January 2024 Print

A Right to Be Tolerated? Church and State and “Religious Liberty”

by Fr. Ian Andrew Palko, SSPX

While he was created cardinal in 1953 by Pius XII, Fr. Alfredo Ottaviani would not be consecrated as an Archbishop until 1962. On Maundy Thursday, April 17, John XXIII personally laid hands on the man who had been the head of the Holy Office for three years, and a member of the same Congregation for nine years.

Ottaviani was seen as the antithesis to the Jesuit biblical scholar Fr. Augustin Bea, who was created cardinal in 1959 at the same time John XXIII established the Secretariat for Promoting Christian Unity, assigning Bea as his ecumenical czar to heretics, schismatics, and non-Christians.

Both were consecrated archbishops at the Maundy Thursday ceremony, in view of the upcoming Vatican Council and their important roles in its preparations. Bea chose as his motto—appropriate for a Jesuit—In nomine Domine JesuIn the name of the Lord Jesus. Fittingly for the pope’s doctrinal czar, Ottaviani took as his episcopal motto Semper IdemAlways the same. One could rightly suspect that the latter choice was a subtle declaration of war against the liberals, especially Bea.

Battle over Toleration and Religious Liberty

In preparing for the Council, Bea and Ottaviani had already been embroiled in a tête-à-tête over one schema in particular. That schema was concerned with non-Catholic religions and the Church’s attitude towards them. Ottaviani saw the matter as a theological question, and so one that was his responsibility, leading him to draft a schema entitled De tolerantiaOn tolerance. Bea thought the matter squarely in his wheelhouse as head of the secretariat dealing with non-Catholics, and composed a competing schema De libertate religiosaOn religious liberty. The names alone of the schemas demonstrate their two widely different and incompatible visions.

The schema on tolerance laid out the perennial teaching of the Church, which sought to convert those outside her boundaries, but in certain circumstances might require tolerance of false religions on account of prudence. Bea’s schema promoted ideas developed by the American Fr. John Courtney Murray, S.J. who had tried to defend a First-Amendment-style freedom of religion as orthodox.

Ottaviani was well-aware of Murray’s ideas. One of the first matters the Holy Office dealt with after Ottaviani had become its pro-Secretary was Murray’s thesis, explained in 1948 and 1949 articles in Theological Studies.1 While sympathetic towards the good-faith attempt to address the role of the pluralistic or non-confessional State vis-à-vis the Catholic Faith, Ottaviani and his fellow Holy Office members were “particularly critical of Murray’s argument that the state need not be confessional in order to ensure the harmony of positive law with natural and divine law.”2 While the cardinals recommended to Pius XII to forbid Murray from ever teaching or writing on the Church-State question, Pius XII decided on a milder penalty, requiring him have all writings on the subject reviewed by the Jesuit General Curia before publication.

It was sufficient enough a controversy that Ottaviani was invited to lecture on the topic at the Pontifical Lateran University, mentioning Murray indirectly and condemning his ideas.3 The cardinal proclaimed his “bewilderment” and “sadness” that “the Church’s own children” were promoting such false ideas. “[T[heir position reminds one of that of the faint-hearted soldier who wants to conquer without fighting, or of that of the simple, unsuspecting person who accepts a hand, treacherously held out to him.”4

Ottaviani proposed three errors in Murray’s teaching in his lecture. Firstly, that because the State is a collective, it cannot accomplish an act of religion. Secondly, that theological truth and civil law belong to essentially different spheres of truth. Thirdly, that even if the State were entirely or nearly entirely composed of Catholics, there could be no obligation for the State to profess the Catholic Faith, only the people who compose the State.

The false conclusion the cardinal suggests that Murray draws is that the State would only be obliged to protect the Church if there was no other way to ensure her freedom to operate. This, however, is contrary to Canon Law, the laws of which are based on doctrines taught by Pius XII,5 Pius XI,6 St. Pius X,7 Leo XIII,8 Pius IX,9 and Gregory XVI,10 amongst many others.

In place of these false principles, Ottaviani proposed three Catholic principles as regards the duty of the State towards the Catholic religion. Firstly, that the State, as a creature, not merely a conglomerate, must profess the Catholic religion in a public manner. Secondly, that the laws of the country must not only reflect the natural law, but also reflect the principles of the Catholic Faith. Finally, that the State must defend the Church and her faithful from false religions or anything that impedes their profession and practice of the Catholic Faith.

The Spanish State in 1946 gave a modern expression in its Fuero de los Españoles of how the Church expected a Catholic State to act as regards religion:

The profession and practice of the Catholic religion, which is the religion of the Spanish State, enjoys official protection. No one shall be molested for their religious beliefs, nor for the private practice of their own worship. Externally, no ceremonies or religious manifestations shall be permitted, except those of the Catholic religion.11

Here one finds all three duties of a Catholic State, plus the reiteration of Catholic principles against forced conversion. The Spanish people are protected from the public practice of false religions and attempts to convert Catholics away from their Faith.

In countries more hostile to the Catholic Faith, the Church was willing to tolerate the false principles of so-called “religious freedom.” In his encyclical letter Longinqua oceani, Leo XIII criticizes the American-style “freedom of religion” but admits that in a hostile environment, the Church had grown and been protected to a degree due to the First Amendment preventing certain laws against the Church. Nevertheless, the success of the Church, the pope writes, would be much greater if the State supported the Bride of Christ, as Catholic principles demand. Leo XIII shows, in particular, both the duty to uphold Catholic principles and doctrine, but also to work practically in the real environment in which the Church finds Herself, even if not ideal. In other words, while maintaining Her principles and doctrine, the Church is pragmatic so long as these principles are not violated.

Later, to defend the novel ideas of the Second Vatican Council, apologists for Fr. Murray would propose Modernist-styled arguments. Accepting that there are contradictions between papal encyclicals before 1960 and the documents of the Second Vatican Council, they claim that these differences are merely due to the Church becoming more practical and aware of the exigencies of modern times. Leo XIII, though, had already answered those arguments. The Church was pragmatic in tolerating the false principles in the American system of religious freedom and a “separation of Church and State” because they allowed the Church to grow, without establishing a right to religious freedom or error as a principle.

Writing for the U.S. Catholic Bishops’ Conference in 2022, for instance, one moral theologian justifies Murray’s ideas as enshrined in the Second Vatican Council’s Dignitatis humanæ as a “doctrinal development.”12 Admitting that Dignitatis humanæ and Murray’s ideas are directly opposed to the teachings of Gregory XVI, Pius IX, and Leo XIII, he argues that “In the interim between the nineteenth and early twentieth century papal suspicions of liberalisms and the embrace of rights in the mid-twentieth century, the Church witnessed and even bore the brunt of multiple social and political experiences that would shape thinking on the right of religious liberty.”13 Times, he argues, have led to the Church approaching this subject in a new way, since, due to the persecutions of the Church, the modern institution now realizes that “[p]ersons and social groups can and will only flourish when allowed the space and the resources to pursue the truth free from governmental intrusion.”14

Ottaviani, though, anticipated this objection, saying, “These principles are firm and unchanging. They were valid in the days of Innocent III and Boniface VIII.”15 The reference to Innocent III is striking, for it was this pope who obliged of Peter II of Aragon an oath which read: “‘I will defend the Catholic faith; I will persecute heresy; I will respect the liberties and immunities of the churches and protect their rights.”16 Thus, it was not merely Liberalism and the persecution of the Church that brought about the expressions of Leo XIII or Pius XII. Even Pope St. Leo I writing to Emperor Leo in the mid-fifth century says that the emperor’s power to rule was given to him, “not for the governance of the world alone, but more especially for the guardianship of the Church.”17

When the liberals won the sympathy and support of John XXIII at the beginning of Second Vatican Council, Ottaviani’s schema, De tolerantia—which had been approved by the Central Preparatory Commission—was tabled in favor of Bea’s De libertate religiosa. This would be presented to the Council Fathers in the Third Session (1964) as Dignitatis humanæ. It was one of the most controversial of the documents under consideration and won a call for revision from many powerful and conservative figures. Cardinal Fernando Quiroga Palacios; Cardinal Michael Browne; the Dominican Master General Aniceto Fernández Alsonso, O.P.; the French Abbot of Solesmes Dom Jean Prou, O.S.B; Msgr. Marcel Lefebvre, C.Ss.P; Msgr. Antonio de Castro Mayer; and even the more accommodating Cardinal Karol Wojtyla (later Pope John Paul II) called for the schema’s revision. A commission was established to revise the document, including many critics like Archbishop Lefebvre and Dom Fernández; however, at the objection of the French bishops, both names were quietly removed and Fr. Murray’s name was added amongst others favorable to Murray’s ideas.18 Worried still that the liberal schema would not win favor, Msgr. Emiel-Jozef De Smedt approached Paul VI, and was reassured that the revision committee was a smokescreen, saying, “You shall see, our document will be approved.”19

The approval and promulgation of the document at the end of the Fourth Session on Dec. 7, 1965, did not end the controversy or settle the apparent contradictions between the perennial teaching and this new document; rather it prompted even more questions. Even Murray was dissatisfied with the document and its argumentation, thinking it opened more questions than it solved due to the revisions forced on him.20

Msgr. Clifford Fenton, who had long defended the traditional teaching in the American Ecclesiastical Review (published by Catholic University of America in Northeast Washington, DC) which showed opposition to Murray’s writings in Theological Studies (Published by Woodstock Theological Center at Georgetown University in Northwest Washington, DC), resigned his editorship and prominent teaching position to live for six more years of obscurity as a parish priest devastated and confused by the acceptance of these novel ideas by the Council.

Msgr. Lefebvre and the SSPX took a polemical opposition. Hoping that Pope John Paul II might address the situation—since he joined others in asking Dignitatis humanæ be revised at the Council—Msgr. Lefebvre composed a series of dubia presenting this opposition in 1985.21 The pope did not take the chance to make the needed clarifications and corrections, and the Congregation for the Doctrine of the Faith did not officially respond. A private response in French, never published by the CDF or Msgr. Lefebvre, simply reiterated the same claim of non-contradiction between the teachings prior to 1965 and after. The document was anonymous, only claiming to be a response on behalf of the CDF, and did not address any specific doubt presented. This non-answer was one of the “signs” that would push Msgr. Lefebvre towards the consecration of bishops in 1988.22

Attempts to reconcile DH with traditional teaching

Attempts have been made over the years to try to harmonize the perennial teaching and practice of the Church vis-à-vis false religions and Dignitatis humanæ, but few have been serious attempts. Among those that have a degree of seriousness to them are arguments by Fr. Brian Harrison, O.S. and Dr. Thomas Pink, though both fall short of solving the contradictions.

Harrison’s thesis is presented in his Contraception and Religious Liberty. While this short article cannot make a detailed critique, his thesis can be summarized as the attempt to apply the principle that wherever there is a right there must be a corresponding duty. Harrison would argue that when Dignitatis humanæ declares that a man has a natural right to freedom of religion, this must mean that the State will have a corresponding duty to tolerate an individual who professes whatsoever religion.

The thesis, while scholarly, seems to fail on a four-term fallacy mistaking the right of a society to peace (and thus the duty of a State to prudentially tolerate the practice of a false religion), for a natural right of one in error to be tolerated. Prudence in particular cases cannot establish universal principles.

Fr. François Laisney, SSPX, engaged in an extensive back-and-forth critique of Harrison’s position in The Remnant making just this point.23 Fr. Harrison’s attempt at reconciliation seems to fail by drawing a false conclusion from solid premises. By asking “Cui bono?” one can see that a prudential duty of a State to tolerate external profession of a false religion is not for the individual good of the ones in error, but for the common good which requires a relative tranquility for men to reach their proper end.

Dr. Thomas Pink, an English philosopher, makes an attempt to show that the Church’s teaching has not been as consistent as might be claimed, though he has since heavily restricted his initial thesis due to debates and critiques of his position. His initial position argues that while previously the Church’s discipline required the Catholic State to restrict false religions, in Immortale Dei, Leo XIII clearly states that “[w]hatever, therefore, in things human is in any way of a sacred character, whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls or to the worship of God, is wholly subject to the power and judgment of the Church.”24

In Pink’s view the Church’s doctrine teaches that the State has no competence in religious matters. The State might, by the Church’s disciplinary command, act as Her agent, but this is a matter of discipline or “policy,” not doctrine. In fact, when this occurs, it is actually the Christian emperor or ruler, acting not as a ruler, but as a Christian, who does this for the Church. In that light Dignitatis humanæ is merely a “policy statement” which may contradict prudential disciplinary judgments of past popes, but maintains the doctrinal teachings of Leo XIII. In this document, the Church is officially abandoning her power to enforce the profession of the Catholic Faith due to the pluralistic societies of the modern world, much like she has the right to punish criminals with death, but in order not to suggest a lack of mercy, never uses this power Herself, but entrusts such things to the State.

Fr. Martin Rhonheimer’s critique of Pink is appropriately titled “Dignitatis Humanæ—Not a mere Question of Church Policy.25 In it he defends the “Hermeneutic of Reform” of Benedict XVI—that Dignitatis Humanæ was a change in theology and doctrine (though he argues, like others, that it is a “development” of doctrine). Rhonheimer is one of several main critics of Pink’s thesis who are not “traditionalist” Catholics, and so are not arguing some error in the Council’s teaching, but that there is a change to the Church’s teachings.

Pink’s thesis also seems to suffer from somewhat selective reading of Leo XIII’s teaching in Immortale Dei. The claim that the State has no jurisdiction in religious matters, drawing on §11, seems contrary to what the pope teaches in §6: that the State has a duty from Natural Law (not merely disciplinary human law or prudence), to publicly profess the Catholic religion and “to favor [the Catholic] religion, to protect it, to shield it under the credit and sanction of the laws, and neither to organize nor enact any measure that may compromise its safety.”26

Pink’s supporters have presented his thesis as a definitive answer to the SSPX objections to the Council, however,another critic, Thomas Howes, tries to disparage Pink, labeling him a “traditionalist.”27 Howes’ main critique is that Pink makes much of the claim in Dignitatis humanæ that it leaves the traditional doctrine intact, but since the same document claims that men have a right to be free from coercion, either the document is self-contradictory or Pink’s argument is. Ironically, the traditionalist claim is that both are.

Dr. John Lamont’s response to Pink highlights this fundamental difficulty in reconciling Dignitatis humanæ with prior teaching: “the claim that the document is intended to leave traditional Catholic teaching untouched, indicate that it should be interpreted as agreeing with patristic teaching … [h]owever, the intention of its drafters and promoters was to reject this previous teaching.”28 For Lamont the simple solution would be to say the document is self-contradictory, but he does discern in a more careful reading some worthwhile, though unclear, teaching that would reconcile these documents and uphold the traditional viewpoint. If the Council were teaching “that there is always a right to practice the true religion, and that there is a right to practice false religions unless such practice infringes on laws that uphold the essentials of the common good,” Lamont asserts this would reconcile Dignitatis humanæ and also make it a trivial and wordy restatement of what the Church has already clearly said before. This, however, does not seem satisfactory since one cannot have a natural right to profess error.

Lamont, however had difficulty accepting this was the intention of the document’s drafters for a variety of reasons, including the nefarious way Msgr. de Smedt tried to suppress criticism, avoid debate on controversial and important topics, and “hoodwink” the Council Fathers into thinking that the schema was in harmony with the Magisterial teaching.

The Magisterial teaching, however, is clear whether or not Dignitatis humanæ can be force-fit into harmony with it. The State, for the common good, has the duty to profess and promote the Catholic Faith. The State has the duty to give freedom to the Church and Catholics to practice and profess their Faith. The State has the duty also to form her laws in line with the Natural Law and the Law of the Gospels, as well as protect Catholics and the Church from those who would harm them (namely, those who promote or practice false philosophies or religions). When prudence demands, for a greater good, such as the peace of a pluralistic society, that the profession and practice of false religions or philosophies be tolerated, this may be necessary, but this is not because those in error have a natural right to profess error or possess a dignity outside of the dignity of the Children of God; rather it is in view of making it possible for the Children of God to be in peace and serve and worship God.


[1] John Courtney Murray, “St. Robert Bellarmine on the Indirect Power,” Theological Studies. vol. 9, no. 4, (Dec. 1949) and “On Religious Freedom.” Theological Studies. vol. 10, no. 3, (Sept. 1949).

[2] Susanna De Stradis, “Not quite silenced,” Commonweal. vol. 148, no. 11. (Dec. 2021).

[3] Cf. Alfredo Ottaviani, Duties of the Catholic State (Kansas City, Mo.: Angelus Press, 1993).

[4] Ibid.

[5] Cf. Summi pontificatus (1939).

[6] Cf. Quas primas (1925), Mortalium animos (1928).

[7] Cf. Vehementer nos (1906).

[8] Cf. Libertas praestantissimum (1888).

[9] Cf. Quanta cura (1864), Inter multiplices (1853), Ad apostolicæ (1851), In consistoriali (1850), Maxima quidem (1862), and Acerbissimum (1852).

[10] Cf. Mirari vos (1832).

[11] Spanish State, Fuero de los Españoles, No. 6 (author’s translation from Boletín Oficial del Estado, no. 199, p. 358).

[12] Joseph Capizzi, “Development of Catholic Doctrine on Religious Liberty” (May 20, 2022). https://www.usccb.org/committees/religious-liberty/first-freedom-blog-development-catholic-doctrine-religious-liberty

[13] Ibid.

[14] Ibid.

[15] Alfredo Ottaviani, Duties of the Catholic State (Kansas City, Mo.: Angelus Press, 1993).

[16] Colin Morris, “The Pontificate of Innocent III (1196–1216),” in The Papal Monarchy: The Western Church from 1050 to 1250 (Oxford: Oxford University Press, 1991).

[17] St. Leo I, Letter 165 (To Leo Augustus), iii.

[18] Cf. Roberto de Mattei, The Second Vatican Council: An Unwritten Story, p. 366ff.

[19] Ibid., p. 372.

[20] Cf. “De argumentis pro jure hominis ad libertatem religiosam,” In Acta Congressus Internationalis de Theologia Concilii Vaticani II, A. Schoenmetzer (ed.), p.562–73. (Rome: Vatican, 1968).

[21] These dubia are presented in English in the book Religious Liberty Questioned (The Dubia), available from Angelus Press.

[22] An anonymous text claiming to be written by a priest commissioned by the Congregation for the Doctrine of the Faith to answer the dubia does not actually address or adequately answer any of the objections and concerns, if it could even be claimed to have any official status. Despite this, the author of this text concludes admitting that his own writings and the objection of Msgr. Lefebvre are “disputable theological aspects,” and “there remains the possibility of a later study of the problem.”

[23] The Remnant, May 31, June 30, July 31, and October 20, 2012.

[24] Leo XIII, Immortale Dei, §11.

[25] Martin Rhonheimer, in Nova et vetera, vol. 12, no. 2. (Spring 2014).

[26] Leo XIII, Immortale Dei, §6.

[27] Thomas Howes, “Why Integralism Failed,” Law & Liberty (Sept. 21, 2023). https://lawliberty.org/book-review/why-integralism-failed/

[28] John Lamont, “Catholic teaching on religion and the state.” https://www.academia.edu/877072/Catholic_teaching_on_religion_and_the_state

TITLE IMAGE: Colonnade, Hubert Robert (1733–1808).