Religious Freedom and the Catholic Intellectual Tradition

Joel Alicea (00:03):
Welcome. Thanks for coming to this event on religious freedom and the Catholic intellectual tradition. I’m a law professor here at Catholic University, Joel Alicea, and co-director of the project on constitutional originalism and the Catholic intellectual tradition. We’re going to begin with a prayer, as always. In the name of the Father and of the Son and of the Holy Spirit, amen. Hail Mary, full of grace. The Lord is with thee. Blessed art thou among women, and blessed is the fruit of thy womb, Jesus. Holy Mary, and Mother of God, pray for us sinners now and at the hour of our death, amen. In the name of the Father and of the Son of the Holy Spirit, amen.

We have a terrific panel for you today, and it’s moderated by Judge Thomas Hardiman. We are very honored that he’s here to moderate the panel. I’m going to just give a brief introduction, and then hand it over to him, because we want to get to the substance of the discussion. Judge Hardiman is on the US Court of Appeals for the third circuit, where he has served since 2007, and before that, he was on the US District Court for the Western District of Pennsylvania. He attended, I think, Notre Dame for undergrad, and Georgetown for law school, and is widely regarded as one of the most respected jurists on the federal bench today. So it’s a great honor for us to have him here with us to moderate this discussion on religious freedom and the Catholic intellectual tradition. Judge Hardiman, please take it away.

Thomas Hardiman (01:24):
Thank you, Joel. It’s my pleasure to be here. Thank you for the invitation. It’s an honor to be with these two distinguished professors, Miller and Moreland. First time meeting Professor Miller, known Professor Moreland for some time. So it’s my honor and pleasure to be with them. The way we’re going to proceed is that Professor Miller will make remarks initially, followed by Professor Moreland. I will then perhaps ask a couple follow-up questions, but we’re eager to hear your questions as well. I know both professors and I would be thrilled to hear questions in response to their comments from you students.

So without further ado, let me introduce briefly Professor Robert Miller, who is the F. Arnold Daum chair in corporate finance and law, and the associate dean for faculty development at the University of Iowa College of Law. Professor Miller is an elected member of the American Law Institute, and has fellowship affiliations with NYU Law School and the Antonin Scalia Law School at George Mason University. Prior to entering the academy, Professor Miller practiced law at a small firm in New York, Wachtell Lipton. Professor Miller, take it away.

Robert Miller (02:44):
Thank you, and thank you for the invitation to be here today. It’s an honor to speak at Catholic University at the Columbus Law School. So the question I’m going to talk about for the next few minutes is, what does the Catholic Church teach about religious freedom? Now, immediately, there are two issues there, because you can ask, “Well, what do you mean by the Church teaches?” And once you settle that, once you get clear about what it means to say that the Church teaches something, then the question becomes, in the relevant sense, “And what has the Church in fact taught on religious freedom?”

Well, as a matter of Catholic theology, there are at least two ways in which the Church teaches. I’m alighting over some details here, but the basic two ways are these. Sometimes the Church teaches de fide of faith, and other times it teaches merely what’s called doctrina Católica, Catholic doctrine, in the proper sense. So what are the differences between those? When the Church teaches de fide, it is teaching a doctrine that it is teaching to be irreformable, that is to say unchangeable and therefore infallible.

You can think of very clear examples of these. When Pius IX taught in 1854 that the Blessed Virgin was preserved from original sin from the first instance of her existence, the doctrine of the Immaculate Conception. He did it in a document where he said, “By the authority of Jesus Christ, by the authority of St. Peter and St. Paul, and by my own apostolic authority, I hereby define to be held by all Catholics everywhere.” And then he states the doctrine of the Immaculate Conception. This is an instance of teaching de fide, using what’s known as the extraordinary magisterium of the Church. As the example suggests, it’s not something that happens often. Pius XII taught the doctrine of the Assumption in 1954 using the extraordinary magisterium, and some propositions from some ecumenical councils when appropriately confirmed by the pope are also taught by the extraordinary magisterium.

There’s also something known as the ordinary magisterium, but it turns out not to figure very much in what follows, so I’m going to skip by that. Everything not taught de fide is taught as being Catholic doctrine. Catholic doctrine is not irreformable, it is not taught infallibly. It is therefore taught as something that can and in some cases clearly has changed. I’m sure you all are familiar with Pope Eugenius IV. In 1439 if memory serves, Pope Eugenius IV issued a document called Exsultate Deo, in which he said that the matter of the Sacrament of Holy Orders includes the patent and the chalice, as used at mass.

Well, about 500 years later, in 1947, Pop Pius XII, in a document called Sacramentum Ordinis, said, “No, that’s not correct.” The matter of the Sacrament of Holy Orders is only the imposition of the hands. You don’t need a chalice and a patent. Which seems to be pretty correct, because you could imagine St. Paul imposing hands on all the presbyters he installed in the churches he founded, but it’s a little hard to imagine him also coming out with a patent and a chalice at the same time.

So we have here a clear example of Catholic doctrine that has changed on something quite important, right? The matter of a sacrament, the Sacrament of Holy Orders. Now, what has the Church taught in these various ways on religious freedom? Well, in the 19th century, a series of popes, Pius IX, Leo XIII, Gregory XVI, taught a doctrine which would nowadays go into the name of integralism. And that doctrine, which came in a few people in cyclicals, the most important of them being Pius IX’s Quantum Cura, but also Leo’s Immortale Dei, essentially says that ideally, the documents recognize it might not always work out that way for good reasons in practice, but ideally the state should be confessional. It should be an expressly Catholic state, a state in which Catholicism is the official religion, and in which the state uses its temporal power to impose civil penalties on those who offend against the Catholic faith. So for example, Catholics who become heretics, or non-Catholics who go about teaching their doctrines in ways that are threatening to their church could be suppressed by force.

Well, this is not a doctrine that you could imagine commands much respect today, even in the Church, and for excellent reason. Because at the Second Vatican Council, the council issued a document called Dignitatis Humanae. Dignitatis Humanae says, in so many words, “This Vatican Council declares that every human being has a right to religious freedom. And this right is based not only on revelation, but on the dignity of the human person, and that no human power may rightfully coerce people in matters of belief,” with a savings clause to prevent things like human sacrifice and so on. Due respect to public order. So what’s going on here? You have, it would seem, a clear contradiction between the 19th century teaching and the 20th century teaching.

Well, I think, and I think most scholars think, that the answer to this is quite simple. Both doctrines were doctrina Católica. Neither was ever taught as de fide. And there’s good reason for thinking this. The 19th century popes taught their documents in encyclicals. Pope Pius XII in his encyclical, Humani Generis, says that the normal teaching in an encyclical is doctrina Católica, not de fide. Even the Second Vatican Council’s doctrine, it’s a doctrine from an ecumenical council, but it seems to lack all the solemnity necessary for a de fide teaching. It too is doctrina Católica. What we taught as doctrina Católica in the 19th century was one thing. Upon further reflection 100 years or so later, the Church taught something else.

This was the position of John Paul II who repeated the doctrine from Dignitatis Humanae in his encyclical, Centesimus Annus, and it’s the express position of Pope Benedict XVI who said in his Christmas message in 2005 that the Second Vatican Council corrected certain prior doctrines, and in context it’s clear what he’s talking about. So that seems to be a very straightforward point of view. There is a minority point of view among contemporary integralists who hold that those doctrines back in the 19th century were actually taught in de fide, at least the ones from Pius IX, in Quantum Cura. The other documents don’t even come close to looking like they might be taught de fide, so they tend to concentrate on Quantum Cura.

If you take that view, you run into a lot of problems because then you have to say, “Well, what about all these later teachings from the Second Vatican Council and popes thereafter?” One side, perhaps the most radical side, says, “You see, this just proves that those later teachings were illegitimate and maybe the council was illegitimate, and maybe these people aren’t real popes,” and so on. Therein lies the way to perdition. Or at least almost as bad from an intellectual point of view, is the view that says, “Well, those documents are actually perfectly consistent.” You say, “Well, how could that be?” Well, if you are law law students, you’re all familiar with how litigants in a case could take a contract that seems perfectly clear, it means one thing, and by the time you litigators are done with it… I was a transactional lawyer. By the time you litigators are done with it, it means the exact opposite of what everyone in the room knew it meant when we signed it.

So there are interpretations of Dignitatis Humanae that attempt to do just that, to give it a meaning that would’ve astonished everyone, both the bishops who voted for it and the bishops who voted against it. Nobody thought that’s what it meant, but you will hear modern integralists produce an interpretation where the document says, “No human power may coerce in matters of religion,” to mean, “Well, you see, the Church isn’t a human power. The church is a supernatural power. So they didn’t say that, but what they really meant when they said ‘no human power’ is they meant parentheses, ‘but not the Catholic Church’.”

If you’re familiar with the law of fraud, this is what we would call fraud by omission, when you omit to state a material fact that makes what you have said highly misleading. So there’s this interpretation of Dignitatis Humanae that reads out the Catholic Church from the clear meaning of the text. So where’s the moral in this story? The moral in this story, I think, is this. As Catholics, we should be minimalists on what we treat as de fide. It is an extraordinary thing for the Church to teach de fide. It is smart that it is this way. The church doesn’t teach de fide except when it really has to. You have areas in the Arian heresy, “Okay, we need to call a council and make sure we get the christological doctrines correct in 323 AD,” to put down the Arian heresy.

But if you don’t need to teach de fide, you don’t. So we should be minimalist on what looks de fide. The doctorate actually is, unless it is manifestly evident that something’s been taught de fide, it is not de fide. We should be maximalist on what is doctrina Catolica. And this hopefully would also lower the decibel level in some of our intra-church arguments. If someone disagrees with you about Catholic doctrine and it turns out that it’s not something de fide, but really something that’s doctrina Catolica, the stakes are a lot lower and hopefully the acrimony level can go down too. So that in, I hope, within eight or nine minutes is what the Church has taught on religious freedom.

Thomas Hardiman (13:34):
Brilliant. Brilliant. Well, I think we can all say we are for the acrimony being tapped down, so that’s a great way to end. Thank you Professor Miller. Professor Michael Moreland is university professor of law and religion, and director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at the Villanova University Charles Widger School of Law. Before entering the academy, Professor Moreland served as associate director for domestic policy at the White House under President George W. Bush. He also represented clients in First Amendment, professional liability, and products liability matters here at Williams and Connolly. And he also clerked for Judge Paul Kelly on the United States Court of Appeals for the 10th Circuit. Professor Moreland.

Michael Moreland (14:26):
Thank you Judge Hardiman. It’s great to be with you and with my friend Robert Miller at this event. Thanks to Professor Alicea and Professor Walsh and Camden White for the invitation to be here and the work that went into this event. So Professor Miller and I are in rabid agreement about the essentials of the story that he has stated. So I will just add a few things and amplify a few points, and make four points, one about historical contingency in the history of church state questions, another one about corporate religious freedom, a third a particular issue within corporate religious freedom, and then finally a note about culture.

So as Professor Miller’s remarks indicated, I think it’s important to underscore the ways in which questions of church and state, and the issue of religious freedom is one such, are at least to some extent, deeply matters of historical contingency, and that it’s a mistake to try to resolve these issues at a high level of abstraction and principle. And that the history of different kinds of societies and nations will result in different ways in which church state issues are navigated.

And I think that that’s something that comes clear from Dignitatis Humanae, which Professor Miller mentioned. And so that’s why the experience of the Catholic Church and the teaching of Catholics with regard to religious freedom in the United States will be different than it is in parts of Europe or parts of Latin America and so forth. I think it’s also worth underscoring the extent to which where the Church has sought to exercise something like the integralist view, or where the state itself has adopted something like the integralist view, to cut a very long story short, that has not worked out well for the Church.

And there are obviously a lot of complicated historical and sociological issues here, but the experiences of places like Quebec, Ireland, maybe to a lesser extent Italy and Spain, are I think illustrative with regard to the ways in which too close of relation between the Church and the exercise of political, in the narrow sense, political authority has been fraught. And again, there’s a lot to say about that. You have many experts on that issue right on this campus, Russell Hittinger for example, and so you can consult their writings if you want to learn more about such issues. But that’s one thing I want to say.

The second thing that I want to amplify about Dignitatis Humanae is that as Russel Hittinger pointed out in an article some years ago, there are two aspects, two teachings, if you will, really, to Dignitatis Humanae. One is what he calls a kind of moral vector, and that is the recognition in Dignitatis Humanae, based in human dignity, of a right to religious freedom, the right of persons in conscience to seek the truth about God and about religion. And that’s what gets the headlines. That’s as a work the novelty of Dignitatis Humanae, and the thing that if people know much about it, they know that.

But the second part of the document, and I think this is something that is sometimes neglected both in the Catholic discussions of these issues and in wider legal context such as in a law school like this, is what Hedrick calls the ecclesiological or ecclesial dimension of religious freedom. That’s the second part of Dignitatis Humanae. That is to say, the freedom of the Church. It’s one thing to say, as the document does, that individuals have a right to religious freedom, but there’s a second equally important claim, indeed as he points out in that article, a claim that’s prior historically and philosophically, a claim of the Church as a corporate entity to pursue its mission unfettered by the state, and not constrained in important respects by the state.

Obviously there’s some complicated questions at the margin there, but I think that’s an important thing to underscore, especially in an American context where I think, refracted through the First Amendment, we think of religious freedom as preeminently a right of individuals. A right of an individual to worship as he or she sees fit, to believe what he or she wants to believe about religious matters, to act on those beliefs under free exercise. But I think it’s also important to underscore this corporate dimension of religious freedom that Dignitatis Humanae calls forward, and really has echoes back in many centuries in this principle of libertas ecclesiae, the freedom of the church.

And those of you who’ve taken a course in the First Amendment, or constitutional law more generally, know that this is reflected in contemporary First Amendment law in areas such as the ministerial exception, the right of the church and other, not just Catholic Church, religious institutions generally, with regard to those who perform a significant religious function in that institution, for the freedom of the religious institution to make employment decisions about who those ministerial employees will be or won’t be. And that’s my second point.

Third point is one particular area in which I think these issues of church state and religious freedom have enormous import, and that is in the context of education. I think it’s not surprising that all of the US Supreme Court’s major decisions on the ministerial exception have been in the context of teachers. That is to say, those who are hired or dismissed by a religious institution who perform the significant religious function of instructing young people, including those of you at law school, those who perform that function with regard to passing on the faith in those settings. And indeed, in the larger history of church state questions in Europe and elsewhere, the question of whether or not the Catholic Church will be free to have schools, and what kinds of schools it will operate is an important consideration.

Indeed, this is a trivia question you can trot out at your next event, the only time a US Supreme Court decision has been cited in a papal encyclical was in the encyclical of Pius XI on Christian education, in which he cites to Pierce versus Society of Sisters, the case in which the Supreme Court held that there is a substantive due process right of parents to send their children to non-public religious schools. So that’s an important dimension of that corporate religious freedom right, that is to say, the issue of education.

Finally, I want to end on a note about culture and why I think in the backdrop of the doctrinal issues that we’ve been talking about, there is an enormous importance to this question of the culture in which these issues about religious freedom are debated. And I want to mention by the way, the Jesuit author John Courtney Murray, who if you’ve read in these areas, you know that he’s sometimes deemed either the heroic or not-so-heroic figure who whispered in the ears of some bishops in the run up to the Second Vatican Council, and was able to be in some ways the intellectual architect of Dignitatis Humanae. And again, there’s a long complicated story to tell about that. But there are different aspects to Murray’s work. And one for instance is that he was an early, and I think quite trenchant critic of the US Supreme Court’s emerging establishment clause jurisprudence in the 1940s and 1950s, and in some ways he’s been vindicated in his skepticism about that in recent years.

But another aspect of Murray, besides his work on interpreting Leo XIII and Robert Bowerman and other figures that went into the, as I said, the intellectual architecture of what emerged in Dignitatis Humanae. Another was an anxiety that Murray had, a more, if you will, conservative side of Murray, so that he isn’t just reducible as sort of a Catholic John Rawls or something like that, but a real anxiety that Murray had about, as he called it, the conditions of a civilized, pluralistic society. The inability of people to reason together in ways that are productive, in ways that are respectful, in ways in which those “threat of barbarism” that he talks about in the forward of his famous 1960 book, “We hold these truths, the dangers of the threats of barbarism,” in our public culture and the threats that that poses to our life together as Americans, but including Catholic Americans.

And so I think it’s fitting that at a program like this and in a Catholic institution like this, that we focus on those issues, of what’s the kind of culture that Catholic institutions can create, both within themselves but also as leaven for the wider pluralistic society of the United States in ways that can be respectful… The religious freedom can be respected. Because I think one of the things that is quite prominent today is that on the one hand, if you think of Supreme Court doctrine with regard to religious freedom, it’s never been better. In some ways the Supreme Court has been very protective, notwithstanding Employment Division versus Smith and cases like that, that nonetheless, with regard to for instance, access to public funding by religious schools and other kinds of contemporary questions in church state matters, the doctrine on those issues is quite strong today.

But I think on the other hand, on a more pessimistic note, the culture with regard to respect for religion and the strength of religious institutions, I think is very much, very much in doubt today. And that I think echoes that worry about culture that figures like Murray, who were on the one hand architects of this story that Professor Miller told about the lead up to Dignitatis Humanae, but also on the other hand, worried as Catholic intellectuals, as those of us working these institutions today should, about what kind of culture is necessary to sustain that commitment to religious freedom that the Council endorsed.

Thomas Hardiman (24:47):
Terrific. Thank you Professor Moreland. Would you like to respond at all, Professor Miller?

Robert Miller (24:52):
Only to say first that my friend Professor Moreland and I are indeed in heated agreements about everything. I would amplify one point, which is this. Professor Moreland started off talking about how religious freedom isn’t just an individual right, it’s also a corporate right, it’s the right to form churches and meet with your co-religionists and to propagate your religious doctrines and so on. I think it’s important to see that that is not something peculiar to religion, right? All the way back to Aristotle, Aristotle says human beings are social animals. That means that pretty much everything we do, we do together and in groups. So what good is the right to sexual freedom if it doesn’t include the right to form a family? What good is the right to advocate for the environment if you can’t meet with like-minded people and form the Sierra Club to do it effectively?

I’m a corporate lawyer. What good is the right to economic activity if you can’t form business firms, right? What you can do economically all by yourself is extremely limited. You need to organize large numbers of people working together to accomplish pretty much anything of large economic significance. And that’s true about religion too. It’s built into human life. This is not a weird one-off thing that people in favor of religious freedom are asking for religion. It shoots through everything in human life, and it just shows up in religion as well.

Thomas Hardiman (26:15):
Well, you both adverted to integral, and as I’m sure many or all of the students are aware, there’s been a lot of discussion in Catholic legal circles among lawyers and academics over the past five, perhaps 10 years on this topic, which has sort of been put under the umbrella of common-good originalism. Is that something that either one of you care to talk about? Do you view that movement, if you can call it a movement, as posing any sort of threat that would be counter to what you said, Professor Miller, about where we should be minimalists and where we should be maximalists?

Robert Miller (27:06):
Do you want to take that first?

Michael Moreland (27:11):
Well, I guess just by way of disaggregating the question a little bit, on the one hand, there is… I guess fitting for a program such as this, there is a criticism of originalism in the work of Harvard Law Professor Adrian Vermeule, in his book Common Good Constitutionalism. I commend to a review of that book by Professor Walsh and Professor Pojanowski from Notre Dame. And so that is reacting against… So this is in the lane of constitutional doctrine. In fact, in the book itself, he doesn’t really talk at all extensively about internal Catholic questions. But there is this criticism of originalism and makes various kinds of arguments, but is somewhat reacting against what’s seen as a maybe moral skepticism that certain kinds of originalist theories might be guilty or not of, and makes a set of arguments for an alternative which Professor Vermeule calls common-good constitutionalism.

So that’s the kind of legal doctrinal aspect of the question. Now, the close cousin of that is this view that he and some others advance about the right teaching on church state questions, which is as Judge Hartman says, which is this integralism argument that Professor Miller also mentioned, his opening remarks, that the church should, I guess ideally… And again, I refer to my earlier point about historical contingency, I think it’s not at all clear how this would come about. But that the church should ideally be exercising political authority. Or maybe, stated differently, that the political authority, wherever it might be located, in whatever country, should be expressly in favor of advancing the Church, the Catholic Church, as the one true church. So that’s the lay of the land right now. I think that I’ll turn it over to Professor Miller to offer the criticism, I think on that point we’d probably have a basic agreement.

Robert Miller (29:20):
As usual. Look, Thomas Aquinas famously says that a law is, “An ordinance of reason for the common good made by the authority in charge of the community and promulgated.” So he builds into his conception of law the common good. But I don’t think he understands it quite the way Adrian Vermeule understands it, and he certainly doesn’t understand it the way… Well, at least I don’t think he does, and I’m going to say he doesn’t. That’s my view of Aquinas. He doesn’t understand it the way a lot of contemporary integralists do. And here’s why. In Aquinas’s moral theory, there is such a thing as the human good. It’s the natural end for human beings. This comes out of Aristotle, it comes out of all kinds of, all classical moral philosophy.

But the good for a human being, since human beings are social animals, is partly, not completely, partly, interpersonal. If you’re going to live a good human life, you need to interact with other people in all kinds of ways. But some things you do very much on your own. Contemplate the truth, when you can sit next to somebody else who’s contemplating it as well, but you contemplate on your own. In heaven, you’ll see the beatific vision of God with other people there, but it’s primarily by yourself. So when you look at the law, if the law is about that common good, that means it’s about those aspects of the good that are common, that are shared, that have to do with how human beings interact with each other.

So take a famous example from John Rawls, you have this super talented individual who wants to spend all his time playing tiddlywinks. He doesn’t hurt anybody else, he just squanderers his abilities, doesn’t contribute, is a gigantic opportunity cost as it were, but he doesn’t go out and hurt anybody else. I would say that this guy is acting contrary to his personal good, but not to the common good. And I would think it’s beyond the competency of the state to order him to go be a lawyer or a brain surgeon or to do anything else. If he wants to sit there and waste his life playing tiddlywinks, he can and should be able to. The state doesn’t have authority beyond the common good.

In Dignitatis Humanae, the Council says something also quite similar. It says that aspects of religious belief are beyond the competency of the state, because if someone believes whatever he believes in religion, contrary to Catholic doctrine and acts accordingly, but he’s not killing people, he’s not stealing, he’s not burning down their houses and so on, he might be acting contrary to his own good, but not to the common good. So in my view, there is built into Aquinas’s theory of law and reflected all the way through Dignitatis Humanae, so this natural limit on state power. Your state can come in when people are interfering with the common good, not when they are doing things that are necessarily… That might be bad for them, but have, as economists would say, no serious external effects.

So I think a lot of the common-good constitutionalism, of the kind integrists favor, really is going after things that have no real effect on the common good at all. They might be bad, assuming everything in Catholic theology is true, for the individuals who are doing them, but they don’t have a lot of external effects. And if they don’t have a lot of external effects, they’re not the business of the state in my view, and in my reading of Aquinas.

Michael Moreland (33:00):
Follow-up? [inaudible 00:33:02]

Thomas Hardiman (33:03):
Terrific. Well, hoping to hear some questions from you all… Yes, question.

Speaker 5 (33:09):
About that last [inaudible 00:33:10].

Thomas Hardiman (33:10):
Wait, we’re going to give you the mic-

Robert Miller (33:13):
Wait for the mic.

Speaker 5 (33:16):
Is it working now? Hold it.

Thomas Hardiman (33:18):
Yep, it’s working.

Speaker 5 (33:19):
Okay, thank you. A question about that last point regarding external effects and individual actions. To what degree do individual actions that might not have any apparent external effects, you’re only harming yourself, particularly at an individual level, but then if everyone were to start doing these, only harming yourself activities would start to have sizable external effects because of their quantity. I would take, for example, certain drug abuse.

Robert Miller (33:58):
So it’s easy to come up with activities that sort of straddle the line. So take your typical abuser of drugs. Well, he certainly impairs himself, in any number of obvious ways. But then he might start impairing other people in the most obvious ways if he starts committing crimes to fund his drug habit. Now it’s a clear external effect. Robbery is wrong, whether you’re doing it to fund your drug habit or because you just covet my Rolex. You are sort of imagining the case halfway in between. So you have so many drug addicts that they are, what, sleeping on the street? That can be an external effect if it happens enough. Producing a neighborhood where people are afraid to go because they’re worried about getting robbed by people who need drug money. So that can be an external effect.

It’s hard to draw the line there. I’ll give you something that’s even more pointed, I think, and that’s the pornography industry. In one sense, you don’t like porn, don’t look at porn. On the other hand, most of you people aren’t old enough to be parents, but my wife was talking to a bunch of parents the other day and one asked the other, “Well, what age do you give a kid a cell phone?” And the father answered, “What age do you want your kid to start looking at porn?” That industry makes it extremely difficult for parents to control their children, which we recognize that they should have a right to do, but the technology and other things being such, it creates some kind of external effects.

There are difficult lines to be drawn, and I don’t think that they can be drawn sharply. What Professor Moreland was saying earlier about historical contingency, that’s a really serious point. And I would add technological contingency and a bunch of other things as well. So where the line is as to external effects and so on, that’s hard to say. Just because there are things that are clearly on this side and there are other things that are clearly on that side, that doesn’t mean you get a sharp line in between them. Some things are clearly red and some things are clearly orange, but where the border is in between them is blurry. And I think the same thing is true here. You can think of paradigm cases on each side, but it’s very easy to come up with things that look like they’re right down the middle, and the reasonable people could disagree about whether they’re serious external effects or not.

Michael Moreland (36:17):
To say one point of application, I do think that… I don’t know if we disagree on any particulars, I do think there are ways in which you can understand even so-called self-regarding activities as within the domain of the state’s ability to regulate. Obviously the line-drawing problems as Professor Miller points out are very severe. But I do think that in areas like around marriage and family and so forth, the state has a quite powerful and important role with regard to that. And I think the church and other religious institutions can be a way, as I said earlier, of kind of leavening or contributing to even the state’s own understanding of what should be done in those domains.

And I also think one point I will say that, I don’t know if I agree with the so-called integralists or not on this, but there is a way in which they’ve called attention… Not them alone, but they’ve called attention the ways in which, as they sometimes put it, there’s integralism any way you look. Either there’s going to be integralism on the woke side or on the more conservative side, and the ways in which private power, and the porn industry would be one example, but even less nefarious for us is the ways in which private power is exercised in the contemporary university and contemporary corporate environment and so forth. And ways in which a kind of deracinated view of state authority is, I think in their view, part of the problem that’s then contributed to the engine of cultural formation in ways that are quite hostile to traditional forms of religion. And I think there’s a point there, right? Now, what do you do about it with regard to judicial decision-making and legislating? That’s a much more complicated issue.

Speaker 6 (38:12):
[inaudible 00:38:12] actualism for originalism, though you made me realize I hadn’t thought about the Church having religious freedom laws within the Church, as it applies to the Constitution. As a political writer, I’ve been sharing things like if you read the ninth word of the Constitution order as a noun, which partly capitalized, it’s “in order to form”. Use it as a noun, everything else sort of falls more in place for religious liberty, especially later that it says, “It’s done, subscribed in the year of our Lord.” So [inaudible 00:38:46] would be the point that Jefferson didn’t write the Constitution.

But as you were bringing up the First Amendment, religious institutions you were using, but the establishments there seems to mean scripture. Like they’re saying there’s no divine right of kings in the Constitution, that’s how it’s more perfect. So I’m wondering how all this would fit, if the Constitution is actually saying the federal government is allowed to change Lord’s laws, by saying make any law respecting an establishment of religion, they’re saying they can’t change Lord’s laws. That stays a local power. So I’ve had this out in public writing now for years, so it’s been helping some of the politics, but it’s just structurally, it gives you a religious freedom that wouldn’t come from Jefferson, but someone wrote the Constitution better than it’s read, probably better than it’s been allowed to read. So it’s just on the textualism, I wasn’t sure if any of you are dealing with any of that getting into your stuff already, or…

Robert Miller (39:45):
So there’s a lot there, and I’ll make one point and then hopefully Michael will make some more. I guess I am a textualist, but more in the mode of Richard Epstein than of Justice Scalia. I think that the Constitution has to be understood against the background of widely accepted principles of natural law as they were understood at the founding. This is obvious in some ways. If the Amendment says, “due process of law,” well obviously that appeals to a whole bunch of practices that existed. It appeals to a whole bunch of different types of notions about what’s a fair process and so on.

So I would think that in reading any constitutional provision, it would be done against widely recognized principles of natural law, and that would include prohibitions on… Rights in favor of religious freedom or limits on the power of the government to establish a religion. And I think that’s consistent with Dignitatis Humanae too, because it goes out of its way to say that the right to religious freedom is not based just in revelation, but also on the dignity of the human person, which takes us right in and even says “reason”. So that takes us right into the natural law tradition there.

Michael Moreland (41:14):
Yeah, there is a lot in your question. I guess just specifically on the point about establishment, to underscore what Professor Miller said, I think that originalism when done well, like at this center, it incorporates not just a kind of crude textualism but also incorporates principles from the natural law, from tradition, and from ongoing precedent and so forth. And so I think, when we talk about establishment, I think that’s an important part of the consideration. I think one issue where actually Murray, of course, was the one who argued that the Church could accommodate itself, as it were, to something like the American First Amendment because as he said, these are articles of peace, it’s not an article of faith, it’s not trying to secularize the state.

I think one problem with regard to non-originalist approaches to establishment, which again he was a trenchant critic of, starting with Everson in 1940s, was that through the ’40s through roughly the ’80s, the Supreme Court had a rather hyperactive sense of separationism, and that was the dominant and overwhelmingly dominant understanding of what establishment meant. And because of the efforts of originalist scholars, the Supreme Court has in my view quite rightly undone some of that doctrine and has recognized with regard to the text history and tradition, the establishment clause, that it means a bit less than what some of the cases that restricted funding and so forth in 1970s thought it did.

Speaker 6 (42:53):
One thought I wanted to add, I’d forgotten that is-

Thomas Hardiman (42:55):
[Inaudible 00:42:57].

Speaker 6 (42:58):
Thanks. Consistent to both views, [inaudible 00:43:01] what I meant to put in there was, if you look at the founding and the ratification as the founding wasn’t in blasphemy, that the grammar and the words in there are moral. And we’re also trying not to have a divine right of kings, we’re giving people the power to self-regulate with religion locally. It meeting your cultural history would then be that the one thing the founders didn’t do was commit blasphemy in how they set it up. And that would be, where do you find the meaning by saying they aren’t going that far?

Robert Miller (43:32):
I will, for the founders weren’t blessed.

Michael Moreland (43:34):
Yeah, I want to say about the point about historical contingency as well, and I think this is consistent with Dignitatis Humanae and principles of religious freedom, there can be different forms of establishment or non-establishment consistent with the church’s teaching. So my family and I were recently in England for example, so they have an established church, arguably not working out particularly well for the Church of England right here and now. And for a long time that was very not only offensive to Catholics, it was persecuting of Catholics. But nowadays, but mass in England, they routinely pray for the king.

And so I think there are ways in which you can say, well, okay, that kind of soft establishment of religion because of a matter of culture and history and what the Church of England has meant to the national history of England, that can be accommodated within the framework of Dignitatis Humanae, but that’s not the American experience. And I think that for the reasons that Murray argued, I think that the church can not only accommodate itself to that, but in some ways he argued that the church was better off, even, in a regime in which it wasn’t exercising the levers of political power.

Speaker 7 (44:47):

Thomas Hardiman (44:51):

Speaker 7 (44:54):
Professor Moreland, you mentioned the unique time we’re in where the court’s law regarding freedom of religion is very strong, and yet the culture is different than that and the regard for freedom of religion is very weak. Do you think the latter, the culture, has either consciously or unconsciously led to the court being more willing to protect, considering its role protecting minorities?

Michael Moreland (45:25):
It’s a good question. It’s hard to read into the minds of judges and justices. I do think that with the expanse of the power of the state through regulatory means, and at the same time then the threats posed to religious institutions and persons with regard to free exercise of religion, I do think that maybe to some extent in the background that has led to a more acute appreciation than was, say, maybe true in 1990 when the Supreme Court decided Employment Division versus Smith, which those of you who have taken a constitutional offers amendment course know, that’s ratcheted down from the prior regime. The levels of scrutiny to which burdens on free exercise are subject.

And so to some extent maybe in the background culture there is this awareness that there are these threats to religious freedom. But I think as I said, I ended on a somewhat pessimistic note because I do worry somewhat for reasons that, for example, I commend you the Justice Alito’s remarks at the Notre Dame Religious Liberty Summit in Rome a couple summers ago in which he made remarks about this issue as well, about the ways in which the appreciation for religious freedom depends upon a culture in which religion is valued and respected. And you only have to look at the Pew data for example… The foundation, not pews to sit in. The Pew data. The Pew data about basically the rapid disaffiliation for religion, and what kinds of cultural effects that will then have on the law with regard to religious freedom, I think is a very vexed and problematic question.

Robert Miller (47:15):
Professor Moreland makes this really good point. The more the government expands, the more likely it is to come into contact or collision with religion or other people protecting other types of freedoms. So traditionally and for a long time, even prior to the New Deal, government regulated insurance companies, because insurance companies are very prone to become Ponzi schemes. They take money from policy holders, they hold it for a long time and then they return it. So you want to regulate insurance companies for reasons similar to regulating commercial banks.

It’s quite another step to regulate insurance companies by telling them, “If you sell an insurance policy, then you have to include certain coverages in it.” One is a purely financial regulation, “If you sell an insurance policy, we want to make sure you have the money to pay out to cover whatever it is it covers.” It’s quite another step to say, “If you sell a health insurance policy, it’s got to cover artificial birth control,” right? It’s when the government goes that further step that you end up with Little Sisters of the Poor.

Michael Moreland (48:15):
Right. The cultural transformation… Actually at Williams and Connolly, I was on a cert petition that was not granted, at a case coming out of California involving a contraceptive mandate that was applied to employers. So this is a kind of forerunner to the Affordable Care Act mandate. But it was striking that in the 1960s the question was whether or not the state could prohibit the purchase of contraception. 30 or 40 years later, the question was could the state require religious institutions to pay for contraception to which they had moral objection? And that’s the kind of rapidly changing culture which I think these questions are being litigated and discussed.

Speaker 8 (49:05):
This question is a little hard to formulate, but I was really interested in your thoughts on the distinction between a community and the state. Because on the one hand that’s obviously very important to religious freedom, because you have the religious communities and the state can’t tell them to do things. But on the other hand, we’re a democracy, and I feel a lot of anxiety and I think a lot of people feel anxiety about alienation from the state. Because it’s supposed to be self-governance and all that, so I feel like there should be in some… This contradiction between the democratic ideal where the state and the community have a very small distinction, and this libertarian ideal where there’s a very large distinction between the community and the state. And I was just curious about your thoughts on that.

Robert Miller (50:01):
There’s a lot there, I’ll give you one thought about it. If you ask me, I think one of the key mistakes people make is they tend to think of a state like a big family. The thing about families is that they, hopefully, members of the family care about each other. They’re willing to undertake big sacrifices for each other. In economic terms, they have highly interdependent utility functions. That does not scale up to a country of 350 million people. So rules that work in small communities are necessarily not going to be the same kind that work in even a corporation with a couple hundred people working for it, let alone a country with several hundred million citizens. You got to keep scale in mind, and the type of rules that work in one situation, the small ones that we’re all familiar with and we really like, are almost certainly not going to be ones that tend to work when you scale up by many, many, many orders of magnitude that way.

Speaker 8 (51:03):

Michael Moreland (51:03):
There’s a lot there, but I think one of the insights of the Catholic tradition with regard to politics is, the state society or state community fuel distinction. And that the state is that part of the social order that exercises coercive political authority, but that its relationship to the common good, to discuss an earlier point, is… And here this is a contested point, and again, you have people on this campus like Brad Lewis who worked a great deal on this. But I would follow John Finnis in saying that the relationship of the common good to the political of the authority of the state is an instrumental one, that it’s not a full-on substantive one, and that that’s a mistake then because that collapses the community or society state distinction. And so that all of the common good becomes subject to the coercive power of the state. And I think that the Catholic tradition has at its best tried to resist and distinguish those things.

Thomas Hardiman (52:05):
Are your views about the coercive power of the state consistent at every level of state? You mentioned 300 plus million people. Obviously the scope, the scale, the power of federal government is quite different than the scope scale power of a local township. I’m curious whether your views are on a sliding scale in that regard, or do you take a more Aristotelian view of the family being the first unit of government and having powers, private powers, that the state should never be able to exercise, whatever level of subsidiarity you’re talking about with the state.

Robert Miller (52:54):
So as a father of a 12-year-old boy, I wish I had coercive power, I’d just like to say. I most certainly have discovered that I do not. No, I think Professor Moreland had it exactly right, what’s distinctive about the state is that they have the guns, right? They have the ability to enforce by force certain things, and it turns out that to run a society, you need somebody who can do that sometimes. You need them to stop murderers and thieves, and you also need them to enforce contracts when people who lose a contract case feel like not paying when ordered to do so. How you organize it within, I think I’m going to let Professor Moreland talk about subsidiarity, which he knows a lot about.

Michael Moreland (53:36):
I think subsidiarity is the Catholic intellectual tradition’s answer to at least aspects of that question. Of course, it doesn’t map directly. There’s a tendency maybe, in the American context, we think of subsidiarity as basically as federalism, as an applied instance of it. And I think there are ways in which subsidiarity is properly understood, both means devolving power to lower units, but also when necessary, for example, national defense and other things, also the higher authority having the rightful exercise in those areas.

I do think that one aspect of federalism that is I think missing, often, is this understanding though that yes, the federal government is a government of enumerated limited powers. The states have all the reserved police powers as traditionally said, which it would include, consistent with the Constitution and so forth, but which would include perhaps different heads of ways, in certain domains, of organizing society so that, especially in a country of our scale, that Massachusetts and Oklahoma can have different regimes with regard to, let’s say, things about family policy or other issues. And I do think that that’s a way in which subsidiarity, however imperfectly, somewhat captures that insight of those who are closest to a decision having the authority to make it and having more authority to make it.

Thomas Hardiman (55:18):
Oh, sorry.

Speaker 9 (55:22):
In the context of religious freedoms, is originalism best defined as a combination of textualism and original public meaning? Or is there some sort of other criteria, you’d say?

Michael Moreland (55:34):
You should answer that.

Robert Miller (55:36):
That might actually be best directed to you, Judge. My view is I think all originalism should be original public meaning, I think that’s the best account of originalism. But it’s the original public meaning of the text, of course, right.

Michael Moreland (55:49):

Thomas Hardiman (55:51):
And your question was original intent versus public meaning?

Speaker 9 (55:55):
Kind of like a combination of both, because I know originalism is its own hybrid of the two to an extent. Or if I’m wrong-

Thomas Hardiman (56:01):
Well, I mean, it’s… Talk about a contested point. But I can just tell you as a matter of historical fact, when I was sitting where you are now, 32 years ago, 33 years ago, there was incipient talk of originalism and it was heavily weighted, if not exclusively weighted, if I’m remembering correctly, toward original intent. And that has been, I don’t know… The pejorative would, you could say that that approach has been routed by original public meaning originalism. The less pejorative way to say it is that it’s been updated or modified or improved, one might say.

But clearly when you read Supreme Court opinions now, it would be quite rare to see a justice authoring an opinion, including Justice Kagan or so, or any of the nine. It would be quite rare to see them starting an opinion by saying, “At issue in this case is this law, and here are some speeches made on the floor of Congress expressing the intent of this law.” That’s just not what you’d find in opinions. You find, “Here is this law and here are the words of this law, and here’s how we interpret the words of this law.” And so too with constitutional adjudication. It’s not, what does Madison’s notes at the debates of the convention say about this? It’s rare they drill down to that level. It’s much more focused on the constitutional text or the statutory text.

Michael Moreland (57:46):
And with the greater religious freedom, of course, there can be, and there are disagreements even among originalists, if you read the decision Employer Division versus Smith by Justice Scalia, or the concurrence disagreed by Justice Alito in the Fulton case few years ago, which disagrees with that. The debate between Professor McConnell and Professor Hamburger about free exercise and original understanding. I think the important thing is, though, that they’re all asking the right question. From an original standpoint, it’s not a kind of, all things considered what would be the best regime of religious freedom? But as in a constitutional republic, the question is, what does that clause mean as a matter of original understanding? And then complicated issues about what role precedent and tradition play in it. But at least they’re all asking the right question, even if within the schools of originalism there are disagreements about what a free exercise actually means, as there are right here today.

Thomas Hardiman (58:39):
I’ll add, it’s a conceit to suggest that originalism conduces to simple answers to complex questions. That’s just not the case. And the reason we know that is that several adjusters who have called themselves textualist originalists quite frequently come to different conclusions, in many cases. You’ll see that all the time these days. So there’s always room for people of goodwill to disagree in the hard cases, even if they agree on methodology.

Robert Miller (59:09):
But if it’s seen that, of course, as a selection bias problem, right? The easy ones don’t end up in front of you-

Thomas Hardiman (59:14):

Robert Miller (59:15):
… much less in front of the Supreme Court.

Thomas Hardiman (59:16):

Speaker 10 (59:18):
That’ll have to be the last question. So please join me in thanking our panel.

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