The Lustre of Our Country: The American Experience of Religious Freedom

Commonweal, July 17, 1998 by John McGreevy

That Judge John T. Noonan, Jr., should write a book whose hero is James Madison marks a certain moment in both American legal and Catholic intellectual history. Noonan's remarkable career has placed him at the center of both traditions. Currently sitting on the United States Court of Appeals for the Ninth Circuit, Noonan is a former chairholder at the Boalt Law School of the University of California at Berkeley, a member of the American Academy of Arts and Sciences as well as the Harvard Board of Overseers, and a towering figure in Catholic intellectual and legal circles. Recently, he has authored a sharp attack on the "right" to physician-assisted suicide and participated in the late Cardinal Joseph Bernardin's Catholic Common Ground initiative. His scholarly achievements defy casual summary, but a sustained interest in the development of Catholic doctrine has led to a series of important books on topics as disparate as bribes and annulments. In Rome for the heady days of the Second Vatican Council, Noonan also served as a primary scholarly adviser for the ill-fated papal commission that urged Paul VI to alter traditional Catholic teaching on artificial contraception.

But James Madison? As Noonan notes in the autobiographical, and moving, first chapter of The Lustre of Our Country, he began his scholarly career as a graduate student at The Catholic University in the 1940s, convinced that traditional church teaching on religious freedom was unassailable. A leading Catholic textbook of the time put the matter bluntly: "If there is only one true religion, and if its possession is the most important good in life for states as well as individuals, then the public profession, protection, and promotion of this religion, and the legal prohibition of all direct assaults upon it, becomes one of the most obvious and fundamental duties of the state." Popes and theologians agreed that error - that is, any non-Catholic belief - might be tolerated, but only out of charity. One afternoon, Noonan traveled to Maryland's Woodstock Jesuit Seminary where he argued the matter with John Courtney Murray. Murray's brilliance helped Noonan reassess his position, but also prompted doubt about the veracity of his faith.

How the Catholic idea that "error has no rights" became viewed not only as implausible but immoral - in the United States, in Rome, and much of the world - is Noonan's subject. He begins in his native Boston, "cradle of liberty," where Puritans fleeing religious persecution commenced flogging, banishing, and hanging Quakers. He then moves to Madison's battle (first in Virginia, then after the Philadelphia Constitutional Convention) to replace the idea of religious tolerance with that of free exercise. Subsequent chapters offer different angles on the same problem, including a survey of the nineteenth-century religious landscape written in the voice of a fictional sister of Alexis de Tocqueville, and an engaging mock memoir by an American military officer charged with rewriting the Japanese constitution after World War If. Another chapter - written in traditional expository prose - traces the tortured legal maneuverings that resulted in the Supreme Court's terming the opinions of a small religious sect "humbug." The book concludes with a riveting summary of debates on religious liberty (here we reencounter Noonan's old sparring partner, John Courtney Murray) at the Second Vatican Council.

For a scholar once concerned about Catholic triumphalism, this is triumphal history. Free exercise, Noonan begins, is an American invention, and "no false modesty" or "nervous fear of chauvinism" should obscure this fact. Not only is it the lustre of our country, but it is also, according to the book's press copy, "America's greatest moral contribution to the world."

Such blanket statements tempt even the most generous reviewer, but Noonan builds a convincing argument. Free exercise is a distinctive American contribution to modern life, and its presence in many of the constitutions written around the world during the past decade testify to its continued importance. Interfaith cooperation on civic affairs, as well as high rates of religious intermarriage, are both (in part) legacies of this two-hundred-year experiment. And the contemporary Catholic must acknowledge that the most important harbinger of John Paul II's persistent appeal to the primacy of human conscience is not, say, Gregory XVI who in 1832 termed "freedom of conscience" an "absurd and erroneous opinion," but James Madison, a devout Presbyterian deeply shaped by the Enlightenment. In this area, as in others, the more Christian response to the problem of religious pluralism came from outside Catholicism, even, at many moments, from outside Christianity itself.

The celebratory tone of Noonan's assertions, though, clash with his savvy discussion of the legal relationship between church and nation. Even in a nation dedicated to religious freedom, Noonan concedes, national interests frequently trump religious concerns. In the nineteenth century the Supreme Court declared a Mormon religious practice - polygamy - unconstitutional. In the twentieth century the Court deemed draft resisters from certain religious backgrounds worthy of an exemption from military service, but handed other opponents of the war their induction notices. Administrators at the Internal Revenue Service withdrew Bob Jones University's tax exempt status, despite the claim of Bob Jones officials that Scripture required them to forbid interracial dating.