March 2012

By Leslie Griffin, Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center

Before the Second Vatican Council (1962-1965), the Catholic Church condemned the separation of church and state and taught that only Catholics had the right to public worship and religious liberty. In a series of nuanced essays written from 1940-1965, the New York Jesuit Catholic priest John Courtney Murray developed a historical argument that the prohibition on separation was not a timeless, universal norm, but was best understood as a response to the anticlerical liberalism of modern Europe. Hence, Murray concluded, American Catholics could favor the separation of church and state even though Rome (mistakenly) opposed it. Senator John F. Kennedy consulted Murray as he prepared his famous 1960 campaign address to Houston Baptist ministers pledging his commitment to the separation of church and state. The speech set the stage for Kennedy’s election as the first Catholic president of the United States.

The bishops of the Roman Catholic Church approved the Declaration on Religious Freedom, Dignitatis Humanae (DH), at the last session of the Council in December 1965. DH changed prior Catholic teaching by affirming that religious liberty is the right of every human person, not a right of Catholics only. Murray was the lead drafter of the declaration.

Murray told reporter Robert Blair Kaiser in 1965 that the “resolution of the religious liberty issue had ‘transferential implications’ for those trying to work out the birth control question.” The “birth control question” asked if the church should revise its prohibition on artificial contraception. After extensive debate and reports from a papal commission, the church did not do so. Pope Paul VI instead reaffirmed the immorality of contraception in his 1968 papal encyclical Humanae Vitae (HV).

HV is the intellectual source of the Catholic Church’s current battle with the Obama administration over the provision of contraceptive insurance to its Catholic and non-Catholic employees. The church teaches that contraception is morally wrong as a matter of natural law for all men and women, Catholic and non-Catholic, married and non-married, without regard to whether they choose to believe or accept the teachings of the Catholic Church.

No one doubts that the bishops are sincere in their commitment to the anti-contraception moral principle. They are mistaken, however, to believe that the religious freedom protected by the U.S. Constitution entitles them to enforce their moral beliefs on others through force of law. Murray and Kennedy had a better sense of what the Constitution protects.