Bishop Barron: The moral and spiritual purpose of the law

The text below is the homily Bishop Barron offered regarding Church and state and the true purpose of the law for the Red Mass at St. Louis Cathedral in New Orleans on Monday, October 4, 2021. The Red Mass is a special liturgy offered for judges, lawyers, and others in legal professions.
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May I say as I commence these reflections that it is an extraordinary privilege to be here with all of you today. Thank you, Archbishop Aymond, for the invitation to speak, and thank you to the entire legal and judicial community of New Orleans—judges, politicians, city officials, lawyers, students of the law—whose important work we place today in prayer under the aegis of God’s grace and providence.

I fully realize that oceans of ink have been spilled trying to adjudicate the rapport between Church and state or between one’s religious convictions and one’s civil commitments. I furthermore realize that this conversation has become, in recent years, particularly heated. What I shall endeavor to do, in the course of this brief homily, is to make just a few simple but, I hope, illuminating observations regarding their right relationship.

Both the Jewish scholar Rabbi Jonathan Sacks and the Catholic philosopher Jean-Luc Marion come together in making the perhaps surprising remark that the earliest text laying out a separation between the sacred and the secular is the first chapter of the book of Genesis. In telling us that all finite things—the sun and moon, the earth itself, the sea, mountains, animals, fish, and insects—come forth from the Creator God, the author of Genesis is effectively de-sacralizing them. Mind you, all of them, in different cultures and at different times in the ancient world, were worshiped as gods. Therefore, in identifying them as creatures of the one God, the author of Genesis is knocking them off a pedestal, but at the same time and in the same measure, he is establishing that they have their own integrity and that they dwell in their own proper realm. The “secular” space, in short, is opened up by God in the very act of creation—and upon that paradox, an awful lot depends.

For, at the same time, the opening chapter of Genesis teaches that every single aspect of creation comes from the creative hand of God and remains under God’s jurisdiction. Thomas Aquinas gives voice to the mainstream of the Catholic tradition when he says that God is “in all things by essence, presence, and power and most intimately so.” He furthermore specifies that God’s providence extends to “particulars.” Nothing in the world is God; but everything in the world comes from and is sustained by God. I would suggest that it is within this tension that we should think through the relationship between Church and state or religion and politics. When this tensive polarity is not honored, we have either a complete secularization, by which political rule is divorced from the concerns and disciplines of the sacred order, or a kind of integralism, whereby the state is simply swallowed up by religion.

Let us take a moment to notice how both sides of the polarity are honored throughout the Bible. In the first place, we note that the rulers of Israel are not prophets and priests. There is a kingly palace and a priestly temple, and they are not the same. The king enjoys a real independence of the religious establishment, and this allows him to operate, to a degree, on his own terms, using his best practical judgment. However, at the same time, his work is done “under God”—that is to say, in accord with the divine law, which judges him and his decisions. Hence, on the biblical interpretation, political rulers, precisely because they are not divine figures, and yet under God’s authority, can and should be criticized. In almost every other ancient culture, political leaders were apotheosized, divinized. Their authority was deemed absolute; their decisions not to be questioned; their persons held sacred. This was true of ancient Assyria, Babylon, Egypt, even Rome, where the Caesars were sacralized. And then there is the culture formed by the Bible, according to the ethos of which kings are often ruthlessly censured.

A particularly vivid example of this principle is an episode in the first book of Samuel. When the people ask for a king, “so that they can be like the other nations,” the prophet Samuel lays out precisely what this figure will be like: “He will take your sons and appoint them to his chariots, to be his horsemen, and to run before his chariots; and he will appoint himself commanders of thousands and commanders of fifties, and some to plow his ground and to reap his harvest. . . . He will take your daughters to be perfumers and cooks and bakers.  He will take the best of your fields and vineyards and olive orchards and give them to his courtiers. . . . He will take one-tenth of your flocks, and you shall be his slaves.”  Pretty blunt, pretty accurate—and utterly egregious in the ancient world.

Moreover, the Bible consistently points out the personal flaws and wickedness of Israel’s kings. Even the greatest of the nation’s rulers, King David, is, the Bible tells us, an adulterer and a murderer. It is precisely the “secular” nature of the king that permits this sort of negative appraisal. But mind you, even as they harshly chastise them, the prophets don’t question the legitimate authority of kings or try to eliminate the office of king—quite the contrary. Thus, we see that the Bible invites us to enter into the creative tension between “nature and grace,” or between “society and religion,” or “Church and state,” to use more contemporary terms.

I should now like to look at three schemata for thinking through this relationship more concretely: one from the ancient period, a second from the medieval, and a third from the 19th century. I draw your attention first to the second-century text called A Letter to Diognetus. We know nothing about the author and next to nothing about the recipient, though some have speculated that he might have been a tutor to the Emperor Marcus Aurelius. At any rate, it is an apologetic text whose primary purpose is to explain the role that Christians play within the wider society.

The author observes that the distinction between Christians and non-Christians is “neither in country nor language nor customs. For they do not dwell in cities in some place of their own, nor do they use any strange variety of dialect, nor practice an extraordinary kind of life.” In other words, there is no particular social, cultural, or political arrangement that is unique to them or upon which they insist in light of their religious convictions. They can, in one sense, happily live in an attitude of detachment from political and social convention, and this is because “they dwell in their own fatherlands, but as if sojourners in them; they share all things as citizens, and suffer all things as strangers. Every foreign country is their fatherland, and every fatherland is a foreign country.” This healthy detachment is born of the profound conviction that “they have their citizenship in heaven.” Here we see very clearly the biblical insistence upon the relative independence and integrity of the social order. It is because Christians do not see any one set of political arrangements as following inevitably from their faith that they can live, happily enough, in a variety of political settings.

However, having said this, the author of the letter does not advocate a purely “secular” space to which Christians have no real relationship, a state of affairs often touted by secularist critics of religion today. Rather, he uses a peculiarly apt metaphor to articulate the manner in which Christians’ religious views legitimately influence the public arena: “To put it shortly, what the soul is in the body, that the Christians are in the world. The soul is spread through all members of the body, and Christians throughout the cities of the world. The soul dwells in the body, but is not of the body, and Christians dwell in the world, but are not of the world.” In a word, through their moral and spiritual commitments, Christians animate the political order, directing it to God and the things of God. Their detachment allows them to live all through the body politic, and their faith permits them to give moral life to that body.

In the 13th century, Thomas Aquinas presented his own version of the subtle relationship between society and religion through his doctrine of law, developed in the second part of his Summa theologiae. Thomas distinguishes between positive law, natural law, and eternal law. Positive law amounts to the prescriptions, prohibitions, and mandates that issue forth from a properly constituted governmental authority for the sake of the common good. These would include, in our context, everything from tax laws to traffic laws, from acts of Congress to the determinations of a local city council. The formulation and execution of these statutes is the prerogative and responsibility of a properly constituted civil authority. And no priest or bishop should involve himself in the prudential particulars of these acts of legislation. Here we can see the Thomistic influence on Pope St. John Paul II’s intervention to the effect that priests should not serve in positions of government.

But lest we think that this insistence upon the integrity of positive law and its formulators should conduce toward secularism, Thomas teaches that the legitimacy of a positive law is a function of its rootedness in the natural law, which is to say, that set of moral prescriptions—foster life, foster community, foster knowledge and art, foster religion—that are discernible as objective values. Martin Luther King Jr., in his Letter from the Birmingham City Jail, made explicit reference to this teaching of St. Thomas, arguing that Jim Crow laws are unjust precisely in the measure that they do not embody the principles of the natural moral law. Finally, argues Aquinas, moral law is grounded in the eternal law, which is identical to God’s rational purpose for the world. Thus, a supposedly moral law that stands in contradiction to the intentions of God would be revealed, ipso facto, as fraudulent.

I find that it is useful to ground these high-flying abstractions of Church and state in a concrete case. The positive law that the speed limit should be, say, 55 mph is just, precisely inasmuch as it is motivated by a desire to protect life and hence to embody a basic principle of the natural moral law, which in turn reflects God’s deepest intention, “that we might have life and have it to the full.” The legislature or city council that formulates that requirement operates indeed on its own authority and without the fussy intervention of the Church, but the legitimacy of its act depends upon its orientation to a moral and spiritual end. Joseph Ratzinger’s reflections on the biblical scene of Jesus in the presence of Pilate is instructive in this context. The Roman governor reminds Jesus that he, Pilate, has the power to release him or to crucify him. The Lord then gently reminds the governor, “You would have no power unless it had been given to you from above.” Notice that he does not deny the fact or even the legitimacy of Pilate’s authority, but he does indeed state that that capacity to formulate positive law comes from and is ordered to a higher source.

A third articulation of the subtle relationship between the political and the religious is found in the writings of the 19th-century French theorist Alexis de Tocqueville. His 1835 text Democracy in America is a masterpiece of sociology and political philosophy. It also contains one of the most trenchant treatments of the issue we have been considering. Like so many others in the heady years following the revolutions of the late 18th century, Tocqueville was enthusiastic about the possibilities of liberal democracy. And he was particularly impressed by the instantiation of liberalism that he found in the United States of the Jackson era. However, he was also deeply sensitive to the limitation of democracy and the typical perversions that can bedevil it. One of these was a rampant individualism. Tocqueville saw in the rhetoric of Jefferson and the other founders a preference for the freedom of the individual to pursue happiness as he saw fit, without any particular direction from the civil authorities. This tilting toward freedom was nowhere clearer than in the separation between Church and state dictated by the non-establishment clause of the first amendment. This was all to the good in the measure that it allowed for the flourishing of an independent civil order. The danger, as Tocqueville saw it, was the opening up of a civic space utterly denuded of moral purpose, an arena in which individuals simply sought their own fundamentally materialistic ends.

The needful thing, he concluded, is a vibrant religious culture that operates outside of the direct control of the state but throughout the civil society, acting very much as the author of the Letter to Diognetus has it, as the soul of the nation. Pulpits, religious organizations, parishes, religious publishing houses, evangelistic enterprises—all would provide a moral and spiritual ballast to what would otherwise be a purely secular space. Indeed, thought Tocqueville, without a vibrant religiosity, a democratic society would, in the end, disintegrate into a vague collectivity of warring individuals.

Though forms of integralism have threatened the civic order at different moments of history, today the far greater threat is coming from the side of an ideological secularism that would like to shuffle religion off of the playing field altogether or, at the very least, confine it to the realm of privacy, so that it would function as a kind of hobby. If that happens, then our society loses its soul, our laws lose their rootedness in the moral and spiritual dimensions, and our democracy loses its cohesiveness. I would say that resistance to this sort of secularizing attack on religion is of paramount importance for Catholics within the legal and political establishment.

I should like to leave you with a final image from Scripture. In the last book of the Bible, the book of Revelation, the visionary author reports that he saw the New Jerusalem coming down from heaven. It is a city of remarkable beauty. To say “city” is to say a place of business, finance, entertainment, education, law, the arts, communication, etc. But the visionary notices that there is no temple in the new Jerusalem, which is peculiar, since the temple was the entire raison d’etre of the earthly Jerusalem. The point is that there is no temple in the heavenly city, since the entire place has become a temple—which is to say, a place where God is rightly praised. Every aspect of that city has found its integrity, precisely by being directed perfectly to God. May this image of the well-ordered city stay in your minds as you continue to think through the relationship between Church and state, the secular and the sacred.