The American Bishops
by Méadhbh McIvor and Winnifred Sullivan
“The Blessing of The Saint John’s Bible” by stnorbert is licensed under CC BY-NC-ND 2.0
During their recent June meeting, the US Conference of Catholic Bishops (USCCB) voted to commission a teaching document that is likely to advocate the denial of communion to Catholic politicians who fail to publicly condemn abortion. Although framed in general terms—proponents claim it is not about “targeting particular individuals”—many commentators understand this vote as an attack on the nation’s most prominent such politician, President Joe Biden, a regular Mass-goer and only the second Catholic to occupy the Oval Office. In contrast to bishops in other countries, the US bishops seem exceptionally eager to publicly discipline pro-choice Catholic legislators. Why this “distinctively American” approach to denying the sacrament?
Most media reports have focused on what they call “the culture wars.” The implication is that the bishops have become caught up in a politically polarized America and have chosen to align themselves with the right. It is not only reporters and political pundits who frame the issue in this way; many lay Catholics do, too. As one parishioner at the Georgetown church where Biden sometimes attends Mass put it, “It just seemed like another case of the culture wars seeping into the life of the church.” For such Catholics, the USCCB’s justification for its actions—it claims it is simply looking to repair “declining belief and understanding of the Eucharist among the Catholic faithful”—has been viewed with skepticism.
Others have offered explanations grounded in church history. In his new book on President Biden and Catholicism in US politics, for example, Church historian Massimo Faggioli argues that conservative efforts to delegitimate Catholics like Biden reflect a “ressentiment closer to anti-Vatican II traditionalism than to a legitimate cultural and theological critique.” This ressentiment, he says, has deepened during the pontificate of Pope Francis, whose “attempt to redefine the idea of the ‘center’ of Catholicism” has major consequences for an American church that considers itself “the center of the world.”
These accounts offer helpful analyses of the political and theological contexts in which the USCCB is acting. Yet they seem insufficient to explain what New York Times religion correspondent Elizabeth Dias describes as its “uniquely American” approach to church discipline. After all, conservative opposition to Pope Francis is not solely a US phenomenon. Nor is political polarization. Bishops’ conferences in other countries routinely speak out on politically sensitive issues, including abortion. But they do not seek to punish politicians by banning them from the communion table.
So what explains the US bishops’ move to shame the US president? And why should anyone care? Our contention is that this behavior is the product, in part, of the distinctively American status accorded “the church” in US law. This status reflects both US constitutional arrangements and American legal culture more broadly. We argue that the bishops understand themselves to be law enforcers of a particularly American kind: that is, representatives of a sovereign corporate entity that, somewhat paradoxically, mobilizes its recognition in law to undermine the religious liberty of its individual constituents.
American churches occupy a very particular and semi-sovereign legal space in the US—one that is quite different from the legal status of churches in other countries. While it is difficult to generalize across different histories, churches in many other countries have reached legal compromises with the state. In much of Europe, for example, the centuries-long shift from state privilege to separation resulted in churches that are subordinate to state power. By contrast, the uniquely American non-establishment clause of the First Amendment to the US Constitution meant that US churches were never united to the state to begin with and did not experience the same history of separation. From the foundation of the United States, religious communities invented themselves as legal institutions independent of government control. This history created churches that came to understand themselves as semi-sovereign rivals of, rather than subordinate to, state power, and therefore licensed to act in civic spaces as law enforcers. In civil law terms one might say that churches in the US are creatures of private law, while churches in other countries are creatures of public law.
The First Amendment (and its distinctive jurisprudence) holds that the state cannot support or favor religion. But, ironically perhaps, and increasingly so since the US Supreme Court’s decision in Employment Division v Smith (although this conviction has a longer history), many churches—and courts—have come to understand that hands-off doctrine to grant them independent state-like capacities.
Churches in the US enjoy exceptional constitutional protection. Indeed, as legally-recognized collectives, churches have powers and privileges that exceed and can trump those of individual persons under their governance—a status they share with other semi-sovereign entities, such as corporations and families. But they also enjoy privileges specific to their status as churches—including a cluster of privileges by virtue of their tax-exempt status. Understanding the privileged position of “the church” in US law helps to explain a series of recent Supreme Court decisions in which the religious rights of the group were prioritized over those of individual church members. These cases suggest that religious freedom in the US is becoming more distinctively collective, or corporate, in nature.
American Catholic bishops are deeply conscious of this right to corporate religious liberty, or what is sometimes called church autonomy. Legal scholar Angela Carmella terms this their “maximalist position” on religious freedom.[1] It is our contention that this legal independence gives them a political role that is different from that of churches in other countries, including countries with established churches such as the United Kingdom, as well as those with majority Catholic populations.
It used to be that the Catholic Church was opposed to religious freedom. Prior to the 1960s, the Church advocated for confessional Catholic states as the ideal political arrangement and condemned the idea of a right to religious freedom on the grounds that error (or heresy) “has no rights.” That changed in 1965, when Vatican II’s Declaration on Religious Freedom (Dignitatis Humanae) affirmed the right of conscience of individuals and the freedom of religious communities to govern themselves within the bounds of public order.
But jurisprudence of the free exercise of religion clause of the First Amendment has shifted in the last sixty years. The USCCB has recently committed itself to a newly robust position on religious freedom—that is, to the “maximalist” position noted above, joining other American churches in an aggressive public assertion of autonomy and self-governance. Ten years ago, the American bishops announced their special dedication to religious liberty, adopting a campaign to advocate for it in its corporate form. They have since dedicated a week every year to the effort, aligning themselves with a legal argument that at times goes so far as to deny the jurisdiction of the US courts over all church activities. (Those activities might intersect with what Europeans would call public order concerns, including employment discrimination and public health.)
A corollary of this push for corporate religious liberty on the part of the US Church hierarchy seems to be its efforts to publicly discipline individual Catholics, including Catholic politicians, who now face the threat of sacramental excommunication if their religious consciences do not align with those of their superiors. Once a distrusted minority feared for their allegiance to a foreign power, US Catholics, or at least the US Church hierarchy, have come to partake in a particularly American special status accorded to the church. This is a status that, somewhat ironically, undercuts both the liberty and authority of its own dissenting clergy and the religious liberty available to individual Catholics in the pews.
Catholics are only about 25% of the US population, a demographic that, along with overt discrimination and hostility, has historically limited their role in the majority culture. The actions of national bishops’ conferences in historically Catholic-majority countries, on the other hand, are influenced by a sensibility born of both proximity to political power and a presumed overlap between nationality and religious affiliation. In the lead up to the 2015 referendum overturning Ireland’s near-total ban on abortion, for example, the Irish Catholic Bishops’ Conference was clear in its opposition to a change in the law. But they did not threaten to withhold communion from pro-choice legislators. According to Irish theologian Suzanne Mulligan, “That was never on the table.”
One might think that the Irish bishops’ decision not to single out individual politicians for censure reflects the Irish Church’s awareness of its own loss of moral authority, the result of ongoing revelations of Church-enabled abuse, cruelty, and cover-ups. (Although such abuse has been widely reported in the US as well.) But perhaps it is also that bishops in historically Catholic contexts—contexts which were once de facto, if not de jure, Catholic establishments—may have less political clout with their ostensible flocks than those in countries where Catholicism is a minority tradition. In contexts of widespread nominal Catholicism, the bishops’ authority is undercut by the sheer prevalence of the faith. After all, if (almost) everyone is Catholic, then everyone has the power to determine what being Catholic requires.
To borrow a distinction from Max Weber, bishops in Catholic-majority contexts seem to be taking a broad, “church”-like approach to inclusion within the faith community. (Unlike the First Amendment jurisprudence referenced above, which tends to frame “the church” in top-down, exclusionary terms, Weber’s use of “church” implies a more community-based inclusivity.) Well aware of their own dwindling influence, perhaps they hope that casting the net wide will show the ongoing relevance of Catholicism to the civic life of the nation. By contrast, in publicly distinguishing between the “righteous and unrighteous,” the US bishops are adopting a “sect”-like approach. (This is an argument that Massimo Faggioli also makes.) Indeed, Weber argues that during the “formative period of the pietistic sects, the driving impulse was the continuous deep fear of having to participate in the Lord’s Supper with a ‘reprobate.’”[2] This position would be difficult to maintain in nominally Catholic states, where the majority of the population are recognized to have a stake in who “counts” as Catholic and who counts as a reprobate.
Even in other countries where Catholics are a minority, though, bishops do not try to discipline Catholic politicians in this way. Noting the difference in approach between the USCCB and the Catholic Bishops’ Conference of England and Wales, Durham University theologian Anna Rowlands suggests that “from Europe it looks dangerously like the American Church is propagating, whilst thinking it is doing the opposite, a species of ecclesial individualism.…Communion becomes a reward for individual virtue, but virtue narrowed without attention to moral complexity.” Her concern is with the theological poverty of the bishops’ sacramental doctrine—and their adoption of a (Protestant-inflected, sect-like) focus on individual virtue. This approach sits uncomfortably with many Catholics’ understanding of communion as being not a reward for being good but, as it is sometimes framed, “food for the journey.” It also sits uncomfortably with some understandings of the priesthood: as Pope Francis recently said during a conversation with reporters, he had never denied anyone communion because the role of the priest is to “be a pastor.”
The US bishops say they want to prevent “confusion” among lay Catholics, who, on seeing pro-choice politicians receive the Eucharist, might be misled on the Church’s position. (This explanation is hard to credit; the Church hierarchy’s opposition to abortion is exceptionally well-known.) If we take them at their word, it seems the bishops understand discrepancies between their views and those of Catholics in the pews as manifestations of lay ignorance. Think tanks and media reports often adopt a similar framing: if “only” thirty percent of US Catholics believe the Eucharist is the literal body and blood of Christ, for example, perhaps this is because they do not know the hierarchy’s stance. Such accounts promote the bishops’ own view of themselves as the true arbiters of the faith—as the church. They give oxygen to the legal power of the church leaders in American law.
The Catholic Church in the US has often been at odds with the Vatican. Historically, that difference has most often been the result of what the Vatican saw as the dangers of US notions of democratic governance. Now the two seem to have changed places. The US Catholic bishops are now, as they say, acting more Catholic than the Pope.
But who says the US bishops have the theology right? The USCCB is unrepresentative of US Catholicism not only in terms of demographics, but also in terms of doctrine—and in terms of view of lay authority in such matters. Many US Catholics reject their bishops’ legalism. The majority disagree with the Church’s official teaching on abortion, LGBTQ rights, and the ordination of women. Indeed, many live out their faith independent of hierarchical oversight entirely—some explicitly so. Why assume it is they who have it wrong? Perhaps it is the US bishops, and not the laity, who are “confused” as to what being a faithful Catholic can entail.
[1] Angela Carmella, “Catholic Institutions in Court: The Religion Clauses and Political-Legal Compromise,” West Virginia Law Review 120 (2017): 1–65.
[2] Max Weber (trans Colin Loader), “‘Churches’ and ‘Sects’ in North America: An Ecclesiastical Socio-Political Sketch,” Sociological Theory 3, no. 1 (1985): 9.
Méadhbh McIvor is Lecturer in Social Anthropology at the University of Manchester where her work focuses on the legal regulation of religion in Europe and the United States. She is the author of Representing God: Christian Legal Activism in Contemporary England (Princeton University Press, 2020). Her current research explores the relationship between faith, civic engagement, and the pursuit of social justice among a progressive religious community in Arizona, USA.
Winnifred Fallers Sullivan is Provost Professor in the Department of Religious Studies and co-Director of the Center for Religion and the Human at Indiana University, Bloomington. She is also an Affiliated Professor of Law at the Maurer School of Law. She studies the intersection of religion and law in the modern period, particularly the phenomenology of modern religion as it is shaped in its encounter with law. Sullivan is the author of The Impossibility of Religious Freedom (Princeton, 2005, 2nd ed. 2018), Prison Religion: Faith-based Reform and the Constitution (Princeton, 2009), A Ministry of Presence: Chaplaincy, Spiritual Care and the Law (Chicago, 2014), Church State Corporation: Construing Religion in US Law (Chicago, 2020), coauthor of Ekklesia: Three Studies in Church and State (Chicago, 2018), and coeditor of Politics of Religious Freedom (Chicago, 2015) and At Home and Abroad (Columbia 2021).