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Published online by Cambridge University Press: 24 April 2015
In the contemporary age, when we hear references to the First Amendment religion clauses, we may think of cases in which courts have addressed the legality of prayers in schools, the displays of religious symbols during the holiday seasons, or monetary and other tangible assistance provided by governments to parochial schools. Just this past semester, the United States Supreme Court addressed the question of animal sacrifice occuring in a religious ritual as protected conduct under the free exercise of religion clause. Important as these issues are, they are not the subject of this investigation. My proposal is to address the First Amendment religion clauses in a different context. The goal is to show that it is both Constitutionally permissible and helpful (and quite possibly essential) to American republican democracy that the church (and individuals holding religious beliefs) (can and ought to) participate in the public discourse involving a wide variety of political and social issues with which our local, state, and national communities are concerned.
1. US Const Amend 1 which states in relevant part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
2. See Newsweek, 26–55, 05 11, 1992Google Scholar (news accounts concerning the violent aftermath of the Rodney King police-brutality case in Los Angeles); Newsweek, 24–47, 05 18, 1992Google Scholar (news accounts about race relations within the context of Rodney King trial and ensuing civil unrest); Time, 18–41, 05 11, 1992Google Scholar, (the future of race relations as a result of the Los Angeles riots).
3. Time, 20, 05 11, 1992Google Scholar. (Emphasis supplied)
4. See note 2.
5. See, for example, Ackerman, Bruce, Social Justice in the Liberal State (Yale, 1980)Google Scholar for a general exclusion of religiously-based arguments from public debate and the political process; Sullivan, Kathleen, Religion and Liberal Democracy, 59 U Chi L Rev 195, 198 (1992)CrossRefGoogle Scholar: “The bar against an establishment of religion entails the establishment of a civil order—the culture of liberal democracy— for resolving public moral disputes… Neither Bible nor Talmud may directly settle, for example, public controversy over whether abortion preserves liberty or ends life. The correct baseline, then, is not unfettered religious liberty, but rather religious liberty insofar as it is consistent with the establishment of the secular public moral order.” (Emphasis supplied) See also, Sherry, Suzanna, Outlaw Blues, 87 Mich L Rev 1418, 1427 (1989)CrossRefGoogle Scholar; in a book review of Tushnet's, MarkRed, White, and Blue (1988)Google Scholar, Sherry suggests that “such things as divine revelation and biblical literalism are irrational superstitious nonsense” that most likely do not coincide with “the liberal tradition of excluding nonrational modes of discourse.” For a classical, but still relevant critique of the moral foundation of the liberal outlook on society, see Niebuhr, Reinhold, Moral Man and Immoral Society at xxiv (Scribners, 1960)Google Scholar where the author forms the problem of the modern world: viz., the inability of people to “see and to understand the interests of others as vividly as they understand their own, and a moral goodwill which would prompt them to affirm the rights of others as vigorously as they affirm their own.”
6. See Declaration against Procured Abortion (Quaestio de Abortu) November 18, 1974, Congregation for the Doctrine of the Faith, reprinted in “Vatican Council II: More Post Conciliar Documents,” Vol. 2, 441–53, Liturgical (1982)Google Scholar.
7. See Foderaro, Lisa, Our Towns: Town Is Caught, Shellshocked In Abortion War, New York Times, at B1, col 1, 11 20, 1990Google Scholar, for an account of the incivility surrounding the abortion debate. Foderaro reports that,
The protests have spawned strange scenes on the same streets where youngsters painted pumpkins on shop windows at Halloween. One rally drew members of the Nazi Party, the Communist Party, the Gay Liberation Party, the AIDS group Act-Up, Women Against Men and men's rights organizations, all seeking a spotlight for their own agendas. Women shouted: “Get your rosaries off my ovaries.” Men shouted: “If she don't abort, we gotta pay.” Demonstrators concerned about AIDS hurled condoms at nuns. Id.
8. Bowen v Kendrick 487 US 589 (1988).
9. Id at 589.
10. Id at 593.
11. Id at 602.
12. Id at 2580-81. But see Note, Rothel, David T., Bowen v Kendrick Church and State, and The Morality of Teenage Sex, 39 DePaul L Rev 1319 (1990)Google Scholar for an analysis critical of the Supreme Court majority opinion.
13. Id at 2581.
14. 487 US at 625. Justices Blackmun, Brennan, Marshall, and Stevens.
15. Id at 626.
16. Id at 639-40.
17. Id at 641.
18. Id (Emphasis supplied).
19. 492 US 490 (1989).
20. See Thornburgh v American College of Obstetricians and Gynecologists, 476 US 747, 778-79 (1986); and Roe v Wade, 410 US 113, 129-47 (1973).
21. 492 US at 552.
22. Id at 566-67.
23. Id at 567-68. As Justice Stevens states:
My concern can best be explained by reference to the position on this issue that was accepted by the leaders of the Roman Catholic Church for many years… [in quoting from a report by the Congressional Research Service of the Library of Congress] “[A]bortion of the ‘unformed’ or ‘inanimate’ fetus (from anima, soul) was something less than true homicide. … This view received its definitive treatment in St. Thomas Aquinas and became for a time the dominant interpretation in the Latin Church.” … If the views of St. Thomas were held as widely today as they were in the Middle Ages, and if a state legislature were to enact a statute prefaced with a “finding” that female life begins 80 days after conception…, I have no doubt that this Court would promptly conclude that such an endorsement of a particular religious tenet is violative of the Establishment Clause.
24. Interestingly and curiously, the foundation of Justice Stevens critique is not the “Catholic” view first developed by Thomas Aquinas. Rather, it was the ancient Greek (and pagan) philosopher Aristotle who first developed this notion of ensoulment (animation) of the fetus (including the different periods of animation for the male and female fetus). See, Aristotle, , Balme, D.M., ed, The History of Animals, 57–213 (Harvard U Press, 1991)Google Scholar.
25. 492 US at 568-71.
26. Id at 571, note 16 emphasis added.
27. 112 S Ct 2791 (1992).
28. Id at 2839. (Stevens, J., concurring in part and dissenting in part).
29. Regarding the competition between conflicting religious views and the development of state policy, see Sullivan, Kathleen, Religion and Liberal Democracy, at 198 cited in note 5Google Scholar and McConnell, Michael, Religious Freedom At A Crossroads, 59 U Chi L Rev 115, 117 and 194 (1992)CrossRefGoogle Scholar where the author argues that the religion clauses do not “create a secular public sphere” but “protect the religious lives of the people from unnecessary intrusion of government, whether promoting or hindering religion [because the clauses are designed] to foster a regime of religious pluralism, as distinguished from both majoritarianism and secularism.” And, the religion clauses “should protect against government-induced uniformity in matters of religion… This interpretation will tolerate a more prominent place for religion in the public sphere, but will simultaneously guarantee religious freedom for faiths both large and small.” (Emphasis supplied).
30. See generally. Symposium—Religion In Public Life: Access, Accommodation, And Accountability, 60 Geo Wash L Rev 599–856 (1992)Google Scholar; Symposium On Religion Clauses: Religious Discourse and the Reinvigoration of American Political Life, 4 Notre Dame J L Ethics & Pub Pol'y 385–824 (1990)Google Scholar; and, Symposium On Politics, Religion, And The Relationship Between Church And State, 39 DePaul L Rev 989–1280 (1990)Google Scholar.
31. There is a scholarly debate about whether there are two distinct religion clauses, only one clause, or two clauses that should be read together. See, for example, Glendon, Mary Ann and Yanes, Raul F., Structural Free Exercise, 90 Mich L Rev 477 (1991)CrossRefGoogle Scholar. See also McCoy, Thomas and Kurtz, Gary, A Unifying Theory For The Religion Clauses Of The First Amendment, 39 Vand L Rev 249–74 (1986)Google Scholar wherein the authors argue that the religion clauses should be applied as a single unit; Mansfield, John H., The Religion Clauses of the First Amendment and the Philosophy of the Constitution, 72 Cal L Rev 847, 848 (1984)CrossRefGoogle Scholar where the author discusses the need to “see the religion clauses working together to create a single standard that dictates the proper relation between government and religion.”; Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L J 1127, 1144 (1990)Google Scholar (authored by Jonathan E. Nuechterlein): the “free exercise and anti-establishment principles run flush, one against the other… however, it does not follow that courts and legislatures can—or should—apply these principles identically” (italics in the original); and, Kurland, Philip, Of Church and State and the Supreme Court 29 U Chi L Rev 1, 96 (1961)CrossRefGoogle Scholar in which the author suggests that the religion clauses:
should be read as stating a single precept: that government cannot utilize religion as a standard for action or inaction, because these clauses, read together as they should be, prohibit classification in terms of religion either to confer a benefit or to impose a burden.
32. See Cantwell v Connecticut, 310 US 296 (1940).
33. See, for example, Note, Toward A Constitutional Definition Of Religion, 91 Harv L Rev 1056, 1083Google Scholar; Choper, Jesse, Defining Religion In The First Amendment, 1982 U Ill L Rev 579, 605–06 (1982)Google Scholar [hereinafter cited as Choper, Defining Religion]; and, Freeman, George III, The Misguided Search for the Constitutional Definition Of “Religion,” 71 Ga L J 1519, 1563 (1983)Google Scholar where the author argues that while “[t]here is simply no essence of religion, no single feature or set of features that all religions have in common and that distinguishes religion from everything else,” there are sets of “paradigmatic features” along with a focus each clause which can give meaning to the term “religion.” Id at 1563-65.
34. See Choper, , Defining Religion at 605 (cited in note 33)Google Scholar.
35. Id.
36. See Everson v Board of Education of Ewing Township, 330 US 1, 17-18 (1947) where the majority of the Supreme Court indicate that “the wall of separation” would not prohibit the state from extending public services such as police and fire protection to religious organizations.
37. Id.
38. West Virginia State Board of Education v Barnette, 319 US 624 (1943) declaring unconstitutional as a violation of the free exercise clause the state requirement that public school children salute the flag of the U.S.
39. Wisconsin v Yoder, 406 US 205 (1972).
40. Sherbert v Verner, 374 US 400 (1963).
41. See Pound, Roscoe, Mechanical Jurisprudence, 8 Colum L Rev 605 (1908)CrossRefGoogle Scholar for a critique of “scientific interpretive” method that “exhibits a scheme of deductions from a priori conceptions…”
42. See Greenawalt, Kent, Religion As A Concept In Constitutional Law, 72 Cal L Rev 753, 815–16 (1984)CrossRefGoogle Scholar, that “courts must sometimes decide for themselves what is religious for constitutional purposes and that they should do so without assuming that religion has a specifiable essence.” Greenawalt suggests that interpreters develop a analogical approach to ascertaining what religion is in many, but not all cases; Johnson, Phillip, Concepts and Compromise in First Amendment Doctrine, 72 Cal L Rev 817, 820–21 (1984)CrossRefGoogle Scholar, acknowledges that while the First Amendment's “religion doctrine is radically indeterminate” because of (1) characterization issues, (2) judicial use of subjective tests to ascertain if the religious practice is forbidden, permitted, or required, and (3) no accepted definition of religion for constitutional purposes. First Amendment law as it is developed should still be “based upon an assumption that there is something important about ‘religious’ practices that differentiates them from ‘secular’ practices and entitles (or subjects) them to special constitutional treatment”; and, Mansfield, John, The Religion Clauses of the First Amendment and the Philosophy of the Constitution, 72 Cal L Rev 847, 848–49 (1984)CrossRefGoogle Scholar points out that there is a need “for a more encompassing and clearer view of both of the religion clauses of the first amendment and also of the relation between the religion clauses and other provisions of the Constitution… It is necessary to see the religion clauses as working together to create a single standard that dictates the proper relation between government and religion.” Mansfield points out that “for satisfactory resolution of problems under the religion clauses, it is necessary to explore and expound a philosophy of the Constitution regarding human nature, human destiny and other realities, and that this is so even though the Constitution may in some sense ‘separate’ church from state.”
43. See, generally, Araujo, Robert S.J., The Use of Legislative History in Statutory Interpretation: A Look at Regents v Bakke, 16 Seton Hall Legis J 57, 112–21 (1992)Google Scholar, and Araujo, Robert S.J., The Use of Legislative History in Statutory Interpretation: A Recurring Question: Clarification or Confusion?, 16 Seton Hall Legis J 551, 618–73 (1992)Google Scholar.
44. For a helpful overview of the search for “original intent” in both statutory and constitutional texts, see Pannier, Russel, An Analysis Of The Theory Of Original Intent, 18 Wm Mitchell L Rev 695 (1992)Google Scholar.
45. Greenawalt, Kent, Law and Objectivity at 12 (Oxford, 1992)Google Scholar for the general standard of the reasonable interpreter, and at 39 for the stricter standard of the reasonable lawyer; See also MacCormick, Neil, Legal Reasoning and Legal Theory at 204 (Oxford, 1978)Google Scholar where this author constructs a case that the plain meaning rule has some appeal for the “ordinary citizen” who constitutes one community of interpreters.
46. See, for example, Widmar v Vincent, 454 US 263 (1981) involving the use of state university property by student religious groups and the exercise of “religious speech” that is protected activity.
47. See Valauri, John, Everson v Brown: Hermeneutics, Framers' Intent, and the Establishment Clause, 4 Notre Dame J L Ethics & Pub Pol'y 661 (1990)Google Scholar; Laycock, Douglas, Test, Intent, and the Religion Clauses, 4 Notre Dame J L Ethics & Pub Pol'y 683 (1990)Google Scholar; Kurland, Philip, The Origins Of The Religion Clauses Of The Constitution, 27 Wm & Mary L Rev 839 (1986)Google Scholar; Laycock, Douglas, “Nonpreferential” Aid To Religion: A False Claim About Original Intent, 27 Wm & Mary L Rev 875 (1986)Google Scholar; Marshall, William, Unprecedential Analysis And Original Intent, 27 Wm & Mary L Rev 925 (1986)Google Scholar; Weisbrod, Carol, On Evidences And Intentions: “The More Proof, The More Doubt,” 18 Conn L Rev 803 (1986)Google Scholar.
48. For parallel problems in trying to ascertain the original intent of legislators, see MacCallum, Gerald, Legislative Intent, 75 Yale L J 754 (1966)Google Scholar; Brest, Paul, The Misconceived Quest For The Original Understanding, 60 BU L Rev 204 (1980)Google Scholar; Radin, Max, Statutory Interpretation, 43 Harv L Rev 863 (1930)CrossRefGoogle Scholar.
49. See generally, Dickerson, Reed, Statutory Interpretation: A Peek Into The Mind And Will Of A Legislature, 50 Ind L J 206 (1975)Google Scholar. Dickerson points out that while the concepts of intent and purpose overlap in their broadest senses, intent is in disfavor among interpreters and purpose enjoys both favor and preeminence. Id at 224.
50. Dworkin, Ronald, Law's Empire at 350 (Harvard-Belknap Press, 1986)Google Scholar.
51. Id at 413. (Emphasis supplied).
52. Greenawalt, Kent, Religious Convictions And Political Choice at 12 (Oxford U Press, 1988)Google Scholar (“Greenawalt, Religious Convictions”). See also Greenawalt, Kent, Religious Convictions and Political Choice: Some Further Thoughts, 39 Depaul L Rev 1019 (1990)Google Scholar; and, Greenawalt, Kent, The Limits of Rationality and the Place of Religious Conviction: Protecting Animals and the Environment, 27 Wm & Mary L Rev 1011 (1986)Google Scholar.
53. Greenawalt, , Religious Convictions at 12Google Scholar.
54. Id at 258.
55. Id at 6.
56. Perry, Michael, Morality Politics & Law at 182, (Oxford U Press, 1988)Google Scholar.
57. Perry, Michael, Love & Power at 144, (Oxford U Press, 1991)Google Scholar.
58. Id at 142.
59. For a helpful variety of insights on how porous and how impregnable is the “wall of separation,” see the Symposium On Religion Clauses, 4 Notre Dame J L Ethics & Pub Pol'y 385–824 (1990)Google Scholar.
60. See generally, Hart, H. L. A., The Concept of Law at 120–32, (Oxford U Press, 1961)Google Scholar.
61. See Lupu, Ira, Keeping the Faith: Religion, Equality and Speech in the U. S. Constitution, 18 Conn L Rev 739Google Scholar; Kathleen Sullivan, at 196, cited in note 5. For an example of “free speech” and its relation to the religion clauses, see Widmar v Vincent, 454 US 263 (1981).
62. See Drakeman, Donald, Religion And The Republic: James Madison And The First Amendment, 25 J Church & State 427 (1983)CrossRefGoogle Scholar for an investigation of the general tenor of the religion clauses which, in this author's estimation, constitute their strength. See also, Berman, Harold, Religion and Law: The First Amendment In Historical Perspective, 35 Emory L J 777, 791 (1986)Google Scholar where the author argues that constitutional history is ongoing in which Americans can search for “a new public philosphy—one that will build on the past but will not be bound by the past.”
63. See Garvey, John, Free Exercise and the Values of Religious Liberty, 18 Conn L Rev 779 (1986)Google Scholar; Chopko, Mark, Intentional Values And The Public Interest— A Plea For Consistency In Church/State Relations, 39 DePaul L Rev 1143, 1148 (1986)Google Scholar, the clauses were written “as protection for religion, not from religion.” (Italics in original).
64. See McConnell, Michael, The Origins And Historical Understanding Of Free Exercise Of Religion, 103 Harv L Rev 1409 (1990)CrossRefGoogle Scholar. See also, Cord, Robert, Church-State Separation: Restoring the “No Preference” Doctrine of the First Amendment, 9 Harv J L & Pub Pol'y 129 (1986)Google Scholar; but see, Levy, Leonard, The Establishment Clause: Religion and the First Amendment, Chapter 5, (The Nonpreferentialists) Macmillan (1986)Google Scholar.
65. The Cambridge Synod And Platform, 1646-1648, reproduced in The Creeds and Platforms of Congregationalism, Pilgrim (1960)Google Scholar; Laws of Virginia, 1661-62; 2 Henings, Laws of Virginia 41 (1823)Google Scholar.
66. See, Hall, Timothy, Roger Williams And The Foundations Of Religious Liberty, 71 BU L Rev 455 (1991)Google Scholar for an insightful account of religious dissent in seventeenth century New England.
67. See, for example, Locke, John, A Letter Concerning Toleration, (Prometheus, 1990)Google Scholar; Plantation Agreement At Providence, 08 27, 1640, reproduced in Commager, Henry Steele, ed, Documents of American History at 24–26 (Appleton Century Crofts, 1963)Google Scholar; Maryland Toleration Act, April 21, 1649, reproduced in Documents of American History at 31-32.
68. Acts and Resolves of Massachusetts, An Act Respecting Public Worship and Religious Freedom, 1811, Chapter 6; The Virginia Bill of Rights § 16, June 12, 1776, reproduced in Documents of American History, (cited in note 67 at 103-04) Virginia Statute of Religious Liberty, January 16, 1786, reproduced in Documents of American History at 125-26.
69. See generally, Religion and the State: The Origins of the Religion Clauses of the Constitution, 27 Wm & Mary L Rev 839–942 (1986)Google Scholar; Smith, Rodney, Getting Off On The Wrong Foot And Back On Again: A Reexamination Of The History Of The Framing Of The Religion Clauses Of The First Amendment And A Critique Of The Reynolds And Everson Decisions, 20 Wake Forest L Rev 569 (1984)Google Scholar; Patten, Jonathan Van, In The Beginning: An Inquiry Into The Meaning Of The Religion Clauses, 27 SLU L J 1 (1983)Google Scholar.
70. See Madison's Memorial and Remonstrance Against Religious Assessments, reproduced in Noonan, John, The Believer and the Powers That Are, 107–111, (Macmillan, 1987)Google Scholar.
71. Id § 9, at 109-10.
72. For an interesting and helpful discussion about the variety of religious beliefs in American public life, see Vogel, Howard, The Judicial Oath and the American Creed: Comments on Sanford Levinson's “The Confrontation of Religious Faith and Civil Religion—Catholics Becoming Justices, 39 DePaul L Rev 1107, 1112, 1128 (1986)Google Scholar; and, Shaffer, Thomas, On Checking the Artifacts of Canaan: A Comment on Levinson's “Confrontation,” 39 DePaul L Rev 1133, 1142 (1986)Google Scholar.
73. See McConnell at 1513 (cited in note 64).
74. Id at 1516.
75. Id.
76. See note 31 and the articles cited therein.
77. See The Free Exercise Clause: A Structural Overview and Appraisal of Recent Developments, 27 Wm & Mary L Rev 943–1010 (1986)Google Scholar.
78. Id.
79. See page 507 for the identification of these principal issues.
80. See Bowen v Kendrick (cited in note 8).
81. See Glendon, Mary Ann, Law, Communities, and the Religious Freedom Language of the Constitution, 60 Geo Wash L Rev 672, 680–81 (1992)Google Scholar. See also Aguilar v Felton, 473 US 402, 426-30 (1985) (O'Connor, J., dissenting).
82. See Dworkin at 314-21 (cited in note 50).
83. Id at 228-32, 238-39, 313.
84. Dworkin, Ronald, A Matter of Principle at 233 (Harvard 1985)Google Scholar.
85. A helpful compilation of Supreme Court justices' views on abortion can be seen in Webster v Reproductive Health Services (cited in note 19), and Planned Parenthood v Casey (cited in note 27).
86. For an overview of President Clinton's evolving views on abortion, see, for example, From Candidate to President Elect, Los Angeles Times B6, col 1, November 13, 1992 (quick action to reverse Bush Administration policy against abortion and abortion counseling); Rosenbaum, David, The Democratic Platform, The New York Times A1, col 3, 07 15, 1992Google Scholar (reporting the change of the President's position on abortion).
87. Deut. 14:9-10 and Lev. 11:10-12.
88. The Holy Koran, suras The Table and The Cow.
89. Lemon v Kurtzman, 403 US 602, 612-13 (1971).
90. See Developments in the Law: Religion and the State, 100 Harv L Rev 1606, 1644–47 (1987)Google Scholar.
91. My appropriation of Gadamer's work on interpretation and application to legal interpretation is not unique. See, for example, Eskridge, William, Gadamer/Statutory Interpretation, 90 Colum L Rev 609 (1990)CrossRefGoogle Scholar.
92. Gadamer, Hans-Georg, Truth and Method, (2d trans, Crossroad, 1989)Google Scholar.
93. Id at 370.
94. Id at 277-307, the discussion dealing with: Prejudices As Conditions Of Understanding.
95. Id at 271.
96. Id at 294, 296
97. Id at 290.
98. See, Dworkin at 350 (cited in note 50). Gadamer takes a somewhat different, but not incompatible, approach when he states that, “Someone who is seeking to understand the correct meaning of a law must first know the original one.” See Gadamer at 326 (cited in note 92).
99. Id at 293.
100. See note 50 and accompanying text.
101. Gadamer at 296 (cited in note 92). Gadamer refines this point for the judicial interpreter when he argues that
It is true that the jurist is always concerned with the law itself, but he determines its normative content in regard to the given case to which it is to be applied. In order to determine this content exactly, it is necessary to have historical knowledge of the original meaning, and only for this reason does the judge concern himself with the historical value that the law has through the act of legislation. But he cannot let himself be bound by what, say, an account of the parliamentary proceedings tell him about the intentions of those who first passed the law. Rather, he has to take account of the change in circumstances and hence define afresh the normative function of the law…. There can be no such thing as direct access to the historical object that would objectively reveal its historical value…. Historical knowledge can be gained only by seeing the past in its continuity with the present—which is exactly what the jurist does in his practical, normative work of “ensuring the unbroken continuance of law and preserving the tradition of the legal idea.” Id at 326-27 (quoting from Emilio Betti, Zur Grundlegung einer allgemeinen Auslegungslehre).
102. Gadamer, at 308-309 (cited in note 92).
103. Id at 311. Gadamer also states that,
Application does not mean first understanding a given universal [e.g., the prohibition against the establishment of religion] in itself and then afterward applying it to a concrete case. It is the very understanding of the universal—the text—itself. Understanding proves to be a kind of effect and knows itself as such. Id. at 341.
104. Id at 379.
105. See Berman, Harold, Religious Freedom and the Challenge of the Modern State, 39 Emory L J 149 (1990)Google Scholar for a discussion about cooperation between church and state concerning mutual interests.
106. The United States Catholic Conference is the “civil entity of the American Catholic Bishops, incorporated under the laws of the District of Columbia, assisting the Bishops in their service to the Church in [the United States] by uniting the people of God where voluntary collective action on a broad interdiocesan level is needed. The USCC provides an organizational structure and the resources needed to insure coordination, cooperation, and assistance in the public, educational, and social concerns of the Church at the national, regional, state, and as [sic] appropriate diocesan levels.” The Official Catholic Directory at xxv, (P. J. Kennedy & Sons, 1987)Google Scholar.
107. These Political Responsibility Statements have been reproduced in Origins, the national Catholic Documentary Service. See Origins, Vol 5, No 36 at 565–70 (1976 Election Statement)Google Scholar; Origins, Vol 9, No 22 at 349–55 (1980 Election Statement)Google Scholar; Origins, Vol 13, No 44 at 732–36 (1984 Election Statement)Google Scholar; Origins, Vol 17, No 21 at 369–75 (1988 Election Statement)Google Scholar; and, Origins, Vol 21, No 20 at 313–23Google Scholar.
108. Each of the Political Responsibility Statements from 1976 to the present have contained a discussion about the Church's moral opposition to abortion. See note 107.
109. Origins, Vol. 5, No. 36 at 569Google Scholar.
110. Id. For a good investigation of the contributions made by religious organizations in this context, see Sirico, Louis, The Secular Contribution of Religion to the Political Process: The First Amendment and School Aid, 50 Mo L Rev 321, 322 (1985)Google Scholar where the author argues that “religious forces generally have a positive effect on the American government process and that this positive effect justifies an accomodationist judicial policy in matters of church and state [because] religion makes a secular contribution to society, that is, it contributes to meeting society's secular needs.”
111. Id.
112. Id at 569-70.
113. Id at 570.
114. Id.
115. Id.
116. Origins, Vol 9, No 22 at 353–55Google Scholar.
117. Origins, Vol 13, No 44 at 734–35Google Scholar.
118. Origins, Vol 17, No 21 at 374Google Scholar.
119. Origins, Vol 21, No 20 at 320 and 322–23Google Scholar.
120. See note 86 and accompanying text.
121. Origins, Vol 21, No 20 at 319Google Scholar.
122. President Clinton has been critiqued on approval of the sale of fighter planes to Saudi Arabia. The New York Times, Section 3, p 5, col 1, October 4, 1992.
123. Friedman, Thomas L., The 1992 Campaign: Foreign Policy, New York Times, Sec A, p 20, col 1, 04 2, 1992Google Scholar. See also Hoagland, Jim, Looking Ahead: At Home and Abroad, The Washington Post, A1, 11 8, 1992Google Scholar.
124. Origins, Vol 21, No 20 at 320Google Scholar.
125. Rosenbaum, David, The Democratic Platform, The New York Times, A1, col 3, 07 15, 1992Google Scholar. See also Krauss, Clifford, Bush Vetoes Tax Bill With Urban Aid, The New York Times, A22, col 4, 11 5, 1992Google Scholar.
126. Origins, Vol 21, No 20 at 321Google Scholar.
127. See Convention Summary, The New York Times, A8, col 1, July 15, 1992; Pear, Robert, The 1992 Campaign Issues— Health Care Policy: How Bush and Clinton Differ, The New York Times, A1, col 2, 08 12, 1992Google Scholar; Broder, John M., News Analysis: Growth Plan Is A Gamble, With A Lot of Risk, The Los Angeles Times, A1, col 6, 11 13, 1992Google Scholar.
128. Origins, Vol 21, No 20 at 319–20Google Scholar.
129. Origins, Vol 21, No 20 at 320Google Scholar.
130. Origins, Vol 21, No 20 at 320–21Google Scholar.
131. See, for example, Duke, Lynne, Rights Leaders Expect Race Relations to Test Clinton, The Washington Post, A14, 11 11, 1992Google Scholar; Pear, Robert, The 1992 Campaign: Platform, The New York Times, A13, col 1, 06 26, 1992Google Scholar.
132. Origins, Vol 21, No 20 at 315Google Scholar.
133. Origins, Vol 21, No 20 at 316Google Scholar.
134. Id.
135. Id. See also, Cuomo, Mario, Religious Belief and Public Morality: A Catholic Governor's Perspective, 1 Notre Dame J L Ethics Pub Pol'y 13 (1984)Google Scholar for one Catholic's understanding and application of this tradition in the context of the abortion debate.
136. Most Rev. Pilarczyk, Daniel, Coin of the Realm: The Church, the Believer and Pluralism, 158 America 374, 375 (1988)Google Scholar. Archbishop Pilarczyk recently served as president of the National Conference of Catholic Bishops.
137. See Tushnet, Mark, The Constitution of Religion, 18 Conn L Rev 701, 702 and 738 (1986)Google Scholar where the author points out that “the social relations of our society do not now provide the support needed for a concept of politics into which religion would comfortably fit” so that there might be a “different balance between individualism and community”, than exists today.
138. Pilarczyk, , Coin of the Realm at 378Google Scholar. See note 73 and accompanying text.
139. See, for example, Castelli, James, A Plea for Common Sense: Resolving the Clash Between Religion and Politics, (Harper & Row, 1988)Google Scholar and, with Gallup, George Jr., The People's Religion, (Macmillan, 1989)Google Scholar.
140. Castelli, James, Election '92: Mixing Religion and Politics, 166 America 132 (1992)Google Scholar.
141. Id.
142. Id.
143. Id.
144. See Landy, Thomas M. S.J., What's Missing From This Picture?Norman Lear Explains, Commonweal, 17–20, 10 9, 1992Google Scholar.
145. Id at 17.
146. Id at 18.
147. See Tipton, Steven, Republic and Liberal State: The Place of Religion in an Ambiguous Polity, 39 Emory L J 191, 199 (1990)Google Scholar where the author suggests that the American republic, unlike the liberal state, must “affirm moral ends beyond the rights and liberties of individuals” and “accept responsibility for the moral and civic education of their citizens.” Religion and public theology can have a role to assist the republic in executing both duties.
148. See National Conference of Catholic Bishops, The Challenge of Peace: God's Promise and Our Response (A Pastoral Letter on War and Peace), 1983Google Scholar. In this letter, the bishops denned their responsibility to speak out
as moral teachers precisely in terms of helping to form public opinion with a clear determination to resist resort to nuclear war as an instrument of national policy. § 139 at 59.
149. See National Conference of Catholic Bishops, Economic Justice for All (Pastoral Letter on Catholic Social Teaching and the U.S. Economy), 1986. The bishops outline their role by stating
we write as pastors, not public officials. We speak as moral teachers, not economic technicians. We seek not to make some political or ideological point but to lift up the human and ethical dimensions of life, aspects too often neglected in public discussion. We bring to this task a dual heritage of Catholic social teaching and traditional American values. § 7.
150. See generally, The Williamsburg Charter Symposium, 8 J Law & Relig 1–329, (1990)Google Scholar.
151. Id at 6.
152. Id.
153. Id at 14.
154. Id at 20.
155. See The Pastoral Constitution On The Church In The Modern World (Gaudium et Spes) § 42Google Scholar, in The Documents Of Vatican II, (Abbot, Walter S J., ed (1966)Google Scholar.
156. Id at §76.
157. See Declaration on Religious Freedom: On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious, in The Documents of Vatican II (cited in note 155).
158. Id at §2.
159. Id note 5. See also The Virginia Declaration of Rights, June 12, 1776, in Documents of American History (cited in note 67), which contains elements similar in substance to the Vatican II document, Declaration on Religious Freedom.
160. Id at §3.
161. Id at § 6. There have been occasions when individual Catholics have not followed these guidelines. See, for example, Steinfels, Peter, Bishops Warn Politicians On Abortion, New York Times, A18, col 1, 11 8, 1989Google Scholar; Legislator Barred From Catholic Rite, at A18, col 1, 11 17, 1989Google Scholar.
162. Murray was a man who had personal familiarization with the interference of beliefs when he was temporarily silenced from expressing his views in the 1950's. Murray was vindicated when he was asked by the Council to draft the Declaration on Religious Freedom. See Pelotte, Donald S.S.S., John Courtney Murray: Theologian In Conflict, (Paulist Press, 1976)Google Scholar.
163. Murray, John Courtney S.J., Religious Freedom, in The Documents of Vatican II, (cited in note 155 at 672–73)Google Scholar.
164. See Murray, John Courtney S.J., We Hold These Truths: Catholic Reflections On The American Proposition, at 14, Sheed and Ward (1960)Google Scholar.
165. Id at 78.
166. Id (Emphasis supplied). Murray, like the expression of the Church Fathers in the Pastoral Constitution on the Church in the Modern World, did not see that the Church was to have a concrete role in hammering out public policy with legislators and administrators. Rather, he saw that the public role of the Church was principally as that of teacher who “boldly urges the truth” but “carefully guides the action.” Id at 195. For different views from legal scholars, see Solum, Lawrence, Faith and Justice, 39 DePaul L Rev 1083, 1105 (1990)Google Scholar that constitutional adjudication should not include reference to moral norms (“transcendental truths ascertainable through right reason”) which the Catholic Church claims to exist. But see Shaffer, Thomas, On Checking The Artifacts Of Canaan: A Comment On Levinson's “Confrontation,” 39 DePaul L Rev 1133, 1142 (1990)Google Scholar who points out that,
If the guardians of American liberal democracy were serious in their talk of pluralism, they would see that this judicial candidate's adherence to her formative [religious] community is an asset for democratic deliberation. Substantive pluralism, serious about moral values, would be a society in which moral beliefs are described, aired, and discussed, even in legislatures and in the courts. No moral belief would be silenced because it was also religious. Its dialogue would be more interesting than what's now on the evening news, and it might be more productive. I doubt that the bishops of constitutional faith could put up with it. I don't know about the theologians.
167. Dulles, Avery S.J., Religion and the Transformation of Politics, 167 America 296 (1992)Google Scholar.
168. Id at 298.
169. Id.
170. See Ostrom, Vincent, Religion and the Constitution of the American Political System, 39 Emory L J 165, 166 (1990)Google Scholar where the author argues the case on behalf of “the importance of basic religious teachings in shaping the moral quality of life in human communities.”
171. Id at 301. (Emphasis supplied).
172. See Cuomo, Mario, Religious Belief and Public Morality at 31 (cited in note 137)Google Scholar.