A collection of personal reflections. Copyright © 2005-2011 K. Gurries

Friday, December 18, 2009

Religious Freedom: Disputed Questions (Part III)

Private and Public

A common objection to the Vatican II decree Dignitatis Humanae (DH) is that the right to religious freedom for non-Catholics is supposedly limited to the private domain.  The decree is sometimes rejected on the premise that in Catholic countries only Catholics enjoyed the right to worship publicly.  As proof of this claim we are typically given examples such as Catholic Spain where the “public manifestation” of non-Catholic worship was prohibited by law.  For some, Spain’s restrictive laws suggest that there can be no such thing as a natural right to public worship, as such.  In order to reconcile this apparent contradiction we will have to refer to some principles covered in Part I.

The Church does not prescribe a fixed policy or a one-size-fits-all juridical solution for each particular case.  The circumstances must be carefully considered in view of both the [due] rights of individual citizens to religious freedom (a natural right) and the [due] rights of society attempting to preserve the common good.  But what if the common good of civil society is largely based on the unity of a common faith (e.g., Catholic Spain)?  It would appear in such cases that we could be faced with the problem of conflicting rights.

In theory there is no conflict of rights insofar as a perfectly Catholic country is one populated exclusively by Catholics.  In this case all citizens are freely baptized into the Catholic faith and freely submit to the jurisdictional and coercive authority of the Church.  The problem of “conflicting” rights arises only when the unity of faith begins to erode and society is composed of Catholic and non–Catholic citizens.  In this case, the political authorities have two basic options that the Church leaves to their own prudential self-determination in view of the common good.  To illustrate this point we can consider the 20th century examples of Spain and Ireland.  Each had formulated its own distinctive juridical solution adapted to the just requirements of its own particular circumstances (hypothesis) in view of the spiritual and temporal welfare of its citizens and the common good of all.

Catholic Spain    

We can consider Catholic Spain under the Franco regime as an example where the policy of limited religious freedom was adopted for non-Catholics.  The restrictive laws in this case were oriented towards preserving the character of a sacral state constituted on the basis of unity in the Catholic faith.  In the case of repression of the “public manifestation” of non-Catholic worship, there must still be respected a sufficient degree of religious freedom to enable individuals to fulfill their duty to profess their faith in an outward and social manner – even if not “publicly” in the fullest sense.1   By virtue of the natural law, man has the duty and corresponding right to make external profession of his faith in accordance with his social nature:

“The Natural Law commands each individual to render internal and external worship to God...The obligation of divine worship does not only bind man as an individual; it binds him especially as a social being.  Religion is not confined to the hidden recesses of the soul or the privacy of one's room.  It bears a social character and obligation.” (Fr. Thomas J. Higgins, S.J., Man as Man: The Science and Art of Ethics, TAN Publishers, 1958, 1992, pp. 183-184)

Therefore, even Catholic Spain allowed non-Catholics to establish churches or quasi-public places for common worship insofar as these refrained from “external ceremonies or manifestations” (Cf. Art 6 of the Charter of the Spanish People).  In other words, such non-Catholic churches or communities were not supposed to parade down main-street or openly proselytize Catholics in an otherwise Catholic country.  In this sense "private worship" was understood as something involving more than mere individual worship restricted to the privacy of the home.  On the other hand, "public worship" in its fullest sense included the notion of national or civic worship, as such.  Therefore, non-Catholics residing in Spain were expected to regulate the active use or exercise of their natural right to religious freedom in such a way that also preserves the integrity of the religious unity and Catholic character of Spain.  General Franco described the situation as follows:

“In Spain non-Catholic confessions enjoy liberty and are protected by the article of the Charter of the Spanish People which respects liberty of conscience.  Protestant churches now exist in the same places of Spain where they existed under other regimes, though they are necessarily few, since the religion of almost the totality of the Spanish people is Catholic and the majority of the few who do not profess it are atheists, thereby reducing Protestants to foreigners or persons of foreign origin or people who have lived for many years outside of Spain”. (Cf. La vanguardia Espanola, August 19, 1947; Hughey, Religious Freedom in Spain, Kingsgate Press, London, 1955, p. 148)      

Therefore, the full right to both private and public worship presupposes full citizenship while any limitation imposed on “public” worship presupposes “foreigner” status.  In this sense it is important to note that only Catholics were considered to be Spanish citizens while non-Catholics were considered as “foreigners”.2  This is an important legal distinction in light of the 78th proposition of the Syllabus of Pope Pius IX.  Cardinal Newman explains the relevance of the distinction of foreigner status:

“…the men who were forbidden the public exercise of their religion were foreigners, who had no right to be in a country not their own at all, and might fairly have conditions imposed upon them during their stay there…” (Cf. Newman, Letter to the Duke of Norfolk, 1875)

Therefore, the legal restriction against the public manifestation of non-Catholic worship (including propaganda or proselytism) by foreigners was adopted in view of conserving the principle of Catholic unity in Spain.  Such unity of faith is a blessing that nations have a right to protect by all legitimate means.  The situation was different, however, in Spanish controlled territories in Africa where Muslims were granted full religious freedom in private and in public.  It is also particularly interesting to note that the Islamic religious communities were not only granted full freedom of worship but official support from the government (Cf. Dario de Barcelona, October 27, 1953, p. 9; Hughey, Op. cit., p. 158).      


We can consider the Irish constitution of 1937 as an example where the policy of full religious freedom is recognized for all citizens within the context of a mixed population.  The constitution is considered “secular” inasmuch as it does not establish or endow any state religion, however, the Constitution recognizes the “public worship” due to Almighty God and the respect and honor due to religion.  The Constitution also recognizes the special status of the Catholic Church as the “guardian of the Faith professed by the great majority” of the body politic.  This special status, therefore, is not one mechanically imposed on the body politic by the political authorities in the sense of a state absolutism.  On the contrary, the special status of the Church is duly “recognized” by the state in virtue of the Faith professed by the vast majority of its citizens.  At the same time, however, due to the mixed character of the population, the state recognizes other churches and denominations already firmly established as of the time of the constitution.  The constitution also provides for full religious freedom (private and public) subject to the requirements of public order and morality (due limits).  Furthermore, the constitution guarantees against any type of discrimination based on religious profession and guarantees the rightful autonomy of the Church and other religious communities. 

This juridical solution was deemed necessary given the context of a mixed population lacking unity of faith among the body politic.  Pope Pius XII praised the Irish constitution as being founded on natural law principles where fundamental human rights (including religious freedom in private and in public)3 were guaranteed to every citizen:

“Your constitution is intended to be an instrument of prudence, justice and charity at the service of a community which has never, through its long Christian history, had any doubt about the internal, as well as the temporal implications, of that common good which it professes to seek through the conjoined prayer, toil and oftentimes heroic sacrifice of its children.  Grounded on the bedrock of the natural law, those fundamental human prerogatives which your Constitution undertakes to assure to every citizen, within the limits of order and morality, could find no ampler, no safer guarantee against the godless forces of subversion, the spirit of faction and violence, than mutual trust between the authorities of church and state, independent of each other, in its own sphere, but as it were allied for the common welfare in accordance with the principles of Catholic faith and doctrine…” (Cf. Bruce Francis Biever, “Religion, Culture, and Values”, Ayer Publishing, 1976, p. 295)

Restraint vs. Compulsion
The civil restraint against the public expression of non-Catholic worship placed on foreigners in Catholic nations does not equate to “compulsion” in the faith.  For example, the limited restrictions noted in Catholic Spain above allowed a certain quasi-public form of worship that enabled non-Catholics to worship socially and in common with fellow believers.  On the other hand, to completely deny this basic (even limited) freedom to worship socially as demanded by the very nature of man could lead to forms of practical compulsion (Cf. Higgins above).  This fact was alluded to by Suarez when he taught that non-Christians could not be refused the practice of their religion within the limits of the natural moral law.  He noted that Catholic rulers had no right to deny Jews or Muslims their places of worship or to prevent them from observing their religious practices therein.  He then concluded that this position is “supported by the fact that such a ban would involve, to some extent, forcing people to accept the Faith; and that is never permitted.” 

If man is compelled by nature to worship socially then he is practically compelled in faith upon denying him access to his places of worship.  That is like denying a Jew all access to kosher foods and pretending that it involves no practical compulsion towards eating non-kosher foods.  Man’s nature compels him to worship socially just as it compels him to eat.  Pope Leo XIII touches on this point in Immortale Dei.  The Pope first recalls the general guiding principle: 

While the Church considers that it is not right to put the various forms of worship on the same footing as the true religion, it does not follow that she condemns heads of States who, with a view to acheiving good or preventing evil, in practice allow these various creeds each to have their own place in the State. 

 The Pope then immediately follows this by linking it to the principle against compulsion in the faith.

It is indeed the custom of the Church to take the greatest care to ensure that no one shall be forced to embrace the Catholic faith against his will, for, as St. Augustine wisely observes, a man can believe only of his own free will. 

Jeremiah Newman rightly notes that “while affirming that the ideal is religious unity, he [Pope Leo XIII] explicitly allows that a system of pluralism may have to be adopted by a State so as to ensure freedom of faith and avoidance of coercion” (Cf. Jeremiah Newman, Studies in Political Morality, Scepter, 1963, pp. 276-277).  In fact, this “system of pluralism” is exactly what Pope Pius XII praised in the Irish constitution of 1937 within the context of a mixed population.  In other words, the juridical solution in question complied with the demands of natural law and the just requirements of the particular circumstances.         

The Principle of Reciprocity

Even in the context of a Catholic state, we should not overlook the principles of equity and reciprocity towards non-Catholics.  The Catholic Encyclopedia recalls this important principle in the teaching of Pope Gregory IX:

The same measure of respect which a Catholic claims for his religion must be shown by him to the religious convictions of non-Catholics. Here obtains the principle which Gregory IX once recommended in a Brief (6 April, 1233), addressed to the French bishops concerning the attitude of Christians towards the Jews: "Est autem Judæis a Christianis exhibenda benignitas, quam Christianis in Paganismo existentibus cupimus exhiberi" (Christians must show towards Jews the same good will which we desire to be shown to Christians in pagan lands). (Cf. Auvray, "Le régistre de Grégoire IX", n. 1216.) Whoever claims tolerance must likewise show tolerance. (Cf. Catholic Encyclopedia, 1912)

This principle is also recalled by Mgr. Dupanloup (Bishop of Orleans) where he noted that it has traditionally been practiced by the Popes even in the heart of Rome.
Never have the Popes condemned those governments who considered it their duty to inscribe this tolerance, this liberty upon the constitutions, according to the necessity of the times.  What do I say?  The Pope practices it himself at Rome.  “Error is the evil, and not the law, which, with a good intention, tolerates error.”  This is what I have read in a book lately printed at Rome, under the eyes of the Index, and it is what Pius IX deigned to say to me during the last winter.  “The Jews and Protestants,” he said, “are free and quiet with us.  The Jews have their synagogue in the Ghetto, and the Protestants in their temple at ‘Porto del Popolo,’ the gate of the people.” (Cf. Opuscula post on The Intervention of Mgr. Dupanloup, Part III) 

Back to Part II            Forward to Part IV


1 In this sense, the "special civil recognition" given to the Catholic Church in Spain is not opposed to the due respect for the religious freedom of non-Catholics residing in Spain. (Cf. DH, 6) 

2 Foreigners presumably have citizenship and recourse to another "homeland" that they can avail themselves to.  The modern phenomenon of globalization, however, raises new and interesting questions.  For example, what are the religious duties and rights of "migrant workers" and at what point do foreigners and immigrants come to be considered as permanent citizens with all of its corresponding duties and rights?  Pope Benedict recently spoke on this complex question of migration and immigration in the modern context of globalization:

3 Pope Pius XII affirmed that the right to religious freedom in private and in public is a fundamental human right. (Cf. Pius XII, Radio Message of December 24, 1942) 


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