Machinations of Religious Liberty

In 1965, a relatively young Catholic layman and University of Notre Dame law professor named John T. Noonan, Jr. published a much anticipated study of the Catholic Church's history with the issue of contraception. I call your attention to the term "history" because it was that aspect of Noonan's work that was at the center of an emerging debate. In John T. McGreevy's excellent and nearly classic text, Catholicism and American Freedom, he situates the reception of Noonan's book within a debate among heavyweight Catholic theologians over the relationship between church doctrine and the acids of history. McGreevy writes: "Noonan...traced a twisting doctrinal path, stressing that any fair reading of the history could not 'look at doctrinal development as an automatic unfolding of the divine will.'" (241) At issue was whether the Catholic Church could accept a reality of its present--Catholic women and American Catholics in general were using contraception and no longer seemed concerned about the church's ban on it.

Noonan's argument enraged some moral theologians, especially John Ford, the American priest who was on a birth control commission appointed by the pope and who carried on a fight to preserve the church's official opposition to contraception through to the release in July 1968 of Humanae Vitae. Ford's position had become a decidedly minority one among members of the birth control commission and, following the reception of the 1968 papal encyclical, of Catholic theologians in America. Perhaps somewhat forgotten in the church's opposition to birth control, was an exchange between Ford and John Courtney Murray, the most well-respected Catholic theologian in America, over religious liberty.

In 1965, at almost the same time as the release of Noonan's book, Murray had helped Boston's Cardinal Richard Cushing craft a statement on contraception that characterized it as a "practice that can be considered a case of private morality." Murray had written to Cushing that the function of civil law was not "to prescribe everything that is morally right and to forbid everything that is morally wrong." In order to respect the liberty of religious groups--many of which had supported the legalization of contraception for women--Murray concluded that it was advisable for the Catholic Church to stop using the state to enforce a doctrine put forth almost solely by the Catholic Church. To use David Sehat's term: Murray counseled Catholics, at least on this issue, to disengage from the "moral establishment."

Murray took this position because, as McGreevy explains, he had begun to develop a view of moral theology as historically contingent. Bernard Lonergan, an influential Jesuit theologian from Canada, had given Murray terms that he could use to understand a "belief in an 'objective' truth, while recognizing that truth also remained an 'affair of history.'" When applying such reasoning to contraception, Murray concluded that the church had "reached for too much certainty too soon, it went too far. Certainty was reached in the absence of any adequate understanding of marriage." And, it seemed, in the absence of an adequate appreciation of religious liberty.

McGreevy hammers that last point in a stunning revelation about an exchange between Ford and Murray just before the latter's death. McGreevy recounts:

"Upon reading a report of the talk [by Murray on contraception], Ford immediately asked his old friend for a copy. Murray responded, disingenuously, that he had not given a talk 'about birth control,' adding, 'Heaven forbid that I should get into that subject.' Murray then noted, pointedly, the similarities between two documents: 'the so-called minority report [on birth control, drafted, as Murray certainly knew, in large part by Ford] and a famous document that I have in my files. It is the letter addressed to the Pope by a group of bishops at the Council [Vatican II], asking him to withdraw the Declaration of Religious Freedom.'"

Ford had written both documents, and his advocacy for a singular position on contraception reflected his opposition to Murray's construction of religious liberty. Ford reasoned that truth only needed to be pronounced by the pope in order to be accepted by the clergy and laity alike. Murray offered a way to negotiate between truth and history not to undermine papal authority or dismiss natural law, but as perhaps the only way to make the church's position apparent to those who needed to follow it, the laity. Ford wielded a misbegotten notion of truth to combat history, not to protect Catholics but to control them.

In our contemporary moment, questions regarding contraception have reemerged with a twist: the notion of religious liberty hard fought by Murray is being used to defend the position hard fought by Ford. Once again we are faced with familiar statistics: most Catholic women use contraception, most Catholics disagree with their church's opposition to contraception. And yet, in this case, the moral establishment seems to have flipped. Marshaling statistics and reports that seem beyond reproach, the federal government has made a case for providing contraception to all women. The argument seems to be, why should any institution be allowed to opt out of this logic?

The US Catholic Bishops have asked for the ability to do just that. The Bishops are not asking to use civil law to keep contraception illegal, as they had in the past. They are asking to opt out of paying for contraception in institutions run by Catholics. As Amy Sullivan notes at the Atlantic, many Catholic institutions will continue to pay for contraception as part of employee health plans, but some would like not to. I think I know where Ford would come down on this present debate; I am not sure where Murray would have found himself. I do wonder, though, if the way religion has been deployed throughout American history--as a way to establish state-sponsored morality--has clouded the way we imagine the role of religious liberty in this current flare-up over contraception. Is it possible in this present case that is the government that has let the truth of its argument overwhelm the historical contingency of its action? The government can claim to be right but it still exists in a historical moment that is contingent on institutions such as the Catholic Church accepting that position. Perhaps Murray would have counseled that the federal government, on this issue, reach for slightly less.