Notre Dame Law Review

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Marc O. DeGirolami*

A mystery of faith is a truth of religion that escapes human understanding.  The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things.  In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.”¹  Note that Paul does not say that his task is to make everybody understand the Christian mystery, or to clarify it for ordinary human contemplation, but instead to complete or fulfill it.  Similarly, in 1 Timothy, Paul writes: “Undeniably great is the mystery of devotion,”² so great that comprehension of it is not possible.  But one of the most striking Biblical passages concerning the idea of mystery in Christianity is in the First Letter to the Corinthians, where Paul says:

And my speech and my preaching was not in the persuasive words of human wisdom, but in shewing of the Spirit and power; That your faith might not stand on the wisdom of men, but on the power of God.  Howbeit we speak wisdom among the perfect: yet not the wisdom of this world, neither of the princes of this world that come to nought; But we speak the wisdom of God in a mystery, a wisdom which is hidden, which God ordained before the world, unto our glory: Which none of the princes of this world knew; for if they had known it, they would never have crucified the Lord of glory.³

Here is a real division between human and divine understanding—between two different types of knowledge and ways of knowing—the “wisdom of this world” and “the wisdom of God in a mystery.”⁴  Apart from these Biblical passages, the Catholic Church often refers to the sacraments as mysteries.⁵  The lead-in to the Memorial Acclamation, a part of the Catholic Mass, includes the declaration, “[t]he mystery of faith,” in reference to the Eucharist.⁶  And other religious traditions refer to mysteries in their own respective systems of thought, worship, and practice.⁷

Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp: the nature of God,⁸ for example, or the nature of God’s relations with human beings, or the nature of His providential order of creation.  The mysteries of religion may be regarded by nonbelievers and religious skeptics as the clearest proofs of religion’s fantastic, unreal, or irrational quality.⁹  They are unreal because they are unverifiable, and what is unverifiable is a subjective delusion.  Yet they will be looked upon by believers in precisely the opposite way: as evidence of the faith’s reality.  For the believer, the mysteries of religion are beyond human understanding.  They transcend the earthly and the ordinary.  For this reason, they are true.

In this short essay, I suggest that “mysterizing” religion may change the stakes in some of the most controversial contemporary conflicts in law and religion.  To mysterize (not a neologism, but an archaism)¹⁰ is to cultivate mystery about a subject, in the sense described above—to develop and press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings.  At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul’s “princes of this world.”¹¹  That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing them.  Fortunately, I have had some help.  The mysterization of religion seems already to be well under way in American constitutional law.  It is a central feature of the Supreme Court’s current conception of religion.  Religion’s mysterization, therefore, may be as much an exercise in the description of portions of the law as it now is, as a prescriptive project about what that law should become.

The specific context I consider concerns the question whether the government may make public funds available to private schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty.  It is the question that the Supreme Court seemed to leave open in a footnote in Carson v. Makin:

Both dissents articulate a number of other reasons not to extend the tuition assistance program to BCS and Temple Academy, based on the schools’ particular policies and practices. . . .  Maine rightly does not attempt to defend its law on such grounds, however, because the law rigidly excludes any and all sectarian schools regardless of particular characteristics.¹²

The question is acute because private religious schools that accept state monies on condition that they also accept nondiscrimination rules concerning the sexual identity and conduct of their employees and students are likely to raise free exercise objections to such conditions.

The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be.  And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.  The general view of religion that emerges from these cases creates a powerful argument that these conditional funding arrangements would, if implemented, be unconstitutional infringements on the free exercise of religion.  Religious schools have many reasons to guard against cultural and social influences that aim to change their fundamental commitments on many matters, including those of sexual morality.  But they should have little to fear, at least from the Supreme Court, on that score from the bare fact of accepting government monies on equal terms with everyone else.

I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion.  It is not all good news for religion.  In fact, upon closer inspection, it turns out that mystery in traditional religions like Christianity, conceptualized as a partial or incomplete apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability.  Almost its opposite.

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©2023 Marc O. DeGirolami.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Cary Fields Professor of Law, St. John’s University School of Law.  Thanks to Mark Movsesian for helpful discussion and comments.

1Colossians 1:25–26.

21 Timothy 3:16.

31 Corinthians 2:4–8.

4Id. at 2:6–7.

5Catechism of the Catholic Church paras. 1092–1125 (2d ed. 1994).  In Orthodoxy, the sacraments are called “the mysteries.”  Timothy Ware, The Orthodox Church 274 (2d ed. 1997).

6See Texts for Order of Mass Settings, U.S. Conf. of Cath. Bishops, https://‌www.usccb.org/committees/divine-worship/policies/mass-settings-texts#tab—memorial-acclamations [https://perma.cc/3RZ8-78VX].

7See, e.g., Deuteronomy 29:29 (“The secret things belong to the Lord our God, but the things that are revealed belong to us and to our children forever, that we may do all the words of this law.”); Exodus 33:17–23, in which Moses is invited to observe God only from behind because no man can see the face of God and live.  As Judaism believes in God’s incorporeality, the passage may be understood as referring to God’s essence rather than to any visual image.  See also the view in Hinduism that the Vedas are sacred texts that must be revered.  See Gavin Flood, An Introduction to Hinduism 6 (1996).

8Of the Christian mystery, “the Word became flesh,” Cardinal Newman observes: “It is true that, so far as such statements of Scripture are mysteries, they are relatively to us but words, and cannot be developed.  But as a mystery implies in part what is incomprehensible, so does it in part imply what is not so; it implies a partial manifestation, or a representation by economy.”  John Henry Newman, An Essay on the Development of Christian Doctrine 97–98 (1845).

9Again, Newman:

[H]ad Tacitus, Suetonius, and Pliny, Celsus, Porphyry, and the other opponents of Christianity, lived in the fourth century, their evidence concerning Christianity would be very much the same as it has come down to us from the centuries before it.  In either case, a man of the world and a philosopher would have been disgusted at the gloom and sadness of its profession, its mysteriousness, its claim of miracles, the want of good sense evident in its rule of life, and the unsettlement and discord it was introducing into the social and political world.

Id. at 240.

10The Oxford English Dictionary reports “mysterize” to be an “[o]bsolete” and “rare” word, whose two meanings from centuries past were “[t]o interpret mystically” and “[t]o make mysteries of things.”  Mysterize, Oxford Eng. Dictionary, https://www-oed-com.proxy.library.nd.edu/view/Entry/124643?redirectedFrom=mysterize#eid [https://‌perma.cc/W6K3-RRQT] (Mar. 2019).

111 Corinthians 2:8.

12Carson v. Makin, 142 S. Ct. 1987, 1998 (2022).