Pluralism, dialogue, and freedom: Professor robert rodes and the church-state nexus

Journal of Law and Religion

Volumn 22, Issue 2, 2007, Pages 503-525

  Garnett, Richard W ^a  

^a UNIVERSITY OF NOTRE DAME   (United States)

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EID: 85023038933     PISSN: 07480814     EISSN: 21633088     Source Type: Journal    
DOI: 10.1017/S0748081400004021     Document Type: Article

References (185)

1. Cullen Murphy, War Is Heck, Wash. Post A21 (Apr. 8, 1988).
2. See also David Shribman, Bush, Dole Butt Heads a Little Harder as Top Contenders Hone Tough Images, Wall St. J. 54 (Jan. 11, 1988).
3. Remarks at James Madison High School in Vienna Virginia, 2 Pub. Papers 1075, 1076 (July 12, 1995)
4. see also e.g. Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (Oxford U. Press 1986)
5. Michael W. McConnell, Why Is Religious Liberty the “First Freedom ”?, 21 Cardozo L. Rev. 1243 (2000).
6. Daniel L. Dreisbach, Origins and Dangers of the “Wall of Separation ” Between Church and State, 35 Imprimis 1, 1 (Oct. 2006).
7. Philip Hamburger, Separation and Interpretation, 18 J. L. & Pol. 7, 7 (2002).
8. See also Philip Hamburger, Separation of Church and State 1 (Harv. U. Press 2002) (“Jefferson's words seem to have shaped the nation.”) [hereinafter Hamburger, Church and State].
9. See e.g. Dreisbach, Separation of Church and State, at 1 (“For many Americans, this metaphor has supplanted the actual text of the First Amendment to the U.S. Constitution, and it has become the locus classicus of the notion that the First Amendment separated religion and the civil state, thereby mandating a strictly secular polity.”)
10. Hamburger, Church and State, Separation of Church and State, at 1 (“Jefferson's phrase … provides the label with which vast numbers of Americans refer to their religious freedom.”).
11. Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting).
12. See e.g. John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties 48–50 (Westview Press 2000) (noting that “separation of church and state guarantees ‘ecclesiastical purity and liberty’—the independence and integrity of the internal processes of religious bodies”).
13. Cf. e.g. John Witte Jr., God's Joust, God's Justice: Law and Religion in the Western Tradition 160–162 (William B. Eerdmans Publg. Co. 2006) (discussing the “separation and cooperation” of church and state in American Puritan thought and practice)
14. Hamburger, Church and State, God's Joust, God's Justice: Law and Religion in the Western Tradition, at 2–3 (contrasting “a differentiation or distinction between church and state” with “something more dramatic—a distance, segregation, or absence of contact between church and state”).
15. See generally Thomas L. Shaffer, The Christian Jurisprudence of Robert E. Rodes, Jr., 73 Notre Dame L. Rev. 737 (1998).
16. See e.g. Robert E. Rodes, Jr., Forming an Agenda—Ethics and Legal Ethics, 77 Notre Dame L. Rev. 977 (2002).
17. See e.g. Robert E. Rodes, Jr., Pilgrim Law (U. Notre Dame Press 1998) [hereinafter Rodes, Pilgrim Law]
18. Robert E. Rodes, Jr., Law and Liberation (U. Notre Dame Press 1986).
19. See e.g. Robert E. Rodes, Jr. & Howard Pospesel, Premises and Conclusions: Symbolic Logic for Legal Analysis (Prentice Hall 1997).
20. See e.g. Robert E. Rodes, Jr., A Prospectus for a Symbolist Jurisprudence, 2 Nat. L. Forum 88 (1957).
21. See e.g. Robert E. Rodes, Jr., On Law and Chastity (Carolina Academic Press 2006).
22. See e.g. Robert E. Rodes, Jr., Pluralist Establishment: Reflections on the English Experience, 12 Cardozo L. Rev. 867 (1991).
23. See e.g. Robert E. Rodes, Jr., Catholic Universities and the New Pluralism, in The Challenge and Promise of a Catholic University 305 (Theodore M. Hesburgh ed., U. Notre Dame Press 1994).
24. See e.g. Robert E. Rodes, Jr., The Canon Law as a Legal System—Function, Obligation, and Sanction, 9 Nat. L. Forum 45 (1964).
25. See e.g. Robert E. Rodes, Jr., Workmen's Compensation for Maritime Employees: Obscurity in the Twilight Zone, 68 Harv. L. Rev. 637 (1955).
26. See Shaffer, Harv. L. Rev, at 757 (“Much of Rodes's scholarship has been in the field American legal academics call ‘the law of church and state.’”).
27. John Courtney Murray, We Hold These Truths: Catholic Reflections on the American Proposition 147 (Sneed & Ward 1960).
28. Robert E. Rodes, Jr., Religious Education and the Historical Method of Constitutional Interpretation—A Review Article, 9 Rutgers L. Rev. 682 (1955).
29. Witte, Rutgers L. Rev, at 209.
30. See generally e.g. Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. Rev. 1385, 1395–1447.
31. Witte, BYU L. Rev, at 210.
32. See generally id. at 210–224.
33. Matt 22:21 (all Biblical citations are taken from the New Am. Bible). The next verse records that when the Pharisees heard this, “they were amazed, and leaving him they went away.”
34. The text of this letter is available through the Internet Medieval Source Book, Medieval Sourcebook: Gelasius I on Spiritual and Temporal Power, 494, http://www.fordham.edu/halsall/source/gelasiusl.html (accessed Dec. 20, 2006).
35. Boniface VIII, Unam Sanctum (1302), reprinted in Medieval Worlds 77, 77 (Roberta Anderson & Dominic Aidan Bellenger eds., 2003).
36. Roger Williams, Mr. Cotton's Letter Lately Printed, Examined and Answered (1644), reprinted in 1 The Complete Writings of Roger Williams 392 (Russell & Russell 1963).
37. See generally e.g. Richard W. Garnett, The Freedom of the Church, 4 J. Cath. Soc. Thought 59 (2007).
38. Letter from the Danbury Baptist Association to Thomas Jefferson (Oct. 7, 1801) (on file with the Thomas Jefferson Papers Manuscript Division, Library of Congress, Washington, D.C.), http://baptiststudiesonline.com/wp-content/uploads/2007/02/danbury-letter-to-jefferson.pdf (accessed Mar. 9, 2007). See generally e.g. Daniel L. Dreisbach, Sowing Useful Truths and Principles: The Danbury Baptist, Thomas Jefferson, and the Wall of Separation, 39 J. Church & St. 455 (1997).
39. Letter from the Danbury Baptist Association, J. Church & St.
40. Daniel L. Dreisbach & John D. Whaley, What the Wall Separates: A Debate on Thomas Jefferson's “Wall of Separation” Metaphor, 16 Const. Comment 627, 631 (1999).
41. Id. at 632, 631 (“The surviving manuscripts reveal that Jefferson's reply was written with meticulous care and planned effect.”).
42. The letter's political context and the motives and concerns that probably shaped it are described in James H. Hutson, Thomas Jefferson's Letter to the Danbury Baptists: A Controversy Rejoined, 56 William & Mary Q. 775 (1999).
43. See also Hamburger, Church and State, William & Mary Q, at 144–161 (noting that Jefferson “elevated anticlerical rhetoric to constitutional law”).
44. Letter from the Danbury Baptist Association, William & Mary Q.
45. James Hutson, “A Wall of Separation”: FBI Helps Restore Jefferson's Obliterated Draft, 57 Lib. Cong. Info. Bull. 136 (June 1998).
46. Hamburger, Church and State, Lib. Cong. Info. Bull, at 162 (“[H]is epistle was not widely published or even noticed.”). Professor Dreisbach has noted that Jefferson's Letter to the Danbury Baptists first received wide circulation in 1853, when it was included in an edition of his works.
47. See Dreisbach, Lib. Cong. Info. Bull.
48. Hamburger, Church and State, Lib. Cong. Info. Bull, at 163–180 (contrasting the Baptists' views relating to religious freedom with Jefferson's version of separationism).
49. Dreisbach & Whaley, Lib. Cong. Info. Bull, at 635.
50. See generally Hamburger, Church and State, Lib. Cong. Info. Bull.
51. See also Witte, Lib. Cong. Info. Bull, at 231 (“[T]he principle of separation of church and state became one of the strong new weapons in the anti-Catholic arsenal.”).
52. Cf. Douglas Laycock, The Many Meanings of Separation, 70 U. Chi. L. Rev. 1667, 1679 (2003) (agreeing that, in the early-to-mid 19th century, “separation took on a new meaning, roughly but fairly summarized as restricting Catholic influence[,]” but insisting also that “separation” has and has long had many meanings).
53. Reynolds v. U.S., 98 U.S. 145, 164 (1878).
54. Everson v. Bd. of Educ. of Ewing Township, 330 U.S. 1 (1947).
55. See e.g. John Courtney Murray, Law or Prepossessions?, 14 L. & Contemp. Probs. 23, 40 (1949) (“The absolutism of [Everson] … is unsupported, and unsupportable, by valid evidence and reasoning—historical, political, or legal—or on any sound theory of values, religious or social.”).
56. See generally e.g. Hamburger, Church and State, L. & Contemp. Probs, at 454–478.
57. Everson, 330 U.S. at 16.
58. Id. at 18.
59. See Hamburger, Church and State, Id, at 463–472
60. John T. McGreevy, Catholicism and American Freedom: A History 183–186 (W.W. Norton & Co. 2003).
61. See e.g. Ira C. Lupu, The Lingering Death of Separationism, 62 Geo. Wash. L. Rev. 230 (1994).
62. Wallace, 472 U.S. at 91 (“It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.”).
63. See e.g. Dreisbach & Whaley, U.S., at 627 (“No word or phrase is associated more closely by Americans with the topic of church-state relations than the ‘wall of separation between church and state.’”).
64. See e.g. Zelman v. Simmons-Harris, 536 U.S. 639, 686 (2002) (Stevens, J., dissenting) (“Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.”).
65. See e.g. Good News Club v. Milford C. Sch., 533 U.S. 98 (2001)
66. Rosenberger v. Rector & Visitors U. Va., 515 U.S. 819 (1995).
67. Cf. Locke v. Davey, 540 U.S. 712 (2004).
68. Jim Stratton, Harris' Comments Draw Fierce Reaction, Orlando Sentinel A1 (Aug. 26, 2006).
69. Pope Benedict XVI, God is Love: Deus caritas est ¶ 34 (U.S. Conf. Cath. Bishops 2006).
70. See also e.g. Joseph Cardinal Ratzinger, The Salt of the Earth: Christianity and the Catholic Church at the End of the Millennium 240 (Ignatius Press 1997) (“[S]eparation is ultimately a primordial Christian legacy and also a decisive factor for freedom.”).
71. Benedict, The Salt of the Earth: Christianity and the Catholic Church at the End of the Millennium, at 36 (“The Church … cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice.”).
72. Id. at 34.
73. Zorach v. Clauson, 343 U.S. 306, 312 (1952).
74. See also Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 23 (Harv. U. Press 2007) (“Churches—to say nothing of religion in general—can never be wholly separated from the state…. The question that matters is how church and state should mix, not whether they will do so.”).
75. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).
76. See also Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (“No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government.”).
77. For a detailed discussion of the importance of moral anthropology—that is, of claims about who and what we are and why it matters—for our thinking about religious freedom, see e.g. Steven D. Smith, Believing Persons, Personal Believings: The Neglected Center of the First Amendment, 2002 U. III. L. Rev. 1233.
78. Robert E. Rodes, Jr., The Last Days of Erastianism—Forms in the American Church-States Nexus, 62 Harv. Theological Rev. 301 (1969).
79. The American Heritage Dictionary of the English Language 1120 (3d ed., Houghton Mifflin 1992).
80. Shaffer, The American Heritage Dictionary of the English Language, at 757.
81. Id.
82. Rodes, Pilgrim Law, Id, at 140–141.
83. Id. at 140.
84. Id. at 141.
85. See e.g. Esbeck, Id, at 1582, n. 710 (stating that Erastianism involves “complete state supremacy over the church”)
86. Michael W. McConnell, Establishment and Disestablishment at the Founding, Pt. 1: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2189 (2003) (“The technical term for governmental control over the church in the English tradition is ‘Erastianism.’”)
87. Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev. 1047, 1053 (1996).
88. Robert E. Rodes, Jr., Pluralist Christendom and the Christian Civil Magistrate, 8 Cap. U. L. Rev. 413, 418 (1979) [hereinafter Rodes, Pluralist Christendom].
89. See also Rodes, Pilgrim Law, Cap. U. L. Rev, at 141 (“I have extended the term Erastian to cover any view of the church as one of the complex of institutions public and private through which Christians hope to implement an agenda for the whole society in a given time and place.”).
90. Rodes, Cap. U. L. Rev, at 304.
91. See also e.g. Robert E. Rodes, Jr., The Passing of Nonsectarianism: Some Reflections on the School Prayer Case, 38 Notre Dame Law. 115, 130 (1963) [hereinafter Rodes, Passing of Nonsectarianism] (stating diat Erastianism “rejects the rigorous duality of the church and state in favor of a unified religiously oriented society, whose religious orientation is the responsibility of its total institutional structure”).
92. Rodes, Notre Dame Law, at 304.
93. See also id. at 330 (“[Most churches' day-to-day understanding of what they are about is characterized by an Erastian acceptance of a place among the various institutions by which an overall and traditionally Christian society underwrites the pursuit of happiness by its members.”).
94. Id. at 304.
95. Rodes, Pilgrim Law, Id, at 141.
96. See also Rodes, Id, at 305 (explaining that the High Churchman see[s] the institutional church as standing over against society in general, rather than as constituting one of the institutions through which society in general conforms itself to the will of God. … The High Church attitude tends to point up the shortcomings of society, and to offer the Christian a way of dissociating himself from them, rather than of ameliorating them. In die past, High Churchmanship has sought an institutional witness in forms that express the independence of the church, and her freedom from the corruptions besetting rest of society.
97. Robert E. Rodes, Jr., From Pierce to Nyquist: A Free Church in an Expensive State, in Freedom & Education: Pierce v. Society of Sisters Reconsidered 47, 52 (Donald P. Kommers & Michael J. Wahoske eds., Center for Civil Rights, U. Notre Dame L. Sch. 1978).
98. Rodes, Pluralist Christendom, Freedom & Education: Pierce v. Society of Sisters Reconsidered, at 418.
99. Rodes, Freedom & Education: Pierce v. Society of Sisters Reconsidered, at 305–306.
100. “On the whole, a general denunciation of the world's ways in America has been left to fringe churches, which form enclaves and mind their own business, rather than bearing witness against the overall society.” Id. at 306.
101. See also Rodes, Passing of Nonsectarianism, Id, at 131 (“American nonsectarianism was the product of a people bemused with its own potential for secular achievement in the development of a new land.”).
102. Rodes, Id, at 306.
103. Presbyterian Church U.S. v. Mary Elizabeth Blue Hull Meml. Presbyterian Church, 393 U.S. 440(1969).
104. Rodes, U.S., at 317.
105. Id. at 317–324.
106. Id. at 323.
107. Id.
108. Id. at 324–329.
109. Id. at 324.
110. Id. at 324–325.
111. Id. at 326.
112. Id. at 327 (quoting and citing Madison's Memorial and Remonstrance).
113. Id. at 328.
114. See also id. at 329 (noting that it is a “central core of High Church ideology that keeps die state out of die church's central concerns, diat guards die borders of the kingdom of die individual and his God, that saves die means of salvation from unhallowed perversion”).
115. See e.g. Kevin Phillips, American Theocracy: The Perils and Politics of Radical Religion, Oil, and Borrowed Money in the 21st Century (Thorndike Press 2006)
116. Damon Linker, The Theocons: Secular America Under Siege (Doubleday 2006)
117. Michelle Goldberg, Kingdom Coming: The Rise of Christian Nationalism (W.W. Norton 2006).
118. For a critical review of the genre, see Ross Douthat, Theocracy, Theocracy, Theocracy, First Things 30 (Aug./Sept. 2006).
119. See Rodes, Pluralist Christendom, First Things.
120. Id. at 413 (“The problem with which this article deals begins, like so many other problems, with the conversion of the emperor Constantine ….”).
121. Id. at 414.
122. Id.
123. Id.
124. See e.g. Stanley Hauerwas, After Christendom? How the Church Is to Behave if Freedom, Justice, and a Christian Nation Are Bad Ideas (Abingdon Press 1991)
125. Thomas L. Shaffer, Review Essay: Stephen Carter and Religion in America, 62 U. Cin. L. Rev. 1601, 1614–1615(1994).
126. Rodes, Pluralist Christendom, U. Cin. L. Rev, at 414.
127. Id. at 415.
128. See also Rodes, Id, at 308 (“We are called as Christians not merely to survive in the world but to help redeem it.”).
129. Rodes, Pluralist Christendom, Id, at 420.
130. Id. at 428.
131. Rodes, Id, at 690.
132. Rodes, Pluralist Christendom, Id, at 414.
133. Id. at 416.
134. See also id. at 427 (“[L]imiting the exercise of power and according freedom and respect to all human beings are not obstacles to the application of Christian principles; they are the application of Christian Principles.”).
135. That is, “a division of society into separate religious ‘communities,’ each of which is recognized by the state as representing its adherents in all matters religious or related to religion.” Rodes, Passing of Nonsectarianism, Id, at 118.
136. That is, the “confinement of the values endorsed by the state … to those having to do with the world, or those not having to do with God.” Id. at 117.
137. Id. at 119.
138. See also id. at 120 (“This continues to be the theme of some of the most vigorous opposition to pluralistic solutions, particularly in the schools.”)
139. id. at 135 (“[T]he most telling objection to religious pluralism is that it is ‘divisive’—i.e., that it is inconsistent with our national aspiration to fraternal union.”).
140. Rodes, id, at 879.
141. Rodes, Passing of Nonsectarianism, id, at 131.
142. Cf e.g. Richard W. Garnett, Religion, Division, and the First Amendment, 94 Geo. L. J. 1667 (2006).
143. Rodes, Passing of Nonsectarianism, Geo. L. J., at 134.
144. Id.
145. Id.
146. Id.
147. Id. at 137.
148. Id.
149. Rodes, Id, at 305.
150. Id. at 306.
151. See e.g. Rodes, Id, at 307–317
152. Rodes, Pluralist Christendom, Id, at 419
153. Rodes, Id, at 689–690.
154. Rodes, Id, at 317.
155. Id.
156. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition 23 (Harv. U. Press 1983)
157. see also Law and Revolution: The Formation of the Western Legal Tradition, at 11–14 (discussing the “papal revolution”).
158. See e.g. Richard W. Garnett, Church, State, and the Practice of Love, Vill. L. Rev. (forthcoming 2007)
159. Garnett, Vill. L. Rev.
160. See generally e.g. Mark E. Chopko & Michael F. Moses, Freedom to Be a Church: Confronting Challenges to the Right of Church Autonomy, 3 Geo. J. L. & Pub. Policy 387 (2005).
161. See e.g. Diana B. Henriques, Where Faith Abides, Employees Have Few Rights, N.Y. Times A1 (Oct. 9, 2006).
162. See e.g. Marci A. Hamilton, God vs. the Gavel: Religion and the Rule of Law 8 (Cambridge U. Press, 2005) (contending that “[i]n recent decades, religious entities have worked hard to immunize their actions from the law” and “lobbying for the right to hurt others without consequences”).
163. See also e.g. Kathleen A. Brady, Religious Group Autonomy: Further Reflections About What Is at Stake 6–7 (working paper, on file with author).
164. See e.g. Marci Hamilton, The Catholic Church and the Clergy-Abuse Scandal: Act Three, http://writ.news.findlaw.com/hamilton/20030410.html, Apr. 10, 2003 (arguing that “the so-called church autonomy doctrine is not really a legal doctrine at all, at least as far as the U.S. Constitution and Supreme Court are concerned. Rather, it is an insidious theory that invites religious licentiousness rather than civic responsibility.”).
165. See generally Richard W. Garnett, Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine, 51 UCLA L. Rev. 1645, 1662–1665 (2004).
166. See also e.g. William Dinges et al., A Faith Loosely Held: The Institutional Allegiance of Young Catholics, 125 Commonweal 13 (July 17, 1998).
167. See Robert N. Bellah et al., Habits of the Heart: Individualism and Commitment in American Life 221, 235 (U. Cal. Press 1996).
168. Murray, Habits of the Heart: Individualism and Commitment in American Life, at 204–205.
169. Id. at 204.
170. Id.
171. Gerard V. Bradley, Church Autonomy in the Constitutional Order: The End of Church and State?, 49 La. L. Rev. 1057, 1061 (1989) (contending that “church autonomy” is the “flagship issue of church and state,” the “litmus test of a regime's commitment to genuine spiritual freedom”).
172. Rodes, La. L. Rev, at 306.
173. Bradley, La. L. Rev, at 1064.
174. Rodes, La. L. Rev, at 307.
175. See also id. at 336 (noting that the lack of “an institutional High Church witness” is “a serious defect in our national life”).
176. Id. at 337–338.
177. Id. at 336.
178. See also Murray, Id, at 204–205 (arguing that the “freedom of the Church … served as the limiting principle of the power of government”).
179. See generally Garnett, Id.
180. See generally e.g. Hamilton, Id.
181. But see e.g. Declaration on Religious Freedom, in The Documents of Vatican II 675, 694 (Walter M. Abbot ed., Joseph Gallagher, trans. 1965) (available at http://www.ewtn.com/library/COUNCILS/v2relfre.htm) (“[A] harmony exists between the freedom of the Church and the religious freedom which is recognized as the right of all men and communities and sanctioned by constitutional law.”).
182. Murray, The Documents of Vatican, at 207.
183. Rodes, Pilgrim Law, The Documents of Vatican, at 169.
184. See Rodes, Pluralist Christendom, The Documents of Vatican, at 426.
185. Rodes, The Documents of Vatican, at 348 (footnote omitted).