Toward a More Just Law

by Gerald J. Russello - April 5, 2008

Reprinted with permission.

Recovering Self-Evident Truths: Catholic Perspectives on American Law

Michael A. Scaperlanda and Teresa Stanton Collett, eds.; Catholic University of America Press, $39.95, 403 pages

The relationship between the Church and the law in America has always been complex. The First Amendment guaranteed religious freedom to Catholics, yet with that freedom came hostility and legal discrimination. The most important third party in American history – the Know Nothings – was, after all, founded as an expression of anti-immigrant (and specifically anti-Catholic) prejudice. The so-called Blaine Amendments, enacted for the most part in the 19th century, deliberately sought to ban public support of Catholic schools. These laws still exist in more than half the states and are a clear remnant of anti-Catholic hostility.

The days of enacting such openly anti-Catholic laws may be over, but a more insidious set of assumptions has taken their place. Sometimes called the "new orthodoxy," its advocates seek through legislation or judicial action to replace religious liberty with other values, such as "equality" or nondiscrimination. Recent court decisions, for example, have suggested that in crucial areas contemporary jurisprudence is becoming hostile to traditional constitutional principles, which placed religious freedom at the center of liberty. For example, state courts in California and New York have required that Catholic hospitals provide contraceptive coverage as part of their employee health insurance plans, despite legislative acknowledgment that such coverage would violate Catholic belief. And a proposed law in Colorado would force Catholic organizations to hire non-Catholics as a condition of government support.

These laws gravely misunderstand how Catholics – and indeed most believers – practice their faith, and seek instead to marginalize religious believers and practice. Catholics understand – as part of their religious understanding – that they must spread the gospel and perform works of mercy, among Catholics and non-Catholics alike. These laws strike at the center of that self-understanding. Damage to the Church's social mission has already occurred, as when Catholic Charities of Massachusetts was forced to cease placing children for adoption because it refused to follow a state law requiring that children be considered for placement with same-sex couples.

This legal environment presents serious challenges for Catholics. Decisions such as those in the contraceptive coverage cases raise the question, once asserted only by anti-Catholic bigots as an insult, as to whether the modern American constitutional order and Catholicism are even compatible. Partially in response, law schools such as Fordham, Villanova, and St. Thomas in Minneapolis have devoted increasing attention to fleshing out a Catholic theory of the law across a range of issues, including whether and how modern law and Catholicism relate to one another.

The collection Recovering Self-Evident Truths: Catholic Perspectives on American Law, edited by law professors Michael A. Scaperlanda and Teresa Stanton Collett, represents some of the best recent Catholic thinking on the law. The book deals with topics from the Catholic understanding of the person, the nature of community, and the interaction of Catholicism with liberal theory to applying Catholic thought to specific areas, such as labor law, family law, contract law, and even (in a profound essay on the Trinity by Amelia Uelmen), product liability law.

The contributions all repay careful reading, as they draw on the twin traditions of Catholic reflection on the law – which dates back to the closing years of the Roman Empire – and that of Anglo-American common law.

Rev. Robert Araujo, S.J., frames the basic issue: whether a Catholic conception of law is consistent with traditional American legal interpretation. He compares the Catholic and constitutional conceptions of the common good, and finds that both incorporate a notion of the common good that looks to the benefit of all as a rule to making legal and political decisions. The Constitution's preamble, after all, speaks of "We the People" who created the Constitution for the benefit of the whole people.

However, recent Supreme Court jurisprudence has departed from this understanding, especially in the abortion cases, in favor of a radical individualism. Christopher Wolfe echoes Father Araujo's theme, contending that Catholics can embrace liberalism in its emphases on tolerance and a certain understanding of rights, even though modern liberalism has some significant defects, including its undermining of religion. He cautiously concludes, nevertheless, that Catholics can still be good liberals, even if they cannot be only liberals.

This emphatic individualism of modern liberalism, as Robert Vischer explains in a probing essay, has been transformed into a materialist consumerism, but one backed by the collectivist power of the state. Thus, the individual's desire for easy access to contraception can, through law, force pharmacists to provide it, despite their religious opposition to doing so. Law – the power of society to coerce others – therefore becomes a tool for the satisfaction of individual desire, the opposite of the traditional understanding where law is used to preserve individual rights, but not at the expense of another's right to exercise his or hers.

The Catholic conception of society provides a striking challenge to this consumerist-backed-by-state-power culture. In particular, Catholic social thought proposes two organizing principles. First, there is subsidiarity, which accords power to the most local level possible, and is analogous to the American idea of federalism. Insofar as the judicial revolution of the last 40 years has diminished the power of the states at the expense of the federal government, this principle is somewhat underutilized. The second principle, solidarity, is even more radical. It is the recognition that we are all children of one God bound together by our human dignity, which therefore imposes obligations on one another.

Recovering Self-Evident Truths is a positive sign for the future of Catholic influence on American law, and a hopeful development that can perhaps reverse the trends in the law toward less religious freedom and the increase in the powers of the state for anti-religious ends. Yet as longtime Catholic commentator Russell Shaw notes, "the dominant culture has no visible sympathy for the effort" of volumes such as this one.

The essays here – and in other fora, such as the group law professor blog Mirror of Justice – present sophisticated engagements with American law. The contributors are not unduly optimistic about the challenges they face – that of convincing other Catholics of the robustness of the Church's reflections on the law, and then those of the wider culture – though they may be too optimistic that reasoned arguments will prevail among sometimes overheated and ideologically anti-Catholic legislatures and judges. Yet books like this are a necessary start.

Gerald J. Russello is a fellow of the Chesterton Institute at Seton Hall University. He is working on a book on Christopher Dawson.