By Edward A. David
McDonald Postdoctoral Fellow in Christian Ethics and Public Life, University of Oxford
23 February 2023, Recollection Lecture, Pusey House, Oxford
Introduction
Thank you to the Centre for Theology, Law, and Culture for the kind invitation to speak today, ahead of a symposium dedicated to the topic of corporate persons. The aim of this lecture is to suggest that metaphysics (specifically of a Christian sort) ought to inform our moral reasoning over religious liberty (specifically of churches).
In making this suggestion, I will offer neither a well-formed political theology nor a set of rules to navigate the ethics of religious exemptions. Instead, I will recall, or recollect, various metaphysical ideas about the church—perhaps the only true corporate person—and will consider how those ideas might shape our moral reasoning as Christians, in law and in a post-metaphysical world.
The idea that we live in post-metaphysical a world may be uncontested, at least as a social observation, by many in this room. But we might appreciate that claim more deeply by exploring John Dewey’s 1926 article, “The Historic Background of Corporate Legal Personality,” a seminal text in corporate theory, which rejects metaphysics as a normative source for law.[1] This exploration will constitute the first part of my lecture. After this prolegomenon, I will transport us a century forward to reflect on how metaphysical ideas—against Dewey’s protestations—might inform our moral analysis of a U.S. religious liberty case involving church freedoms during the COVID-19 pandemic.[2] Without further ado, let us begin.
- Dewey against Metaphysics
- Metaphysics in the Brooklyn Court
- The Different Ends of Church and State
- Irreparable Injury and Worship’s Saving Effects
- Public Interest and Moral Virtue
- Wisdom through Disagreement
- Footnotes
1. Dewey against Metaphysics
In “The Historic Background of Corporate Legal Personality,” the American philosopher John Dewey (d. 1952) argues that the granting, or assignment, of rights to corporate persons should (i) operate independently of political, moral, and theological ideas about legal personality, since “extraneous dogmas and ideas” can obstruct rules of law. He also claims that such assignment should (ii) have recourse only to the social consequences that legal experts find corporate persons to have when granted or denied rights and duties.[3] This, he thinks, is the only way in which concrete facts and relations (those necessary for the assignment of legal rights) can be laid bare. Implied in this argument is an understanding of two opposing methods of assigning rights, what I refer to as the metaphysical and empirical methods.
According to Dewey, the metaphysical method follows from an ancient Greek logic, which involves first understanding what a thing is and then determining which rights and duties that thing should enjoy based upon its inherent nature. Moreover, this inherent nature, Dewey suggests, must be something of practical moral importance; otherwise, “why are not molecules, or trees or tables just as fit candidates for legal attributes as singular men and corporate bodies?”[4]
While Dewey recognizes the moral import of assigning rights and duties to legal persons, he thinks that the basic intuition underlying the metaphysical method is misplaced: After all, judges and lawmakers issue holdings and pass legislation without reaching consensus on the metaphysical nature of juridical subjects. They need only rely upon the relevant effects of recognizing rights and duties, effects known empirically by those “competent in law.”[5] Therefore, brute facts of actual legal consequences weaken the currency of the metaphysical method and its basic assumption.
Apart from the practical impotence of the metaphysical method, Dewey attributes a certain normative failure to it as well. By virtue of this method, “philosophy or what not extraneous dogmas and ideas” can obstruct rules of law. This implies that such theoretical notions about what is are obsolete or inaccurate and therefore are unsuitable for solving contemporary legal problems. Dewey writes, “We often go on discussing problems in terms of old ideas, when the solution of the problem depends upon getting rid of the old ideas, and putting in their places concepts more in accord with the present state of ideas and knowledge.”[6] Thus, through its penchant for drawing legal conclusions from non-legal concepts, the metaphysical method—by Dewey’s lights—falls flat.
In contrast to the metaphysical method, Dewey’s preferred empirical counterpart proceeds in an almost opposite manner. According to the empirical method, rights and duties do not follow from conclusions about an inherent essence. Instead, rights and duties are first given to a legal person and then the consequences that follow from this assignment are analyzed. This method (i) focuses upon what a thing does in light of the rights and duties it is given; (ii) it remains agnostic with respect to the inherent nature of the thing in question;[7] and (iii) it involves a normative assessment of the observed consequences which culminates in an adjustment of laws and policies. On this third point, Dewey is regrettably ambiguous.
Ambiguity concerning the empirical method’s normative function can be attributed in part to the method’s two sources: C.S. Pierce’s pragmatist rule (which states that “our conception of . . . effects is the whole of our conception of the object”) and a scientific principle known as extensive abstraction (according to which “what really matters to science is not the inner nature of objects but their mutual relations”). Dewey claims that a method built upon these foundations is “logical” or mathematical.[8] Yet somehow, on Dewey’s understanding, a mathematical method can recognize the normative importance of rights and duties, as if two plus two could result in a moral appraisal.
Dewey’s empirical method thus appears to be an extension of a positivist scientific principle, rather than an instance of moral reasoning. In other words, it seems to endorse an impossibly amoral form of assigning corporate rights. The classical distinction between four fields of rational inquiry—(1) natural science, (2) logic, (3) moral philosophy, and (4) technique—helps illuminate this limitation.[9] As John Finnis notes, of these four orders, it is only the third (moral philosophy) that deals with self-determining, freely chosen conduct and therefore with morality itself.[10] This distinctiveness concerns the interplay between moral responsibility (choosing one’s actions) and the self-constitutive nature of those freely chosen acts. Such actions are what Finnis calls “actio rather than factio”—that is, “doing(considered precisely as self-determining) rather than making (considered precisely as shaping something outside the acting person’s mind and will).”[11] It is the subject-matter of doing that makes the third order uniquely moral and thus irreducible to natural science, logic, and technique.
It should be stressed that the assigning of legal rights carries with it a normative dimension and hence has bearing upon freely chosen actions.[12] Lawyers and judges morally deliberate in their assignment of legal rights. And those subject to regulations morally deliberate over how to act within the legal space created; at times, they deliberate over how to change that space to align with moral requirements. Although concerned with the social technology known as law,[13]and thus part of the order of technique, the giving of legal rights has roots deeply within the order of moral philosophy.[14]
It becomes apparent, then, that Dewey’s empirical method downplays—to the point of obscurity—the reality of self-constitutive actions in the assignment of legal rights. By collapsing the ought of freely chosen actions into the is of scientific study, the empirical method offers no moral reasons to follow its conclusions. Why permit consequence x to occur when thing y is given rights to z? Following Dewey, a good moral reason may ever elude us.
Having critiqued Dewey’s empirical method, I now invite us to consider a recent legal dispute that was brought before the U.S. Supreme Court. Decided in November 2020, Roman Catholic Diocese of Brooklyn v. Andrew Cuomo, Governor of New York involves the free exercise claims of houses of worship during the COVID-19 pandemic. Although the Court’s opinion does not explicitly mention corporate persons, the Justices highlight the significance of the Mass for Catholic believers. I take this reference to be an open invitation for theologians to explore how a Eucharistic metaphysics might feature in our moral and legal reasoning over a particular corporate body—namely, the church. Already, then, we note that the Brooklyn opinion departs from Dewey’s empirical method insofar as metaphysical beliefs are recognized as morally significant. Nevertheless, a Deweyean emphasis upon consequences, framed within the language of rights and public interests, stands firmly at the opinion’s fore. It may be worthwhile, then, to dig beneath this Deweyean veneer to remind ourselves of Catholic metaphysical resources that are available to us—and to our moral and legal reasoning.
2. Metaphysics in the Brooklyn Court
We begin with the facts of the case. On 7th March 2020, Andrew Cuomo, the then Governor of New York, declared a disaster emergency in response to the COVID-19 pandemic. Later that year, Cuomo approved “enhanced public health restrictions” to curb the spread of infection.[15]
The restrictions applied to a range of organizations, including houses of worship, and varied in stringency according to zones. In red zones (areas with the highest levels of COVID), houses of worship were required to cap attendance at religious ceremonies to “25% of maximum occupancy or 10 people, whichever [was] fewer.” In orange zones (areas of “moderate severity”), houses of worship had a capacity limit of 33% or 25 people. Finally, in yellow zones (“precautionary” areas), houses of worship were subject to a capacity limit of only 50%.[16]
These restrictions were viewed as especially severe by two religious communities—the Roman Catholic Diocese of Brooklyn and the Orthodox Jewish organization, Agudath Israel of America. Both sought legal remedy in the form of injunctive relief from the U.S. Supreme Court. At issue, the communities argued, was their collective right to religious liberty as protected by: (i) the free exercise clause of the First Amendment; and (ii) the Court’s “minimum requirement of neutrality to religion” which prohibits the government from treating houses of worship more harshly than their secular counterparts.[17] Convinced that the communities’ First Amendment claims would prevail, the Justices granted the communities immediate relief. The Governor was thus barred from enforcing the most severe of the attendance restrictions.
The Court’s opinion features two statements of interest. First, it states that the Governor’s restrictions “would lead to irreparable injury” for the religious communities and, second, that a relaxation of the restrictions “would not harm the public interest.”[18] These statements constitute a legal conclusion that may be reasonably disputed. However, while a technical legal analysis is welcome, it will be helpful, too, to interrogate the Court’s opinion from a different perspective altogether—that is, from a theological perspective of at least one of the religious communities affected.
The importance of theological interrogation can be discerned in the Court’s one-paragraph discussion of irreparable harm. The Court begins by claiming that restrictions on religious attendance will have serious legal consequences, namely, “the loss of First Amendment freedoms” which “unquestionably constitutes irreparable injury.”[19] This legal point is then complemented with a gesture toward moral and metaphysical reasoning. The opinion reads:
If only 10 people are admitted to each service, the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance.[20]
Here, the Court links legal injury (“the loss of First Amendment freedoms”) with moral and theological harms (being “barred” from “important religious traditions”). This connection, however, is left theologically undeveloped, as the paragraph abruptly ends and the discussion gives way to an analysis of public interest. It is perhaps reasonable for courts of a (secular) liberal democracy to stop short of theological explication.[21] Nevertheless, since court opinions are meant to justify to the public the decisions made,[22] it would be helpful to know more about the religious metaphysics at stake. With the Court unable to furnish this understanding, theologians may step in to fill the gap.
So, for the remainder of this lecture, I offer a Catholic perspective on the Brooklyn decision, drawing theological attention to the Court’s remarks concerning “irreparable injury” and “public interest.” My reflection will address three areas of theological significance: first, the relationship between church and state, which operates in the background of any U.S. discussion on free exercise; second, the importance of religious attendance, which, when interfered with, can cause “irreparable injury” to members of a metaphysical corporate body; third, our “public interest” in worship, which pertains to the virtue-building effects of religious attendance, as well as to the moral role of the (secular) state. Finally, the reflection will consider the interaction between two virtues in particular, justice and wisdom, which help interpret theBrooklyn dissent.
The purpose of this reflection is to substantiate the various moral and metaphysical claims that are implied—or otherwise said but left undeveloped—in the Court’s opinion. This exercise, I hope, will be useful for anyone who wishes to break out the Deweyean mold and so reflect theologically upon religious exemptions, an area of law that is likely to receive further treatment from the U.S. Supreme Court.[23]
A notable aspect of my reflection lies in its sustained virtue-based analysis of church and state. Most scholars of law and religion emphasize the jurisdictional claims of each type of association.[24] My reflection focuses upon the aretaic instead, shining a light on the distinct ends of church and state, as well as the virtues that are implicated in the execution of their responsibilities. To draw out these points, my discussion references the Catholic tradition more widely. However, it relies heavily upon two medieval sources in particular. The first is the corpus mysticum tradition, unearthed in the nineteenth century by Henri de Lubac, which holds that the Church is more than a mere collection of believers; it is the mystical body of its head, Jesus Christ.[25] This tradition is not often noted in contemporary discussions of church and state, or in discussions of virtue for that matter. Its relevance for these topics remains, nevertheless. The second source for our reflection is the medieval theologian Saint Thomas Aquinas (d. 1274). Already, Aquinas’s influence is keenly felt in theological reflections on law and on virtue.[26] That said, it remains a worthwhile endeavour to bring Aquinas to bear upon a single legal dispute,[27] primarily for the conceptual clarity he brings to issues of enduring importance. The Brooklyn case is replete with such matters.
3. The Different Ends of Church and State
I begin our reflection with a brief discussion on church and state. The distinction between both realms, or types of association, is an ancient idea that has been traced to Pope Gelasius I (d. 496), Saint Augustine (d. 430) and, further back, to the New and Old Testaments.[28] Central to this distinction is a question concerning moral and religious responsibilities. For believers, their responsibilities are neatly captured by Christ’s admonition to “render to Caesar the things that are Caesar’s, and to God the things that are God’s” (Mk 12:17). For the church and state themselves, the responsibilities owed to their members are not so pithily stated.
On this front, Aquinas offers conceptual clarity. Following the Aristotelianism of his age,[29] Aquinas defines each type of association according to their proper ends, which, in turn, point to each association’s distinct responsibilities. Beginning with the political community or state, its end is the “common good” of its citizens.[30] To maintain the common good, a state may guide, or even coerce, the external acts of its citizens: “[f]or the end of human law,” Aquinas says, “is the temporal tranquility of the state, which end law effects by directing external actions.”[31] Law is, thus, an important instrument of the state, and so the making, enforcement, and adjudication of laws constitute some of its most important responsibilities.
The church, in contrast, has an end of an entirely different sort. Its end is “everlasting happiness,”[32] a state of eternal beatitude or “union with God” wherein persons contemplate and forever live in the “divine essence.”[33] To help members reach this end, the church has a responsibility to “preach … the Gospel of Christ” and to provide the sacraments instituted by him.[34] This is a grave responsibility. However, in exercising this task, the church cannot externally coerce members into eternal life. A free response of faith is required, and since this action is internal, it must be freely given. As Aquinas notes, “even … the Gospel would kill, unless there were the inward presence of … faith.”[35]
In a well-ordered society, individuals would belong to both types of association and so be subject to the responsibilities and authority of each.[36] The order, or orderliness, of this arrangement may be succinctly described: the state coerces externally, while the church encourages internally. Christians thus enjoy a dual citizenship. They are members of a temporal political community and the city of God which is prefigured by a pilgrim church.[37] At its best, the relationship between both associations is marked by a peaceful interdependence—with the state, for instance, looking to the church for help in civic formation,[38] and the church relying upon the state for certain practicalities, such as emergency services when a church building catches fire.[39]
Such dependence notwithstanding, the tension between church and state cannot be overlooked. As the late Pope Emeritus Benedict XVI suggests, this tension is important because it pertains to freedom itself. “Each of these communities [i.e., church and state] has a limited radius of activity,” he explains, “and keeping their mutual relationship in balance is the basis for freedom.”[40] What freedom? In the American context, and in the Brooklyn dispute especially, we can point to “First Amendment freedoms,” the loss of which may “unquestionably constitute[] irreparable injury.”[41]
4. Irreparable Injury and Worship’s Saving Effects
With a basic understanding of church and state outlined (there are many understandings, of course: see Section 6 below), I turn next to the Court’s discussion of “irreparable injury.” As noted above, the Court majority suggests that “First Amendment freedoms” are so important that, if lost, “irreparable injury” may follow.[42] We can now add that the Court complements this legal claim with a theological point of fact: “Catholics who watch a Mass at home cannot receive communion,” the justices note.[43] To this point, one may reasonably ask why reception of communion even matters. A legal freedom of worship is clearly implicated. However, the Court majority—in pointing to the specific example of communion—suggests that something deeper is at stake. “Irreparable injury,” in other words, must have a grave metaphysical significance for it to be singled out as salient. Two areas of discussion may help illuminate this point. The first pertains to the relation between communion and the individual’s salvation; the second involves communion and salvation’s corporate dimension.
First, individual salvation. To begin, we note that communion—or the sacrament of the Eucharist—is a central form of worship in many Christian traditions.[44] For Roman Catholics especially, it entails a supernatural reality of the deepest religious significance: an encounter with and reception of the body and blood of Jesus Christ. More than a metaphor, the Eucharist literally is the body of Christ;[45] it is the corpus verum, Christ’s true physical body,[46] that was sacrificed on the cross and “poured out for many for the forgiveness of sins” (Mt 16:28). The Council of Trent, in 1562, explains this salvific significance in the following way:
[Christ], our Lord and God, was once and for all to offer himself to God the Father by his death on the altar of the cross, to accomplish there an everlasting redemption … At the Last Supper on the night when he was betrayed, [he wanted] to leave to his beloved spouse the Church a visible sacrifice … by which the bloody sacrifice which he was to accomplish … would be re-presented, its memory perpetuated until the end of the world, and its salutary power be applied to the forgiveness of the sins we daily commit.[47]
As the Council suggests, the forgiveness of sins is part and parcel of a believer’s sanctification which, in turn, is linked to eternal salvation. Catholic tradition, in fact, holds that the physical consumption of the Eucharist is necessary for salvation: “Truly, I say to you, unless you eat the flesh of the Son of man and drink his blood, you have no life in you” (Jn 6:53).[48] Communion thus entails a decidedly physical form of salvation, which includes a bodily resurrection at the end of time.[49] Certainly, interference with this could amount to “irreparable injury.”
Next, we consider a collective dimension of communion, attending to the corporate nature of the church. Two paradigms are worth our attention. First, with Jacques Maritain, and his former spiritual director Humbert Clérissac O.P., we might say that the church is a rational and substantial whole—in other words, a “person” in the classic Boethian sense.[50] Clérissac writes: “Although the Church is composed of … Humanity, Christ, and the Holy Ghost[,] … the bond which unites them, being a divine Person, confers upon their conjunction a unity, a stability, a rational and intelligent autonomy of a superior kind, which merits … the name of personality.”[51] Maritain echoes this position almost four decades later, not long after the Second Vatican Council. He writes:
The Church, while subsisting naturally with the subsistence of her innumerable individual members, possesses herself, supernaturally, insofar as she is the whole—one and universal—of this multitude, a personality, truly and ontologically and not in a wholly analogical sense, in the fashion of that which the jurists call … ‘moral persons.’ She is herself a person in the proper and primary sense of the word.[52]
A second paradigm perhaps self-consciously avoids referring to the church as a distinct personality. Outlined in the early twentieth century by the Jesuit theologian Henri de Lubac, the paradigm holds that the church is the mystical body of Christ, the corpus mysticum. This means that the church is not only the site of the Eucharistic sacrifice, but also Christ’s body in corporate form. As with the Eucharist, no mere metaphor is here deployed: Christ is the supernatural head of the church, and Christians are the different parts of Christ’s mystical body.[53] De Lubac sees this paradigm in Paul (e.g., 1 Cor 6:15: “Do you not know that your bodies are members of Christ?”) and in centuries of medieval texts. Yet unlike Clérissac and Maritain, who find in the church a metaphysical persona, de Lubac is quick to note that the church’s mystical body is not indicative of a “transcendent hypostasis” or “external organism.”[54] In other words, by de Lubac’s lights, the church is not a Boethian person—as if subsisting as a fourth person of the Holy Trinity. Instead, it exists mystically as the corporate body of Christ, the head.
It should come as no surprise that these paradigms are eschewed by (secular) legal scholars like Dewey. Easier instead is the view that corporate persons are mere fictions of law.[55] Nevertheless, both—though especially the corpus mysticum paradigm—remain relevant for the Brooklyn Court’s discussion of irreparable injury. Consider the following point made by de Lubac: when communicants are “[n]ourished by the body and blood of the Saviour, … [it is Christ] who truly makes them into one single body … Literally speaking, [then,] … the Eucharist makes the Church.”[56]
Taking seriously these words, one might see how restrictions on religious attendance could: (i) isolate believers from God, thus collapsing a vertical relationship between Christ the head and the individual; and (ii) isolate believers from the rest of Christ’s mystical body, thus breaking a horizontal relationship—a communion—between worshipping members. Legally speaking, restrictions on religious attendance can have a material effect upon the corporate existence of the church itself—after all, “the Eucharist [literally] makes the church.”[57] Individual rights to free exercise are here implicated, but so too are freedoms pertaining to religious association. The corpus mysticum paradigm gives these horizontal freedoms a theological weight. Indeed, in a very particular sense, there simply is no (experience of) religious association without Eucharistic communion. With a sacred bond broken, “irreparable injury” is an apt term.
5. Public Interest and Moral Virtue
Next, we consider the Brooklyn Court’s discussion of “public interest.”[58] Found in the opinion’s final section, public interest is described by the Court with reference to COVID-19:
The State has not claimed that attendance at the applicants’ [religious] services has resulted in the spread of the disease. And the State has not shown that public health would be imperiled if less restrictive measures were imposed.[59]
In other words, the Court acknowledges that there are grave public interests in not spreading the disease and in not imperiling the health of the general public. “Stemming the spread of COVID-19 is unquestionably a compelling interest,” the Court says.[60]
The concept of “interest” has an intriguing intellectual history, having been associated with “destructive passions (the desire for riches, glory and domination)” by Thomas Hobbes (d. 1679), as well as national and economic interests (including those of “individuals and groups within the nation”) in seventeenth-century England.[61] The latter, more general understanding still holds today (though, unfortunately, the former “destructive” sense may hold as well). However, rather than focus on the balancing of such interests,[62] I wish to draw attention to one of the Brooklyn Court’s underlying assumptions: the idea that the state should play a significant role in our moral life together. This much has been implied in Section 3 above. Yet, more can be said about the issue, particularly with regard to virtue and its place within a church–state relationship. Once more, we return to Aquinas.
Aquinas, we recall, posits different ends for the church and state: the latter aims toward the “common good”; the former, “everlasting happiness.”[63] In posing this distinction, Aquinas departs from a set of Aristotelian ideas, which hold that politics (i.e., the science of the state) is the “master art” and that it (or the state) makes “citizens to be of a certain character, namely good and capable of noble acts.”[64] Turning these ideas on their head, Aquinas proposes that the church—and not the state—is the most perfect moral community. He makes this claim through a comparison of human and divine law:
Now human law is ordained for one kind of community [the state], and the divine law for another kind [the church] … Wherefore human law makes precepts only about [external] acts of justice …, [whose proper function consists in directing the human community,] divine law proposes precepts about all those matters whereby men are well-ordered in their relations to God … [This affects] the acts of all the virtues.[65]
In the excerpt above, it may be tempting to discern an antagonism between justice and the divine law, and thus, to conclude that only the state—and not the church—is concerned with justice. However, Aquinas elsewhere describes “religion” as a form justice, the virtue that gives to others (both God and human persons) their due.[66] Hence, the church—being a community ordered by religion (or justice) to the keeping of divine law—is not a de facto enemy of the state. Instead, the church seeks to elevate, even orientate, justice and all the virtues toward the human person’s ultimate end: “union with God.”[67] All this suggests that, for Aquinas, the church is the most complete moral community, and that the church should have responsibility for developing its members’ perfect virtue—this being an internally suasive, not externally coercive, task.[68]
Some of the actions that constitute this task have already been mentioned: they include “preaching … the Gospel of Christ” and providing the sacraments instituted by him.[69] We can now add that the Mass—the church’s “public worship”—encompasses both types of actions.[70] It is the Mass that serves as a principal means of developing a community’s virtue.
The theological reasons behind this claim are many. For one, as the celebration of the Eucharist, the Mass is where believers give due worship to God, expressing “faith in the real presence of Christ under the species of bread and wine.”[71] Here, they cultivate the virtue of religion. Second, believers must prepare for the “worthy reception” of the Eucharist, recognizing their own faults, forgiving others of theirs, and thus, developing the virtue of humility.[72] Moreover, the worthy reception of the Eucharist involves countless moral and spiritual fruits, including a strengthening of the virtue of charity, an effect of Eucharistic devotion to God, renewed commitment to the poor, among whom Christ is counted, and a desire for Christian unity, so that all may enjoy “common participation in the table of the Lord.”[73]
In addition to this theological backdrop, virtue formation through the Mass can be understood psychologically. Briefly, we might mention the admiration of Christ and the saints, with their stories experienced through the hearing of scripture and their admirable traits imitated by hearers in the world.[74] We might also point to the numerous benefits of attending Mass and other religious services. As Harvard’s Tyler VanderWeele reports, religious attendance is associated with improved mental health, better social relationships, and measurable gains in virtue. Longitudinal evidence shows that those who attend religious services are more generous and civically engaged than those who do not.[75]
So, through its various actions, especially through the Mass, the church is understood to be the most complete moral community. This characterization seems apt for a community that is also known, metaphysically speaking, to be Christ’s mystical body. Certainly, then, there is a “public interest” in creating space for this body to positively form citizens’ character.
At this point, we must ask again about the state, that other moral community which concerns itself with acts of justice.[76] What role might it play vis-à-vis the church’s deeper, more personal development of virtue? To answer this question, I highlight various moral positions that the state might take toward restrictions on religious attendance—that principal means of virtue formation.
First, we consider the Governor’s position. At worst, Cuomo’s restrictions on religious attendance could be seen as embodying state hostility toward religion. In a concurring opinion, Justice Gorsuch offers an acerbic summary of this view. While even “the largest cathedrals and synagogues” are subject to severe restrictions, Gorsuch writes,
the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores … So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine … Who knew public health would so perfectly align with secular convenience?[77]
Focusing on the substance of Gorsuch’s remarks, one can discern a moral message in the Governor’s use of the term “essential”: some organizations and activities are important, others are not. Churches and their worship are not.[78] Here, we might say that the state takes a negative position, albeit indirectly, toward the church’s worship-based moral pedagogy.
A second moral position to consider is that of the Court majority: “there is no reason why [the Diocese and Agudath Israel] should bear the risk of suffering further irreparable harm,” the Court concludes.[79] Although stated in defensive legal terms, the Court’s position lends itself to positive elaboration, both morally and theologically speaking, as this lecture has endeavored to show. Again, it may not be the Court’s place to explicate fine points of theological doctrine or to adopt the thickest of normative language.[80] However, if such restraint is a virtue of a liberal democratic state, then it can be appreciated as truly virtuous in light of the church’s responsibilities toward moral formation.[81] In other words, to respect individuals, communities, and their rights, perhaps the state should refrain from interfering with the moral mission(s) of houses of worship. Undue attendance restrictions, as well as certain forms of moral pontificating from public officials, could amount to unwelcome, even vicious, interventions. Certainly, there is a “public interest” in barring these.
6. Wisdom through Disagreement
My reflection thus far has offered a Catholic, and metaphysically informed, perspective on “irreparable injury” and “public interest.” With reference to the corpus mysticum tradition and Aquinas, my reflection may be read as a moral and theological support for the Brooklyn decision. However, it is important to recognize that reasonable disagreement can exist over the scope of restrictions on religious attendance. As Chief Justice Roberts suggests, one may “simply view the matter differently after careful … analysis.”[82] Such disagreement, moreover, can operate within the domain of virtue; and, indeed, it is in disagreement that virtues are most needed.[83] Therefore, to round off this reflection, we would do well to address yet another moral position that may be read into the Court’s legal reasoning. This is the view that the Governor’s restrictions were morally just, being consonant with not only the virtue of religion but also the virtue of practical wisdom. If this view has merit, then perhaps the state—in at least some of its actions—shows itself to be a necessary moral support for the mystical body of Christ. We can explore these ideas by engaging with the Court’s dissent.
Consider the following argument made by Justice Sotomayor: “state officials seeking to control the spread of COVID-19 … may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict.” In fact, notes Sotomayor, “New York applies similar or more severe restrictions … to comparable secular gatherings.” These include “lectures, concerts, movie showings … , [events] where large groups of people gather in close proximity for extended periods of time.”[84]
This argument clearly appeals to equality. Therefore, we may ask whether the attendance restrictions follow what the virtue of justice—which is commonly associated with equality—might reasonably demand. Again, Aquinas provides food for thought.
Justice involves the establishment of “equality in our relations with others,” writes Aquinas, and this is achieved “by doing good, i.e., by rendering to another [their] due,” and “by inflicting no injury upon [our] neighbor.”[85] If “secular gatherings” (universities, concert venues, etc.) justly abide by attendance restrictions and thereby refrain from “exacerbat[ing] the Nation’s suffering,” then the virtue of justice may expect the same behavior from “comparable [religious] institutions.”[86] After all, says Aquinas, “it belongs to … justice to do good in relation to [our] community.”[87] “[A]ll those who are included in that community,” from individuals to religious associations, fall within justice’s purview.[88]
To this argument, a theological objection may be raised. As discussed in Section 5 above, Aquinas considers religion to be a type of justice, specified by its unique subject—i.e., God, who deserves a “special honor due.” What could this special honor be? “[S]acrifice, adoration, and the like,” says Aquinas.[89] In other words, the “proper and immediate acts” of religion or, more plainly stated, public worship.[90] Given this understanding, it may be argued that religious believers must attend services so as to give God a “special honor due”; therefore, religious gatherings—in contrast to secular gatherings—must not be subject to attendance restrictions. This unequal proposition, the objection holds, is justified by what the virtue of religion commands.
What are we to make of this theological objection? For one, the objection may sit comfortably in the minds of certain legal theorists—for example, with scholars associated with Catholic integralism.[91] However, one challenge that would need to be addressed pertains to religion’s second type of act, namely virtuous actions that religion commands for “the honor of God.” Such actions, Aquinas notes, include the merciful action of “visit[ing] the fatherless and widows in their tribulation” and the temperate action of “keep[ing] oneself unspotted from this world.”[92] Both actions are commanded by the virtue of religion, and thus, strengthen the general aim of justice, which entails “rendering to another [their] due.”[93] In light of such actions, is it not plausible that religion might, in some very specific circumstance, command that restrictions be placed on religious attendance? Additionally, in that circumstance, might religion invite us to view such restrictions as acts of virtue, which are commanded not only for the good of others but also to honor God?
These questions deserve answers. But how might we navigate what the virtue of religion specifically demands? For guidance, we turn to the virtue of practical wisdom, a virtue that can be seen in the Brooklyn dissent, as well as in the Court majority.
Practical wisdom (or prudence) is often referred to as a master virtue[94] which helps individuals to deliberate well about the “sorts of thing conducive to the good life in general.”[95] As Aquinas notes, it helps individuals reason well about things to be done, improving the “appl[ication of] right reason to action.”[96] Additionally, it helps apply universal principles to the particularities of practical matters.[97] Prudence, in other words, has an eye toward morally relevant details, and it ensures that such details are factored into our deliberations over difficult moral issues. Decisions over religious-attendance restrictions may be among the most challenging.
In her dissent, Justice Sotomayor suggests that the Court majority has overlooked morally significant details. Singling out Justice Gorsuch, she writes:
Gorsuch does not even try to square his examples [of secular activities that he thinks might pose similar risks as religious gatherings] with the conditions medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time. Unlike religious services, which have every one of th[ose] risk factors, bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time.[98]
In a separate dissent, Justice Breyer echoes the same point.[99] Thus both offer a morally relevant detail, one that is particularly compelling given the fact that COVID-19 had, at that point, caused “more than 250,000 deaths nationwide … with 16,000 [of those deaths] in New York City alone.”[100] Attentive to such details, the dissenting Justices could be seen to exhibit moral prudence.
But, then again, perhaps not. Indeed, they may have overlooked other morally salient details. For example, Justice Gorsuch may object to the claim that he did not try to square his arguments with medical advice. In fact, he considers the measures that houses of worship had taken to minimize the risk of infection: they are practicing “social distancing, wearing masks, leaving doors and windows open, forgoing singing, and [are] disinfecting spaces between services,” he writes.[101] These are measures that, as the Court majority notes, “have complied with all public health guidance.” They also entail “additional precautionary measures,” going above and beyond what the state required.[102] Perhaps here we find yet another morally relevant detail, one highlighted by the Court majority, that houses of worship can reduce the risk of transmission by simply altering, not giving up on, their religious services. Once more, with further particulars noted, we see prudence at work.
Knowledge of particulars is an integral part of the virtue of prudence.[103] Without it, prudence is unable to discern wisely the right course of action. With it, prudence has a fighting chance to navigate the claims of religion, which commands both public worship (given solely to God through Christ, the church’s mystical head) and other acts of virtue (which benefit our neighbors, members of Christ’s mystical body). It is not my aim to decide whether prudence rests squarely with the dissent or the majority of the Brooklyn Court. Sufficient for now is the suggestion that the Governor’s restrictions may have been morally just, given very particular circumstances. How we know otherwise can only be the result of engaging virtuously with others’ opinions and experiences, giving their ideas (including their theological beliefs) a just hearing, and, through prudence, being attentive to the details of their perspectives. This lesson holds for opposing sides of the Supreme Court. It holds for church and state. And it holds for Deweyeans who would reject the moral salience of our metaphysical ideas.
Footnotes
[1] This part of the lecture (Section 1) is a modified version of an excerpt from my book, Edward A. David, A Christian Approach to Corporate Religious Liberty (Cham: Palgrave Macmillan, 2020).
[2] This part of the lecture (Sections 2 through 6) is a reworked version of my article, Edward A. David, “Church, State, and Virtue in Roman Catholic Diocese of Brooklyn v. Cuomo (2020),” Religions 14, no. 2 (2023): 239.
[3] John Dewey, “The Historic Background of Corporate Legal Personality,” Yale Law Journal 35, no. 6 (1926): 657, 661.
[4] Ibid.
[5] Dewey, 660–61.
[6] Dewey, 657.
[7] Dewey, 660.
[8] Dewey, 661–63.
[9] John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 21 (italics in original).
[10] Finnis, 23, 62. See also John Finnis, Natural Law & Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), 127, n. 1.
[11] Finnis, Aquinas, 24 (italics mine).
[12] John Finnis, “A Grand Tour of Legal Theory,” in Philosophy of Law: Collected Essays; Volume IV (Oxford: Oxford University Press, 2011), 109–11 (arguing that ethics extends to politics and that politics requires a theory of law).
[13] For example, see Orts, Business Persons, 1 (defining law as a social technology).
[14] See Finnis, “A Grand Tour of Legal Theory,” 111.
[15] New York State, Executive Order, no. 202; New York State, Executive Order, no. 202.68.
[16] Executive Order, no. 202.68.
[17] Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993).
[18] Brooklyn, 141 S. Ct. at 66.
[19] Brooklyn, 141 S. Ct. at 67.
[20] Brooklyn, 141 S. Ct. at 67–68.
[21] Jeffrey Stout, Democracy and Tradition, Democracy & Tradition (Princeton, N.J.: Princeton University Press, 2004).
[22] Aaron Taylor, “In Search of The Ratio Decidendi,” Law Quarterly Review 135, no. October (2019): 556–61.
[23] Sherif Girgis, “Defining ‘Substantial Burdens’ on Religion and Other Liberties,” Virginia Law Review 108, no. 8 (2022): 1759–1816.
[24] Steven D. Smith, The Rise and Decline of American Religious Freedom (Cambridge, Massachusetts: Harvard University Press, 2014); Steven D. Smith, “The Jurisdictional Conception of Church Autonomy,” in The Rise of Corporate Religious Liberty (Oxford: Oxford University Press, 2016), 19–37; Cécile Laborde, Liberalism’s Religion (London: Harvard University Press, 2017).
[25] Henri De Lubac, Catholicism: Christ and the Common Destiny of Man, trans. Lancelot C. Sheppard (London: Universe Books, 1962); Henri De Lubac, Corpus Mysticum: The Eucharist and the Church in the Middle Ages, ed. Laurence Paul Hemming and Susan Frank Parsons, trans. Gemma Simmonds, Richard Price, and Christopher Stephens (London: SCM Press, 2006).
[26] Jacques Maritain, The Rights of Man and Natural Law (London: The Centenary Press, 1944); Jacques Maritain, Christianity and Democracy, trans. Doris C. Anson (London: The Centenary Press, 1945); John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998); Etienne Gilson, The Christian Philosophy of St. Thomas Aquinas (Notre Dame: University of Notre Dame Press, 2010); David VanDrunen, Divine Covenants and Moral Order: A Biblical Theology of Natural Law (Grand Rapids, Michigan: William B. Eerdmans Publishing Co., 2014).
[27] For example, see Edward A. David, A Christian Approach to Corporate Religious Liberty (Cham: Palgrave Macmillan, 2020); Nathaniel A. Moats, “A Thomistic Just Rebellion Analysis of the U.S. Capitol Insurrection,” New Blackfriars 102, no. 1102 (2021): 873–92, https://doi.org/10.1111/nbfr.12683.
[28] Smith, The Rise and Decline of American Religious Freedom; Robert Louis Wilken, Liberty in the Things of God: The Christian Origins of Religious Freedom (New Haven: Yale University Press, 2021); Steven K. Green, Separating Church and State: A History, Religion and American Public Life (Ithaca, NY: Cornell University Press, 2022).
[29] Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, 1957); Finnis, Aquinas; Edward A David, “Is Group Ontology Morally Distracting? A Natural Law Approach to Corporate Religious Liberty,” Oxford Journal of Law and Religion 8, no. 3 (2019): 641, https://doi.org/10.1093/ojlr/rwz022.
[30] Thomas Aquinas, Summa Theologiae I-II q. 95, a. 4.
[31] ST I-II q. 98, a. 1.
[32] ST I-II q. 98, a. 1.
[33] ST I-II q. 3, a. 8.
[34] ST I-II q. 106, a. 4, ad. 4; ST III q. 61, a. 1.
[35] ST I-II q. 106, a. 2.
[36] Maritain, The Rights of Man; Finnis, Aquinas; Gilson, The Christian Philosophy of St. Thomas Aquinas.
[37] Saint Augustine, The City of God against the Pagans, trans. R.W. Dyson (Cambridge: Cambridge University Press, 1998).
[38] Joshua Hordern, Political Affections: Civic Participation and Moral Theology, Oxford Studies in Theological Ethics (Oxford: Oxford University Press, 2013).
[39] William T. Cavanaugh, “Are We Free Not to Be A Religion? The Ambivalence of Religious Freedom,” Pro Ecclesia XXIII, no. 1 (2014): 7–21.
[40] Benedict XVI, Church, Ecumenism and Politics: New Endeavors in Ecclesiology, trans. Michael J. Miller (San Francisco, CA: Ignatius Press, 2008), 156.
[41] Brooklyn, 141 S. Ct. at 67.
[42] Brooklyn, 141 S. Ct. at 67.
[43] Brooklyn, 141 S. Ct. at 68.
[44] Lee Palmer Wandel, The Eucharist in the Reformation: Incarnation and Liturgy (Cambridge: Cambridge University Press, 2006).
[45] Catechism of the Catholic Church, para. 1365–66.
[46] De Lubac, Corpus Mysticum.
[47] Quoted in CCC para. 1366 (internal quotations removed).
[48] Quoted in CCC para. 1384.
[49] CCC para. 366, 1384.
[50] See ST III, q. 16, a. 12, ad. 2 (“a person is nothing else than an individual substance of rational nature”).
[51] Humbert Clérissac, O.P., The Mystery of the Church (London: Sheed and Ward, 1937), 35.
[52] Jacques Maritain, On the Church of Christ: The Person of the Church and Her Personnel, trans. Joseph W. Evans (London: University of Notre Dame Press, 1973), 18–19.
[53] James E. Harding and Gregory W. Dawes, eds., “Body,” in The Oxford Encyclopedia of the Bible and Theology, Oxford Biblical Studies Online (Oxford University Press, 2009).
[54] De Lubac, Catholicism, 21.
[55] James D. Nelson, “Conscience, Incorporated,” Michigan State Law Review, no. 1565 (2013); Eric W. Orts, Business Persons: A Legal Theory of the Firm (Oxford: Oxford University Press, 2015); David Gindis, “Legal Personhood and the Firm: Avoiding Anthropomorphism and Equivocation,” Journal of Institutional Economics 12, no. 3 (2016): 499–513.
[56] De Lubac, Corpus Mysticum, 87–88.
[57] De Lubac, 88. See also CCC para. 1396.
[58] Brooklyn, 141 S. Ct. at 68.
[59] Brooklyn, 141 S. Ct. at 68.
[60] Brooklyn, 141 S. Ct. at 67.
[61] Roger Backhouse, The Penguin History of Economics (London: Penguin, 2002), 73–74.
[62] For example, see Francisco Javier Urbina Molfino, A Critique of Proportionality and Balancing (Cambridge: Cambridge University Press, 2017); Girgis, “Defining ‘Substantial Burdens’ on Religion and Other Liberties.”
[63] ST I-II q. 95, a. 4; ST I-II q. 98, a. 1.
[64] Aristotle, Nicomachean Ethics, bk. I, ch. 2; NE bk. I, ch. 9.
[65] ST I-II q. 100, a. 2.
[66] ST II-II qq. 81–89.
[67] ST I-II q. 3, a. 8.
[68] Finnis, Aquinas; J Budziszewski, Commentary on Thomas Aquinas’s Treatise on Law (Cambridge: Cambridge University Press, 2014).
[69] ST I-II q. 106, a. 4, ad. 4; ST III q. 61, a. 1.
[70] CCC para. 1199; CCC para. 1368.
[71] CCC para. 1378.
[72] CCC para. 1387; CCC para. 1385, 1393.
[73] CCC para. 1394; CCC para. 1397; CCC para. 1398.
[74] Linda Zagzebski, Divine Motivation Theory (Cambridge: Cambridge University Press, 2004); Linda Zagzebski, Exemplarist Moral Theory (New York: Oxford University Press, 2017).
[75] Tyler J. VanderWeele, “Religious Communities and Human Flourishing,” Curr Dir Psychol Sci 26, no. 5 (2017): 476–77, https://doi.org/10.1177/0963721417721526.
[76] ST I-II q. 100, a. 2.
[77] Brooklyn, 141 S. Ct. at 69 (italics in original).
[78] See discussion in Brooklyn, 141 S. Ct. at 69.
[79] Brooklyn, 141 S. Ct. at 68.
[80] John Rawls, “The Idea of Public Reason Revisited,” in The Law of Peoples with “The Idea of Public Reason Revisited” (Cambridge, Massachusetts: Harvard University Press, 1999), 129–80; Laborde, Liberalism’s Religion.
[81] Steven K. Green, “Chuch and State in Nineteenth-Century America,” in The Oxford Handbook of Church and State in the United States, ed. Derek H. Davis (Oxford: Oxford University Press, 2010), 75–98; John Finnis, “Religion and State,” in Religion & Public Reasons: Collected Essays, ed. John Finnis, vol. V (Oxford: Oxford University Press, 2011); Thomas G. West, The Political Theory of the American Founding: Natural Rights, Public Policy, and The Moral Conditions of Freedom (Cambridge: Cambridge University Press, 2017).
[82] Brooklyn, 141 S. Ct. at 75.
[83] Igor Grossmann, “Wisdom in Context,” Perspectives on Psychological Science 12, no. 2 (2017): 233–57, https://doi.org/10.1177/1745691616672066; Candace Vogler, “Phronesis,” Insight Series (The Jubilee Centre for Character and Virtues, 2020).
[84] Brooklyn, 141 S. Ct. at 79.
[85] ST II-II, q. 79, a. 1.
[86] Brooklyn, 141 S. Ct. at 79.
[87] ST II-II, q. 79, a. 1.
[88] ST II-II, q. 58, a. 5.
[89] ST II-II, q. 81, a. 4.
[90] ST II-II, q. 81, a. 1, ad. 1.
[91] Andrew Willard Jones, Before Church and State: A Study of Social Order in the Sacramental Kingdom of St. Louis IX (Steubenville: Emmaus Academic, 2017); John Milbank, “Virtue, Integralism and the Priority of the Social in Catholic Political Thought,” in JP2 Lectures (JP2 Lectures, Rome: Saint John Paul II Institute of Culture, 2022); Adrian Vermeule, Common Good Constitutionalism: Recovering The Classical Legal Tradition (Cambridge: Polity Press, 2022).
[92] ST II-II, q. 81, a. 1, ad. 1.
[93] ST II-II, q. 79, a. 1.
[94] Christopher Peterson and Martin E. P Seligman, Character Strengths and Virtues: A Handbook and Classification (Washington, DC: American Psychological Association, 2004); Kristján Kristjánsson et al., “Phronesis (Practical Wisdom) as a Type of Contextual Integrative Thinking,” Review of General Psychology 25, no. 3 (2021): 239–57, https://doi.org/10.1177/10892680211023063.
[95] NE bk. VI, ch. 5.
[96] ST II-II, q. 47, a. 4.
[97] ST II-II, q. 47, aa. 3 and 6.
[98] Brooklyn, 141 S. Ct. at 79.
[99] Brooklyn, 141 S. Ct. at 78.
[100] Brooklyn, 141 S. Ct. at 77.
[101] Brooklyn, 141 S. Ct. at 69.
[102] Brooklyn, 141 S. Ct. at 65.
[103] ST II-II, q. 47, aa. 3 and 6.
Edward A. David 