New Clashes Between Church and State

Posted on June 29, 2020

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supreme court
Decades ago, when I was serving as a military legal officer, some classified documents in my command went missing. I advised referring the matter to a senior command for investigation. Back then, regulations issued in the aftermath of the Navy’s devastating Walker family espionage scandal mandated immediate referral of such matters to senior authorities. I explained to my command that missing classified documents required sending the case upstairs. Eventually, I won the day and the command followed the prescribed process. For several weeks beforehand, however, I kept hearing that the documents were not really lost, they just hadn’t been found yet.

A similar kind of wordplay and interpretation game has wormed its way into our daily lives. It has infected our culture and our law. For example, religious freedom is colloquially being reduced to ‘freedom of worship,’ and some are pressing officials to recognize freedom from the religion of others. There are very strong anti-Catholic forces afoot and they have become more emboldened in recent days. There are cultural and legal developments that are about to severely impair Catholic schools and parishes.

Troubles From the Supreme Court
Only days ago, the Supreme Court issued a ruling (Bostock v. Clayton Co., Georgia). which, in essence, inserted LBGT to the category of sex, in the text of the 1964 Civil Rights Act. The law prohibits employment discrimination based on race, sex, color, religion, or national origin – but now, per the Court, it also includes LBGT persons. As one opinion piece put it, the Bostock opinion:
 . . . will live in infamy for accomplishing a double whammy of jurisprudential destruction: (1) it has opened up the floodgates of future litigation against churches and religious institutions of every kind (move over “Bake the cake,” and say hello to “Men in dresses must teach catechism!”), and (2) it did so by claiming to adhere to Justice Scalia’s textualist approach to the law while actually betraying it.
Another commentator stated the Bostock decision “threatens the stability of our Republic” and likened it to the extreme injustice of the Dred Scott case in 1859, (which ruled that a slave living in a free state was not and could not ever be a citizen, paving the way to the Civil War).

The point of this hot rhetoric is to call out the justices on the obvious wrongness of the ruling. It is a clear and radical departure from simple, everyday principles of law and legal interpretation. Consider the centuries of division and misunderstandings still emanating from another capriciously added word to an important document in history: Martin Luther’s addition of “alone” to Romans 3:28. The rewritten text supported new teaching that people are saved by faith alone. This has been a source of ecumenical friction for over 500 years and shows the incredible destruction that misplaced words can cause, (partially remedied by a 1999 Catholic and Lutheran Joint Declaration on the Doctrine of Justification).

I think it is no legal subtlety that the Bostock court snuck in new words to pretend that is what Congress intended. It is closer to a legal coup d’état. I dare say, in principle, it is worse, more glaringly erroneous than the legal subterfuge employed in Roe v. Wade (declaring abortion as a Bill of Rights shadow right). My point is not at all about the merits of whether LBGT persons should or should not have the employment rights awarded by the Court. It is about snatching the decision away from The People and imposing a decision on society.

Catholic and other religious institutions, I predict, will be in for a blitzkrieg of legal attacks to starve the Church and bludgeon her with cries of bigotry, unfairness, and illegality in hiring and firing. The legitimate fear is that LBGT legal challengers will claim a right to be employed in Catholic churches and schools. If successful, they may spread their beliefs about sexuality which are contrary to Catholic teaching, undermining the Church itself. This Bostock case was issued on the heels of at least 100 Catholic schools being economically driven to close by the lengthy governmental coronavirus shutdowns.
Other Anti-Church Legal Shenanigans
During the pandemic stay-home orders, in the Midwest, one state completely closed churches until further notice. Another state suddenly and dramatically increased restrictions on church attendance just as other public venues were being allowed to open up more fully. Churches and people of faith initiated Constitutional challenges based on freedom of religion and the unequal treatment compared to other open establishments. In Illinois, it occurred by filing a lawsuit. In Wisconsin, it was by a legal-brief letter with a threat to file a lawsuit. In both cases, the states reversed their edicts just prior to their probable legal defeat. I think it is more than fair to say that the governmental entities caved in because they knew that their actions were legally indefensible.

I will venture a guess there will be more to come of this sort of anti-religious brinksmanship. Repression will likely be premised upon some fig leaf reason to benefit the public if any reason is given at all. At present, there are loud rumblings of a second wave of the virus which could result in additional shutdowns and more economic adverse impact on religious institutions.

The situation is alarming. As 1 Peter 5:8 says, we need to “Be alert and of sober mind. Your enemy the devil prowls around like a roaring lion looking for someone to devour.” To mix my metaphors, the fox is already inside the hen house. I think there is more persecution coming around the corner and the Church is likely to lose more people. Much like what Cardinal Ratzinger predicted when he was still a priest there is a bleak picture for the future of the Church – followed by an eventual resurgence:
But when the trial of this sifting is past, a great power will flow from a more spiritualized and simplified Church. Men in a totally planned world will find themselves unspeakably lonely. If they have completely lost sight of God, they will feel the whole horror of their poverty. Then they will discover the little flock of believers as something wholly new. They will discover it as a hope that is meant for them, an answer for which they have always been searching in secret.
What to Do
I certainly wish I could offer more helpful coping suggestions. St. Teresa of Calcutta lived for 50 years in spiritual dryness, yet kept up her ministry to the poor, sick, and dying. She demonstrated perseverance in emulating. Today, there are more than 5,000 sisters in the order she founded and missions in over 130 countries. Things happen in life that is sometimes spiritually paralyzing, at least temporarily. When I am knocked down by some experience, I only know to stay down until I can regroup and then get up and begin again, spiritually and otherwise. So, I suggest that’s what we do. In so doing, even the most devout Catholics may well learn to tap into depths of spiritual power they/we had not previously known or understood.
First, feel firm in the promise in Matthew 16:18, the gates of hell will not prevail against the Church. Responses to the prowling lion’s tricks might include:
  • Really heartfelt pleading prayer – that Catholics become stronger in their faith; pray for our enemies who suffer in the darkness of misunderstanding; pray that we may not devolve into anger and revenge
  • Undertake new ways of pumping up our faith and holiness, spiritual reading by saints or commentators, the Catechism, the Bible, radio or TV or Catholic blogs can be very quick and helpful; if possible, become involved in some form of corporal and spiritual works of mercy or a faith group
  • For those who have children, look into homeschooling for the near future
  • Practice your faith visibly. Attend Mass and be present for fundraising, church picnic types of events. When things happen that you know or believe to be discriminatory against the Church, write elected officials, even when it seems useless; put out religious Christmas decorations in your yard, front window or apartment door
  • Support public interest law firms which take on religious freedom cases and take solace in the history of the church’s persecution and its overwhelming persistence
The monolithic Roman Empire failed to defeat Christianity. The repression of Catholics in England in the 16th century spawned St. Thomas More, the Recusants, and much later, Cardinal John Henry Newman. More recently, In 1979, approximately three million ordinary Poles living under Soviet satellite oppression, gathered to attend Mass and pray with the Polish pope. The Poles’ nine-day peaceful confrontation with their overlords led to a workers’ union in a communist country. It was a first step to unraveling communism and brought the return of religious freedom.
Redemptive Suffering
Catholics will undergo suffering in the form of church and state clashes. It will present opportunities for Catholics to venture more deeply into redemptive suffering, that is, consciously offering their pain and distress as a form of reparation for sins in the world. There are holy people and saints who have suffered greatly and been able to say that it brought them joy. Joy! I don’t know of any road map to reach that level.  We can only follow the path of our faith more vigorously. A well-known Catholic who suffered a great deal, St. Padre Pio, left some pithy tips which are worthwhile for the Church’s near future.
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