Works By John Courtney Murray, S.J.

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Religious Freedom and the Atheist1

John Courtney Murray, S.J.

After the council, in the context of the Christian-Marxist dialogue, Murray shaped two distinct arguments for entry into such conversations. Those two arguments will be discussed below. Here Murray affirms the valid entry that the atheist has within American constitutional law and within the Christian constitutional perspective of Dignitatis humanae. Previously, in his commentary to the latter, Murray had claimed that Dignitatis had included the atheist within the right of religious immunity (1966i: The Documents of Vatican II, 678, note 5). And, in response to the reception of the "Thomas Jefferson Award for Conspicuous Service in the Cause of Religious Liberty," Murray called for a continuing conversation concerning human dignity, a conversation that "will be broadened to full ecumenical scope—to included Christians and Jews, humanists and atheists alike" (1965a: "Acceptance Speech," 12). In the following article, Murray suggests that the sociological causes of atheist-Christian conflict must be fully examined, in order that the more theological roots of atheism and belief might be distinguished and dialectically examined—Editor.

During the tortuous passage of the Declaration on Religious Freedom through four years of conciliar procedure several efforts were made, notably by French bishops, to include in the text specific mention of the rights of the atheist. The efforts met opposition within the Council, and in the end they were defeated. The official reason given by the competent Commission, the Secretariat for the Promotion of Christian

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Unity, was that no explicit mention of the atheist was necessary. His immunity from coercion in religious matters was sufficiently guaranteed by the meaning that the successive schemata intended to give to the word "conscience" in the assertion that no one is to be forcibly constrained to act against his conscience or forcibly restrained from acting according to his conscience. The word was not to bear only the technical sense that attaches to it in ethical and theological literature, that is, moral conscience informed by specifically religious belief in God. It also bore a wider sense. It was meant to include any man's personal and intimate convictions or persuasions, whatever they might be, with regard to the ultimate questions of human life—questions that transcend the order of politics and of human society in general. Therefore it included convictions that were non-religious, simply humanist, or even atheist. Hence it was within the intention of the Council to proclaim the religious freedom, not only of the believer in God but of the atheist.

Behind this stated reason lay an unsteady and rather confused feeling that it was not seemly for a conciliar document of the Catholic Church to defend the rights of the atheist. In turn, this feeling seems to have been motivated by an unwillingness to affirm the equality of belief and unbelief even in civil society and in the face of human law and government. Would not this affirmation entail the further affirmation that the State—the order of law and government—should be neutral as between religion and atheism? This was the conclusion from which many of the conciliar Fathers shied away.

The long shadow of the Church's nineteenth-century struggle with Continental laicism and its deceptive conception of the religious neutrality of the State hung heavily over the whole conciliar argument about religious freedom. This is why the final text, at the instance of many Fathers, was amended to include this statement: "Civil government, whose proper purpose is to care for the common temporal good, ought indeed to recognize the religious life of the citizenry and to show it favor" (n. 3). This is also why the final text includes the further statement that government is bound not only to protect religious freedom but also "to provide conditions favorable to the furtherance of religious life" (n. 6).

These statements are studiously vague. How should governmental recognition and favor of religion find transcription into constitutional law and legislative policy? What concrete actions should be taken by government toward the creation of conditions favorable to

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religious life in society? The Declaration deliberately refrains from answering these questions. Particular answers to them will depend on given historical circumstances, religious and social. These questions themselves concern the measure of cooperation that should obtain between government and religious forces in society. In this difficult issue the Council is content to state the broad principle that a flourishing religious life belongs to the common temporal good of society. It is necessary "in order that society itself may enjoy the benefits of justice and peace which flow from the fidelity of men toward God and toward his holy will" (n. 6). Consequently government, in virtue of its duty toward the common temporal good, has a duty toward religion in society.

So far the Council is merely recalling the traditional Catholic principle upon which Leo XIII, for instance, insisted endlessly and at length. However, the Council is also obeying, here as elsewhere, the maxim of Leo XIII: "Vetera novis augere atque perficere." New norms are laid down for the discharge of the duty of government toward religion. First, from the context of the Declaration as well as from the whole context of the Council, especially its Decree on Ecumenism, it is clear that "religious life" in the statements cited must be understood in a broad ecumenical sense. Hence the Council goes beyond Leo XIII, for whom "religion" uniformly meant only the Catholic religion. Within his own historical context he defined the duty of government as a duty toward the Catholic Church as the true Church and as the one Church of the people in the Catholic nations so-called. Within the much broader historical context of Vatican II this understanding of the matter gives way to a much broader understanding.

Moreover, the Council lays down three further norms for the cooperation of government with religious forces in society.

First, government is not to exceed the limits of its own competence, which is confined to affairs of the temporal and terrestrial order (cf. n. 3). The Declaration does not draw out in detail the consequences of this political principle. (The conciliar Fathers were oddly reluctant to make much use of the political argument for religious freedom, scil., from the notion of limited constitutional government; they seem to have considered it "too American.") Nevertheless it is clear that the Declaration deprives government of the classical prerogative claimed by the Christian princes of old, call "cura religionis," the care of religion itself—the care of religious truth, ecclesiastical discipline, and the religious unity of the people. These are affairs of the

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transcendental order; they are now put beyond the reach of government. The competence of government can extend only to what may be called the secular values of religion—such values as affect the common temporal good. It extends also, and primarily, to the freedom of religion; for freedom in all its forms, especially in the form of religious freedom, is a secular value. John XXIII made this clear in Pacem in terris when he expanded the traditional trinity of social values—truth, justice, and love—to a quaternity, by adding the value of freedom, both as a social goal and also as the political method par excellence.

It would be in accord with this development to say that the "conditions for the fostering of religious life" which government is bound to assist in creating are simply conditions of freedom in society—conditions within which, as the Declaration says, "citizens may effectively exercise their religious rights and fulfill their religious duties" (n. 6). So too government favors religion in its own proper way when it favors the freedom of religion. The Declaration does not explicitly say this, but the statement is within its total sense.

The second norm which limits governmental action in recognition and favor of religion is the principle of religious freedom, including the freedom of the atheist. It follows that the favor shown to religion is not to entail any discrimination against the atheist. This conclusion is enforced by the third conciliar norm which requires that government should see to it that "the equality of citizens before the law, which itself belongs to the common good of society, is not infringed, either overtly or covertly, for religious reasons, and that no discrimination among citizens is practiced" (n. 6).

It is hardly necessary to insist on the newness of these norms for governmental action in favor of religion. They are clearly a development beyond the doctrine of Leo XIII—a development occasioned by the new perspectives of Vatican II. In consequence of this development the doctrine of the Church places the atheist in a historically new legal situation within society. It should be immediately added, without further comment, that in this respect as in others the Declaration on Religious Freedom merely brings the Church abreast of the personal and political consciousness of civilized mankind today, which has long since accorded to the atheist, as also to the Jew, the full status of citizen in the body politic. Nonetheless, from the standpoint of the present need for Christian dialogue with atheists this development in the doctrine of the Church is important.

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It would be easy to show that the new recognition of the legal status of the atheist corresponds to the new theological understanding of contemporary atheism which is exhibited in the Constitution, Gaudium et spes, and in the Encyclical, Ecclesiam suam. However, this topic lies outside the scope of this essay. It will be sufficient to add a few historical notes simply to illustrate the newness of Dignitatis humanae as a moment in a lengthy history.

In his magisterial work of scholarship, Toleration and the Reformation, Joseph Lecler thus summarizes the state of affairs in the post-Reformation period, when the issue of civil tolerance was actively argued:

Lastly, during the seventeenth and eighteenth centuries, writers, theologians, and statesmen were practically unanimous in excluding from the benefit of tolerance all atheists and men without religion. The common opinion of the period was that an atheist was essentially "unsocial"; he rejected God, and had lost all sense of the absolute and the sacred, and therefore mocked at all moral law, promises, contracts, or binding agreements. Only two authors consented to tolerate him: the Dutch author, Dirck Coornhert, and the English Baptist, Roger Williams (II, 486).

This attitude towards atheists was common to Protestants and Catholics alike. Sir Thomas More, for all his gentleness of spirit, could find no place in his Utopia (the work was published in 1516) for materialists who denied the life of man hereafter, or for atheists who denied God and his providence. In his noted book, De haereticis, an sint persequendi (published in 1554), the great Protestant protagonist of tolerance, Sabastian Castiello, would extend no tolerance to atheists. In Bodin's Colloquium Heptaplomeres (ca. 1593) all of the seven participants, who were religiously divided one from the other, were unanimous in the view that there is no room in the State for the atheist. In 1648, in the reign of Charles I, the English Parliament enacted an ordinance which made Unitarians and atheists liable to the death penalty. And as late as 1689, the very year of the Acts of Toleration in England, the great philosopher of political freedom, John Locke, could write in his Letter Concerning Toleration: "Those are not at all to be tolerated who deny the being of God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all." The reasoning is as old as Plutarch, who wrote: "There never was a

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state of atheists. Sooner may a city stand without foundations than a state without belief in the gods. This is the bond for all society and the pillar of all legislation."

It is well, however, to note that in the post-Reformation polemic against religious intolerance and persecution, whether exercised by Protestants or by Catholics, an interesting argument ex consequentiis began to be used about the middle of the sixteenth century—first, it would seem, by Jacques Bienassis, the Abbot of Bois-Aubry. Such persecution, he contended, drives men to atheism. Catholics are not converted to Protestantism or Protestants to Catholicism; both become atheists, and thus become a danger to the State. The argument became classic, along with the pragmatic argument that religious intolerance is a cause of economic ruin, and with the religious argument that intolerance imposes intolerable burdens on conscience. At that, the argument did not go uncontested. There were those who maintained that tolerance leads to religious indifference and finally to atheism. Nonetheless, in tracing the causes of contemporary atheism it is well to note the influence exerted by the intolerance of an earlier age, practiced by so-called Christian princes and approved by the Church and the churches.

The Continental European tradition was transplanted by the early American colonists to their new home. In the vast land later to be known as the United States of America a new history of religious freedom was to be lived and written. But it was a long time before the atheist came to be part of it. In early America he was socially unacceptable and legally disadvantaged. As late as 1789, when the Federal Republic was constituted, six of the states still had religious establishments (what European idiom calls a "religion of the State"), with consequent restraints on the freedom of dissenters. In most of the other states religious requirements for citizenship, and therefore for freedom, were imposed. Delaware required belief in the Trinity and in the inspiration of both Old and New Testaments; Maryland required the profession of "Christianity"; South Carolina required belief in God and in the future life; Pennsylvania required belief in God and in the Old and New Testaments. And in many states there was a religious requirement for public office.

In 1791 the First Amendment to the Federal Constitution proscribed any religious establishment on the Federal level and also guaranteed the free exercise of religion. Thus the new history was launched. It is not possible or necessary here to follow in detail its

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movement, much less to describe the peculiar genius of the great body of American constitutional law which regulates the relations between government and religion. For our purposes which have to do with the developing constitutional status of the atheist in society, it will be sufficient to note several aspects of the historical development that has taken place in the United States. This history has been in a sense paradigmatic.

In its original conception and intention the First Amendment declared a certain neutrality of government in matters of religion. It was not, however, a neutrality of indifference towards religion—the agnostic indifference of the French laicist republics which veiled a real hostility toward religion. The Federal government simply declared its neutrality in the face of the competing claims of the various Christian churches and sects on the American scene. This neutrality was no more than a denial of favoritism. The declaration of it was at the same time a declaration of general benevolence towards all religious forces engaged in the total enterprise of furthering the spiritual welfare of the American people. Therefore the First Amendment was not in any sense a declaration of governmental neutrality as between belief and unbelief, faith and skepticism. At the outset the First Amendment was not explicitly intended to provide constitutional security for the atheist, even though in fact and logic it did provide this security by its guarantee of the free exercise of religion. (There is a sort of analogy here between the First Amendment and the Vatican Declaration on Religious Freedom.) It was only in very recent years that the Supreme Court of the United States broadened the concept of neutrality to embrace a neutrality between religion and irreligion, and thus formally and explicitly affirmed the equality in constitutional status of the believer and the non-believer.

This significant development has taken place under a twofold judicial impulse on the part of the Supreme Court. The dominant impulse has been the general tendency to make "equality" the central objective of constitutional government. In more legal terms, the movement has been toward guaranteeing also to the atheist the "equal protection of the laws." The second impulse has been towards expanding the concept of "religion" so as to include, in effect, the contemporary religion of the religionless, and to set it on a footing of constitutional equality with traditional religion. There are in America constitutional lawyers and historians who deplore this latter tendency, not least on the ground that the expanding concept of religion will in the end

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come to embrace so much that it will have lost all real meaning. At the same time they approve the impulse to pursue the idea of equality and of the equal protection of the laws. They would prefer, however, that the constitutional security of the atheist should be grounded, not in the rule of neutrality stated in the First Amendment (which is, in effect, the American concept of separation of church and state) but in other constitutional prohibitions and implications—notably in the First Amendment's prohibitions regarding restrictions on freedom of speech and on the free exercise of religion, and in the implications of the legal and social concept of equality whose constitutional seat is in the Fourteenth Amendment.

The argument here is technical as well as historical. There is no need to pursue it further, but it was necessary to mention it, for several reasons.

In the first place, there is no doubt about the rightness of recognizing the immunity of the non-believer from coercion in religious matters. The recognition of his religious freedom in this sense represents a moment of progress in the personal and political consciousness of mankind. Moreover, it has already been said that this civilizational progress is consonant with the theological progress in the understanding of unbelief which is at least sketched in the Constitution, Gaudium et spes. Atheism is never the conclusion of an argument; in this respect it resembles Christian faith. Atheism, like faith, is a decision, a fundamental option, an act of freedom. Moreover, Vatican II strongly indicated that in the conditions of the contemporary world the free choice of atheism, in some form, might well be made without moral guilt. If this be so, it is fitting that the civil and social order should present conditions of freedom within which even the option against God could be made by the human person on his own responsibility. As a famous American jurist stated the matter with some humor: "If any American citizen chooses to go to hell, there is nothing in the Constitution to prevent him from doing so."

On the other hand, the ancient tradition which regarded the atheist as the enemy of ordered society has not been evacuated of all truth. An element of truth remains, although it has assumed a contemporary form, not known before the nineteenth century. In the post-Revolutionary era a school of atheist thought arose which contended that freedom of religion, especially freedom for the atheist, required—either as its premise or as its conclusion—an absolute separation of church and state, so called. That is to say, the functions of the state

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must be completely secularized; the state is to give no recognition or aid whatever to religion in any form; all the institutions of religion, including the religious school, are to be considered to exist completely outside the domain of public life and the common good; therefore their existence and functioning is a matter of no interest to the state, to the agencies of law and government. This, in an extreme form, was the ideology of Continental laicism. In a modified form, and with a different inspiration of a mixed kind, which cannot be described here, this ideology began to grow in the United States in the latter part of the nineteenth century. This secularism (which is its American name) has never gained the power which laicism acquired in Continental Europe, but it exists and it has influence.

The Christian must regard militant laicism or secularism as inimical to the orderly progress of society toward justice and freedom. In particular, its dogma of absolute separation of church and state is unacceptable, even on grounds of the common good of society. The principle of religious freedom does indeed demand a certain separation of church and state, in the sense that religious affairs are removed from the competence of the state. Similarly, the true secularity of society itself is to be recognized, as Gaudium et spes recognizes it, in the sense that the "good society" is to be regarded as an end in itself to be pursued for the sake of the earthly welfare of the human person as such, and in the further sense that the various orders of society—political, social, economic, cultural—possess their own respective dynamisms and laws of action, their own autonomy, an indigenous integrity which demands respect. On the other hand, no Christian can admit, what the Council refused to admit, that secular government may maintain a neutrality of indifference toward religion, or that secular society may exercise religion from its concept of the common good.

The point here is that it belongs to the dialogue between Christian and atheist to convey the understanding that the fullness of religious freedom neither depends on, nor leads to, an absolute separation of church and state in the laicist or secularist sense. Historically, the atheist and the Christian have clashed on this issue; they now need to discuss it calmly and reasonably. On the other hand, in the contemporary world they should be able to agree on another issue of perhaps greater importance. They should agree that full religious freedom, whether the freedom of the Christian or the freedom of the atheist, cannot subsist except as an integral element and indeed the primatial element, in a larger order of political freedom, and within a

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total structure of human and civil rights, all of which derive from the dignity of the human person. One of the several weaknesses of the Declaration, Dignitatis humanae, is that it fails to situate the right to religious freedom within this more inclusive structure.2 In this respect, the Encyclical, Pacem in terris, presents a more complete and satisfying picture. In any event, the mutual interdependence of the right to religious freedom and all other human rights is a truth which has been illuminated by the entire secular experience of the modern world. The experience of Communism has confirmed it in a particular way. Agreement between Christian and atheist on the truth of this interdependence would be important in itself. It would also be the necessary premise of further dialogue about, and of cooperation toward, the creation of conditions of freedom and justice in the human community. In turn, this latter conversation, prolonged into cooperation, might help toward the resolution of the historic clash over the meaning of separation of church and state.

There is a more profound significance which would attach to the reciprocal recognition by Christian and atheist that they share a common human consciousness, both personal and political, with regard to the values of religious freedom in society and likewise with regard to the related values of a true concept of secularity as it touches both the personal life of man himself and also the structures, processes, and goals of society. This recognition might clear the way towards a more fundamental dialogue of greater theological purity, so to speak. It has been often pointed out that divisions among Christians have had many non-theological causes. In the past, national prejudices, class consciousness, economic interests, power conflicts, and social tensions of all kinds have disguised themselves as religious differences. Theological divergences among Christians have indeed been real enough; but almost every Christian division may be explained at least partly in sociological terms. The same may be said of the more radical division between believer and unbeliever. Moreover, it has also been pointed out that today secular conflicts no longer have need to clothe themselves in false religious garb, and religious conflicts can no longer permit themselves to be confused with secular conflicts.

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The reason is that the lengthy historical process of the differentiation of the sacred and secular orders has advanced to a discernible term. Perhaps the major importance of the Declaration on Religious Freedom was that it marked the acceptance by the Church both of the historical process and of its contemporary term, which is, of course, like all historical achievements, only provisional.

If all this be true, it would follow that the real differences between Christian and atheist, as also among Christians themselves, may now begin to stand out with relatively greater purity than in the past. Presumably the differences between Christian and atheist would center on the whole concept of the sacred order—its existence, its relevance, the problem of its recognition. These differences could now perhaps be clarified and defined more closely, given the present-day sharper differentiation of the sacred and the secular and the termination of past adulterations of the sacred by the intrusion of alien elements of time-conditioned secular culture. It may well be that the atheist rejection of the sacred has been occasioned precisely by these adulterations. In any event, if this purification of the issues could be accomplished, the dialogue would profit greatly.

(1)Editor Note: First published as 1970: "La liberta religiosa e l'ateo." L'ateismo contemporaneo 4 (1970): 109–117. This text is taken from the English original, Murray Archives, file 4-327.

(2)Editor Note: Murray's last article on religious freedom was just such an attempt to fully ground that freedom in human dignity. See "The Human Right to Religious Freedom, in 1993: Religious Liberty, 229–44.

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