Works By John Courtney Murray, S.J.

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General Introduction

By J. Leon Hooper, S.J.

From Religious Liberty: Catholic Struggles with Pluralism by John Courtney Murray, edited by J. Leon Hooper, S.J. (Louisville, Ky: Westminster/John Knox Press, 1993)
Copyright © 1993 Westminster/John Knox Press
All rights reserved
For the table of contents, see Contents

John Courtney Murray's name had assumed near-mythic, even Promethean, undertones long before his death in 1967. Enshrined on a 1960 cover of Time magazine⁽¹⁾, Murray's thoughtful smile and uncompromising Roman collar appeared to capture and bind into a dynamic unity several social and personal forces that polarized his Roman Catholic Church and American society. Murray was simultaneously Catholic and American, scholar and priest, committed to tradition and to modernity, possessed of an otherworldly piety and a this-worldly savoir faire. While many opted for the minimal peace of mutually assured destruction or the isolation of the ghetto, Murray attempted internally to unite these and other polarities and expected, in fact demanded, their unity in public civil and religious life. By the publication of his We Hold These Truths: Catholic Reflections on the American Proposition⁽²⁾ in 1960 (hereafter WHTT), in word and print Murray had tackled most of the public moral debates that had preoccupied America and American Catholics since 1945. With intelligence, concern, and humor, he dealt with post-World War II reconstruction, the difficulties of intercredal cooperation in religiously pluralistic America, censorship, aid to private education, constitutional law, the morality of cold war strategies, and the loves that flourish (or ought to flourish) at the heart of American public life.

In the seven years that remained to him between his appearance on Time's cover and his death in 1967, this Jesuit did not rest on his secular laurels. He became an American Catholic hero at the Second Vatican Council, wrote extensively on Trinitarian doctrine, doctrinal development, contemporary atheism, and the church's adjustment both to the modern world and to its own internal diversity. He revisited the issues that had given him national recognition, assuming in tone and substance the role of a wise, elderly statesman who had advanced beyond partisan politics. He commented favorably on the Catholic commission majority report that, to Pope Paul VI's chagrin, had recommended that the church adjust its stance toward artificial birth control. As a member of a governmental commission that studied selective conscientious objection, he recommended the allowance of a selective conscientious objector classification in the face of the growing conflict in Vietnam.

On all these issues Murray would rightly be classed as a progressive -- as one who thought that present doctrinal and policy formulations more often than not needed revision -- but no more so than on the issue of religious freedom. On this "most American of issues" he wrote thirty-eight articles before 1962, then another thirty during and after the Council. He worked closely with the American bishops, writing many of their conciliar interventions, and drafted two versions of what eventually became the conciliar decree on religious freedom.

This volume presents four distinct arguments for civil religious freedom, all written by Murray. He completed the first in 1955 -- therein concluding ten intensive years of research, writing, and polemics. By 1955 he had developed a complex, coherent, and historically sophisticated defense of religious freedom. However, in getting to that argument he had united Catholic traditionalists in both the U.S. and Rome around the fear that his argument seriously undermined Catholic faith and morals. Although this first article was slated for publication in Theological Studies, it never advanced beyond galley pages. His church and his religious order suppressed its publication and instructed Murray to cease writing on the issue. The second article contained in this volume was published in 1964. After being invited to the second, but not the first, session of the Council,⁽³⁾ Murray fashioned an earlier version of this argument that was then distributed to all participants in the Council. Finally, in response to what the Council had to say about religious freedom and church/state relations, Murray wrote the last two articles of this collection.

The Council, in its Declaration entitled Dignitatis Humanae Personae (The Dignity of the Human Person), clearly endorsed civil religious freedom. This reversed long-standing Roman Catholic opposition to the separation of church and state and to the freedom of religion (and freedoms of speech, assembly, and press). As alternatives to the freedoms of liberal society the church had insisted upon the establishment of Catholicism as the religion of the state and coercive intolerance toward non-Catholic religious expression. These endorsements of establishment and intolerance received their most vitriolic expression in the condemnations of Pope Pius IX (1856-1878) and their most systematic endorsement in the writings of Pope Leo XIII (1878-1903).⁽⁴⁾

The religious freedom that Pius IX and Leo XIII condemned and the Council endorsed is not evangelical freedom--the power given in Christ Jesus to conquer sin and death, to live in the power of the Spirit. It is not an empowerment. Civil religious freedom connotes immediately a personal immunity from state-directed coercion and secondarily an immunity from those more subtle forms of coercion that result in economic or educational disadvantage. Pius IX and Leo XIII held that the state ought to suppress the public expression of heretical and atheistic belief. The Council claimed that neither internal commitments to religious (or atheistic ) beliefs nor the external actions that are judged by believers to flow necessarily from those beliefs ought to be subject to political or social coercion.

These arguments, then, signify a major shift in Roman Catholic social teaching, a shift that Murray facilitated. Yet many of Murray's own comments suggested that the church's December 1965 endorsement of religious freedom verged on the inconsequential. Earlier that year, with the Council's acceptance of Dignitatis assured, he wrote that "the Church is in the unfortunate position of coming late, with the great guns of her authority, to a war that has already been won, however many rearguard skirmishes remain to be fought" (1965j, p. 43). For the previous two decades Murray had argued that the institution of civil religious freedom had achieved the status of international consensus. It was accepted and affirmed throughout the world, to the point that even the totalitarian Soviet state had to give it lip service. In 1965 the church was simply playing a game of catch-up. At its best, the church's endorsement of religious freedom was an act of humility on the part of the church, since the church had done little to develop the institution (1966b, pp. 566-67). In fact, it had fought against the religious and other civil freedoms that were developed outside of, and independently of, the church.

Nor did Murray think much of the three or four justifications that Dignitatis advanced for its endorsement of civil religious freedom. As we will see in the fourth chapter in this volume, he claimed that what is doctrinal about the Declaration is its positive endorsement of the institution, not the arguments that it advanced for that endorsement. By doctrinal he meant a judgment in which the full church concurred and to which all Catholics must give assent. The justifications advanced by the decree did not fall under the doctrinal. Now the church must formulate better arguments.

The Social Importance of Theoretical Justifications

If the Roman Catholic church, in Hilaire Belloc's sympathetic portrayal, was once again "arriv[ing] on the scene a little breathless and a little late," why did Murray insist that the church develop better, more coherent and consistent arguments for civil religious freedom? The short answer is that Murray was responding to a deep-seated commitment within his own religious tradition, namely, to a religiously grounded sense of responsibility for the public, civic forum. As we will see, Murray argued that the church in the past had fulfilled its responsibility in multiple ways, responding in each historical period to differing political forms and differing configurations of moral authority. When he turned to contemporary social problems, he found that the development of complex, democratic societies placed on the state, on the church, on other intermediate institutions, and on the people new demands that were in part different from those that shaped earlier responses. What had changed? Murray answered that the moral role that the people at large played in determining social policy and general social commitments had changed. Two examples from Murray's time might highlight some of those distinctively contemporary moral forces that the church now faces and the ways in which, according to Murray, the church ought to engage them.

Beyond Realpolitik in the International Order

The first social issue that Murray addressed was the reconstruction of the international order after the World War II. He was responding to Pius XII's call for cooperation among "all men of good will," Catholics and non-Catholics, in a task that far exceeded the resources of the Roman Church alone. He was also responding to the formation of the United Nation, in which he saw the potential international order of law that had so preoccupied his Pope.

In 1948 the United Nations shaped and ratified the nonbinding Universal Declaration of Human Rights.⁽⁵⁾ That Declaration was later followed by the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. When Murray wrote of a growing international consensus on religious freedom that forced even the most totalitarian states to justify their oppression, he was speaking of the gradual acceptance of at least the second covenant. Internationally the burden of proof was shifting against those who would violate the religious rights of others. The public was learning to be shocked by torture for the sake of religious orthodoxy. Murray judged this consensus to be a moral good, not simply a concession to bourgeois decorum. As we know from a 1945 memo to then Archbishop Edward Mooney, Murray first broached the issue of religious liberty precisely to facilitate national and international cooperation (1945e).

In his depreciating comments about Dignitatis and the Roman Catholic church's role in the development of the rights traditions, Murray suggested that only "...many rear-guard actions remain to be fought." Yet as Amnesty International has documented, people continue to suffer persecution and imprisonment as "prisoners of conscience." Why these violations, given the increasing international pressure to respect civil and religious rights? Why our ongoing difficulties at clarifying what our commitments to religious freedom entail in significantly different cultural and economic situations?

Some voicing of respect for religious freedom is certainly hypocritical and can be challenged as such. But there do exist more difficult and potentially more fruitful situations in which the affirmations are sincere, but their background justifications radically differ. How might a Muslim, with a weak appreciation of individual rights but strong appreciation for collective rights, understand religious freedom? How might a strict Calvinist, within the doctrine of predestination and with an abiding sense of God's providential guidance, construct a society that houses both the saved and the damned? What might a Latin American Catholic, shaped by the Roman Catholic common good tradition while living in societies of deep impoverishment, say about the importance of civil rights? One is led to question the contours of the universe within which others, and we ourselves, situate claims for religious freedom. That is, one is led to the philosophies, theologies, and political theories that support these affirmations.

At issue here are not mutual commitments to commonly held beliefs, only cross-cultural understanding of where in our and others' moral universes our policy proposals find their grounding. Understanding how deeply those justifications reach into the moral and religious commitments of a people does not require adoption of those commitments, nor does it automatically establish trust. We might find that the affirmations by some citizens have no deep rooting in what we or they hold dear. But understanding is a beginning toward the establishment of trust, as the search for understanding rests on a commitment to establish trust between peoples.

For Murray, the common goods of civil society ranged far beyond the brute survival or economic utility of realpolitik. To establish discussions of those goods required an environment that was shaped by public trust, not public suspicion. If the church could shape justifications for its policy choices that were rooted deeply within its own philosophical and theological commitments, it was obliged to do so. Public trust, as the condition for the possibility of public moral discourse, required those better arguments.

The Problem of Trusting Catholic Political Intentions

With the Second Vatican Council's 1965 promulgation of Dignitatis, American Catholics breathed a collective sigh of relief. For the first time in their three-hundred-year history, Catholics could publicly, unequivocally, and loudly proclaim the virtues of civil religious freedom without raising distrust among other Americans or condemnation by their church.

The problem was not of the practical order. From the initial founding of the Catholic Maryland colony, most Catholics had prudently argued for the church's accommodation to religious freedom and the separation of church and state. As the numbers and strength of the Catholic community grew, practical arguments for Catholic acceptance of First Amendment protections gained force. The church thrived on the new American soil of civil freedom.

Rather, the difficulty lay more at the level of theory, at the level of the justifications that Catholics gave for their accommodation to religious freedom⁽⁶⁾. By the end of the nineteenth century the Roman Church had boxed itself into what was considered a permanent commitment to the establishment of Catholicism as the religion of the state. This commitment was forged in the European religious wars that ended with the treaty of Westphalia (1648), strengthened in reaction to the French Revolution and the 1908 French laicist laws, capped by the First Vatican Council's declaration on papal infallibility (1870) and condemnations of Americanism (1899) and Modernism (1907), and codified in the manuals by which the church supervised its seminary and university training. A body of political and ecclesiological theory emerged that appeared to allow at best only a grudging acceptance of civil religious freedom. Within that theory, Catholic establishment was considered the "thesis" or ideal of Catholic social expectations; religious freedom remained the "hypothesis" or a prudent strategy until an approximation to the ideal could be effected.

Pragmatic or practical justifications were not able to counteract public reactions against this theory. As late as 1940 the otherwise progressive priest and social theorist John A. Ryan asserted that Catholics, if they could, were obliged to establish Catholicism as the religion of the United States.⁽⁷⁾ He immediately attempted to assuage non-Catholic fears of Catholic totalitarianism by asserting that the possibility of doing so was so remote that non-Catholics should be able to rest easy. However, non-Catholics did not rest easy. Ryan's assessment of the practical impossibilities of Catholic establishment was not sufficient to stave off torrents of anti-Catholicism that surfaced then and again during John Fitzgerald Kennedy's presidential campaign.

At play here was the impact that even the most private religious arguments can have on American public debates. Murray initially counseled against bringing the church's internal, theological justifications to public discussions.⁽⁸⁾ Non-Catholics, however, refused to ignore the church's internal theological arguments. Was this refusal an arrogant attempt to submit the church's theological arguments to Protestant or atheistic challenge, an attempt that the church ought to fiercely resist? Or did it rightly suggest that America was in fact a religious nation and that the church, as much as the government, was obliged to recognize the social impact of its own religious arguments on American society? As we will see, Murray eventually suggested a limited type of theological discussion within the public school system.

Common to both these international and national considerations is a concern with what is variously called public consensus or public opinion.⁽⁹⁾ For Murray the engagement of that consensus, as the moral center of civil society, required reasoned public argument. He found that commitment to reasoned argument rooted in both his philosophy and in his faith.

Three Reasons for Better Justifications

Murray offered two reasons for a better argument for religious freedom, both of which presume that civil society is a forum for the moral discussion and determination of social goods. From his later comments about public education in the U.S., we can infer a third that addresses some of our present concern with the role of theological languages in public discourse.

Murray's first reason for a better argument concerned the church's credibility. Given past Catholic opposition to civil freedoms, the church must demonstrate that its affirmation is not simply a concession to superior force, or to human weakness, or to sinful social institutions.⁽¹⁰⁾ The church is not merely caving into religious freedom because all other practical alternatives are worse. If the church's affirmation of religious freedom is not publicly seen to be rooted in its own deeper commitments, non-Catholics will continue to suspect that Catholics will curtail those freedoms, wherever and whenever they get the chance. In such an atmosphere, all else that the church has to say about a just social order (and even about the love of God) will be ignored. For the sake of the church's redemptive mission, better arguments must be developed.

Murray's second reason was directed toward the church's mission to the temporal order. Granted that, in their earliest historical incarnations, the institutions of religious freedom and the separation of church and state received secularistic, even atheistic, justifications (1966b, 570). Because those arguments were anti-Catholic and anti-God, Christian peoples rejected them. Now, Murray argued, for the sake of those civil freedoms, Catholics must demonstrate that moral and religious thought can offer similarly strong, or even stronger, foundations for them. The arguments that the Catholic might offer can advance or retard the future of those freedoms throughout the world. Since those freedoms are social goods, and since the church has a God-given responsibility toward the temporal order, it must develop better arguments.

A third consideration arises out of something Murray said about public education in the United States. For Murray, the public educational establishment was not simply a creature of the state, nor of the churches, nor even of the family (See 1962b and WHTT), pp. 134-39). Public education is a forum in which the hopes and aspirations of civil society come to expression and within which the family, the churches, and the state each have a legitimate voice. While the state in its own proper sphere must remain neutral concerning the people's faith commitments, it must not suppress expressions of the American faiths within the educational forum, any more than it may suppress faith expressions in civil society at large. Murray strongly endorsed the teaching of America's faiths by believers within public schools and universities.⁽¹¹⁾ The state has no right to impose a neutrality of silence in the schools, much less actively to impose a secularistic or atheistic belief on students. Students and citizens have a right to bring their beliefs to bear on public moral problems.

So far Murray's call for religious education rests on the rights of families and churches. Yet he had more in mind than simply the citizen's right to address, from the perspectives of faith, moral questions that arise in civil society. The people, he claimed, must learn to appreciate the various "logics" of America's faiths. By "logics" he meant the manner by which believers moved from their expressed theistic beliefs to policy recommendations. He was not yet calling for full-scale ecumenism, that is, for argument on the theistic content of those faiths. Murray was after a public discussion of how religious beliefs lead to policy choices. About this time he was confronting the presupposition that religiously based commitments (Catholic and Protestant) entered the public forum only by force, as irrational assertions that cannot be argued.⁽¹²⁾ Murray's confidence in the moral sophistication and adequacy of his own church's theory of policy formation was at play here. He wanted religious languages in the public forum; he also wanted America's religions to answer for their own tendencies to positivism, legalism, and ecclesiological and scriptural fundamentalism. He thought the manner in which his church moved from belief to policy could stand the test of public argument.

Why teach the "logics" of faith in public schools? We are back to a democracy's need for what are here called theoretical discussions, for presentation of the justifications of particular policy decisions in the public forum. Citizens must be able to perceive why and how deeply a policy commitment reaches into the moral universe of others. Without those discussions that forum remains simply an arena in which force, not truth, determine public policy.

We are now discovering something that Murray always seemed to know: that even postmodern societies do not function solely under the rubrics of pragmatic survival and economic utility. Religion remains important. People continue to be willing to fight and die for social goods that are much richer than our normal calculus of utility can reach. Our very ignoring of those commitments itself represents a failure to address the core requirements for a just society.

Murray attempted to ground the church's affirmation of civil religious freedom in what the Roman Catholic church holds dear. Yet he moved slowly to the principled arguments contained in this volume. He himself began with a Roman Catholic equivalent of the American pragmatic argument (while he fought against the latter). Over time, as I outline below, he had to reshape layer after layer of the theoretical argument that had supported the Church's endorsement of establishment and intolerance. Readers of these articles, as moral actors in democratic societies, can question whether Murray and the Catholic church have in fact grounded their commitment to religious liberty in what they hold most dear, namely, their understanding of God in Christ Jesus and their own sense of election by God. If they have not, is the grounding they offer sufficient for effective social trust?

For those readers unfamiliar with how Scholastic thought relates policy decisions and theory, faith and reason, even what I have said so far must appear alien. Since Murray's own arguments presuppose much of that Scholasticism, in the remainder of this introduction I will briefly attempt definitions of the key terms that the following articles presuppose. By filling in some of Murray's moral universe, we might better understand why he demanded better arguments and where he looked for those justifications. Then I will outline Murray's movement beyond Catholic practical or pragmatic arguments to the arguments presented here. Finally, I will close with a discussion of where these arguments have moved since Murray's death in 1967.

Some Initial Concepts

Murray's call for better justifications of civil religious freedom itself presupposed a complex image of the moral universe. In this sense his religious liberty arguments and his call for better arguments are theoretical--they appeal to theories and images of what it means to be human, to live in human society, to interact with a God who chose to become human. Here I move from the types of arguments he looked for to the type of freedom he affirmed.

Types of Arguments

In the mid-1940s, Murray divided the first of his discussions on religious liberty according to a three-part division of human knowing. He claimed that any defense of religious freedom must contain (1) a prudential, practical, or (in a loose sense) pragmatic component, (2) a philosophical component, and (3) a theological component. All these manners of human knowing were open to public discussion, challenge, and correction. That is, all three were areas of argument in which assertions could be tested and corrected. Although he would later expand and differentiate the manners of human knowing that are relevant to a religious liberty argument, these traits of publicness and distinctiveness remained constant throughout his writings.

The major dividing line within these three arguments lay between the prudential and the theoretical. The prudential applied the principles that had been developed in the theoretical realms to the real world. It was practical reason shaping the institutions, laws, and procedural methods by which social living is governed. Murray never subscribed to a philosophical or biblical legalism, a belief that the lawmaker could apply a theory directly to the construction of social institutions. Human intelligence had to prudently weigh the issues, forces, and values at stake in each specific historical situation, if the moral possibilities of each situation were to be realized.

The theoretical foundations for prudential judgments could be found in nature and/or in revelation, in natural law philosophy and/or in Catholic theology. Those theories were not simply value-free, mechanical models. Each offered principles that expressed generalized value commitments. These value commitments were themselves grounded in God given, human drives toward personal and social betterment. Both natural law and theology directed the human person to recognize the values that were nascent or potential in specific historical situations, values that might be missed without sufficient theoretical guidance. Theory in this sense was a form of wisdom.

Philosophy and theology, while both theoretical, differed in what they accepted as the source for the principles that they formulated. Natural law philosophy began with an examination of the human person, while it methodologically ignored any insights that might derive from revelation. This examination discloses the human person's complex individual, social, physical and spiritual aspects. Theology began in the revelation of God as definitively given in the Incarnate Word, Jesus Christ. Philosophy gained access to the normative pattern of human existence that was established in God's act of creation. Theology gained access to that pattern as it had been altered by God's act of redemption.

Throughout his life, Murray maintained that these two theoretical images of God,⁽¹³⁾ the human person, and society could not in principle contradict each another. God was both Creator and Redeemer. To admit any irreconcilable contradiction between creation and redemption, between the civic community and the redeemed community, would be to assert a fundamental contradiction in God.

These different ways of knowing gave Murray a basis for a positive evaluation of at least one type of pluralism--an evaluation that appears necessary for any full affirmation of religious or moral freedom. Practical judgment was thought to be the preserve of the laity, granting them some independence from philosophers and from the clergy. While he granted primacy to the theological argument (based as it was on God's special revelation), he also maintained that revelation would not, and could not, contradict the principles of natural law. This granted a relative autonomy or independence to natural law and, later, to philosophies developed outside the borders of the church. His (initial) three realms of human knowing, then, had important implications for the respect that is necessary for social living.

Finally, by the mid-1950s, Murray clearly held that the church's argument for establishment/intolerance was actually two distinct arguments. One started from the premise that "the Catholic Church is the true church" and concluded to the establishment of Catholicism as the religion of the state. The other started from the principle that "error has no rights" and concluded to coercive intolerance. As I will mention in section IV of this introduction, questions have arisen whether the Catholic church has fully dismantled the first, though not the second, argument.

The Temporal/Eternal

In approaching Murray's arguments for religious freedom, we find (initially) three distinct realms of argument, each with its relative autonomy and its relatively autonomous practitioners. Again in 1945, Murray characterized the practical/theoretical distinction by the further distinction between the temporal and the eternal. The world of practical judgment (including the formation of civil and constitutional law) was thought to be an expression of the impermanent, the contingent, that which is always caught in the flux of history. The theoretical worlds were thought to be permanent, unchanging, even though the human community might yet have more to clarify about the human person or the revelation offered in Christ Jesus.

The development of Murray's religious liberty argument is at its core a story of Murray's recognition that, first the philosophical argument, then at least in part the theological argument, were open to change, to development and decline. In the process he would distinguish several other types of arguments, all necessary for an understanding and affirmation of religious liberty, that were open to historical development (see p.173 of "The Problem of Religious Liberty" and pp. 238-39 of "The Argument").

The Church/State/Society Distinctions and Moral Agency

Who are the major actors involved in the establishment/religious liberty question? The tradition that Murray inherited, and out of which he first argued, held that the two most significant actors were the state and the church. Both had concern for the collective, common good. The state was obliged, as was no other temporal institution, to protect and encourage the common welfare. The church was obliged to preach the gospel and to aid the secular order in making the social sphere receptive to the gospel. The state's natural law obligation and the church's mission to the temporal order made harmonious activity between them necessary and possible. Again, in principle there could be no fundamental, irreconcilable contradiction between the natural and the supernatural.

Through his historical studies Murray was forced to ask who stands at the moral center of the contemporary social order. In past social arrangements it was fairly easy to identify the social actors who occupied the moral center. With highly centralized civil and ecclesiological institutions, the top leadership of each could be isolated and their obligations defined. In turning from the seventeenth to the twentieth century, however, Murray found moral authority and action diffused throughout society among many different actors and intermediate institutions. The older, centralized model of moral authority no longer applied.

Better yet, Murray reclaimed a Thomistic theory of social moral authority in what is called the "authorization principle." To the question of where moral authority resides in temporal society, Thomas Aquinas answered that it ultimately resided with the people. The people--not the king himself, not the upper classes, not even the church--judge, correct, and direct the king's justice. Murray could then recast civil society as the primary moral agent in the temporal order, with both the church and the state in a service role toward that moral center. More, he could then accept a restriction placed on the state that confined its role to the protection of public peace and welfare, giving over concern of the full common good to civil society. The moral sense of the people, claiming their rightful role as public moral agents has placed legitimate restrictions on the proper concern of the state.. The Anglo-American restriction on the range of state activity was a "dictate of reason," an emerging requirement demanded by the natural law, as the people assumed some form of social, moral maturity. Civil freedoms (including religious), rather than establishment/intolerance, were moral requirements based on the proper moral role of the people.

At this point Murray was moving beyond civil freedom as a practical institution created by the prudential wisdom of the legislator, and even beyond the notion that it is a simple, structural immunity. Here was an assertion of a change in the theoretical, philosophical order that was effected by moral agents outside the Roman Church. The moral sense of the people shaped a new social and political theory as well as structures to which the church must be attentive.

Laws and Constitutions

From the beginning, civil law was for Murray coercive and external. It constrains or restrains particular actions of individuals and groups. Blunt instrument that it is, it can never legitimately encroach on internal beliefs. Civil law is the product of practical, prudential reasoning.

The term law in Natural Law has nothing immediately to do with civil law, though indeed civil law ought never contradict natural law. As discussed above, natural law is theoretical reasoning exposing and thematizing the created drives of the human person, yielding principles that then direct our attention to morally significant factors in any specific situation. The moral agent, in Murray's view, then moves from natural law to civil law by way of prudential judgment. Any forms of personal and social living that contradict those creative drives carry with them their own punishments (i.e., failures in human potential and development). But in themselves they are not immediately matters of civil punishment. Murray asked "Should there be a law?" to which he answered "only sometimes."⁽¹⁴⁾

The "Christian constitutionalism" (also called Gelasian Dualism or the Gelasian Dyarchy⁽¹⁵⁾) to which Murray appeals in each of the following articles resides in the realm of theory, but again theory that has real world significance. It is in fact a principle that is rooted in Catholic faith. It claims that, in this world, there are two sources of moral authority. Early on these were for Murray the state and the church or, more generally, the natural law and revealed law. Later they became civil societies and religious communities or the secular and the sacred. Each of the two orders is differently based (in creation and redemption) and are directed toward different ends (civic friendship and eternal beatitude). Each can legitimately claim its own autonomy. Here was a second basis for a permanent pluralism that Murray accepted. Those who seek, from the secular or the religious sides, to reduce social reality to a "Monism" are violating Christian constitutionalism. Yet the principle by itself cannot determine what the proper institutional arrangement between these two orders must be. Prudential evaluation of each historical, social context must intervene to determine that proper arrangement.

American constitutional law, or political constitutionalism generally, presented Murray with a special problem. Constitutional laws are usually writing with extreme care and achieve some type of specificity. They take form within a particular historical society, grounded in all the particularity of that society. Yet they also embody some of the general value commitments that a people hold, commitments that are then used by the courts to judge the consistency or inconsistency of specific civil legislation. In Murray's own work on American constitutional law (a concern that permeates WHTT, though only alluded to in the following articles) he highlighted what he thought were the general value commitments that grounded the American Constitution, then demonstrated that those value commitments were compatible with the commitments involved in Christian constitutionalism. That is, the moral orientation at the heart of a secular political philosophy was compatible with, though not identical to, the moral orientation at the heart of the Roman Catholic mission to the secular order.

Political Tolerance versus Religious Liberty

Murray's adopted tradition had allowed that Roman Catholics could practice religious tolerance. In the context, the term meant permitting an evil to exist in society for the sake of some greater or more fundamental good. Catholics might not suppress heretical or atheistic public expression, lest they thereby destroy the minimal conditions of public peace that make social living possible. Tolerance was a virtue that accepted the lesser of two evils, though tolerance itself was not considered an evil. One did not sin by being tolerant. One just operated virtuously within a less than perfect world.

Tolerance can also connote a sensitivity on the part of the agent, a refusal, say, to be brutal in the public forum. This moral sensitivity is not the tolerance that the church accepted. By itself visceral repugnance at political repression could suggest an excessive individualism, a concern with personal feelings, that is blind to one's social responsibilities. Each person ought to be concerned that the truth govern society, just as the truth ought to govern the life of the individual. The Catholic should be concerned that Catholic social doctrine shape all social institutions. To the degree that Catholic social doctrine does not shape social institutions, to that degree a society is evil. The instrument that disallows the full impact of Catholic social doctrine on civil society, namely separation of church and state with its religious freedom, is itself a social evil.

Tolerance can also embody the belief that all moral systems and religions are equally true or equally false. That is, they are equally relevant or irrelevant to social living. Under the label of "indifferentism," tolerance in this form collided with a Catholic faith assertion. Catholics claimed that Catholicism offered the best set of principles for ordering a just society. Similarly, tolerance could be based on a claim that religion ought to be kept private, kept out of the public forum, because it was politically dangerous or socially inadequate. Again, Catholics could not accept tolerance in this form.

The church accepted tolerance in the first sense as a virtue, though religious liberty itself remained the lesser of two evils. Tolerance in this sense is an attitude taken for the sake of the common good. On the other hand, religious liberty as discussed here is an institution. Yet, behind Murray's defense of religious liberty is a moral attitude that is taken toward modern societies and contemporary peoples. Murray argued that civil religious freedom was a social institution that emerged out of the quickening moral sense of contemporary peoples. The formation of the institutions that support religious freedom was itself an act of social virtue. What is that virtue that parallels the tolerance of the canonical position? As we will see, he called this virtue a presupposition of equality or respect in public argument.

Why does religious freedom presuppose attitudes of equality or respect? Again, for Murray, the common goods of civil society range far beyond the brute survival or economic utility of realpolitik. To establish those goods requires an environment that is shaped by public trust, not public suspicion. If, then, the church could shape justifications for its policy choices that were rooted deeply within its own philosophical and theological commitments, it was obliged to do so. Public trust, as the condition for the possibility of public moral discourse, required those better arguments. I will now outline the ways in which his arguments moved toward those deeper commitments.

The Development of Murray's Arguments

Of Murray's 166 published works and manuscripts, 68 deal with the problem of civil religious freedom. These religious liberty articles further divide into (1) internal Roman Catholic arguments for civil religious freedom and (2) arguments concerning the practice of religious freedom in the United States--the latter shaped by American constitutional concerns with a primary focus on public aid to Catholic schools. Here I discuss only internal Roman Catholic arguments for religious liberty.

Of the intrachurch articles, the majority attempt to define and justify civil religious freedom. Some postconciliar articles, while taking up civil religious freedom and Dignitatis Humanae Personae, actually revolve around the larger question of the development of Roman Catholic theological doctrine.

Murray's developing civil religious liberty argument can be sorted into eight different stages. In the following brief outline I cite articles that make up each stage in his argument.

The Canonical Argument (1945-47)

1945a: "Current Theology: Freedom of Religion." Theological Studies 6 (March): 85-113.

1945b: "Freedom of Religion, I: The Ethical Problem." Theological Studies 6 (June): 229-86.

1945e: "Notes on the Theory of Religious Liberty." Memo to Archbishop Mooney, April. Murray Archives, file 7-555.

1962a: "Le droit à l'incroyance." Relations [Montréal] 227 (April): 91-92.

After commenting favorably on a Federal Council of Churches' statement on religious freedom (1945a), Murray outlined a three-part Roman Catholic argument for religious liberty (1945e). He did so at the request of Edward Mooney, Roman Catholic Cardinal of Detroit (1937-1958).

Murray's outlined argument remained within the methods and terminology that had dominated most turn-of-the-century Catholic thought and had reached codification in Catholic moral manuals and in the 1917 code of canon law. As mentioned earlier, he divided the argument into three sub-arguments: an ethical argument, a theological argument, and a political argument. The ethical argument proceeded from premises that were accessible to unaided reason, from premises of natural law. In the Catholic thinking of the time, all people of good will could arrive at these premises. The theological argument would follow from Catholic revealed principles. This argument was not accessible to people outside the Catholic faith. If they wanted, non-Catholics could develop their own theological arguments from their own understanding of Christian faith.

From either or both of these theoretical realms, one could then move to a political (practical) argument for religious freedom. Yet Murray judged that the faith differences between Catholics and Protestants were so vast that no common theological argument could be forged between them. He initially recommended that the church stick with its natural law argument, since mutual theological comprehension between the churches was impossible.

The general structures and terms of this argument can be found in the second article of this collection, in its first section. There Murray presents the canonical or manualist argument as a counter-position to his own. Here it is sufficient to note that only the first, the philosophical argument, was published in Theological Studies (1945b). Murray abandoned the promised theological and political arguments when he found that the methodological approach of the Roman Catholic canonical tradition could yield little beyond political tolerance. His presupposition that the contingency of civil law alone would allow Catholic abandonment of establishment and intolerance as ideals proved to be false.

The last article cited above accompanied a 1962 translation and reprint of 1945e. One might suspect that this later publication, along with 1962a, was meant to support the tolerance position just as the conciliar debate was heating up.

The Historical Series (1948-50)

1948c: "Government Repression of Heresy." In Proceedings of the Third Annual Convention of the Catholic Theological Society of America pp. 26-98. Bronx, N.Y.: Catholic Theological Society of America.

1948i: "St. Robert Bellarmine on the Indirect Power." Theological Studies 9 (December): 491-535.

1949b: "Contemporary Orientations of Catholic Thought on Church and State in the Light of History." Theological Studies 10 (June): 177-234.

1949c: "Current Theology: On Religious Freedom." Theological Studies 10 (September): 409-32.

The collapse of the canonical argument moved Murray to examine the history of church/state relations. Only a year previously he had castigated Protestants for concentrating on the historical record, for not paying sufficient attention to the "natures" of the human person, the state, and civil law (see 1945a, 1945e ("Review of Religious Liberty: An Inquiry," by M. Searle Bates), and 1946d). When he turned to the history of his own church's theoretical arguments, he found social and historical factors that shaped and distorted the church's philosophical arguments. Murray still allowed a certain timelessness and constant clarity to the church's theological argument. Yet he now acknowledged some movement in the theological argument by insisting that the philosophical argument was always a component of the church's argument and that that philosophical argument, as a creature of the temporal order, was constantly on the move. He pulled philosophy from its eternal pantheon, recognizing that it is always shaped by what a people in each historical period are capable of imagining.

During this examination he firmed up his notion of the contingency of human law (legislative and now more clearly constitutional--since he had found a realm of general value commitments that could develop and decline). Pivotal to this argument was his notion of a "mature" state, i.e., one that could effectively monopolize coercion within a delimited territory for the sake of justice. Given the political anarchy of the early Middle Ages, the church rightly exercised its concern for the temporal order by filling in the power vacuum created by the collapse of the Roman Empire. But this was a temporary concession to contingent disorder. The mature state is an "intention of nature" or "dictate of reason," that is, a requirement of natural law. With the rise of the mature state, "the Pope, for all the fullness of his apostolic authority, would not have the slightest shadow of a right to 'crown' so much as a third-class postmaster" (1948i, 535-36). The state could assume its own proper autonomy. Similarly the church could renounce its use of temporal means, that is, coercive governmental power. The means proper to the church in the fulfillment of its mission are the spiritual means of persuasion and argument. The church's taking up of coercive means to suppress heresy/treason was then understood to be a contingent, non-ideal right, no longer existent in a mature state.

The Catholic University Series (1951-52)

1951b: "The Problem of 'The Religion of the State.'" The American Ecclesiastical Review 124 (May): 327-52.

1952b: "For the Freedom and Transcendence of the Church." The American Ecclesiastical Review 126 (January): 28-48.

The principal American proponents of the canonical tradition taught at the Catholic University of America and wrote for the American Ecclesiastical Review. Fathers George Shea, Francis J. Connell, C.SS.R., and Joseph C. Fenton provided Murray with an opportunity to exercise his considerable polemical skills. At one point, Murray accused Connell of subjugating the church to absolute state control. More to the point, these heated exchanges forced Murray into the church/state/society distinction that was to guide his work from this point on. Murray focused on the weak underbelly of the canonical argument, namely, the vague notion of a Catholic majority. If, it was argued, the Catholic people of a nation were in the majority, then they were obliged to establish Catholicism and suppress heretical expression. After Murray gleefully pointed out the ambiguous notion of a Catholic majority that permeated such arguments, he then outlined a notion of a "people" that opened the way to his effective use of the society/state distinction.

The Leonine Series (1952-56)

1952a: "The Church and Totalitarian Democracy." Theological Studies 13 (December): 525-63.

1953b: "Leo XIII on Church and State: The General Structure of the Controversy." Theological Studies 14 (March): 1-30.

1953c: "Leo XIII: Separation of Church and State." Theological Studies 14 (June): 145-214.

1953d: "Leo XIII: Two Concepts of Government." Theological Studies 14 (December): 551-67.

1954b: "Leo XIII: Two Concepts of Government: Government and the Order of Culture." Theological Studies 15 (March): 1-33.

1955c: "Leo XIII and Pius XII: Government and the Order of Religion." Murray Archives, file 7-536.

In this long, complicated analysis, Murray at times promised to develop the argument in one direction, only later to abruptly shift to another. Here he applied the society/state distinction he had honed in response to the Catholic traditionalists, reinterpreted Leo XIII's church/state theory in terms of church/society, and extended his argument to the writings of Pius XII. The last article of this Leonine series is the first article included in this collection.

Just as he had pivoted his earlier, historical discussion on the notion of a "mature state," here he pivoted on the notion of a "mature people." Murray did judge that contemporary peoples were better educated and thereby better able to assume their rightful responsibilities toward the collective good. But his argument did not rest solely there. Particularly within the Anglo-American political tradition, structures that could support the direct participation of the people in shaping the common good had in fact, for the first time, emerged. These included written constitutional limitations placed on government and the institutions that supported free public argument.

Social Monism Argument (1954-1957)

1954c: Notes to Murray's Ci Riesce Talk at Catholic University. March 25. Murray Archives, file 5-402.

1954d: "On the Structure of the Church-State Problem." In The Catholic Church in World Affairs. Edited by Waldemar Gurian and M. A. Fitzsimons, pp. 11-32. Notre Dame, Ind.: University of Notre Dame Press.

1957a: "Church, State and Political Freedom." Modern Age: A Conservative Review 1 (Fall): 134-45.

This stage in Murray's argument should perhaps be considered only an aspect of the preceding one, since Murray's study of Pius XII in the last Leonine article includes much of the analysis treated here. Yet there is a strong polemical element in this argument, again directed at the traditionalists or manualists, that moves beyond the close historical analysis of the Leonine series.

In March of 1953 Alfredo Cardinal Ottaviani, then working for the Sacred Congregation of the Holy Office, had presented the canonical argument as if it were the present position of the church, including Pius XII. Pius XII himself spoke on the issue of religious tolerance with Italian jurists on December 6, 1953. Murray took Pius XII's address (the talk was entitled Ci riesce) as a repudiation of Ottaviani's argument and authority. Unfortunately all we have from Murray's talk are notes taken by a now unknown auditor (see 1954c). Besides numerous polemical comments on the fate of the cardinal (e.g., "Significance caught in Rome: 'exit auctoritas Emissimi,'") Murray apparently argued that a clearer notion of the juridical order (as opposed to the more abstract moral order) allowed Pius XII to move beyond the thesis/hypothesis (ideal) argument to a clear notion of the contingent, nonideal nature of all institutions that regulate interactions between church and state (established, concordatory, or separated). He also argued that in 1954 Pius XII clearly viewed the question of national establishment within the larger question of the church's international position. Within this international perspective, Pius XII recognized that the church is best served by a condition of nongovernmental interference in the internal life of the church(es) or in the mission of the church to national and international societies (peoples). He concluded the talk with a reference to the thesis/hypothesis position as a form of "Catholic Jacobinism."

Murray was silenced soon after giving the address, the publication of the last Leonine article was suppressed, and Murray was instructed to call back the distribution of 1954d, "On the Structure."

Strongly positioned within the principle of Gelasian social dualism, Murray now developed a style that would carry over into the conciliar documents: a sharp contrast between the Catholic tolerance view and his own civil religious liberty argument. He forcefully suggested that totalitarian monism can develop from the ecclesiastical as well as from the secular sides.

Interim Arguments (1958-1960)

1958b: "Church and State: The Structure of the Argument." Murray Archives, file 6490.

1959d: "Unica Status Religio." Murray Archives, file 7-558.

In 1958 Murray wrote and sent to his Roman censors an argument in which he contrasted a "disjunctive" and a "unitive" theory of church/state relations, and attempted a properly theological grounding for his theory of religious liberty (1958b). The article was rejected. The next year he again sent basically the same argument, this time augmented by Latin and Italian quotations (1959d), again receiving a rejection. One theological grounding he provided was the notion of the providential care of God for this world, in which both good and evil exist side by side. (He also continued to rely heavily on the social and legal dualism premise, itself, as I will later argue, a theologically based principle.) In both articles he suppressed the notion that the church might have something to learn from developments in Anglo-American politics and political philosophy, namely, from specifications in the authorization principle and from the correlative notion of the people's active moral agency.

The Conciliar Argument (1963-65)

Between 1962 and 1966 Murray's attention shifted as swiftly as did the conciliar debate on civil religious freedom. I have subdivided the following articles according the areas of the debate on which they focus.

Preliminaries:

1963i: "On Religious Liberty." America 109 (November): 704-06.

1965h:"Religious Freedom." In Freedom and Man, edited by John Courtney Murray, S.J., pp. 131-40. New York: P. J. Kenedy.

1965j:"This Matter of Religious Freedom." America 112 (January 9): 40-43.

During the council, Murray published in America two comments on early drafts of the religious liberty declaration and on the politics of the Council. The first article dealt with, by Murray's count, the first two drafts, and the second with the third or fourth draft (the ones for which Murray was the "first scribe"). The third article here described the counter-positions of the Council.

The Main Argument and Analysis:

1964e: The Problem of Religious Freedom Woodstock Papers, number 7. Westminster, Md.: The Newman Press.

1966e: "The Declaration on Religious Freedom: Its Deeper Significance." America 114 (April 23): 592-93.

1966h: "The Issue of Church and State at Vatican II." Theological Studies 27 (December): 580-606.

1966i: "Religious Freedom." In The Documents of Vatican II, edited by Walter M. Abbot and Joseph Gallagher. pp. 673-98. New York: America Press.

1967c: "Declaration on Religious Freedom: Commentary." In American Participation at the Second Vatican Council, edited by Vincent A. Yzermans, pp. 668-76. New York: Sheed and Ward.

During the Council, Murray wrote, for conciliar distribution, a three-part "statement of the question" of religious liberty. This was then published in a briefer form in Theological Studies and in an expanded form as The Problem of Religious Freedom. The second article of this volume is a reprint of the Newman Press argument. In it, the influence of Jesuit systematic theologian, Bernard Lonergan,⁽¹⁶⁾ is apparent. The notion of "changing states of the question," along with the contingency and emergence of even theoretical (political) formulations, were brought to mature formulation. At this point Murray was comfortable with what Lonergan called the "historicity" of at least philosophical arguments.

Most of Murray's conciliar argument was based on the principle of Gelasian dualism, now formulated as the realms of the sacred and the secular. He took great pains to demonstrate that parallel arguments toward similar affirmations were emerging from within the secular order and from within the sacred order. Both operated semi-autonomously out of their different foundations (in creation and redemption) with a view to their different ends. These two arguments from two distinct societies were "converging" on the common judgment that religious freedom is a social good.

This line of argument was continued after the Council in the other works cited above, and especially in his 1966e,"Its Deeper Significance," now augmented by a near-Parsonian sociological notion of "social differentiation." For Murray's best comparison and contrast of the argument of Dignitatis and the roots of American constitutionalism, see 1967c, "Commentary."

His 1966h, "The Issue of Church and State," is a detailed analysis of how Dignitatis and Gaudium et Spes ("The Church in the Modern World") deal with the relationship between church and state. This article highlights Murray's disagreements with both documents. The article is included as the third chapter in this volume.

Doctrinal Development

1966a "Conference on the Development of the Doctrine of Religious Liberty." In Council Day Book, edited by Floyd Anderson, pp. 14-17. Washington, D.C.: NCWC Press.

1966c "The Declaration on Religious Freedom." In War, Poverty, Freedom: The Christian Response, pp. 3-10. New York: Paulist Press.

1967i: "Religious Liberty and Development of Doctrine." The Catholic World 204 (February): 277-83.

1967m: "Vers une intelligence du développment de la doctrine de l'Église sur la liberté religeuse." In Vatican II: La Liberté Religieuse,. edited by J. Hamer and Y. Congar. 111-47. Paris: Cerf.

In the above articles Murray explored why and how the church had in fact shifted positions on the religious liberty issue. Here he tried to argue that the Council had sanctioned a distinct way of thinking, the historical, which he held to be on a par with the Nicene Council's endorsement of the "dogmatic" mode of thought. He contrasted this historical mode or "historical consciousness" to the "classicist consciousness" that had dominated the preconciliar church. The notion of shifting mode of knowing is a continuation of Murray's use of Lonergan Trinitarian analysis. Lonergan was himself developing the classicist/historical consciousness distinction during the Council. For those wishing to explore the systematic theological background of this analysis, see "On the Structure of the Problem of God" (1964c) and "The Status of the Nicene Creed as Dogma" (1966j). Murray also tried to interpret past Catholic opposition to artificial contraception in terms of his classicist/historical consciousness distinction (see "Murray Says Church Was Too Sure", 1967g).

The Social Position of the Atheist

1965a: Acceptance Speech. New York: Unitarian-Universalist Association. Pamphlet of a talk given on receipt of the Second Annual Thomas Jefferson Award, March 22, 1965.

1970: "La liberta religiosa e l'ateo." In L'ateismo contemporaneo. pp. 109-17. Torino: Società Ed. Internazionale.

It can be argued that early Murray's reliance on the notion of a natural law state allowed no legitimate social position for the atheist in public discourse. Since natural law entailed a theistic premise, those who denied the existence of God were not among the "men of good will." Here Murray asserts that the new argument for religious liberty does recognize the civil freedom of the atheist. The last article in this collection ends with a recognition of the atheist's social legitimacy. For the theoretical underpinnings of this new affirmation, see "The Declaration on Religious Freedom" (1966c) and "The Unbelief of the Christian" (1969).

Moral Agency Arguments (1965-67)

1966b: "The Declaration on Religious Freedom." In Vatican II: An Interfaith Appraisal. Edited by John H. Miller. Article, pp.565-76, and discussion, pages 577- 85. Notre Dame, Ind.: Association Press.

1966d: "The Declaration on Religious Freedom: A Moment in Its Legislative History." In Religious Liberty: An End and a Beginning. Edited by John Courtney Murray, S.J. pp. 15-42. New York: Macmillan and Company.

1968: "De Argumentis pro Jure Hominis ad Libertatem Religiosam." Acta Congressus Internationalis de Theologia Concilii Vaticani II. edited by A Schoenmetzer, pp. 562-73. Rome: Vatican.

In response both to the reduction of his historical and juridical arguments to secondary positions within Dignitatis Humanae Personae and to European, primarily French, critiques of his argument (they called it "superficial"), Murray developed the notion of active moral agency, present but not fully developed in his conciliar argument, as a positive foundation for religious liberty.

Particularly, the last article cited here, which is included in this volume, is of interest. During the Council Murray had argued that the principle of "as much freedom as possible and as much coercion as necessary" had grown primarily out of Anglo-American political experience (with the society/state distinction and notion of limited government), and was understood to be subsequent to notions of the human person and the limited state. Without denying such historical rooting, Murray here takes the notion of human dignity, expands it beyond any potential hint of individualism, and predicates the principle of "as much freedom as possible" on both the individual and the social aspects of human dignity (making freedom a principle prior to the political and jurisprudential principles). According to my reading, he was moving toward a constructive, empowering role for the state that remained consistent with, yet moved beyond, the notion of the limited state that he argued before and during the Council.

The Ongoing Argument

Does Murray present a convincing case that the Roman Catholic church can and ought to affirm civil religious freedom? On the surface, it would seem fair to examine only the philosophical adequacy of the argument, given especially Murray's claim that his and Dignitatis's major arguments were philosophical or based in natural law. However, given some challenges that have been directed at Murray's work since his death and our own present concern about the depth out of which various peoples affirm religious freedom, the problem of the theological adequacy of his arguments does deserve some attention. To conclude this introduction I will discuss (1) the theological premises that support Murray's natural law argument, (2) recent American Catholic discussions of religious freedom that abandon Murray's understanding of civil law and/or his notion of developments in natural law, and (3) the possibility that the Roman Catholic church has not abandoned the argument that supported establishment (which is not the same as saying that the magisterium wants establishment). Here I question how deeply the church's justification of religious freedom reaches to what it holds most dear.

Since the Council Roman Catholics have been far more willing to bring theologically grounded perspectives to discussions of public moral goods It is now thought that theology does not simply motivate social concern, but that it also highlights and shapes substantive values that are at stake in secular society. Questions concerning the theological adequacy of Murray's and the church's affirmations, therefore, fall within this broader willingness to bring a theological perspective to public moral discussions.⁽¹⁷⁾

How natural are Murray's arguments?

Murray claimed that the first, larger argument in Dignitatis was based on nature; only the last, shorter section attempted a theological grounding for religious liberty. There is a sense in which his claim is accurate and another in which it is inaccurate.

The claim is accurate insofar as the argument relies on a sense of human dignity that developed within the secular order. Murray's original 1945 natural law argument was absorbed and transformed by his study of Western constitutionalism. He came to understand the best of Western constitutionalism as a development of medieval natural law theory, transforming an earlier notion of natural law that was individualistic, asocial, and ahistorical into a philosophy that continues to develop (or decline) within historical societies. What he claimed to be "dictates of reason" in that 1945 argument (definitions of the state, law, conscience) were replaced by emerging "dictates of reason" (involving the notions of the mature, then the limited, state and of the mature peoples). Insofar as the major argument of Dignitatis relied on this notion of a developing philosophical tradition, it was, in Murray's changing understanding of natural law, grounded in natural law insights.

However, the emerging notion of the moral state and the moral people was only one line of the argument that we find in "The Problem" and Dignitatis. The other was the argument that arose within the church, concerning the church's freedom to preach the gospel and the community's responsibility to bring the insights born of faith to public moral issues. This second line is, of course, theological, though not biblical. It is grounded in a Christian affirmation that God intervened in human history in the person of Jesus of Nazareth.

That civil society and the church can and ought to develop their relatively independent arguments is itself premised on Murray's notion of Christian constitutionalism. Further, that those two arguments can and ought to converge on similar policy conclusions rests on his understanding of the compatibility of nature and grace. We find at the heart of his, and Dignitatis's so-called "natural" arguments, then, substantive theological premises. They are theological arguments in a sense far broader than simply that they were written for internal Catholic consumption, to move the argument within the church toward an adequate affirmation and defense of civil religious freedom. The Declaration's argument that was offered to "all men of good will" reaches into core Catholic understandings of how the person and human society are transformed by the Incarnation.

Murray could have offered a natural argument that might have concluded to a position near where he did end up. If he had chosen, he could have argued to civil freedom from the natural law principle of subsidiarity--from the notion that many social groups within society by right ought to be allowed the freedom to pursue their own good and even to contribute to the common good. But he did not choose this strategy. His overarching argument, then, remains structured within theological premises, despite his own disclaimers. Christian constitutionalism spelled out its overall structure. Murray's presuppositions about nature and grace, reason and revelation, natural law and divine law, spelled out its possibility and limits.

Recent Appeals to Murray

American Catholics continue to appeal to Murray's various arguments in their discussion of religious freedom. However, their focus has not been on the adequacy of those arguments in support of civil religious freedom. Rather, their dominant concern has been with the development of church doctrine. That is, they have been struggling with an explicitly theological problem.

In a fitting way, recent appeals to Murray's thought dialectically demonstrate what he himself discovered, namely, that the church's argument has to move from the practical to the theoretical, and from the philosophical to the theological. At issue here is just how timeless are the church's policy statements (establishment versus religious freedom), philosophies (canonical versus historical natural law), and theologies (the one true church versus the ecumenical church). By attempting to freeze the church's argument in any of its past policy, philosophical, or theological positions, the affirmation of religious freedom collapses into a conditional acceptance of tolerance. The philosophies and theologies that the church held in the nineteenth and twentieth centuries allowed little else.

Those who interpret Dignitatis as simply a continuation of the canonical, prudential argument end up endorsing religious tolerance, not religious liberty. By not allowing that the "changing state of the question" has invalidated the "error has no rights" argument, some conclude that the Declaration in fact did not invalidate intolerance; it actually strengthened its affirmation of establishment.⁽¹⁸⁾ This and similar attempts to preserve the canonical tradition suggest that it is impossible to endorse religious freedom if one does not admit a philosophical shift between Libertatis, much less the Syllabus, and Dignitatis.

What of those who interpret Dignitatis as involving a philosophical, but not a theological, shift? Not surprisingly, those who accept Murray's claim that the natural law tradition underwent a legitimate development within secular society have little difficulty recognizing that the church has abandoned the bias toward intolerance.⁽¹⁹⁾ Granted that the state has matured and that the people are assuming their rightful moral control over the state and society. Granted also that our understanding of the limits of civil, coercive law have become more sophisticated. Within these understandings of contemporary philosophy, religious freedom can be unequivocally affirmed. Or can it?

A Problem Within the Argument for Establishment

Concern over the sincerity of the church's affirmation arises from two different directions. Both touch the religious liberty argument only tangentially.

Several authors have recently appealed to Murray in their discussions of American secularism.⁽²⁰⁾ Using particularly the Murray of We Hold These Truths, it can be argued that Anglo-American constitutionalism is based on, or parallel to, Christian constitutionalism, that America will lose its soul if it settles into a secular monism. If then it is judged that Supreme Court treatments of religion are based on hostility to religion, not on incompetence in religious matters, then the alleged militancy of this monistic secularism can be perceived as an occasion for a Christian crusade to reclaim the Christian constitutional roots of the republic. By itself even this reading of civil society need not concern non-Catholics, if it is kept within Murray's discussion of the limits of civil law and of the means that are proper for social transformation. But sometimes it is not.

Further, the Murray of the 1950s found several grounds for tolerating the atheist in the latter's Enlightenment, Marxist, or American pragmatic forms. As mentioned above, his earlier natural law analysis began with the corollary that no person of good will could deny God's existence. Staying with the Murray of WHTT, then, one searches in vain for a principled grounding for the atheist's voice within the natural law state.

Note here the language of the argument. If what I have said above about the theological roots of Murray's religious liberty argument is accurate, then this argument is also theological, not simply philosophical. By masking as a philosophical argument, it leaves unexamined the roots of contemporary atheism and, for that matter, the "unbelief of Christians." Murray himself moved to these studies in the last years of his life, and his discussions of them were theological, not simply philosophical (1966c, 1969, 1970).

A second source of concern arises from an internal church debate that again appears to be only tangential to the affirmation of religious liberty. The church does claim to embody the fullness of Christian revelation and, thereby, the truth of human existence. What is the relationship of this truth to the truths found outside the church? The Council affirmed that legitimate moral goodness emerges beyond the church's borders. Even more, it claimed that non-Catholic and non-Christian religions contain elements of truth that are salvific. This was, as almost everyone grants, an advance over previous Catholic teaching. But the question can now be put: How does the Roman Catholic Church understand the salvific truths that it affirms and the salvific truths held by other churches and religious peoples? And what are the social, not just the political, implications of this understanding?

Recent papal documents (e.g., Centesimus annus,⁽²¹⁾) use a quantitative metaphor to describe this relationship, that of a whole to a part. The Roman magisterium encompasses the "fullness" of redemptive truth granted in Christ Jesus; other Christians and other faiths "participate" to varying degrees in that truth, possessing fragments of that truth. What might these terms "fullness" and "participate" mean for ecumenical relations and for the defense of human freedoms?

At this point the Catholic claim to the fullness of redemptive truth might, as someone had described it, simply be an "ecumenical inconvenience," an internal self-understanding not to be brought up in mixed company. More serious difficulties arise, however, when these quantitative images of truth are combined with the further claims that Roman Catholicism is the "one true church" and that "the truth shall make us free." The claims were at the heart of the canonist argument. As Murray describes in the following articles, the canonists ran two distinct arguments: one from the principle of Catholic freedom in the truth to the policy of Catholic establishment, and a second from "error has no rights" to intolerance. In the last portion of "Leo XIII and Pius XII" Murray argues that the church can, and ought to, dismantle both arguments. Why do both arguments need dismantling?

The short answer is that the principal foci of these two arguments are different and that they raise overlapping but distinct sets of concerns. Both have to be dismantled to get at the moral forces that are necessary for social living. The second argument concentrates on the narrow arena of "public order," normally thought to be the preserve of the mature but limited state. The discussion of establishment, while it might reach codification in civil law, is more properly an expression of a society's understanding of the full social (common) good, of the larger social order within which, and by which, we live out our moral and religious lives. By abandoning only the intolerance argument, one has not yet taken account of the moral and spiritual center of human society, namely, a group of people "locked together in conversation."

The church has clearly endorsed civil religious freedom in the sense of immunity from state-sponsored restraint and constraint. It has embraced the rightfulness of non-coercive means in social transformation, to the point that it has problems with any judgments supporting a "just war" or a "just revolution."⁽²²⁾ Can the church, however, grant to participants within morally and religiously pluralistic societies the presuppositions of dignity, respect, and equality that the later Murray discovered to be conditions for the possibility of moral and theological discourse? Within the quantitative metaphor for faith, granting much more than paternalistic care appears difficult.

It might well be that Roman Catholics will have to bear the cross of their understanding of the truths they hold, if they are to remain consistent with the faith given them in Christ Jesus (as Cardinal Otaviani counseled them to bear with political intolerance as a Catholic ideal). In that case, Murray's and Dignitatis's renunciation of coercive means would rule out political intolerance, but Catholics would need to continue what has been called dogmatic intolerance. However, alternatives do exist to a renunciation of Catholic faith or a carrying of that particular social cross. Murray himself offers some clues to at least one of these alternatives.

The claim of freedom in the truth reaches deeply into Roman Catholic understanding of the way in which its Lord of History guides and ultimately redeems the people of God. By the grace of God humans are freed and empowered. Murray gradually peeled away an elitist political theory and a paternalistic reduction of the people to a childlike status from his faith that the Lord of History continues to act in human history. He found that what he called the "dialectic removal of inconsistencies" was in fact presently required by that very faith. Might the current debate be conceived in terms of a similar dialectic?

The Roman Catholic debate on truth and freedom appears to revolve around what is normally called a cognitional theory, that is, on a way of visualizing the truths that make us free. When those truths are conceived in what Murray called a classicist manner, they are thought to be permanent, complete, immutable, and immediately present to the privileged knower. The truth of what the rest of us hold is measured by the relationship, the correspondence, between what we claim and what the privileged knower knows. We are free to the degree that the correspondence approaches the absolute. Within this understanding of the relationship, the moral and religious truths that the church possesses can only be conceived as immediately and completely at hand to the magisterium at all times and in all places, while the truths that others hold are only partial at times and in all places. At no point does the theory allow, in principle, that new moral and theological insight might arise outside its borders, because the theory allows no room for substantive development of redeeming truth. The classicist in matters of faith need not deny, on an ad hoc basis, that goodness sometimes arises outside the explicit faith community. In fact, the classicist can sometimes be exceedingly humble in his or her recognition of the goodness of the stranger. Yet, by having no theory by which they can understand the occurrences of new insight into God and God's creation or understand redemptive sacrifices that put many Christians to shame, they likewise have no basis on which to construct virtues and structures that would encourage the emergence of redemptive power, much less full Catholic cooperation with it.

If our understanding of the relationship that is freeing is shifted from an abstract order of truth to an ongoing interaction with the Lord of History, and if it is admitted that an Incarnate God can effect redeeming insight and goodness anywhere in creation, then a theoretical grounding can be laid for the virtues that Murray described as necessary conditions for civil and religious living. That which is salvifically freeing, then, is a relationship to a living Lord, sometimes entwined in interaction with the stranger and the alien. The believer must develop virtues that allow the recognition of that Lord. By and in that interaction we are made free.

These competing notions of freedom as correspondence and freedom in interaction equally rest on a promise, the promise that Christ will be with his people until the end of time. The classicist believer looks for the fulfillment of that promise in an abstract, atemporal realm of concepts; the historically minded believer searches the tangles of human living. In Murray's and Lonergan's terms, the choice between these approaches is a matter of dialectics. Believers and communities of believers must somehow explore and decide which competing theory best preserves and deepens their common faith. Even the notion that the fullness of redemptive truth resides in the Catholic church might be preserved within a framework of the church's God-given ability, over time, to sift the good from the bad, no matter what the source of redemptive insight and good will might be. At any rate, the twisting point of the present Catholic argument concerning redemptive freedom appears to be at the level of cognitional theory, not at the level of faith in their redeeming Lord.

This last discussion has moved beyond Murray's terminology and methods. It is, however, in line with Murray's postconciliar call to search out a better grounding for the affirmation of religious liberty. In praise of Pope John XXIII, Murray wrote, "The symbol for [John XXIII] might well be the question mark -- surely a unique symbol for a Pope" (1963f, p. 108). Murray himself left several question marks. How completely, compellingly, and deeply have he and his church situated their arguments for civil freedoms and human dignity within what they hold most dear? How might they better do so? I hope a reading of the following essays will help the ecumenical church answer the first question and work toward a fulfillment of the second.

If nothing else, Murray's thoughtful smile and his intricate arguments both remind us that we live in a complex world of competing interests, fears, faiths, and aspirations. Many competing faiths and hopes, with their accompanying anxieties, went into the gathering of this collection. My thanks go out to Tom Field, who helped transfer two of these articles from the written page to electronic bits and bites, and to the staffs of Lauinger Library (Special Collections) and Woodstock Theological Library, both at Georgetown University. In an age of shaky financial expectations, we at the Woodstock Theological Center have greatly appreciated a grant from Lilly Endowment, Inc., for both the work behind this collection and a conference on Murray's legacy that Woodstock and the University of Notre Dame will jointly sponsor. Sr. Jeanne Knoerle of the Endowment deserves special thanks for her faith in Roman Catholic commitments to civil discourse. As I mentioned above, ecumenism came late to Murray, but he did begin to trace through some of its implications. So it is fitting that Westminster/John Knox Press are publishing these arguments that might lead to a deeper ecumenism. My thanks, then, to Davis Perkins, Danielle Alexander, and other anonymous editors at the Press for their help, and patience in editing this collection, and to the general editors of the Library of Theological Ethics for allowing a Roman Catholic within the ranks of American religious classics. And finally my thanks to the staff and fellows of Woodstock Theological Center and to James L. Connor, S.J., the Director of the Center. They more than others have borne the heat of the day and have done so with a graciousness that some of them experienced with Murray at Woodstock College, Maryland.

Footnotes

1. "City of Man and God." Time 76 (December 12, 1960): 64-70 and cover. Throughout this introduction and Murray's own texts that follow, I have observed the following conventions: Citations of Murray's works are by year/letter (and sometimes page) and correlate with the bibliography of Murray's works. Citations of secondary sources are by author name, year/letter, and page and correlate with the bibliography of works about Murray. Bibliographic information for materials that are not listed in either of the two bibliographies will be given in the notes. I have left all Murray's own citations in the form that he used and only rarely expanded their content.

2. We Hold These Truths (1960c) is a collection of essays, most of which Murray wrote and published between 1950 and 1958. During that period, Murray's understanding of the natural law philosophical tradition underwent considerable development. A reader of WHTT can trace that development, if aware of the order in which the articles were written and the amount and type of editing they underwent. See the bibliographical entry accompanying 1960c for the prior publication of those essays.

3. For a brief discussion of the various sessions of the Council, their dates, and secondary source material on Murray's role in the Council, see the introduction to the second essay of this volume, pp. 127-28.

4. Murray's own articles will cite the appropriate Pian and Leonine texts. For a thorough background discussion of those texts, see Dionne, 1987.

5. For a discussion of the U.N. declarations and Catholic responses to them, see David Hollenbach, Claims in Conflict (New York: Paulist Press, 1979). For recent discussions of developments in rights studies within the United Nations context, see Cindy Cohn, "The Early Harvest: Domestic Legal Changes Related to the Human Rights Committee and the Covenant on Civil and Political Rights," Human Rights Quarterly 13, no. 3 (August 1991): 295-311, and Edy Kaufman, "Prisoners of Conscience: The Shaping of a New Human Rights Concept," Human Rights Quarterly 13, no. 3 (August 1991): 339-67.

6. Throughout this discussion I will use the term "theory" to cover any rational system or image that address questions of ultimate meaning or of the general makeup of the moral universe. Murray was a firm believer in the validity of theoretical thinking, especially in its more conceptual, systematic modes. Here I purposely use the term to apply to any manner of describing or presenting general human value commitments. My reason for doing so can be found in "Types of Arguments" in my introduction. It is based on Murray's own understanding of the differences between policy determinations and the justifications that we advance for those policies.

7. For a discussion of John A. Ryan and the continuing impact that Catholic theory had on U.S. public arguments, see Curran, 1982, pp. 26-91. Ryan's original text was written with Moorhouse F.S. Miller, S.J., with the title The State and the Church (New York: The Macmillian Co.), released in 1924 and reprinted in 1930 and 1934. The section that non-Catholics and many Catholics had difficulties with was pp. 32-38. In 1940 it was revised for classroom use with Francis J. Boland, C.S.C as Catholic Principles of Politics (New York: The Macmillan Co.), this latter reprinted in 1950. Catholic Principles included portions of Leo XIII's Libertas and Immortale Dei, along with a commentary that defended the establishment position (pp. 310-21).

8. In a review of arguments supporting intercredal cooperation, Murray dismissed attempts to find a residue of Christian symbols or doctrine that might serve as a basis for cooperation (see 1942b, 1943a). This echoed a claim he made while in theological studies that the break caused by the Reformation was so severe that there did not exist a basis for even analogical theological conversation between Catholics and Protestants (1933). Throughout much of his life Murray offered only natural law philosophy as a common ground. But then the natural law itself began to change and concerns with the church's theological arguments would not go away.

9. In keeping with Murray's own usage, I will refer to public opinion as agreement over policy issues and public consensus as agreement over the general value commitments or principles that ought to inform policy determination.

10. As reported by Pelotte (1980, 79) in a letter Archbishop Joseph Sheehan.

11. The endorsement first arose in correspondence with Robert MacIver (1954a). MacIver and Murray worked together on a project that tried to address the question of controlling Communist propaganda within the public university, while preserving free speech. Murray was uncomfortable with talk of excluding communistic expression. He countered with the need for the public presentation of religious beliefs.

12. See 1949b, 1955a, 1955d and 1959a for his comments on Catholic conventionalism. For Murray's concern with what he perceived to be an American Protestant propensity toward irrationalism, see 1960a and 1961d.

13. Murray's natural law philosophy contained a theistic premise. As will be discussed further, this meant that some form of theism was open to all people of good will. Within this understanding of human natural drives, atheism is a revolt against the God of nature as well as the God of revelation.

14. See his discussion of the limits of civil law in WHTT, chapter 7, "Should There Be a Law?", pp. 155-74.

15. Named after Pope Gelasius I (492-496), who insisted, in a letter to the emperor Anastasius (492), that "two there are, August emperor, by which this world is chiefly ruled, the sacred authority of the priesthood and the royal power." For the Gelasian text, see Gelasius I, "Letter to the emperor Anastasius," in Brian Tierney's The Crisis of Church and State (Englewood Cliffs, N.J.: Prentice-Hall, 1964), pp. 13-15.

16. Murray had adopted Lonergan's approach to Trinitarian doctrinal development in 1958 and led a discussion of the latter's Insight at the Jesuit Theological Society meeting that year. For a discussion of Murray's gradual adoption of much, but not all, of Lonergan's cognitional analysis, see my discussion in Hooper, 1986, 121-25.

17. These concerns entered Murray studies in the mid-1970s (see Hollenbach et al., 1976). A debate has swirled around the question of just how "natural" were the various arguments that Murray weaved through WHTT, or how natural they now ought to be. The dispute has focused on public issues such as war and peace, not on religious liberty. Among both the politically right and left, some assert that theologically based languages ought to be kept out of public discourse. The church is under obligation, it is argued, to use languages that can be understood and accepted by those outside the Catholic faith. For the sake of the public good, then, religious premises should remain cloistered within the church's internal arguments. Others, including myself, suspect that there was more theology in Murray's argument than is usually conceded, and, as I mentioned above, that the church's theology is important for public argument.

18. See Marshner, 1983, and Most, 1983.

19. Kossel (1984) offers a good demonstration of accepting philosophical development while leaving the eternality of theological truth claims unexamined. He does clearly recognize that those philosophical changes render intolerance unacceptable.

20. See the various Weigel and Neuhaus citations in the bibliography, as well as McElroy and Canavan.

21. See particularly para 46, also 17, 29, and 47.

22. It can be argued that the source of the magisterium's present disdain for any coercive action is grounded in a deeper appropriation of pacifist New Testament commands than in Murray's political theory of limited government, dual orders, and appropriate means. If the roots of this disdain are exclusively biblical, with an accompanying further disdain for Western decadent democratic theory, then some Catholic confusion concerning political forms might be understandable. One is fairly hard-pressed to find limitations on government to public order goods or affirmations of general moral empowerment within the biblical record.

See also:

• Leo XIII and Pius XII: Government and the Order of Religion, the next chapter