In recent months religious believers in parts of the United States as well as western Europe have come to sense that public health regulations are being uniquely turned against them. In a Thanksgiving gift to religious believers in New York, late Wednesday evening the Supreme Court granted the request of the Diocese of Brooklyn (alongside a group representing Haredi Orthodox Jews) for injunctive relief from an executive order restricting occupancy at religious services to ten persons in COVID-19 “red zones” and twenty-five persons in “orange zones.” Catholics in France have not been so lucky, and there a national restriction limits religious services to thirty persons, even in France’s greatest cathedral churches. In both cases, governments claim to be fully committed to upholding liberty of religion as well as public interest writ large yet reach divergent conclusions.
This divergence points to a difficulty in one of the key concepts underlying this year’s restrictions on public activities—namely that of public order, which this year has taken the form of regulations made in the name of public health. In normal times, public order is a background condition assumed for the sake of going about the rest of one’s business. When the local fire department inspects a church building and concludes that four hundred people can safely fit within it, no one, least of all church authorities, bats an eye. In the church–state boundary dispute currently before us, however, religious congregations have faced severe adverse restrictions on their activities. And while Americans may be grateful that religious liberty jurisprudence worked in our favor this time, the same considerations—balancing public health and the demands of religious liberty—led to an adverse outcome in France, and one against which there is no appeal.
Does the classical legal tradition offer an alternative resolution of such questions? To answer, we first have to step back to a moment early in the sixteenth century when the concept of public order came into shape—as a way of clawing back jurisdiction from ecclesiastical courts in England.
Christopher St. German (c. 1460–1540/41) was nearly seventy years old when he published, first in Latin and a few years later in English, his Dialogues between a Doctor of Divinity, and a Student in the Laws of England. Although St. German’s work has long been admired for its attempt to synthesize the common law with the law of equity to create a coherent legal system, in recent decades scholars have emphasized the anti-ecclesiastical element of this effort. By bringing equity into the common law, St. German contributed to fashioning a legal system that could function at the level of the canon law and thus compete with the courts spiritual even in ecclesiastical cases.
St. German pried jurisdiction from the ecclesiastical courts by placing property and most other matters of external jurisdiction exclusively under the control of the civil courts. Accordingly for St. German, writes John Guy, “whenever the church made laws pertaining to men’s goods or property, men were not obliged to observe those laws, for two reasons: first, the ecclesiastical arm in such cases was no better than another human legislator who had exceeded his authority; and secondly because, where property rights were at stake, the church ‘may erre and be deceyuyd and deceyue other eyther for syngularytye or for couetyce or for some other cause’” (103–4). (The assertion of civil jurisdiction over external matters had other parallels in different legal traditions, such as the Gallican tradition, but I omit those for the sake of giving only the barest outline of the relevant considerations here. Indeed, St. German was an important conduit for Jean Gerson’s thought.)
St. German’s strategy required appealing to the “good Order of the People” against ecclesiastical appropriations, benefices, claims of sanctuary and benefit of clergy, as well as against ecclesiastical efforts to maintain jurisdiction over church buildings and grounds. In St. German’s New Additions of 1531, the student supposes “that the Parliament may assign of the Trees and Grass in Churchyards either to the Person, to the Vicar, or to the Parish if they see Cause”; all the same, the successor to an ecclesiastical office who finds that the previous occupant has allowed the building to go to waste “shall have Remedy in the King’s Court” (1751 ed., Additions, chap. 5). In these and many other cases, the common lawyers of the early sixteenth century had begun to adopt the view that ecclesiastical jurisdiction was intruding on matters properly belonging to the civil courts. Sir John Hales, as J. H. Baker has put it, “clearly thought it inconvenient that substantially similar questions should be treated differently in different courts, and this was to become the pamphleteers’ basic objection to the dual authority.” Competing jurisdictions were a problem from the standpoint of public order, which in turn expanded its definition by paring back the jurisdiction of the Church.
Today, conflict of laws analyzes how to resolve conflicts between separate jurisdictions with potentially competing claims to judge a particular case. Likewise, laws implemented in the name of “public order” can be studied through the framework of what we now call private international law or droit international privé, as they oblige travelers for example. In its origin, however, conflict of laws especially concerned the competing jurisdictions of church and state. Within the Anglo-Saxon tradition, the purpose of conflict of laws was to settle the competition between ecclesiastical and civil courts in England—and to settle the conflict, in almost all cases, decisively in favor of civil courts. The concept of a unique “public order”—the necessity of certain fundamental regulations, without which the common good cannot be pursued—could emerge and become juridically robust only once the ecclesiastical claim to integral jurisdiction over ecclesiastical things and persons was disrupted. The purpose of “public order” is to suggest that certain indispensable regulations, affecting even ecclesiastical institutions, are so necessary as to be beyond the reach of ecclesiastical courts.
As long as public order regulations have been reasonably made in modern times, the conflict of civil and ecclesiastical jurisdictions which gave rise to public order in the first place has been hidden just out of the way. (Today conflict of laws evaluates many other such conflicts, but generally not the conflict of civil and ecclesiastical laws.) The fire code, for example, governs building capacities of both civil and ecclesiastical buildings, and ecclesiastical authorities raise no objection to the observance of such regulations. For the most part, a “robust” understanding of ecclesiastical jurisdiction—that ecclesiastical authorities would follow such civil regulations generally, but not as the subject of coercive civil power—has not been relevant. But now that the concept of public order is being weaponized against the Church—whether through health care mandates, requirements imposed on Catholic schools, or this year’s coronavirus restrictions—what we are really seeing is the concept of public order return to its initial use against the Church.
When canonists of the late nineteenth and early twentieth centuries considered the Church’s stance toward regulations made during types of pandemic, they treated them from the standpoint of conflict of laws—that is, acknowledging the potentially conflicting claims of two sovereignties. Ironically, this leads to a more straightforward resolution from the standpoint of jurisprudence. How?
In his magisterial fin de siècle treatise on ecclesiastical public right, Cardinal Felice Cavagnis posed the hypothetical example of a country A which held a possession within country B. While country A is in no way subject to country B, for the most part country A would have its possession within country B follow the general laws of public order applicable there. For example, if country A drove on the right and country B on the left, country A would have its possession within country B follow local custom. But if country B presumed to enforce laws inequitably against country A’s possession within it, country A would have every right to decline.
Similarly, Cavagnis observes that questions of public health are properly the competency of the civil authorities. They are, in effect, a place where the Church typically defers to the material determination of another sovereign. For the Church, as a distinct sovereignty, such regulations partake of law’s power of directing activity toward a freely agreed upon goal, but do not impact the Church coercively. The legal tradition distinguished these as the vis directiva and vis coactiva (a distinction that was used to show, for example, that princeps legibus solutus should be understood to exempt a prince only from the law’s coercive but not directive force). When such laws are inequitable (injusta), wrote Cavagnis, a fortiori the Church has every right to spurn them.
What could inequitable or unjust laws be in this case? In the per curiam decision issued Wednesday, the Court observed that since the “challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they must satisfy ‘strict scrutiny’”—a standard which they do not meet. What Cavagnis suggests, however, is that even neutral regulations could be unjust or inequitable from the standpoint of the Church’s own public order. While he envisions compliance with health regulations around the saying of Mass and public processions, an indefinite widespread lockdown or prohibition on visiting the dying would be unjust from the standpoint of the Church’s own law.
In our present system, relief from burdensome restrictions depends on convincing the very entity imposing an inequitable restriction to acknowledge its inequity. In the case of France, the government straightforwardly refused to do so. In the case of the United States, the judiciary intervened. While we may be grateful that the Court made the correct decision this time, we cannot expect it to do so reliably or in future, more complicated cases.
The canonistic tradition, by contrast, acknowledges the Church’s (higher) sovereignty while advising it to follow the directive power of public health regulations in all circumstances except those in which it is treated inequitably. Instead of relying on the state to interpret and balance competing concepts like public order and liberty of religion, Cavagnis straightforwardly advises the Church to follow regulations, but to reject them when they are inequitable. As public order returns to its anti-ecclesiastical origins, the need for recognizing the Church’s own public order will only continue to grow more acute.
Gladden Pappin
