ARTICLES

God's Country

LEADING AMERICAN JURIST ON RELIGIOUS FREEDOM

By John R. Dunlap

"You shall conclude that the genealogy, the domestic environment, the educational exposure, the intellectual adventures, the friendships, and the professional life of anyone treating this topic influence the treatment; and you shall suspect that the spiritual life of the writer is relevant as well; and you shall know that no person, man or woman, historian or law professor or constitutional commentator or judge, is neutral in this matter."

The topic is religious freedom. The quote is the first of "ten commandments" served up in the concluding chapter of The Lustre Of Our Country: The American Experience Of Religious Freedom (1998), the latest of many books by John T. Noonan, Jr., Catholic scholar and, since his appointment in 1986, judge on the United States Court of Appeals for the Ninth Circuit in San Francisco.

A native of Brookline, Mass., Noonan, 72, practiced law in Boston in the 1950s, then taught at Notre Dame Law School for six years before settling in Berkeley in 1967 to teach law at Boalt Hall.

After his appointment by President Reagan to the federal bench, he became the Robbins Professor of Law, emeritus, at Berkeley. His work on the appeals court, says Noonan in an interview with the Faith, "came to take up substantially all my time--my caseload has about doubled."

Noonan has been called "the leading Catholic intellectual in California" by state librarian Kevin Starr. His numerous books include landmark studies of such topics as usury, contraception, abortion, divorce, natural law, slavery, and bribery.

Although his caseload on the appeals court has cut into the frequency of his publications, "I do have some time to do some writing--I can squeeze out the time.... I'm thinking about a book that will consider the impact of the neurosciences on the concepts of the law, but I've just got to the thinking stage, really...the neurosciences are a kind of burgeoning field where there are going to be lots of problems."

Noonan's interest in the topic of religious liberty crystallized more than a decade ago. "The Lilly Foundation in the 1980s asked me to put together a collection of cases on government and religion, and I did that in a case book [The Believer And The Powers That Are (1987)] . . . I collected all those cases and I wrote commentaries on them and then I thought, I've done all that commentary, I really ought to do a book of my own."

The result, published last year, is not just history and analysis, but an intensely personal statement as well. "Let each one addressing this theme say where he or she comes from," Noonan writes in the introduction to The Lustre Of Our Country.

Noonan grew up in a suburb of Boston in a devoutly Catholic household. Well-to-do, his parents sent him to (non-Catholic) private schools and then to Harvard, his father's alma mater, where he took a bachelor's degree in humanities in less than three years on an accelerated program.

After a year at Cambridge and travel in post-war Europe--where he managed to meet with T. S. Eliot, George Santayana, and Pope Pius XII--he decided he wanted to know more about the faith in which he had been reared. On the advice of a sympathetic Harvard teacher, he went to Catholic University in Washington, D.C.

While earning his Ph.D. in philosophy, he became acquainted with disputes in the Church on such topics as religious liberty and the development of doctrine. His Ph.D. dissertation on the Church's view of usury left him with the sense that Church doctrine is less rigid than supposed by some conservatives but less elastic than imagined by many liberals.

At this time, more than a decade before Vatican II, Noonan met prominent Church intellectuals, including the American Jesuit theologian John Courtney Murray, whose views on religious liberty were destined to prevail at the Council.

In law school back at Harvard, Noonan studied the 1940 Supreme Court case of Cantwell v. Connecticut. The unanimous decision of the Court, little noticed at the time, obliged the individual states to respect the free exercise clause of the First Amendment.

The Court opinion held that religious liberty came in two parts: freedom to believe, which is absolute and beyond state interference; and freedom to act, which the state could not regulate "unduly." The vagueness of "unduly" left many unanswered questions for the country to address.

The Lustre Of Our Country explores the history, the problems, and the influence of the idea of religious liberty in America. The book gets its title from a remark of James Madison, the Founding Father who hoped that freedom of religion "promised a lustre to our country."

Madison himself was a committed Christian whom Noonan most credits with the free exercise clause of the First Amendment. "It is easy to be tolerant if you don't believe. To believe and to champion freedom--that is Madison's accomplishment."

But the consequences of the free exercise of religion "are neither controllable nor predictable nor invariably benign." And Noonan brings his topic to life with various literary devices: a catechism-like survey of the idea of religious liberty in the history of Christianity; mock interviews with historical figures; use of the "cento"--a patchwork composition of real quotations from influential personalities.

In one of his centoes, for example, Noonan has an imaginary sister of Alexis de Tocqueville taking issue with her brother's famous commentary Democracy In America, pointing out that religion and government in nineteenth-century America are in fact closely entangled, despite the American doctrine of church-state separation.

"I think it was a matter of trying to break through some conventions," Noonan remarks on his imaginative modes of exposition in Lustre.

"To take one example, Tocqueville is a kind of icon--he was for me; but the more I read, the more critical I became, and I thought the only way to break through the conventional image of Alexis de Tocqueville was to create this imaginary sister who criticizes him by quoting from his own writings."

Noonan believes in "the prophecy of James Madison" that "the lustre of the American light would illumine the world." To illustrate, he sketches the varying influences of the American ideal of religious liberty on France, on post-war Japan, on post-Communist Russia--and on the Catholic Church at the Second Vatican Council.

When he was teaching at Notre Dame in the early 1960s, Vatican II "was a distant event and I didn't know exactly what was going on. What really engaged me was getting over there and being there, and that was the result of being the advisor on history [to the Papal Commission on the family] . . . that brought me over there, and then I talked to enough people to get some commitment and some sense of what was going on."

One of many things going on were the debates leading up to the Vatican Council's Declaration on Religious Freedom (Dignitatis Humanae). The learning required for the Council to pass the Declaration came largely from the United States: from

the American bishops who kept the issue of religious liberty alive at the Council, from the American theologian John Courtney Murray, and from "the experiment that began with Madison."

The most passionate non-American advocates of the Declaration were Cardinal Joseph Beran of Prague and Archbishop Karol Wojtyla of Krakow (now Pope John Paul II). "There was a very strong voice from people who were under the Communists," Noonan recalls.

Noonan sees the Church's embrace of religious liberty as a measured development of doctrine, an extension of what John Courtney Murray called "the open end of the tradition." The Declaration linked freedom to the search for truth while leaving intact the traditional Church teaching on the moral duty of individuals to seek the truth.

Again and again in The Lustre Of Our Country, Noonan insists that human thought should be anchored in experience and that abstract and absolutist thinking is dangerous as well as unproductive. Yet how does one harmonize an acknowledgment of the development of Church doctrine with belief in the permanence of the deposit of faith?

"That's a huge question," Noonan muses slowly. "And of course experience by itself is not enough because [there are] millions of experiences, and you just can't take raw experience and say that's the guide--it's always going to be judged in the light of faith.

"I do think it's a back-and-forth process of testing in the light of Christian commitments. And so I would never think of experience by itself any more than I would think [of] abstraction by itself [as a guide to harmonizing change and permanence]."

The Gospel of St. John teaches that the truth shall make us free. But is freedom necessary to reach the truth?

Noonan hesitates before answering. "I do think balance is necessary . . . in the secular order, to take James Madison's position, if you take him at his word, each conscience is superior to the law of the land, and you really have a recipe for anarchy--but he didn't press it; at some point there was a balance recognizing [the claims of] the social order.

"And I think, analogously, in the Church, you can't have a church made up of utterly independent consciences without any sense of responsibility to the teaching authority."

Nonetheless, against the "distorted" sociological perspective on religion brought to bear by influential thinkers like Emile Durkheim and Robert Bellah, Noonan stresses the place of the individual person. "To say person is to say intellection, intention, interiority. Persons make up collectivities, represent them, perform parts in them, and are not identical with them."

For Noonan--and for Christians and Jews generally--"religion is a relation to a Being conceived of as having intelligence and volition." Noonan concludes The Lustre Of Our Country with echoes of Cardinal Newman and St. Francis de Sales: "Heart speaks to heart, spirit answers Spirit, freely."