaintiffs'
input were to suffer, that diminution would not be traceable to any act
of the United States Government, but to decisions of the church hierarchy."
In other words, the Justice Department seems to be saying, if the President
through his ambassador gets the Pope to appoint a certain person the bishop
of a diocese, then the N.A.L. should complain to the Pope not the U.S.
Government. It may be that the Justice Department's argument is legally
correct, but that will be no solace to Catholics who do not want their
Government interfering in internal Catholic affairs.
The State Department should make clear in its regulations that the appointment
of bishops is a topic not to be discussed by any Government official with
any Vatican official. In 1784 when Benjamin Franklin was approached by
the Vatican nuncio at Versailles concerning the appointment of bishops
in the United States, the Continental Congress instructed Doctor Franklin
to notify the nuncio that the question was outside its jurisdiction. In
1848 Secretary of State Buchanan instructed the first charge d'affaires
in Rome to "carefully avoid even the appearance of interfering in ecclesiastical
questions, whether these relate to the United States or any other portion
of the world."
When over 100 other nations have diplomatic relations with the Holy See,
it is clear that there are advantages to the United States in also having
an ambassador at the Vatican. Papal actions and statements on Poland,
Central America, the Middle East, disarmament and economic affairs have
an impact around the world, and the United States should have an equal
opportunity to influence them.
On the other hand, diplomatic relations are of no advantage to American
Catholics, and in fact would be detrimental if the American ambassador
meddles in church affairs. Many Catholics have preferred that a non-Catholic
be appointed ambassador in the hopes that he would then be less tempted
to interfere in internal church affairs. In any case, the Justice Department's
brief should make Catholics nervous. They should demand that the State
Department make clear that the internal affairs of the church, especially
episcopal appointments, are not to be discussed by Vatican and American
officials.
By Thomas J. Reese, S.J., senior fellow at the Woodstock Theological Center
America, March 16, 1985
Copyright © 1985 by America
Press
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