Catholic Universities and Religious Freedom

by Richard Garnett
Paul J. Schierl/Fort Howard Corporation Professor of Law and Concurrent Professor of Political Science at Notre Dame Law School; co-author of First Amendment Stories by R. Garnett and A. Koppelman (Foundation Press, 2011).
PDF file available: Catholic Universities and Religious Freedom by Garnett

In my academic writing, I’ve focused on the freedom that religious institutions—to including religious colleges and universities—should enjoy to construct and act in accord with their distinctive religious character, mission, and commitments.  I’ve also tried to highlight the important “structural” role that such institutions play in our social order and the ways that they not only benefit from, but also contribute to, the rule of law and the common good.  For the political community to benefit from this role requires that community to resist the temptation to impose – through regulations, financial pressures, or otherwise – on religious institutions some requirements or expectations that might be appropriately imposed on government-run institutions.  And, one of the most pressing religious-freedom questions of our time is whether, in fact, our political community will resist this temptation.

To appreciate how universities with a religious character and mission not only benefit from, but also contribute to, an appropriate and healthy religious-freedom regime, it’s important to think about what such a university is and is not—or, at least, need not be. (I will focus here on Catholic universities because they are the ones with which I am most familiar.)

Often—too often—in public discourse, the question is framed in terms of a religious university’s effort to, in some way, depart from the model of what a university “really” is: to secure permission to, in some way, fall short.  That is, discussions about the religious-freedom rights of a religious university will, many times, start from an assumption that to “really” be a university is to not be a religious university.  The question presented next is how far down the road toward being a religious university an institution can go while still remaining a genuine university.  It is asserted—or maybe just assumed—that to attach “Catholic” or “religious” in a meaningful, work-doing way, to “university” is inevitably—necessarily, even—to take  something away from, to diminish, or to lessen the latter.

On this view, if one wants a Catholic university (or Lutheran or Baptist), one starts with an unmodified “university”—to practices, aims, norms, and ethos—and then constrains, restricts, or limits it in particular, “Catholic” ways.  To get a “Catholic” university, in other words, one subtracts from a “university” those things that are not consistent with its being a “Catholic” university.

Yes, there might also be some additions.  A “Catholic university” might, for instance, have more chapels on its campus than a “something-else university”, but these additions will be peripheral or accidental, and must not compromise the university’s academic, scholarly, and research core.  By this account, the implications is that an authentic Catholic university is what results when the institution carves off otherwise significant aspects or dimensions of a “university” and (perhaps) adds some accoutrements that are irrelevant to (or perhaps mildly contrary to) the basic enterprise of being a “real university.”

In fact, some might say that, depending on how much one is asking the term “Catholic” to do, a “Catholic university” is not really a university at all. The assertion is that the constraints and compromises involved by attaching “Catholic” are such that what is left of “university” is simply too far removed from the original to warrant the name.  And, we might be sufficiently nervous about this possibility that we decide, at the front end, that whatever is involved in a university’s being “Catholic” cannot include anything that would result in constraints or modifications that result in the loss of “university”-ness.  Thus, the terms of the discussion about what it means for a university to be “Catholic,” and what the practices should be of a “Catholic university,” might be set by a prior determination about what it means to be, and what the practices should be of, a “university,” full-stop.

But, what is a “university”?  In The Idea of a University, John Henry Newman notes that in its “simple and rudimental form, it is a school of knowledge of every kind, consisting of teachers and learners from every quarter.”  We could go on collecting, Bartlett’s-style, pithy and inspiring definitions and characterizations.  As we did, I suspect that we would not be able to suppress a mischievous, also wistful, and even gloomy sense that “the modern research university” is, in fact, a very different animal, for better or worse, than the ideal evoked by those who attempt to define-while-celebrating this modern institution.

The details and causes of the differences are complicated and they have been explored by others, in great detail, many times.   For present purposes, I mean only to note that there is at least as much—and probably more—reasonable disagreement about what it means for an institution to be a “university” as there is about what it means for a “university” to be a “Catholic.”  After all, in addressing this disagreement, should we take as given the characteristics, practices, and norms of the early 21st century university?  Could we agree on some particular “touchstone” or exemplar 21st century university?  Should we assume that the answer to the question whether a particular institution is a “Catholic university” depends on whether, or to what extent, that institution resembles a “university” as we think we understand it today—a university that has not yet been modified and perhaps misshapen by the attachment of the modifier, “Catholic”?

Or must we consider the possibility that it is the unmodified, that is, the “not-Catholic” university that is constrained, misshapen, and the result of attrition or subtraction?  This possibility, it seems to me, makes the role and mission—and the rights and freedom—of distinctively religious universities all the more important: all of us, religious or not, may need them to serve as reminders to other institutions of what they should be.

Richard Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law and Concurrent Professor of Political Science at Notre Dame Law School, and is co-author of First Amendment Stories by R. Garnett and A. Koppelman (Foundation Press, 2011).  Professor Garnett clerked for the late Chief Justice of the United States William H. Rehnquist.