John Courtney Murray, Pius XII, and Some Bracing Truths

It was the interim between Commencement at Amherst and the arrival, at the end of the week, of throngs of former students coming back for Reunions.  That is usually a time of lull between the excitements.  But we have, swirling about us now, a serious agitation over the question of religion and the law.  And so I found myself drawn back to read again John Courtney Murray’s classic book from 1960, We Hold These Truths

That book was taken as a marker of growing acceptance, by the Church, of the principles of the American regime. But the irony was that the Church would become the main force in sustaining the teaching of natural law as the moral ground of the Union and the Constitution. Against the shifts to relativism, the Church would hold, with Lincoln, that “all men are created equal” was nothing less than a “truth, applicable to all men and all times.”

Murray wrote because he was already alert to the forces that would undermine that teaching.  He wrote with a sense of crisis, and yet he wrote before the advent of the pill and the sexual revolution and the trends that would make the crises of his time seem rather tame in comparison. And yet Murray’s book contains some bracing truths that may still come as news. 

For one thing, he recognized as few others did, that the vaunted First Amendment subtly incorporated the premises of relativism. The Constitution was framed for a society already quite divided in its religious commitments. When the First Amendment sought to protect the “free exercise” of religion, it was understood to cast protections over everything in the landscape that counted as a “religion.” 

In this view, as Murray said, a church may be seen simply as “a voluntary association of like-minded men; that its origins are only in the will of men to associate freely for purpose of religion and worship; that all churches, since their several origins are in equally valid religious inspirations, stand on a footing of equality in the face of the divine and evangelical law.”  With this perspective, as Murray wrote, “the churches are inevitably englobed within the state as private associations organized for particular purposes. They possess their title to existence from positive law. Their right to freedom is a civil right” – other words, it was not a right emanating from the natural law, a “right” that would be there even if there were no Constitution and positive law. 

But the claims of the Church must ever be at odds with those moral premises, for the Church would rest on truths that claim their respect as truths in all times or places.   And that is what forms the challenge of the Church in a “pluralistic society.”  Without denying itself, the Church could not recognize rival truths, all claiming the same standing. 

       Allegory of Prudence (tomb of Francis II, Duke of Brittany)

And yet, for the sake of civil peace, the Church would support a “civic culture” that accords dignity and respect to all religions.  The anchoring point of course is that the Church accords respect to all human beings as “children of God.”  But that doesn’t mean that it must accord equal respect to any and all groups fashioned from human inventiveness, whether they are baseball clubs, criminal bands – or churches. This has been a vexing matter for the Church, not easily finessed.  And indeed in certain quarters there has been an objection to Dignitatis Humanae (1965) as heretical in its willingness to accord dignity to virtually all religions.

In dealing with this problem, Murray drew on a speech  (Ci Riesce) delivered by Pius XII to an assembly of jurists in December 1953. The pope was addressing the problem of forming stronger political unions or federations among independent States, which figured to be quite different in their religious composition.  But Murray saw that the pope’s reflections bore as well – or even more sharply – on the problem of religion in this country. 

I hadn’t recalled this speech, and in coming to it for the first time I had to wonder why this essay, so compressed and so acute, does not find a place in every textbook on jurisprudence.  

In entering the problem, the pope suffered no doubt that the question had to begin with “the objective truth”:

Above all, it must be clearly stated that no human authority, no state, no community of states, whatever be their religious character, can give a positive command or positive authorization to teach or to do that which would be contrary to religious truth or moral good. . . .Not even God could give such a positive command or positive authorization, because it would be in contradiction to His absolute truth and sanctity.

God has the power to impede evil and error, but at times, said Pius, He chooses “non impedire” – He chooses not to impede error or evil.  And so “the duty of repressing moral and religious error” may be subordinated at times to a “better policy” of promoting “greater good.”  For Pius that greater good was civic peace. 

That may be the best we can do, but that is at best a policy of “prudence,” and it can be sustained mainly by not looking too closely at the “truths” that would underlie the policy.  And to make matters worse, there are fewer principled limits on what the intellectual classes in our own day are willing to regard as a “religion.”

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.