Academic journal article Brigham Young University Law Review

Religious Law and Secular Law in Democracy: The Evolutions of the Roman Catholic Doctrine after the Second Vatican Council

Academic journal article Brigham Young University Law Review

Religious Law and Secular Law in Democracy: The Evolutions of the Roman Catholic Doctrine after the Second Vatican Council

Article excerpt


A recurring jurisprudential conflict in modern law is the extent to which religious communities may appropriately seek to have their own religious norms incorporated into secular law. In the Muslim world, that issue takes on life and death significance.1 Conflict arises when the question goes beyond asking whether Islamic law should be incorporated into secular law and asks whether secular law in general should be required to be consistent with, and subordinate to, Islamic law.2 Similar questions arise in Western nations regarding the extent to which secular norms may parallel or incorporate religious norms. Examples include Sunday closing laws,3 laws exempting Jews and Muslims from otherwise applicable animal slaughter regulations,4 and, more controversially, laws criminalizing conduct that violates what some would consider religious mandates, such as laws concerning abortion5 or homosexual conduct.6

This conflict is particularly difficult within the context of a pluralistic democracy, where it is problematic-if not altogether illegitimate-for one religious group to invoke coercive legal sanctions in support of its religious beliefs. On the other hand, it would be paradoxical if religious speakers were the only ones who were denied the right to use democratic processes to advocate adoption of their ideas.7

Significantly, these conflicts may arise not only in the context of affirmatively legislating values that coincide with religious beliefs, but they may also arise as a result of affording protections to conscientiously held objections. To the extent that neither the State nor other citizens will be able to require conduct inconsistent with the beliefs protected, the religious beliefs in question would acquire not only legal protection but also status as legal imperatives.

This Article analyzes the struggle for proper balance in the context of the Roman Catholic experience. During the Second Vatican Council, the Roman Catholic Church transformed itself from a vigorous defender of the ancien regime "into one of the world's leading advocates of social and political justice, democratic governance, and human rights."8 The new Catholic understanding of democratic liberalism is a complex story,9 and the critical test for discovering the meaning and scope of the Church's new understanding lies in the extent to which it will allow religious norms to be incorporated into secular law.

The aim of this Article is to discuss key Catholic pronouncements that address this fundamental issue and, from that vantage point, to contribute to the more general discussion regarding the appropriate relation of religion and law within the framework of democracy. More specifically, the aim is to address Catholic thought about democratic constraints in matters of religious importance, which, for purposes of this Article, amounts to determining when religious-grounded norms may be democratically imposed. Thus, this Article will explore the internal conditions under which religious bodies such as the Roman Catholic Church may consider it legitimate to promote religious norms and values in a democratic-legal setting.

To address the point, this Article compares two approaches. Part II discusses the Catholic Church's evaluation of the scope of religious freedom under the European Convention for the Protection of Human Rights and Fundamental Freedoms,10 as viewed from the vantage point of the famous declaration Dignitatis Humanae, which was promulgated in 1965 during the Second Vatican Council.11 Part III provides a comparative exploration of a recent doctrinal statement that the Holy See Congregation for the Doctrine of the Faith-chaired by then-Cardinal Joseph Ratzinger (now Pope Benedict XVI)-issued in November 2002.12 Part IV ultimately draws the conclusion that the Catholic notions of "religious norms" in these two approaches differ, and it will be necessary to find a way to reconcile them (or to choose between them) in order to provide clear guidance concerning the extent to which Catholic thought allows religious norms to be incorporated into secular legal systems. …

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