In 1961 a young German law professor named Ernst-Wolfgang Böckenförde wrote a devastating analysis of German Catholicism in the epochal year of 1933. After years of episcopal condemnations of Nazi ideology, the German bishops had reversed themselves two months after Hitler’s legal coming to power and had endorsed cooperation with the new regime. At the same time the Catholic Church’s political voice, the Center Party, provided the parliamentary votes to give Hitler the two-thirds majority in the Reichstag necessary for suspending the constitution and granting power to rule by decree. (Civil liberties had already been suspended a month earlier after the burning of the Reichstag.) And in July the Vatican signed the controversial Concordat with the Third Reich. Böckenförde argued that Catholicism’s rapprochement with the Nazis, which in some quarters became enthusiastic endorsement, could only be fully explained in terms of an ingrained Catholic opposition to pluralistic democracy and secularized modernity. A certain affinity for authoritarian solutions disposed many Catholics to see what they wanted to see in National Socialism, even if they came to regret it.
Böckenförde was advised against publishing the article for fear of the damage it might do to a promising academic career. He did so anyway, in the pages of the influential German Catholic monthly Hochland. In the words of a contemporary, it produced a real hornets’ nest. “German Catholicism in 1933” drew instant international attention, and an English translation was rushed into print in the American Catholic journal Cross Currents. In Germany it provoked Catholic authorities to establish the Kommission für Zeitgeschichte (Commission for Contemporary History) to oversee publication of documents and scholarly research into the whole era of the two world wars and the dictatorship.
In the event, the brash young scholar did not get stung. Böckenförde, born in 1930 and now eighty-seven years old, went on to have a long and distinguished career as a scholar, judge, and respected public intellectual. The highlight of his career was his term as a judge on the Constitutional Court of the Federal Republic. (Judges serve for limited terms, an admirable practice that Americans must envy, since our extreme polarization—and litigiousness—make lifetime appointments to the Supreme Court so apocalyptically decisive that all other political considerations are cast to the side in presidential elections.) Böckenförde’s term (1983–1996) coincided with German unification and saw landmark decisions on abortion and citizenship, the first necessitated by the need to reconcile lax East German abortion law with West German prohibition, the latter by the early onset of anxiety over the prospect of European unification and open borders.
Böckenförde is also a Roman Catholic and one of Germany’s most prominent Catholic lay intellectuals, but he is not well known in the English-speaking world. That is about to change with the publication by Oxford University Press of two volumes of his papers and articles. I believe that American Catholics may find him a stimulating voice that bridges some of the current divisions in our church and our politics, especially where the neuralgic subject of law and religion is concerned.
Let me begin with a comparison with Judge John T. Noonan Jr., who passed away in April at the age of ninety. Noonan was a figure of truly exceptional stature, with original and substantive books and articles on a host of important subjects. Born only four years apart, he and Böckenförde have a great deal in common. Both were law professors and federal judges, possessed of a keen commitment to history’s importance in illuminating both law and religious doctrine and practice. Both enjoyed standing as Catholic laymen whose independent voices were respected (though not always endorsed) by Catholic authorities. Both were passionately loyal to the way their respective countries have dealt with the place of Catholicism and religion in general in a pluralistic liberal democracy. Both took principled and independent stands preserving the integrity of the law, while at the same time defending the institutional life and public involvement of the Catholic Church (and of course of other religious bodies). Both denied that the state can impose a worldview on its citizens. At the same time, both doubted that law could function without some sort of basis in morality, though they construed the relationship in very different ways.
The differences between the two men are largely due to the differences between the place that Catholicism has in the history and governance of Germany and the place it has in the United States. Here, the religion clauses of the First Amendment prohibit an established state religion and protect religion’s free exercise. Jurisprudence has swung back and forth between interpreting the First Amendment to require strict governmental neutrality regarding religion and seeing it as permitting some measure of accommodation. Ever since Germany’s first experiment with democracy after World War I, the German constitution has also rejected a state religion and guarantees religious freedom, but legalizes a measure of accommodation that has been inconceivable in the United States ever since James Madison and his allies in the Virginia House of Burgesses pushed through Jefferson’s Statute of Religious Freedom over the opposition of Patrick Henry and the advocates of state support for religion. The religious clauses of the Weimar Constitution, for instance, guaranteed state-collected taxes for the churches and supported religious education at various levels and in various settings, clauses that were preserved—over vociferous opposition—after World War II, when West Germany in 1949 adopted its new democratic constitution, the Basic Law (Grundgesetz).
From an American perspective—and also in the eyes of more secular-minded observers in Germany—German Catholicism looks in practice to be a quasi-established church, particularly so in the decades before reunification with the more secularized and historically Protestant eastern regions diluted Catholicism’s dominance in West Germany. There is also a long tradition of lay independence in German Catholicism that American Catholics have only acquired since the Second Vatican Council. (Böckenförde, for example, was for a long time a member of the Central Committee of German Catholics, a large lay organization that has no true American Catholic counterpart.) Similarly, the German hierarchy is historically freer of Roman control than the American episcopate, which was thoroughly Romanized at the beginning of the twentieth century. On the other hand, Noonan’s education spared him the sometimes stifling parochialism of New England Catholicism—“Catholic but not churchified” is how early biographer Kevin Starr described his upbringing. He never attended a Catholic school (apart from after-hours religious education in privileged circumstances) until he started graduate study in philosophy at the Catholic University of America in 1947.
Noonan’s work covered a host of fundamental moral issues and their relationship to law, both civil law and canon law—usury, bribery, contraception, abortion, slavery, and marriage and divorce, for example. He also wrote historical and legal works on religious liberty in the United States, and yet other books on the way law is applied in judicial decisions. He wrote with enviable grace and clarity, reflecting his literary and humanistic education. Böckenförde has favored the form of articles and essays rather than books and monographs. Besides writing on specific legal issues and judicial decisions, he has shown a lifelong concern with the nature and functioning of the modern state and of constitutional theory. He tilts toward political theory and the philosophical foundations of the state as favorite subjects, always with a historical sensitivity.