The King’s Good Servant, but God’s First: Responses in

Canon and Civil Law to Governmental Threats to the

Church’s Freedom to Carry out Her Mission

Thomas John Paprocki

The Jurist: Studies in Church Law and Ministry, Volume 79, Number 1,
2023, pp. 99-130 (Article)

Published by The Catholic University of America Press

DOI: https://doi.org/10.1353/jur.2023.a913448

For additional information about this article

https://muse.jhu.edu/article/913448

[83.137.212.119] Project MUSE (2024-10-31 21:13 GMT) Gregoriana Pontificia Univ

 T h e J u r i s t 79 (2023) 99–130

THOMAS JOHN PAPROCKI*

The King’s Good Servant,

but God’s First: Responses in
Canon and Civil Law to Governmental
Threats to the Church’s Freedom to
Carry out Her Mission

Introduction
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In order to enter into the theme of the Church’s freedom to carry

out her mission, this article begins by examining the basic founda-
tions for religious freedom in theology and natural law. After survey-
ing key canons from the Code of Canon Law that deal with the rights
of the Church and her faithful, an overview will be given by examin-
ing some key cases of the United States Supreme Court dealing with
COVID restrictions on f reedom of worship; same-sex marriage;
foster care and adoption services; and abortion, contraceptive, and
abortifacient mandates. Finally, some resources will be noted, espe-
cially organizations providing legal assistance for litigation involving
religious liberty.

* Bishop of Springfield in Illinois; Adjunct Professor of Law, Notre Dame Law

School, South Bend, IN. This article was originally presented at the 2021 Speculum
Iustitiae Conference for Canon and Civil Lawyers on August 3, 2021 at the Shrine of
Our Lady of Guadalupe, La Crosse, WI.
100 THE JURIST

1. Religious Liberty in Theology and Natural Law

Not too long ago, references to “governmental threats to the
Church’s freedom to carry out her mission” would have brought to
mind the repressive atheistic regimes of the Soviet Union and Com-
munist China, as well as the anti-Christian laws of Muslim-dominated
countries such as Saudi Arabia. While Communist China and pre-
dominantly Muslim nations certainly continue to impede the
Church’s freedom to carry out her mission, it is disconcerting, to say
the least, that threats to the Church’s freedom to carry out her mis-
sion are becoming increasingly apparent here in the United States. It
is here in our domestic context that I will focus our attention.

1.1. Maxim: “Law Follows Theology”

In the canon law courses that I teach at Notre Dame Law School, I
emphasize the maxim that “law follows theology.” By that I mean
that we canon lawyers do not just sit around making up canon law
out of thin air. The norms of canon law emanate from the teachings
of Sacred Scripture and the principles of our faith in the Sacred Tra-
dition of the Church as handed down over the past 2,000 years by
lawful ecclesiastical authority. Thus, the canons of the Code of
Canon Law that address the preeminence of divine law and canon
law over civil law are based on Sacred Scripture and Tradition. We
will look at some of these principles first.

1.2. Sacred Scripture on the Preeminence of Divine Law

The classic biblical basis for the relationship between religious belief
and government authority is found in the instruction from Jesus for
his disciples to “render . . . to Caesar the things that are Caesar’s, and
to God the things that are God’s,” in the translation that is most famil-
iar to English-speaking people (Matt 22:21; Mark 12:17).1 While at
first hearing it may seem that our Lord is making a neat distinction
between Church and State, the more incisive listener will realize that
since God is the Creator of the universe, everything in it effectively

1. English translation from The Holy Bible: Revised Standard Version, Second Cath-
olic Edition (San Francisco: Ignatius Press, 2006).
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 101

belongs to him. Nevertheless, our Lord is allowing that there are cir-
cumstances in which civil authority should be followed as long as
they are not contrary to divine purposes.
Thus, Saint Peter wrote that Christians should “be subject to
every human institution for the Lord’s sake, whether it be to the king
as supreme or to governors as sent by him for the punishment of
evildoers and the approval of those who do good. For it is the will of
God that by doing good you may silence the ignorance of foolish
people.” But he quickly adds, “Be free, yet without using freedom
as a pretext for evil, but as slaves of God” (1 Pet 2:13–16).2
We see Saint Peter put this teaching into practice in the Acts of
the Apostles, which tells us about the activities of the first Christians
during the earliest days of the Church. There we read that when the
apostles were imprisoned for preaching about Jesus, the angel of the
Lord opened the doors of the prison during the night and led them
out, and said:

“Go and take your place in the temple area, and tell the people
everything about this life.” When they heard this, they went to
the temple early in the morning and taught. When the high
priest and his companions arrived, they convened the Sanhedrin,
the full senate of the Israelites, and sent to the jail to have them
brought in. But the court officers who went did not find them in
the prison, so they came back and reported, “We found the jail
securely locked and the guards stationed outside the doors, but
when we opened them, we found no one inside.” When they
heard this report, the captain of the temple guard and the chief
priests were at a loss about them, as to what this would come to.
Then someone came in and reported to them, “The men whom
you put in prison are in the temple area and are teaching the
people.” Then the captain and the court officers went and
brought them in, but without force, because they were afraid of
being stoned by the people. When they had brought them in and

2. English translation from The New American Bible: Translated from the Original
Languages with Critical Use of All the Ancient Sources (Wichita, KS: Fireside Catholic
Publishing, 2009–2010). Other biblical translations are from this source unless other-
wise indicated.
102 THE JURIST

made them stand before the Sanhedrin, the high priest ques-
tioned them, “We gave you strict orders [did we not?] to stop
teaching in that name[.] Yet you have filled Jerusalem with your
teaching and want to bring this man’s blood upon us.” But Peter
and the apostles said in reply, “We must obey God rather than
men” (Acts 5:20–29).

Thus, we see both in the teachings of Jesus and in the life of Saint
Peter the premise that Christians should generally comply with civil
authority. However, that compliance is not absolute; it is conditioned
on civil authority being subservient to the divine law.

1.3. Saint Thomas Aquinas on Religious Liberty

A comprehensive study of Thomistic thought on religious liberty is
beyond the scope of this article, but a brief mention of some key
themes will be illustrative. Saint Thomas Aquinas, the Angelic
Doctor, taught that unbelievers who have never received the faith
should not be compelled to believe. He wrote:

Among unbelievers there are some who have never received the
faith, such as the heathens and the Jews: and these are by no
means to be compelled to the faith, in order that they may
believe, because to believe depends on the will: nevertheless they
should be compelled by the faithful, if it be possible to do so, so
that they do not hinder the faith, by their blasphemies, or by their
evil persuasions, or even by their open persecutions. It is for this
reason that Christ’s faithful often wage war with unbelievers, not
indeed for the purpose of forcing them to believe, because even
if they were to conquer them, and take them prisoners, they
should still leave them free to believe, if they will, but in order
to prevent them from hindering the faith of Christ.3

3. St. Thomas Aquinas, Summa theologiae, II-II, q. 10, a. 8. English translation

from “Question 10. Unbelief in general,” New Advent, accessed January 19, 2023,
https://www.newadvent.org/summa/3010.htm#article8. Unless otherwise indi-
cated, all subsequent English translations from the Summa theologiae will be taken
f rom “Summa Theologiae,” New Advent, accessed January 19, 2023, https://
www.newadvent.org/summa/ (hereafter ST).
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 103

The corollary of this argument is that the faithful should not be

compelled to act contrary to their beliefs. While Aquinas did argue
that heretics should be compelled to keep the faith, he saw this more
as a matter of enforcing the obligations of believers who had freely
accepted the faith, and thus were abjuring their promises, as distin-
guished from compelling belief ab initio.4

1.4. Saint Thomas Becket’s Witness to the Rights of the Church vs.
the State
Saint Thomas Becket was born around 1118 in London, England. He
served as Chancellor of England (1155–1162) and Archbishop of Can-
terbury (1162–1170) during the reign of King Henry II. His career
was marked by a long quarrel with Henry that ended with Becket’s
murder in Canterbury Cathedral on December 29, 1170. He is ven-
erated as a saint and martyr in the Roman Catholic Church and in
the Anglican Communion. He was canonized in 1173, and his feast
day is December 29.5

1.5. Saint Thomas More and Saint John Fisher’s Witness to the
Priority of God’s Law
The home page for Religious Freedom Week on the website of the
United States Conference of Catholic Bishops has the following
description of the heroic witness of the lives of Saints Thomas More
and John Fisher:

Sts. Thomas More and John Fisher were Renaissance men. Tal-
ented and energetic, they contributed to the humanist scholar-
ship of early modern England. More wrote theological and
philosophical treatises, while making a career as a lawyer and
government official. Bishop John Fisher worked as an admin-
istrator at Cambridge, confronted the challenge Martin Luther
presented to Christian Europe, and most importantly served as

4. For an analysis of the teaching of St. Thomas Aquinas with respect to

heretics, see Michael Novak, “Aquinas and the Heretics,” First Things, December
1995: https://www.firstthings.com/article/1995/12/aquinas-and-the-heretics.
5. Michael David Knowles, “St. Thomas Becket,” Encyclopedia Britannica,
December 25, 2022: https://www.britannica.com/biography/Saint-Thomas-Becket.
 104 THE JURIST

Bishop of Rochester. As a bishop, he is notable for his dedication

to preaching at a time when bishops tended to focus on politics.
These men were brilliant. They both corresponded with Eras-
mus, who helped Bishop Fisher learn Greek and Hebrew, and
who also famously referred to More as a man for all seasons.[6]
Above all their accomplishments, these men bore witness to a
deep faith in Christ and his Church. More considered joining reli-
gious life and was assiduous in his devotional practices. As a married
man, he committed himself wholly to his vocation as a father. At
the time, disciplinary practices with children tended to be severe,
but More’s children testify to his warmth, patience, and generosity.
St. John Fisher was a model shepherd and demonstrated
remarkable humility. He remained in the small Diocese of Roch-
ester his entire episcopal ministry, devoting himself to his local
church rather than seeking promotion to a larger, more powerful
diocese.
More and Fisher are well-known for opposing King Henry’s
divorce. Ultimately, it was their refusal to sign an oath of suprem-
acy that led them to be executed. King Henry VIII claimed to be
the supreme head of the Church in England, asserting sovereign
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power over English Christians. Neither Fisher nor More could

abide this claim, and their steadfastness to their consciences put
them in conflict with the king. They were convicted of treason.
It is good to love one’s country, but ultimate loyalty is due
only to Christ and his kingdom. Sts. Thomas More and John
Fisher show us what faithful citizenship looks like. They loved
and served their country. In the moments just before his
execution, More is said to have stated, “I die the King’s good ser-
vant, but God’s first.” They never rose up to incite rebellion or
foment revolution. They were no traitors. But when the law of
the king came into conflict with the law of Christ, they sub-
mitted to Christ. These men gave their lives for the freedom of

6. This is also the title of the 1964 movie about More’s life. It won the Academy
Award for Best Picture, and the cast and crew won another five awards, including
Best Director for Fred Zinnemann and Best Actor for Paul Scofield. It also won the
Golden Globe Award for Best Motion Picture–Drama. It would be hard to imagine
a movie of this nature with such overt religious themes winning any awards in
today’s “woke” culture!
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 105

the Church and for freedom of conscience. They bear witness

to the truth that no government can make a claim on a person’s
soul. May their example continue to illuminate the path for us,
as we seek to faithfully serve our Church and country.
We ask for the intercession of Sts. Thomas More and John
Fisher, that we too would be good servants to our country, but
God’s first!7

1.6. Second Vatican Council: Declaration on Religious Freedom

Dignitatis humanae
On December 7, 1965, Pope Saint Paul VI promulgated the Second
Vatican Council’s declaration on religious freedom Dignitatis humanae,
which bears the subtitle: “On the Right of Persons and Communities
to Social and Religious Freedom in Matters Religious.” The main prin-
ciple of this document is stated in its second paragraph:

This Vatican Council declares that the human person has a right
to religious freedom. This freedom means that all men are to be
immune from coercion on the part of individuals or of social
groups and of any human power, in such wise that no one is to
be forced to act in a manner contrary to his own beliefs, whether
privately or publicly, whether alone or in association with others,
within due limits.
The council further declares that the right to religious free-
dom has its foundation in the very dignity of the human person
as this dignity is known through the revealed word of God and
by reason itself. This right of the human person to religious free-
dom is to be recognized in the constitutional law whereby society
is governed and thus it is to become a civil right.8

7. “Religious Liberty: St. Thomas More and St. John Fisher,” United States Con-
ference of Catholic Bishops, accessed January 19, 2023, https://www.usccb.org/ com-
mittees/religious-liberty/st-thomas-more-and-st-john-fisher.
8. Second Vatican Council, declaration Dignitatis humanae 2, December 7, 1965:
AAS 58 (1966) 930–931. English translation from Second Vatican Council, “Dignitatis
Humanae,” The Holy See, December 7, 1965: https://www.vatican.va/archive/
hist_councils/ii_vatican_council/documents/vat-ii_decl_19651207_dignitatis-
humanae_en.html. All subsequent English translations will be taken f rom this
source unless otherwise indicated.
106 THE JURIST

The priority of divine law over human law is clearly stated in

paragraph three: “Further light is shed on the subject if one considers
that the highest norm of human life is the divine law—eternal, objec-
tive and universal—whereby God orders, directs and governs the
entire universe and all the ways of the human community by a plan
conceived in wisdom and love. Man has been made by God to par-
ticipate in this law, with the result that, under the gentle disposition
of divine Providence, he can come to perceive ever more fully the
truth that is unchanging.”9
The rights of families with regard to religious liberty, particularly
freedom in matters of educating their children, are emphasized in
paragraph five:

The family, since it is a society in its own original right, has the right
freely to live its own domestic religious life under the guidance of
parents. Parents, moreover, have the right to determine, in accor-
dance with their own religious beliefs, the kind of religious educa-
tion that their children are to receive. Government, in consequence,
must acknowledge the right of parents to make a genuinely free
choice of schools and of other means of education, and the use of
this freedom of choice is not to be made a reason for imposing
unjust burdens on parents, whether directly or indirectly. Besides,
the right[s] of parents are violated, if their children are forced to
attend lessons or instructions which are not in agreement with their
religious beliefs, or if a single system of education, from which all
religious formation is excluded, is imposed upon all.10

1.7. Relationship Between Natural Law and Civil Law

The concept of natural law is disputed and even rejected by many legal
scholars today, largely because, in my opinion, they simply misunder-
stand what we mean by natural law. Saint Thomas asserted plainly that
the first principles of natural law, which specify the basic forms of good
and evil, and which can be adequately grasped by anyone of the age
of reason, are self-evident.11 That said, Aquinas also recognized that

9. Ibid. 3, 931.
10. Ibid. 5, 933.
11. ST I-II, q. 94, a. 2; q. 91, a. 3; q. 58, a. 4 and 5.
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 107

even the most elementary and easily recognizable moral implications

of those first principles are capable of being obscured or distorted by
individual people and, indeed, by whole cultures, by prejudice, over-
sight, convention, and the sway of desire for particular gratification.
For example, anyone’s natural reason can readily understand that theft
is not to be committed, but whole communities of people have failed
to see the wrongfulness of theft or stealing.12
In the view of Saint Thomas Aquinas, the law consists, in part,
of rules which are “derived f rom natural law like conclusions
deduced from general principles,” and, for the rest, of rules which
are “derived from natural law like implementations [determinationes]
of general directives.”13
John Finnis, Emeritus Professor of Law at Notre Dame Law
School and the University of Oxford, explained the relationship
between natural law and positive law in his book, Natural Law and
Natural Rights, in these words:

In sum: the derivation of law from the basic principles of prac-

tical reasoning has indeed the two principal modes identified and
named by Aquinas; but these are not two streams flowing in sep-
arate channels. The central principle of the law of murder, of
theft, of marriage, of contract . . . may be a straightforward appli-
cation of universally valid requirements of reasonableness, but
the effort to integrate these subject-matters into the Rule of Law
will require a judge and legislator countless elaborations which
in most instances partake of the second mode of derivation. This
second mode, the sheer determinatio by more or less free authori-
tative choice, is itself not only linked with the basic principles of
intelligible relationship to goals (such as traffic safety . . . ) which
are directly related to basic human goods, but also is controlled
by wide-ranging formal and other structuring principles (in both
first- and second-order form) which themselves are derived from
the basic principles by the first mode of derivation.14

12. ST I-II, q. 100, a. 1; q. 94, a. 4 and 6.

13. ST I-II, q. 95, a. 2.
14. John Finnis, Natural Rights and Natural Reason (Oxford: Clarendon Press,
1980) 289.
108 THE JURIST

Perhaps for those who have difficulty understanding or accepting

the notion of natural law, we might say that, just as canon law follows
theology, secular or civil law follows the secular or civil culture in
which it is legislated. This is why it is so important to start with a
proper formation of the culture in order to have just and correct laws
in accord with natural law, but which are not contrary to divine law.

2. Canon Law Perspectives on Religious Liberty

Following the maxim that “law follows theology,” there are several
canons in the Code of Canon Law that codify the supremacy of
canon law and divine law over civil law.
Canon 22, on the “canonization” of civil law, reads: “Civil laws to
which the law of the Church defers should be observed in canon law
with the same effects, insofar as they are not contrary to divine law
and unless it is provided otherwise in canon law.”15 Canon 1286, 1º,
on labor law and social policy, reads: “Administrators of goods . . .
are to observe meticulously the civil laws pertaining to labor and
social policy according to Church principles in the employment of
workers.”16 Canon 1290, on civil laws pertaining to contracts, reads:
“Civil laws pertaining to contracts are to be observed in canon law
. . . unless the civil regulations are contrary to divine law or canon
law makes some other provision.”17
Canon 213, on the right to spiritual assistance, the word of God,
and the sacraments, reads: “The Christian faithful have the right to
receive assistance from the sacred pastors out of the spiritual goods
of the Church, especially the word of God and the sacraments.”18

15. Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Vatican City:
Libreria Editrice Vaticana, 1983) c. 22: “Leges civiles ad quas ius Ecclesiae remittit,
in iure canonico iisdem cum effectibus serventur, quatenus iuri divino non sint con-
trariae et nisi aliud iure canonico caveatur.”
16. Canon 1286, 1º: “Administratores bonorum: . . . in operarum locatione leges
etiam civiles, quae ad laborem et vitam socialem attinent, adamussim servent, iuxta
principia ab Ecclesia tradita.”
17. Canon 1290: “Quae ius civile . . . statuit de contractibus . . . eadem iure
canonico . . . serventur, nisi iuri divino contraria sint aut aliud iure canonico caveatur
[. . .].”
18. Canon 213: “Ius est christifidelibus ut ex spiritualibus Ecclesiae bonis, prae-
sertim ex verbo Dei et sacramentis, adiumenta a sacris Pastoribus accipiant.”
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 109

Canon 214, on the right to worship God, reads: “The Christian faith-
ful have the right to worship God according to the prescriptions of
their own rite approved by the legitimate pastors of the Church and
to follow their own form of spiritual life consonant with the teaching
of the Church.”19 Canon 215, on freedom of association, reads: “The
Christian faithful are at liberty freely to found and to govern associ-
ations for charitable and religious purposes or for the promotion of
the Christian vocation in the world; they are free to hold meetings
to pursue these purposes in common.”20 Canon 216, on the right to
apostolic action, reads: “All the Christian faithful, since they partici-
pate in the mission of the Church, have the right to promote or to
sustain apostolic action by their own undertakings in accord with
each one’s state and condition; however, no undertaking shall assume
the name Catholic unless the consent of competent ecclesiastical
authority is given.”21 Canon 221 §1, on the vindication of rights,
reads: “The Christian faithful can legitimately vindicate and defend
the rights which they enjoy in the Church before a competent ec-
clesiastical court in accord with the norm of law.”22
Canon 747 §1, on the right to preach the gospel independent of
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any human power, reads: “The Church, to whom Christ the Lord
entrusted the deposit of faith so that, assisted by the Holy Spirit, she
might reverently safeguard revealed truth, more closely examine it,
and faithfully proclaim and expound it, has the innate duty and right

19. Canon 214: “Ius est christifidelibus, ut cultum Deo persolvant iuxta prae-
scripta proprii ritus a legitimis Ecclesiae Pastoribus approbati, utque propriam vitae
spiritualis formam sequantur, doctrinae quidem Ecclesiae consentaneam.”
20. Canon 215: “Integrum est christifidelibus, ut libere condant atque moder-
entur consociationes ad fines caritatis vel pietatis, aut ad vocationem christianam in
mundo fovendam, utque conventus habeant ad eosdem fines in communi per-
sequendos.”
21. Canon 216: “Christifideles cuncti, quippe qui Ecclesiae missionem partici-
pent, ius habent ut propriis quoque inceptis, secundum suum quisque statum et con-
dicionem, apostolicam actionem promoveant vel sustineant; nullum tamen incep-
tum nomen catholicum sibi vindicet, nisi consensus accesserit competentis
auctoritatis ecclesiasticae.”
22. Canon 221 §1: “Christifidelibus competit ut iura, quibus in Ecclesia gau-
dent, legitime vindicent atque defendant in foro competenti ecclesiastico ad
normam iuris.”
110 THE JURIST

to preach to gospel to all nations, independent of any human power

whatever, using the means of social communication proper to her.”23
Canon 794 §1, on the Church’s duty and right to educate, reads: “The
duty and right of educating belongs in a unique way to the Church
which has been divinely entrusted with the mission to assist men and
women so that they can arrive at the fullness of the Christian life.”24
Canon 800 §1, on the Church’s right to establish and supervise
schools, reads: “The Church has the right to establish and supervise
schools of any discipline, type, and grade whatsoever.”25 Canon 807,
on universities, reads: “The Church has the right to erect and to
supervise universities that contribute to a higher level of human cul-
ture, to a fuller advancement of the human person, and also to the
fulfillment of the Church’s teaching office.”26

3. Civil Law Perspectives on Religious Liberty

This section will now look at a number of issues in civil law that threaten
the rights and liberties of the Church and the Christian faithful.

3.1. COVID Restrictions on Freedom of Worship

We have all personally experienced the various restrictions that were
mandated in response to the coronavirus pandemic. In the midst of
the government’s shutdown of many segments of society, including
attempts to prohibit people from gathering for worship, I wrote an
article entitled, “Social Shutdowns as an Extraordinary Means of
Saving Human Life,” which was published by the National Catholic

23. Canon 747 §1: “Ecclesiae, cui Christus Dominus fidei depositum concredidit
ut ipsa, Spiritu Sancto assistente, veritatem revelatam sancte custodiret, intimius per-
scrutaretur, fideliter annuntiaret atque exponeret, officium est et ius nativum, etiam
mediis communicationis socialis sibi propriis adhibitis, a qualibet humana potestate
independens, omnibus gentibus Evangelium praedicandi.”
24. Canon 794 §1: “Singulari ratione officium et ius educandi spectat ad Eccle-
siam, cui divinitus missio concredita est homines adiuvandi, ut ad christianae vitae
plenitudinem pervenire valeant.”
25. Canon 800 §1: “Ecclesiae ius est scholas cuiusvis disciplinae, generis et
gradus condendi ac moderandi.”
26. Canon 807: “Ius est Ecclesiae erigendi et moderandi studiorum universi-
tates, quae quidem ad altiorem hominum culturam et pleniorem personae humanae
promotionem necnon ad ipsius Ecclesiae munus docendi implendum conferant.”
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 111

Bioethics Center in its Ethics & Medics newsletter in September 2020.

My expanded version of that text was then published in the Autumn
2020 issue of the National Catholic Bioethics Quarterly.27
In my article, I noted that some government officials have said
that access to liquor, cannabis, casinos, and abortion is essential, but
going to church and access to the sacraments are not. Governments
around the world took the extraordinary and unprecedented step of
shutting down a major portion of the economy for several months,
telling people to stay home, not to go to work, and not to go to
school. So, as we look back at what we have done and consider how
we will respond in the future in similar situations, I think it would
be helpful to call to mind some Catholic moral principles to help illu-
minate how to address a pandemic.
Catholic medical ethics has used the standard of ordinary and
extraordinary means of preserving life since it was first articulated in
these terms by Pope Pius XII in his 1957 address to Catholic physicians
and anesthesiologists. While we recognize that our human life is one
of our greatest gifts, it is not a moral absolute and, in fact, is secondary
to the eternal life of our immortal soul. Recognizing that our human
life is passing, there are circumstances when it is just to decline medical
treatments because they would be considered extraordinary to the sit-
uation. These principles of clinical decision-making may be applied
analogously to the societal response to a pandemic.
If we had a moral obligation to use every possible means, even
extraordinary means, to preserve life, then we should not even get
into our cars, since there is a risk that we could be killed, given the
fact that over thirty-five thousand people have died nationwide in
auto accidents every year since 1951.28 We do not stop driving,
however, and there is no moral imperative to stop driving, because

27. Thomas John Paprocki, “Social Shutdowns as an Extraordinary Means of

Saving Human Life,” Ethics and Medics 45/9 (September 2020) 1–4, https://doi.
org/10.5840/em20204592; The National Catholic Bioethics Quarterly 20 (2020) 545–
559, https://doi.org/10.5840/ncbq202020348.
28. “Motor Vehicle Traffic Fatalities and Fatality Rates, 1899–2018,” National
Highway Traffic Safety Administration, June 30, 2020: https://cdan.nhtsa.gov/
tsftables/Fatalities%20 and%20Fatality%20Rates.pdf.
112 THE JURIST

we recognize that it would be an extraordinary burden on everyday

life if people could not get to where they need to be for work, school,
family, and other obligations to which they must attend. Instead, we
take safety precautions to minimize the risk, such as using seat belts,
installing air bags, and following traffic laws.
Similarly, in the face of a pandemic, do we have a moral obliga-
tion to shut down our society, require people to stay at home, put
employees out of work, send businesses into bankruptcy, impair the
food supply chain, and prevent worshippers from going to church? I
would say no. That would be imposing unduly burdensome and
extraordinary means. While some people may voluntarily adopt such
means, only ordinary means that are not unduly burdensome are
morally required to preserve life, on the part of both individuals and
society as a whole.
One of the major means of response to governmental threats to
religious liberty is through litigation in the civil courts. There were
several lawsuits and court challenges of executive orders restricting
church services around the country in the year following the out-
break of the coronavirus pandemic. The initial lawsuits were not suc-
cessful, as the courts gave wide deference to executive authorities
dealing with a pandemic that was not well understood. For example,
in South Bay United Pentecostal Church v. Gavin Newsom, the United
States Supreme Court, on May 29, 2020, denied injunctive relief in a
5-4 decision from numerical restrictions limiting attendance at places
of worship to 25% of building capacity or a maximum of 100 attend-
ees. In his concurring opinion, Chief Justice John Roberts wrote,

The precise question of when restrictions on particular social

activities should be lifted during the pandemic is a dynamic and
fact-intensive matter subject to reasonable disagreement. Our
Constitution principally entrusts “[t]he safety and the health of
the people” to the politically accountable officials of the States
“to guard and protect.” When those officials “undertake[ ] to act
in areas fraught with medical and scientific uncertainties,” their
latitude “must be especially broad.” Where those broad limits
are not exceeded, they should not be subject to second-guessing
by an “unelected federal judiciary,” which lacks the background,
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 113

competence, and expertise to assess public health and is not

accountable to the people.29

In his dissenting opinion in the same case, Justice Brett Kava-

naugh wrote,

California has ample options that would allow it to combat the

spread of COVID–19 without discriminating against religion.
The State could ‘insist that the congregants adhere to social-
distancing and other health requirements and leave it at that—
just as the Governor has done for comparable secular activities.’
Or alternatively, the State could impose reasonable occupancy
caps across the board. But absent a compelling justification
(which the State has not offered), the State may not take a
looser approach with, say, supermarkets, restaurants, factories,
and offices while imposing stricter requirements on places of
worship.

On the same day, May 29, 2020, Justice Kavanaugh denied injunc-
tive relief in an Illinois case in Elim Romanian Church v. Pritzker. The
reason stated for denying injunctive relief was that the “Illinois
Department of Public Health issued new guidance on May 28. The
denial is without prejudice to Applicants filing a new motion for
appropriate relief if circumstances warrant.”30 The new guidance
was precisely that—guidance—and did not impose any mandatory
restrictions, thus, injunctive relief was not necessary.
By the end of the year, as the pandemic wore on and restrictions
continued in various parts of the country, the position of the United
States Supreme Court became less receptive to government restric-
tions on houses of worship. In the case of Roman Catholic Diocese of
Brooklyn, New York, v. Andrew M. Cuomo, Governor of New York, the
Court, on November 25, 2020, granted an injunction enjoining the
Governor from enforcing his executive order which had placed 10-

29. South Bay United Pentecostal Church v. Gavin Newsom, Governor of Cal-
ifornia, et al., 590 U.S. ____ (2020).
30. Elim Romanian Church v. Pritzker, 590 U.S. ____ (2020).
 114 THE JURIST

and 25-person occupancy limits on houses of worship.31 At the same

time, the Court also granted injunctive relief in the case of Agudath
Israel of America, et al. v. Cuomo. In his concurring opinion, Justice Neil
Gorsuch wrote:

New York’s Governor has asserted the power to assign different

color codes to different parts of the State and govern each by
executive decree. In “red zones,” houses of worship are all but
closed—limited to a maximum of 10 people. In the Orthodox
Jewish community that limit might operate to exclude all
women, considering 10 men are necessary to establish a minyan,
or a quorum. In “orange zones,” it’s not much different.
Churches and synagogues are limited to a maximum of 25
people. These restrictions apply even to the largest cathedrals
and synagogues, which ordinarily hold hundreds. And the restric-
tions apply no matter the precautions taken, including social dis-
tancing, wearing masks, leaving doors and windows open, for-
going singing, and disinfecting spaces between services.
At the same time, the Governor has chosen to impose no
capacity restrictions on certain businesses he considers “essen-
[83.137.212.119] Project MUSE (2024-10-31 21:13 GMT) Gregoriana Pontificia Univ

tial.” And it turns out the businesses the Governor considers

essential include hardware stores, acupuncturists, and liquor
stores. Bicycle repair shops, certain signage companies, account-
ants, lawyers, and insurance agents are all essential too. 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, shop for a
new bike, or spend the afternoon exploring your distal points
and meridians. Who knew public health would so perfectly align
with secular convenience?
As almost everyone on the Court today recognizes, squaring
the Governor’s edicts with our traditional First Amendment rules
is no easy task. People may gather inside for extended periods in
bus stations and airports, in laundromats and banks, in hardware
stores and liquor shops. No apparent reason exists why people
may not gather, subject to identical restrictions, in churches or

31. Roman Catholic Diocese of Brooklyn, New York, v. Andrew M. Cuomo,

Governor of New York, 592 U.S. ____ (2020).
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 115

synagogues, especially when religious institutions have made

plain that they stand ready, able, and willing to follow all the
safety precautions required of “essential” businesses and perhaps
more besides. The only explanation for treating religious places
differently seems to be a judgment that what happens there just
isn’t as “essential” as what happens in secular spaces. Indeed, the
Governor is remarkably frank about this: In his judgment laun-
dry and liquor, travel and tools, are all “essential” while tradi-
tional religious exercises are not. That is exactly the kind of dis-
crimination the First Amendment forbids.
Nor is the problem an isolated one. In recent months, certain
other Governors have issued similar edicts. At the flick of a pen,
they have asserted the right to privilege restaurants, marijuana
dispensaries, and casinos over churches, mosques, and temples.
. . . In far too many places, for far too long, our first freedom has
fallen on deaf ears.32

Thankfully, the United States Supreme Court is now listening to

the pleas of the faithful who simply want to exercise their right to
the free exercise of religion. I also sent an email to Bishop Nicholas
DiMarzio of Brooklyn thanking him for filing this lawsuit. His dio-
cese’s victory in this litigation has done us all a big favor!

3.2. Same-Sex Marriage

The following quote is from a candidate who was running for the
office of the president of the United States a number of years ago: “I
believe marriage is between a man and a woman. I am not in favor
of gay marriage.” In case you are wondering who said that and when,
it was Barack Obama, who made this affirmation of traditional mar-
riage during the presidential campaign of 2008.33 In August 2008, he
told Southern California megachurch Pastor Rick Warren his defini-

32. Agudath Israel of America, et al. v. Cuomo, decided in conjunction with

Roman Catholic Diocese of Brooklyn, New York, v. Andrew M. Cuomo, Governor
of New York, 592 U.S. ____ (2020).
33. Chris Harris, “Barack Obama Answers Your Questions About Gay Marriage,
Paying for College, More,” MTV, November 1, 2008: http://www.mtv.com/news/
1598407/barack-obama-answers-your-questions-about-gay-marriage-paying-for-
college-more/.
116 THE JURIST

tion of marriage: “I believe that marriage is the union between a man

and a woman. Now, for me as a Christian, it is also a sacred union.
God’s in the mix.”34 His professed belief that “God’s in the mix” did
not stop President Obama from flip flopping on the issue of same-
sex marriage, as just four years later he said, “I’ve just concluded that
for me personally it is important for me to go ahead and affirm that
I think same-sex couples should be able to get married.”35
Actually, it was not as much of a flip flop as it was coming full
circle.36 In 1996, as he ran for Illinois State Senate, Chicago’s Outlines
gay newspaper asked candidates to fill out a questionnaire, in which
Obama wrote, “I favor legalizing same-sex marriages, and would
fight efforts to prohibit such marriages.”37 When Obama ran for the
U.S. Senate in 2004, he told the Windy City Times, “I am a fierce sup-
porter of domestic-partnership and civil-union laws. I am not a sup-
porter of gay marriage as it has been thrown about, primarily just as
a strategic issue. I think that marriage, in the minds of a lot of voters,
has a religious connotation. . . . What I’m saying is that strategically,
I think we can get civil unions passed.”38
My point here is not so much to highlight how politicians tailor
their campaign promises to suit their audiences, but to show the polit-
ical strategy that was employed and how quickly it worked to shape
public opinion. Obama was at least honest in admitting that talk of

34. “Full Transcript: Saddleback Presidential Forum, Sen. Barack Obama, John
McCain; Moderated by Rick Warren,” Vote Smart, August 17, 2008:
https://justfacts.votesmart.org/public-statement/658545/full-transcript-saddleback-
presidential-forum-sen-barack-obama-john-mccain-moderated-by-rick-warren/.
35. “Transcript: Robin Roberts ABC News Interview With President Obama,”
ABC News, May 9, 2012: https://abcnews.go.com/Politics/transcript-robin-roberts-
abc-news-interview-president-obama/story?id=16316043.
36. Becky Bowers, “President Barack Obama’s shifting stance on gay marriage,”
PolitiFact, May 11, 2012: https://www.politifact.com/factchecks/2012/may/11/
barack-obama/president-barack-obamas-shift-gay-marriage/.
37. Tracy Baim, “Obama changed views on gay marriage,” Windy City Times,
January 14, 2009: https://windycitytimes.com/images/publications/wct/2009-01-
14/current.pdf.
38. Tracy Baim, “Obama seeks U.S. Senate seat,” Windy City Times, February 4,
2004: http://www.windycitymediagroup.com/gay/lesbian/news/ARTICLE.
php?AID=3931.
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 117

domestic partnerships and civil unions was simply a political strategy.

What started as domestic partnerships morphed into civil unions, and
then politicians settled for nothing less than same-sex marriage.
In Illinois, the Religious Freedom Protection and Civil Union Act
took effect on June 1, 2011. Despite the title, there is very little reli-
gious f reedom protection in the act. One short paragraph says
simply, “Nothing in this Act shall interfere with or regulate the reli-
gious practice of any religious body. Any religious body, Indian
Nation or Tribe or Native Group is free to choose whether or not to
solemnize or officiate a civil union.”39 As we will see shortly, that lan-
guage did not protect Catholic Charities throughout Illinois from
being barred from offering foster care or adoption services because
of our religious beliefs and practices.
Just three years later, the Illinois Religious Freedom and Marriage
Fairness Act was signed into law on November 20, 2013. What had
previously been called a “domestic partnership” or “civil union” was
now to be given legal sanction as “marriage.” That same day,
November 20, 2013, I led “Prayers of Supplication and Exorcism in
Reparation for the Sin of Same-Sex Marriage” at the Cathedral of
the Immaculate Conception in Springfield, Illinois. I wish to point
out that litigation is not the only ecclesial response to governmental
threats to the Church’s freedom to carry out her mission. We must
not forget to use the spiritual weapons at our disposal, the most
powerful of which is prayer.
The Prayers for “Supplication and Exorcism Which May Be Used
in Particular Circumstances of the Church” are taken f rom the
appendices to the 2004 Latin edition of the Rite of Exorcism, the
introduction to which explains: “The presence of the Devil and other
demons appears and exists not only in the tempting or tormenting
of persons, but also in the penetration of things and places in a cer-
tain manner by their activity, and in various forms of opposition to
and persecution of the Church. If the Diocesan Bishop, in particular

39. Illinois Religious Freedom Protection and Civil Union Act, 750 ILCS 75/15,
Sec. 15., Illinois General Assembly, accessed January 19, 2023, https://www.ilga.
gov/legislation/ilcs/ilcs3.asp?ActID=3294&ChapterID=59.
118 THE JURIST

situations, judges it appropriate to announce gatherings of the faith-

ful for prayer, under the leadership and direction of a Priest, elements
for arranging a rite of supplication may be taken from.”40
While prayers of supplication in reparation for sin may be easily
understood as our pleas and entreaties to God for forgiveness of sins
and deliverance from temptation, the meaning of the term “exorcism”
in the title of this prayer service is not so readily apparent and requires
some explanation. Indeed, some have ridiculed our Church’s use of
this ancient religious practice. We must remember the encouragement
of Pope Saint Leo the Great, who said over 1,500 years ago, “the
Church is not diminished by persecutions, but rather increased.”41
Perhaps a large part of the negative reaction is because most
people do not know what the Church teaches about exorcism, since
they get their misleading information and sensational ideas on this
mainly from Hollywood. The fact is that a “minor exorcism” takes
place in every baptism and confirmation ceremony when we
renounce Satan and all his works and empty promises.
My prayer service and my words were not meant to demonize
anyone; they were intended to call attention to the diabolical
inf luences of the devil that have penetrated our culture, both in
the state and in the Church. These demonic inf luences are not
readily apparent to the undiscerning eye, which is why they are so
deceptive. While the popular tendency may be to identify the devil
only with his extraordinary activity, which is diabolical possession,
the ordinary work of the devil is deception, division, diversion, and
discouragement.
The deception of the devil in same-sex marriage may be under-
stood by recalling the words of Pope Francis when he faced a similar
situation as Archbishop of Buenos Aires in 2010. Regarding the pro-
posed redefinition of civil marriage in Argentina, then-Cardinal Jorge
Mario Bergoglio wrote on June 22, 2010,

40. United States Conference of Catholic Bishops, Exorcisms and Related Suppli-
cations (Washington, DC: United States Conference of Catholic Bishops, 2017) 65.
41. St. Leo the Great, Sermo 82 in natali apostolorum Petri et Pauli: PL 54:426–428,
at 1, 6–7; English translation in The Liturgy of the Hours according to the Roman Rite
(New York: Catholic Book Publishing Co., 1975) 4:1570.
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 119

The Argentine people must face, in the next few weeks, a situ-
ation whose result may gravely harm the family. It is the bill on
matrimony of persons of the same sex. The identity of the
family, and its survival, are in jeopardy here: father, mother, and
children. The life of so many children who will be discriminated
beforehand due to the lack of human maturity that God willed
them to have with a father and a mother is in jeopardy. A clear
rejection of the law of God, engraved in our hearts, is in jeop-
ardy. . . . Let us not be naive: it is not a simple political struggle;
it is an intention [which is] destructive of the plan of God. It is
not a mere legislative project (this is a mere instrument), but
rather a “move” of the father of lies who wishes to confuse and
deceive the children of God.42

The pope’s reference to the “father of lies” comes from the Gospel
of John (8:44), where Jesus refers to the devil as “a liar and the father
of lies.” So Pope Francis is saying that same-sex “marriage” comes
from the devil and should be condemned as such.
Another major deception or distortion of marriage is the view that
it is not ultimately about generating life, but rather is mainly about a
[83.137.212.119] Project MUSE (2024-10-31 21:13 GMT) Gregoriana Pontificia Univ

romantic relationship designed for individual (not even mutual) ful-

fillment. That distorted understanding cuts across opposite-sex mar-
riage and same-sex marriage proponents in our culture. We are all
summoned to reflect more deeply on the truth of marriage. It is also
a deception to say that there will be no adverse effects on children
being brought up in the household of a same-sex couple.43
The division brought about by the devil due to same-sex marriage
may be seen in the way our society, our families, and our friendships
have become so divided and polarized over this issue. The diversion

42. “Letter of Cardinal Bergoglio to Carmelites regarding the pending approval

of ‘same sex marriage,’” Rorate Caeli, March 13, 2013: http://rorate-caeli.
blogspot.com/2013/03/letter-of-cardinal-bergoglio-to.html.
43. Mark Regnerus, “How different are the adult children of parents who have
same-sex relationships? Findings f rom the New Family Structures Study,” Social
Science Research 41 (2012) 752–770. The results of this study are summarized by
Ana Samuel at “New Family Structures Research and the ‘No Differences’ Claim,”
Children from Different Families, accessed January 21, 2023, http://www.family
structurestudies.com/summary.
120 THE JURIST

of the devil in same-sex marriage may be seen in the fact that so

much of our time, energy, and resources are being spent in address-
ing this issue, when there are more pressing needs facing our country
and our Church.
The work of discouragement by the devil in same-sex marriage is
apparent in the message being conveyed to defenders of traditional
marriage that the universal redefinition of marriage is unstoppable, so
we might as well just stop trying. But the legalization of abortion on
demand almost half a century ago did not silence those who believe
that abortion is contrary to God’s law. On the contrary, Roe v. Wade
only heightened the need for more concerted efforts to protect all
human life from conception to natural death. So, too, the legal redef-
inition of civil marriage does not put an end to the need for discourse
and action to defend natural marriage in accord with God’s plan, but
only serves to heighten the need for greater efforts in this regard.
Mention of the wrongfully decided case of Roe v. Wade is apt, as
we now have a similarly erroneous decision in the case of Obergefell
v. Hodges, by which the United States Supreme Court on June 26, 2015
held that the Fourteenth Amendment of the United States Constitu-
tion requires a State to license a marriage between two people of the
same sex and to recognize a marriage between two people of the
same sex when their marriage was lawfully licensed and performed
out-of-state.44
As was often the case, the dissenting opinion of the late Justice
Antonin Scalia in Obergefell v. Hodges is not only informative, but enter-
taining. I encourage you to read it in full, but I call your attention to
this particularly salient passage:

Judges are selected precisely for their skill as lawyers; whether

they reflect the policy views of a particular constituency is not
(or should not be) relevant. Not surprisingly then, the Federal
Judiciary is hardly a cross-section of America. Take, for example,
this Court, which consists of only nine men and women, all of
them successful lawyers who studied at Harvard or Yale Law

44. Obergefell v. Hodges, 576 U.S. 644 (2015): https://www.supremecourt.gov/

opinions/boundvolumes/576BV.pdf.
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 121

School. Four of the nine are natives of New York City. Eight of
them grew up in east- and west-coast States. Only one hails from
the vast expanse in-between. Not a single Southwesterner or
even, to tell the truth, a genuine Westerner (California does not
count). Not a single evangelical Christian (a group that comprises
about one quarter of Americans), or even a Protestant of any
denomination. The strikingly unrepresentative character of the
body voting on today’s social upheaval would be irrelevant if
they were functioning as judges, answering the legal question
whether the American people had ever ratified a constitutional
provision that was understood to proscribe the traditional defi-
nition of marriage. But of course the Justices in today’s majority
are not voting on that basis; they say they are not. And to allow the
policy question of same-sex marriage to be considered and
resolved by a select, patrician, highly unrepresentative panel of
nine is to violate a principle even more fundamental than no tax-
ation without representation: no social transformation without
representation.45

More recently, the United States Supreme Court extended its judi-
cial folly in the case of Bostock v. Clayton County, decided on June 20,
2020, that an employer who fires an individual for being homosexual
or transgender violates Title VII of the Civil Rights Act of 1964.
Delivering the opinion of the Court on behalf of his Harvard and
Yale elite colleagues, Justice Neil Gorsuch offered what might at best
be called an understatement when he wrote, “Those who adopted
the Civil Rights Act might not have anticipated their work would lead
to this particular result.”46
Unfortunately, Justice Scalia is no longer with us, and so we can
only imagine the scathing dissent that he might have written. Nev-
ertheless, Justice Samuel Alito did provide us with a lengthy and per-
spicacious dissent. It is also clear that Justice Alito was making much
the same argument that Justice Scalia made in Obergefell. In his dis-
senting opinion in Bostock, Justice Alito wrote:

45. Obergefell, 576 U.S. at 717–718. Emphasis in original.

46. Bostock v. Clayton County, 590 U.S. ___ (2020): https://www.supreme-
court.gov/opinions/19pdf/17-1618_hfci.pdf.
122 THE JURIST

There is only one word for what the Court has done today: legis-
lation. The document that the Court releases is in the form of a
judicial opinion interpreting a statute, but that is deceptive. Title
VII of the Civil Rights Act of 1964 prohibits employment dis-
crimination on any of five specified grounds: “race, color, reli-
gion, sex, [and] national origin.” Neither “sexual orientation” nor
“gender identity” appears on that list. For the past 45 years, bills
have been introduced in Congress to add “sexual orientation” to
the list, and in recent years, bills have included “gender identity”
as well. But to date, none has passed both Houses. Last year, the
House of Representatives passed a bill that would amend Title
VII by defining sex discrimination to include both “sexual orien-
tation” and “gender identity,” H. R. 5 . . . Because no such amend-
ment of Title VII has been enacted in accordance with the
requirements in the Constitution (passage in both Houses and
presentment to the President), Title VII’s prohibition of discrim-
ination because of “sex” still means what it has always meant.
But the Court is not deterred by these constitutional niceties.
Usurping the constitutional authority of the other branches, the
Court has essentially taken H. R. 5’s provision on employment
discrimination and issued it under the guise of statutory inter-
pretation. A more brazen abuse of our authority to interpret stat-
utes is hard to recall.47

Erroneous judicial decisions contrary to divine law such as Roe v.

Wade, Obergefell v. Hodges, and Bostock v. Clayton County pose a difficult
challenge for Christians who not only want to be good citizens who
follow the law of the United States, but also seek to be faithful cit-
izens of God’s kingdom. As I explained at the beginning of this
article, the teachings of Jesus and the Acts of the Apostles show us
that Christians should generally comply with civil authority; however,
that compliance is not absolute, but is conditioned on civil authority
being subservient to the divine law.

47. Bostock, 590 U.S. ___.

 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 123

3.3. Foster Care and Adoption Services

As mentioned in the previous section, when Illinois passed the Reli-
gious Freedom Protection and Civil Union Act in 2011, a direct result
of that law was that the Illinois Department of Children and Family
Services (DCFS) forced Catholic Charities out of foster care and
adoption services in Illinois, despite the fact that Catholic Charities
in Illinois was rated among the state’s most effective foster care
agencies. Catholic Charities of the Diocese of Springfield in Illinois
has been operating for close to one hundred years and provides an
extensive range of social services. Its mission is to “extend to all the
healing and empowering presence of Jesus.”48 From 1965 to 2011 it
acted as a foster care agency and, in that capacity, cared for thousands
of distressed Illinois children. In 2011, while performing superior
service on behalf of about 325 foster children, the state of Illinois
abruptly terminated its foster care services following enactment of
the Illinois Religious Freedom and Civil Union Act. The reason given
was that Catholic Charities of Springfield, on religious grounds,
declined to agree to assess and qualify same-sex couples as foster par-
ents, although it agreed to refer such applicants to the many DCFS
field offices that could provide those services or offer information
about private agencies that could do the same.
Same-sex couples could already access a highly capacitated system
of over one hundred DCFS field offices and alternative foster care
agencies in Illinois to seek assessment and qualification as foster par-
ents. In the 2011 litigation brought against the state in Catholic Char-
ities of the Diocese of Springfield in Illinois v. State of Illinois, the four
Catholic Charities organizations who sued argued, among other
points, that the state could not cite a compelling reason why it could
not accept Catholic Charities’ proposal to refer applicants whom it
could not, consistent with Catholic doctrine, assess and qualify as
foster parents to other agencies that could. However, in August 2011,
the lawsuit was rejected by the Sangamon County Circuit Court on
summary judgment. Without addressing the religious freedom issue,

48. Catholic Charities: Diocese of Springfield in Illinois, accessed April 15, 2023,
https://cc.dio.org/.
 124 THE JURIST

the court decided that plaintiffs had no property interest in continued

contracts with the state and thus had no remedy when the state dis-
continued contracting with them.49 An appeal was filed, but DCFS
had sent a follow-up letter to agencies that challenged the new law,
including Catholic Charities, identifying the different foster care
agencies to which it planned immediately to transfer their existing
cases en masse. In addition, DCFS said it would no longer license
foster care applicants recommended by Catholic Charities, effectively
snuffing out their ability to perform as foster care agencies. After
deliberating, the four litigating Catholic Charities organizations
decided to abandon their appeal and to cease foster care services.50
Ten years later, the United States Supreme Court decided the
case of Fulton v. Philadelphia on June 17, 2021, in which the Court
held that the refusal of the city of Philadelphia to contract with
Catholic Social Services (CSS) of the Archdiocese of Philadelphia
for the provision of foster care services unless CSS agrees to certify
same-sex couples as foster parents violates the Free Exercise Clause
of the First Amendment.51
Although the unanimous 9-0 decision would appear to be a
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resounding victory, apparently unanimity was achieved by limiting

the scope of the decision. In his concurring opinion, Justice Alito
explains the conundrum posed by this decision:

One of the questions that we accepted for review is “[w]hether

Employment Division v. Smith should be revisited.” We should con-
f ront that question. Regrettably, the Court declines to do so.
Instead, it reverses based on what appears to be a superfluous
(and likely to be short-lived) feature of the City’s standard annual

49. Summary Judgment Order 2, Catholic Charities of the Diocese of Spring-

field, et al. v. Madigan, et al., No. 2011–MR–254 (Ill. Cir. Ct. Aug. 18, 2011).
50. “Brief for Amici Curiae, Catholic Charities of the Diocese of Springfield in
Illinois, and Catholic Charities of the Diocese of Joliet, Inc., in Support of
Petitioners,” Fulton v. Philadelphia, filed No. 19–123 in the Supreme Court of the
United States, https://www.supremecourt.gov/DocketPDF/19/19-123/144818/
20200603170631374_19-123%20Amici%20Curiae%20Brief.pdf.
51. Fulton v. Philadelphia, 593 U.S. ___ (2021): https://www.supremecourt.
gov/opinions/20pdf/19-123_g3bi.pdf.
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 125

contract with foster care agencies. Smith’s holding about cate-

gorical rules does not apply if a rule permits individualized
exemptions, and the majority seizes on the presence in the City’s
standard contract of language giving a City official the power to
grant exemptions. The City tells us that it has never granted such
an exemption and has no intention of handing one to CSS, but
the majority reverses the decision below because the contract
supposedly confers that never-used power. This decision might
as well be written on the dissolving paper sold in magic shops.
The City has been adamant about pressuring CSS to give in, and
if the City wants to get around today’s decision, it can simply
eliminate the never-used exemption power. If it does that, then,
voilà, today’s decision will vanish—and the parties will be back
where they started. The City will claim that it is protected by
Smith; CSS will argue that Smith should be overruled; the lower
courts, bound by Smith, will reject that argument; and CSS will
file a new petition in this Court challenging Smith. What is the
point of going around in this circle? Not only is the Court’s deci-
sion unlikely to resolve the present dispute, it provides no guid-
ance regarding similar controversies in other jurisdictions. From
2006 to 2011, Catholic Charities in Boston, San Francisco, Wash-
ington, D.C., and Illinois ceased providing adoption or foster care
services after the city or state government insisted that they serve
same-sex couples. Although the precise legal grounds for these
actions are not always clear, it appears that they were based on
laws or regulations generally prohibiting discrimination on the
basis of sexual orientation. And some jurisdictions have adopted
anti-discrimination rules that expressly target adoption services.
Today’s decision will be of no help in other cases involving the
exclusion of faith-based foster care and adoption agencies unless
by some chance the relevant laws contain the same glitch as the
Philadelphia contractual provision on which the majority’s deci-
sion hangs.52

As a result, it should come as no surprise that our Catholic Char-

ities in Illinois unfortunately will not be jumping back into foster care

52. Fulton, 593 U.S. ___.

126 T H E J U R I S T

and adoption services any time soon, at least until the ambiguity
inherent in Fulton is clarified and rectified.

3.4. Abortion, Contraception, and Abortifacient Mandates

The challenges posed by the tendency of the United States Supreme
Court to render inconclusive decisions that leave difficult questions
unresolved can also be seen in the case of the Little Sisters of the Poor
v. Pennsylvania. Despite a 2016 victory at the US Supreme Court, an
executive order, and a new rule that protects the Little Sisters of the
Poor and other non-profit religious groups f rom the unconstitu-
tional HHS contraception and abortifacient mandate, the Little
Sisters are still in court as of this writing. In November 2017, after
the federal government issued their new rule protecting religious
groups from the mandate, the commonwealth of Pennsylvania and
several other states sued in federal court to take away the sisters’
hard-won religious exemption. The Becket Fund for Religious Lib-
erty intervened on behalf of the Little Sisters, arguing that the states
have no right to challenge the new rule. Oral argument was held on
March 23, 2018 to decide whether the Sisters will be allowed to inter-
vene in the case, and on April 24, 2018, the Little Sisters’ motion for
intervention was granted.
On July 12, 2019, the Third Circuit ruled against the Little Sisters.
On October 1, 2019, the Little Sisters of the Poor asked the Supreme
Court to protect them from the HHS contraceptive mandate again
and end their legal battle once and for all. On July 8, 2020, the
Supreme Court ruled 7-2 in favor of the Little Sisters of the Poor,
allowing them to continue serving the elderly poor and dying with-
out threat of millions of dollars in fines.53
Writing for the Court, Justice Thomas said that “For over 150
years, the Little Sisters have engaged in faithful service and sacrifice,
motivated by a religious calling to surrender all for the sake of their
brother. . . . But for the past seven years, they—like many other reli-
gious objectors who have participated in the litigation and rulemak-

53. “Little Sisters of the Poor v. Commonwealth of Pennsylvania,” Becket Fund

for Religious Liberty, accessed January 21, 2023, https://www.becketlaw.org/
case/commonwealth-pennsylvania-v-trump/.
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 127

ings leading up to today’s decision—have had to fight for the ability

to continue in their noble work without violating their sincerely held
religious beliefs.” The Court held that the federal government was
right to protect those beliefs.54 Unfortunately, this long legal saga
may not yet be over for the Little Sisters of the Poor and other Cath-
olic entities that are similarly situated, as President Biden has pledged
to end the contraception exemption for the Little Sisters.55
The Little Sisters’ case is reminiscent of the late Joseph Scheidler,
founder of the Pro-Life Action League, and his legal battles with the
National Organization for Women (NOW), which had filed suit alle-
ging that pro-life protests at abortion facilities were a violation of the
Racketeer Influenced and Corrupt Organizations Act, known as
RICO.56 Thanks to this lawsuit, Mr. Scheidler’s allies and adversaries
alike called him the “godfather” of the pro-life movement.57 In 1994,
the suit filed by the National Organization for Women, NOW v.
Scheidler, resulted in a unanimous Supreme Court decision finding
that federal racketeering laws could be used against anti-abortion
protesters, though the court sent the case back to a lower court for
a decision on the suit itself. Mr. Scheidler refused to settle, and his
lawyer, Thomas Brejcha, who had been working pro bono, founded
the Thomas More Society, a nonprofit law firm, to raise money for
his legal defense. The NOW v. Scheidler case found its way back to the
Supreme Court two more times. In 2003, the court reversed its earlier
decision, and in 2006, it finally closed the case, ruling unanimously
in Mr. Scheidler’s favor.58 My point is that it took three trips to the

54. Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591
U.S. ___ (2020): https://www.supremecourt.gov/opinions/19pdf/19-431_5i36.pdf.
55. “Biden plans to end contraception exemption for Little Sisters,” Catholic
News Agency, July 9, 2020: https://www.catholicnewsagency.com/news/45106/
biden-plans-to-end-contraception-exemption-for-little-sisters.
56. “Now v Scheidler: Landmark Pro-Life, Public Protest Case,” Pro-Life Action
League, accessed January 21, 2023, https://prolifeaction.org/nvs/.
57. Clay Risen, “Joseph M. Scheidler, ‘Godfather’ of the Anti-Abortion Move-
ment, Dies at 93,” New York Times, January 20, 2021: https://www.nytimes.
com/2021/01/20/us/joseph-m-scheidler-dead.html.
58. Scheidler et al. v. National Organization for Women, Inc., et al., 547 U.S. 9
(2006).
128 THE JURIST

United States Supreme Court over more than twenty years for Joseph
Scheidler to get a definitive decision that finally closed his case.
Another pro-life client currently being represented by the Thomas
More Society is David Daleiden, who is being prosecuted for his
undercover reporting that exposed evidence of infants being born
alive and vivisected for their organs, illegal partial birth abortions,
and a host of financial and ethical violations relating to the illegal
trafficking in aborted baby body parts. Five legal cases involving Mr.
Daleiden are still pending in various courts.59
The pro-life movement received a setback when, on June 29, 2020,
the US Supreme Court decided June Medical Services v. Russo, which
held that Louisiana’s Unsafe Abortion Protection Act, requiring doc-
tors who perform abortions to have admitting privileges at a nearby
hospital, was unconstitutional.60 In his dissenting opinion, Justice
Clarence Thomas declared:

Today a majority of the Court perpetuates its ill-founded abor-

tion jurisprudence by enjoining a perfectly legitimate state law
and doing so without jurisdiction. As is often the case with legal
challenges to abortion regulations, this suit was brought by abor-
tionists and abortion clinics. Their sole claim before this Court
is that Louisiana’s law violates the purported substantive due pro-
cess right of a woman to abort her unborn child. But they con-
cede that this right does not belong to them, and they seek to
vindicate no private rights of their own. Under a proper under-
standing of Article III, these plaintiffs lack standing to invoke our
jurisdiction.61

Justice Alito was even more pointed in his dissent: “Today’s deci-
sion claims new victims. The divided majority cannot agree on what
the abortion right requires, but it nevertheless strikes down a Lou-
isiana law, Act 620, that the legislature enacted for the asserted pur-

59. “David Daleiden,” Thomas More Society, accessed January 21, 2023,
https://focus.thomasmoresociety.org/david-daleiden/.
60. June Medical Services L.L.C. v. Russo, 591 U.S. ___ (2020): https://www.
supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf.
61. Ibid.
 T H R E ATS T O T H E C H U R C H ' S F R E E D O M 129

pose of protecting women’s health. To achieve this end, the majority

misuses the doctrine of stare decisis, invokes an inapplicable standard
of appellate review, and distorts the record.”62 Justices Gorsuch and
Kavanaugh wrote similar dissents.
Another significant case—decided June 24, 2022, subsequent to the
original presentation of this paper—is Dobbs vs. Jackson Women’s Health
Organization, which involves a law passed by the state of Mississippi in
2018 that bans abortion after fifteen weeks of gestation, with a few lim-
ited exceptions, overruling the 1973 decision of Roe v. Wade.63
In addition to litigation in the courts, the canonical response to
the sin of abortion must take into account canons 915 and 916. In
this regard, I want to call attention to two articles I wrote on “Eucha-
ristic coherence”: one published in First Things magazine64 and the
other in this journal.65 Application of these canons is part of a
bishop’s duty to proclaim the Gospel at all times, even when it is
inconvenient and countercultural. It provides a public pastoral
response aimed at conversion and readmission to Holy Communion,
as recognized throughout the Church’s history.

Conclusion
I hope this article has been helpful in describing some of the
responses in canon and civil law to governmental threats to the
Church’s f reedom to carry out her mission. I am grateful for the
highly competent legal assistance being provided to protect religious
liberty by the Becket Fund for Religious Liberty (Washington, DC),
the Alliance for Defending Freedom (Scottsdale, AZ), the Thomas
More Society Public Interest Law Firm (Chicago, IL), and the Notre
Dame Law School’s Religious Liberty Initiative. I close with the

62. Russo, 591 U.S. ___.

63. “Jackson Women’s Health Organization v. Dobbs, No. 19-60455 (5th Cir.
2020),” Justia, accessed January 21, 2023, https://law.justia.com/cases/federal/
appellate-courts/ca5/19-60455/19-60455-2020-02-20.html.
64. Thomas John Paprocki, “Eucharistic Coherence,” First Things, August 2021:
https://www.firstthings.com/article/2021/08/eucharistic-coherence.
65. Thomas John Paprocki, “Seeking Eucharistic Coherence in an Era of Inco-
herence,” The Jurist 78 (2022) 529–549.
130 THE JURIST

words from the second inaugural address of the most famous citizen
of Springfield, Illinois, our nation’s sixteenth president, Abraham Lin-
coln: “With malice towards none; with charity for all; with firmness
in the right, as God gives us to see the right, let us strive to finish the
work we are in.”66 May God give us this grace. Amen.

ABSTRACT
Legal and governmental threats to religious freedom are increasingly
prevalent in the United States. In order to understand and combat this
encroachment on the right of the Church to carry out her divine mis-
sion, it is essential to examine the basis of the right to religious liberty
in natural law and theology as well as its expression in certain norms
of canon law. Then, recent legal and judicial activity related to religious
liberty in the United States must be explored and understood. Upon
recognizing the current state of affairs, consideration should also be
given to how injustices can be combatted.

66. Cited in Ronald C. White, Jr., Lincoln’s Greatest Speech: The Second Inaugural
(New York: Simon & Schuster Paperbacks, 2002) 19.