Part 2. The Struggle of Roman Catholicism for Freedom to Exist and the Significance of the Results It Gained for Its Further Development (Cont.) (9)

If there were but one church, the state would necessarily have to carry out its subordination to it down to more particular details; but since there are many churches and religious communities that differ among themselves in the details of teaching, the state restricts its connection with religion and its assistance to it only to that principle which is common to all of them, although in this common principle it acts more under the influence of the dominant religion than of others; it favors Christianity more, for example, than Judaism, and legally protects the sanctity of Sunday rather than the Sabbath. But how does the state relate to particular churches and communities as diverse expressions of one common religious and moral principle? It relates to them precisely as diverse expressions of this common principle which it recognizes. Each church or community considers itself to be true, but the state lacks spiritual competence and cannot decide either for itself or for its citizens which church or community is truly the expression of the spiritual order. It therefore entrusts and must entrust the responsibility in this decision to the citizens themselves, who must decide for themselves and answer before God for the correctness of their decision. Their decision is law for the state, and it must respect and obey it, whether this decision is made by a majority or a minority, since the state recognizes equal rights for all its citizens and cannot make distinctions among them. The church which represents for the state the spiritual order is that church which is espoused by its citizens; and since they embrace different churches, it can recognize and give effect to the canons and decrees of each only in relation to its own members, and only to the extent that they do not violate the equal rights of others. In a perfect Christian society such a relation of the state to the church would be insufficient; but this is all that it can do where different churches exist and exist with equal rights before it. Since the state recognizes them all as diverse expressions of one common moral and Christian principle recognized by itself, but lacks the competence to decide which of them is truly the most complete and truest expression and interpreter of this principle, it recognizes equal rights for all of them, equally protects each and gives force to its laws and decrees, but only in relation to those citizens who recognize its authority. It protects, for example, the order and unobstructed performance of worship in all churches of whatever confession, and any disturber of worship is subject to arrest. This does not mean indifference of the state toward religion; it means only that the state does not claim the right to decide which is the true church, and considers it its duty to respect and patronize every church recognized as such by its citizens. The teaching that a person is completely free before God to choose whatever religion he wishes or to remain in complete unbelief finds no recognition in principle from the American state and is contrary to its basic constitution. Therefore, atheistic or false sects in themselves do not possess rights before the state, as they do not serve as expressions and interpreters of the spiritual order, and are contrary to the true interests of society. But in a society where they exist alongside more true churches, the state must respect in them too the rights of the spiritual order, not of course because they consider themselves true, but because they are considered such by a certain part of its citizens, and all its citizens have equal rights in the civil order, and consequently equal right to protection of their conscience. By equally patronizing all churches and communities, equally protecting the rights of all of them to complete freedom of action and complete development of their powers, the state retains only the hope that truth will triumph of itself, and for falsehood this very freedom will serve only to bring out more fully its inner weakness and incompetence.

Such are the general principles of the American system of the relation of religion and state. In its spirit, the Roman Catholic Church receives equal rights with all other churches and confessions and enjoys the same patronage and respect from the state. But for it these rights did not at once find practical significance after their proclamation in principle. Thanks to the prevailing hostile prejudice against it during the colonial period, the general rights of religious conscience in their application to it met with resistance from prejudice that still lived on, and they were extended to it only by a slow process as the prejudice weakened and the idea of freedom of religious conscience gained greater rights of citizenship. The slow effect of the general principle of freedom of religious conscience for Catholics is explained by the relation of the federal constitution of the Union to the particular constitutions of the individual states.

X

The colonies that entered into the United States, before the proclamation of independence, lived completely separate lives from each other, had nothing in common except external subjection to English rule. They were populated by emigrants of different nationalities, different confessions, customs and manners, and different political views. When the struggle with England began, the common interest required them to unite their forces for self-defense, and they formed a united Union, which found legal expression in the federal constitution. But in entering this Union, they did not wish to lose their local independence, and therefore they sought to limit the conduct of the federal government only to those general matters and relations that equally affected all of them, and to exclude from it everything that constitutes the internal life of each colony. In a word, they entered the Union as completely separate and independent states, as shown even by the name of the United States—which means United States. Each state is a completely separate and independent state, having its own special governor, its own senate, its own legislative assembly, its own constitution. The federal constitution restricts its conduct only to the general interests of the united states, just as the federal government deals only with the general relations of the Union, without any right to interfere in the internal affairs of individual states. The states were very jealous in preserving their own independence and excluded from the jurisdiction of the federal constitution everything that went beyond the limits of the general interests of the Union. They took the same position in the legal determination of the question of freedom of religious conscience.

Before the proclamation of independence, the colonies, as we have seen above, were so pervaded by such religious intolerance, especially toward Catholics, that even their common political interest in freeing themselves from English rule could not suppress in them this spirit of mutual intolerance, and it clearly expressed itself in many of them upon drawing up new constitutions by the exclusion of Catholics from certain civil rights and privileges, for instance, in the election to public office. The federal constitution overcame this injustice, and the third paragraph of Article VI abolished any religious test for holding office. “No religious test shall ever be required as a qualification to any office or public trust under the government of the United States,” states this article. This article apparently equalizes the rights of all religious confessions, and consequently Catholics, but its true significance is determined only by the relation of the federal constitution to the particular state constitutions. In virtue of the system described above of the relation of individual states to the Union, the federal constitution deals only with the federal government and its jurisdiction therefore extends only to the sphere of activity of the latter. Hence the article on abolishing religious tests has force only within the limits of the jurisdiction of the federal government and has no significance outside these limits, that is, does not extend to individual states as independent units. Therefore, by virtue of this article, Catholics were equalized in their civil rights and privileges only before the federal government and could be appointed to offices only in the jurisdiction of this government. It thus did not abolish the provisions of the particular state constitutions which excluded Catholics from public office, but only created a new provision granting Catholics civil rights equal to all other confessions in a completely different sphere, outside individual states. So the states understood this article, which is especially clear from the history of the origin of the famous amendment to it, according to which “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This law, as we have seen above, had been proposed to Congress for consideration even before the article itself on abolishing religious tests, but Congress rejected it and adopted the latter article. When this article was presented to the local conventions of individual states for ratification, the insufficient precision in determining its jurisdiction seemed dangerous to many conventions for local independence, since under a certain interpretation its effect could extend to states as separate, independent units. They wished to retain the right of jurisdiction over religious matters for themselves, and therefore many of them made the ratification of the federal constitution conditional on their proposal to add the aforesaid amendment to the article on the religious question. These proposals were so persistent that Congress was compelled to accept the provision it had once rejected and adopted the amendment according to which it “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This amendment has a twofold meaning. First, it proclaims the complete separation of the federal state from religion, and second, it limits its right with respect to the government of individual states, abolishes its right of jurisdiction in the realm of religion, the jurisdiction of which is thus completely entrusted to the jurisdiction of individual states. The amendment was merely a formal renunciation by the federal government of the right to interfere in the religious affairs of individual states, but the actual exclusion of it from this right was already implied by the states before. In ratifying the federal constitution, they ratified it as binding only within the limits of the federal government, not the governments of individual states. Therefore, the article of it denying any religious test for election to public office, while having full significance for the federal government, was completely not binding in a legal sense for the government of individual states. So it turned out in fact. The particular state conventions, recognizing the article on abolishing religious tests in the federal constitution, at the same time did not consider it binding for their particular constitutions, and the articles in them excluding Catholics from the right to be elected to public office continued to exist as before.

Thus in a legal sense the federal constitution established freedom of religious conscience only in a limited form, equalized the civil rights of religious confessions only before the federal government, which, given the complete dependence of the federal government itself on the electoral will of individual states, made freedom of religious conscience almost fictitious. Thus, a Catholic, under such circumstances, could never attain the presidential chair, since election to it is conditioned not by the federal government but by the electoral will of individual states. But though lacking legal significance, the federal constitution had enormous moral significance for the legislation of individual states. It was, so to speak, the highest expression of the collective sense of the entire people and in this respect inadvertently exerted influence on particular legislatures, morally urging them to bring their provisions into conformity with the basic spirit of this supreme national law. And indeed, some states, soon after ratifying the federal constitution, hastened to bring their particular constitutions into harmony with it and, like it, abolished religious tests for election to public office. Thus the Georgia constitution of May 6, 1789, the first new local constitution adopted after the federal constitution was ratified, excluded the provision according to which members of the general assembly must be of the Protestant religion. The South Carolina constitution of June 3, 1790, the second new constitution, excluded the same provision as well as all other provisions making Protestantism the established religion, and established that “the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall hereafter be allowed to all mankind in this State.”[1] But other constitutions long retained provisions excluding Catholics from the right to election to public office, and only gradually over time yielded to the moral influence of the federal constitution. Thus, in the State of New York only in 1806 was the provision abolished according to which Catholic emigrants, when elected to public office, were obligated solemnly to renounce all obedience to foreign church authority, that is, to the Pope.[2] A similar provision was contained in the Massachusetts constitution, and it was abolished only in 1821, thus affording Catholics the possibility of holding public office.[3] In Virginia, complete freedom of conscience was granted only in 1830, when religious tests were abolished.[4] By the North Carolina constitution, when elected to office an oath was required acknowledging the truth of the Protestant religion. “Any person who shall deny the being of God or the truth of the Protestant religion, or the divine authority of the Old and New Testament, shall not hold any office in the State.” In 1835 this provision was modified, and instead of Protestant was placed Christian religion,[5] by which Catholics were equalized with Protestants. In the New Jersey constitution the Protestant provision by which “no Protestant inhabitant shall be denied the rights and privileges of citizenship,” was abolished only in 1844.[6] Finally, in New Hampshire, the provision excluding Catholics from the right to hold public office even outlasted the hundredth anniversary of American independence, celebrated in 1876, and this solemn festival of national freedom saw in the constitution of this state such articles: “every member of the House of Representatives shall be of the Protestant religion”; “no person shall be eligible to election to the Senate unless he be of the Protestant religion”; “no person shall be elected to the office of Governor unless he be of the Protestant religion.”[7]