Natural Law, Parental Rights, and the Defense of “Liberal” Limits on Government: An Analysis of the Mortara Case and Its Contemporary Parallels

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Melissa Moschella*

This Article explores parallels between integralists’ defense of the Mortara case (in which Pius IX removed a child from his parents’ care in order to provide him with a Catholic education) and contemporary progressive arguments for overriding the authority of parents who do not want their gender-dysphoric children to undergo social or medical gender transition.  In Part I, I offer an overview of the natural law case for limited government, then in Part II I turn more specifically to a natural law defense of parental rights as an essential aspect of limited government.  In the following Part, I return to the Mortara case, analyzing it in light of the principles presented in the previous sections to show why the Pope’s actions (however well-intentioned) were contrary to natural law.  Finally, in Part IV I argue that the Mortara case has troubling parallels in the attempts of contemporary progressives (also presumably well-intentioned) to allow gender-dysphoric children to undergo social transition and begin hormone therapies without parental knowledge or consent, and to justify the removal of such children from the homes of loving parents who persist in opposing such interventions.  I thus attempt to show, through these concrete examples related to parental rights, how natural law principles can save liberal political institutions not only from their integralist critics, but also from liberalism’s own contemporary progressive excesses.

Introduction

Edgardo Mortara, born in 1851 to Jewish parents living in the Papal States, was forcibly removed from his parents’ custody by the police when he was six years old.¹  Pope Pius IX had ordered the child’s removal after it had been discovered that, while gravely ill as an infant, Edgardo’s Catholic nanny had secretly baptized him.  According to canon law, baptized children have a right to a Catholic education, and the Pope believed that it was his duty to provide such an education for young Edgardo.  He ordered that Edgardo be brought to Rome and took him in as his ward, personally supervising his education and upbringing.²  In his memoirs, Edgardo—who later became a priest—praised the Pope’s actions and expressed his gratitude for everything the Pope had done for him.³

The case generated significant public outcry at the time, bringing “the opprobrium of the world upon Pius IX.”⁴  That controversy has resurfaced in recent years with the publication of Mortara’s memoirs, and particularly with the publication of an article by Romanus Cessario in First Things defending the Pope’s actions.  Cessario argues that the Pope was right to say “Non possumus” (“We cannot”) in response to worldwide public demands that Edgardo be returned to his parents.  His argument, in brief, is that “the law of the Church and the laws of the Papal States stipulated that a person legitimately baptized receive a Catholic upbringing.”⁵  Cessario claims that these laws are “not arbitrary,” but rather follow from the indelible nature of baptism and the duty of the Church to educate Catholics.⁶  Further, given that Pius IX had temporal authority over the Papal States, Cessario argues that it was his duty to “uphold the civil law,” including the “not unreasonable” law requiring that baptized children receive a Catholic education.⁷

The publication of Cessario’s article was an important moment in the development of Catholic integralism (defined below), stirring up significant controversy even outside Catholic circles, and attracting public attention to the movement.⁸  While the article focuses on a particular case, the arguments used to justify the Pope’s actions in the case are representative of the movement’s key tenets.⁹  The article presumes, for instance, that it is legitimate for the Catholic Church to use coercive civil power to achieve spiritual ends—in this case, to forcibly remove Edgardo from his parents’ care so that he can be given a Catholic upbringing—and that it is unproblematic for ecclesiastical and civil authority to be united (as it was in the Papal States at the time of the Mortara case).  Relatedly, the article claims that “putative civil liberties”—including the rights of parents to direct the care, education, and upbringing of their children—do not “trump the requirements of faith,” and accuses those who disagree of failing to “prize the gifts of supernatural grace that ennoble human nature.”¹⁰  The implied argument seems to be that the priority of spiritual over temporal goods translates into a justification for the use of coercive civil power to achieve spiritual goods.

We see these claims highlighted in Edmund Waldstein’s “Integralism in Three Sentences”:

Catholic Integralism is a tradition of thought that, rejecting the liberal separation of politics from concern with the end of human life, holds that political rule must order man to his final goal.  Since, however, man has both a temporal and an eternal end, integralism holds that there are two powers that rule him: a temporal power and a spiritual power.  And since man’s temporal end is subordinated to his eternal end, the temporal power must be subordinated to the spiritual power.¹¹

More broadly, as Patrick Deneen puts it, integralism “rejects the view that Catholicism and liberal democracy are fundamentally compatible.”¹²  Deneen posits that they are incompatible because “liberalism is premised on a contrary view of human nature (and even a competing theology) to Catholicism,” an individualist view in which “human beings are essentially separate, sovereign selves who will cooperate based upon grounds of utility,” by contrast with the Catholic view of human beings as “by nature relational, social and political creatures.”¹³  Integralism thus “tends to view America as a deeply flawed project, and fears that the anthropological falsehood at the heart of the American founding is leading inexorably to civilizational catastrophe.”¹⁴  These claims are further developed in Deneen’s influential book Why Liberalism Failed,¹⁵read and recommended even by former President Barack Obama.¹⁶

At the same time, Cessario’s article and the broader integralist claims that it presupposes have been sharply criticized by many Catholics,¹⁷ including Catholics working within the so-called “new natural law” (NNL) tradition,¹⁸ the key moral and political principles of which are explained and defended in John Finnis’s seminal work, Natural Law and Natural Rights.  According to Finnis and other NNL thinkers, such as Robert George, Patrick Lee, Christopher Tollefsen, Ryan Anderson, and others (including myself), while Catholicism and the Aristotelian-Thomistic natural law tradition more generally are indeed incompatible with liberalism understood as a philosophy, they are not incompatible with what we commonly refer to as “liberal” political institutions.¹⁹  On the contrary, NNL theorists argue that such institutions—such as representative government, constitutionalism, the rule of law, the protection of civil liberties, and the separation of church and state (which I will refer to collectively as “limited government”)—can actually be better defended on natural law grounds than on the grounds of liberal philosophy.²⁰

It should be acknowledged, however, that the growing popularity of integralism among young Catholic intellectuals is in large part a reaction to what they see as the increasingly intolerant and totalitarian character of contemporary progressive forms of liberalism.²¹  Particularly on issues related to sexuality and identity, contemporary progressivism is not shy about using government coercion to compel affirmation of its orthodoxies,²² not least by indoctrinating children in its teachings against parents’ wishes, even to the point of taking children away from parents whose childrearing decisions are contrary to the progressive creed.²³  Particularly egregious in this regard—and strikingly similar to the Mortara case—are efforts to promote gender-dysphoric children’s gender transition and provide them with puberty-blocking or cross-gender hormones without parents’ knowledge or consent, and to remove such children from parents’ custody if they persist in opposing those measures.²⁴  For in both cases, the separation of children from parents is justified by appeals to the child’s fundamental rights: in the Mortara case, the fundamental right of the baptized child to a Christian education (with eternal life hanging in the balance); and in the case of gender-dysphoric children, the fundamental right to identity affirmation (and ultimately the preservation of physical life via suicide prevention).

In this Article, I first offer an overview of the natural law case for limited government, then turn more specifically to a natural law defense of parental rights as an essential aspect of limited government.  In the next section, I return to the Mortara case, analyzing it in light of the principles presented in the previous sections to show why the Pope’s actions in the case (however well-intentioned) were contrary to natural law.  Finally, I argue that the Mortara case has troubling parallels in the attempts of contemporary progressives (also presumably well-intentioned) to allow gender-dysphoric children to undergo social transition and begin hormone therapies without parental knowledge or consent, and to justify the removal of such children from the homes of loving parents who persist in opposing such interventions.  I thus attempt to show, through these concrete examples related to parental rights, how natural law principles can save liberal political institutions not only from their integralist critics, but also from liberalism’s own contemporary progressive excesses.

Continue reading in the print edition . . .

©2023 Melissa Moschella.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article 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, and includes this provision in the copyright notice.

*Associate Professor of Philosophy, The Catholic University of America; McDonald Distinguished Fellow in the Center for the Study of Law and Religion, Emory University School of Law.  I would like to thank Nathan Chapman and Kathleen Brady for organizing this Symposium issue and inviting me to contribute to it.  I am also grateful to all of the Symposium participants for their helpful comments and suggestions.

1The facts of the case are publicly available in numerous articles, mostly book reviews and commentaries on Mortara’s recently published memoirs.  See Vittorio Messori, Kidnapped by the Vatican?  The Unpublished Memoirs of Edgardo Mortara (Michael J. Miller trans., Ignatius Press 2017) (2005); Romanus Cessario, Non Possumus, First Things, Feb. 2018, at 55; David I. Kertzer, The Doctored ‘Memoir’ of a Jewish Boy Kidnapped by the Vatican, The Atlantic (Apr. 15, 2018), https://‌www.theatlantic.com‌/international‌/archive‌/2018‌/04‌/edgardo-mortara-doctored-memoir‌/554948‌/ [https://‌perma.cc‌/TF7T-229S]; Ronald J. Rychlak, The Controversy over Edgardo Mortara, Cath. League (May 25, 2018), https://‌www.catholicleague.org‌/the-controversy-over-edgardo-mortara‌/ [https://‌perma.cc‌/Z36V-NKST].

2See Rychlak, supra note 1.

3Id.

4Cessario, supra note 1, at 55.

5Id.

6Id. at 56.

7Id.

8See, e.g., Harold Brackman & Yitzchok Adlerstein, Edgardo Mortara’s Mother’s Tears Should Not Be Forgotten, Jerusalem Post (Mar. 20, 2018, 9:40 PM), https://‌www.jpost.com‌/opinion‌/edgardo-mortaras-mothers-tears-should-not-be-forgotten-546610‌/ [https://‌perma.cc‌/8GGB-WPNZ]; Tara Isabella Burton, Why a 150-Year-Old Kidnapping Case Has Catholics Arguing Today, Vox (Jan. 26, 2018, 5:50 PM), https://‌www.vox.com‌/identities‌/2018‌/1‌/26‌/16933192‌/edgardo-mortara-kidnapping-case-catholics‌/ [https://‌perma.cc‌/7VWB-LZ2D]; Charles J. Chaput, The Mortara Affair, Redux, Jewish Rev. Books (Jan. 29, 2018), https://‌jewishreviewofbooks.com‌/articles‌/2979‌/mortara-affair-redux‌/ [https://‌perma.cc‌/XL54-Z9EQ]; Rod Dreher, The Edgardo Mortara Case, Am. Conservative (Jan. 9, 2018, 10:42 PM), https://‌www.theamericanconservative.com‌/the-edgardo-mortara-case‌/ [https://‌perma.cc‌/HW4N-92HN]; Kertzer, supra note 1; Robert T. Miller, The Mortara Case and the Limits of State Power: First Things Should Disavow Fr. Cessario’s Defense of Pius IX in the Mortara Case, Pub. Discourse (Jan. 11, 2018), https://‌www.thepublicdiscourse.com‌/2018‌/01‌/20868‌/ [https://‌perma.cc‌/WTF4-4KDU]; Anna Momigliano, Why Some Catholics Defend the Kidnapping of a Jewish Boy, The Atlantic (Jan. 24, 2018), https://‌www.theatlantic.com‌/international‌/archive‌/2018‌/01‌/some-catholics-are-defending-the-kidnapping-of-a-jewish-boy‌/551240‌/ [https://‌perma.cc‌/5KJJ-74JE]; Aiden Pink, Catholic Magazine Justifies Kidnapping, Converting Jewish Baby, Forward (Jan. 11, 2018), https://‌forward.com‌/fast-forward‌/391967‌/catholic-magazine-justifies-kidnapping-converting-jewish-baby‌/ [https://‌perma.cc‌/D5S3-N8NS]; Simon Wiesenthal Center Condemns Justification of Kidnapping of Jewish Child That Is the Subject of a Steven Spielberg Film, Simon Wiesenthal Ctr. (Jan. 1, 2018), https://‌www.wiesenthal.com‌/about‌/news‌/simon-wiesenthal-center-91.html [https://‌perma.cc‌/WZ5K-QZ3N].

9Unsurprisingly, therefore, an article in the integralist journal The Josias defends Cessario against his critics.  Frater Asinus, Debemus: In Defense of Fr. Cessario, Bl. Pius IX, and the Catholic Faith, Josias (Feb. 7, 2018), https://‌thejosias.com‌/2018‌/02‌/07‌/debemus-in-defense-of-fr-cessario-bl-pius-ix-and-the-catholic-faith‌/ [https://‌perma.cc‌/2ZFE-Q8EY].

10Cessario, supra note 1, at 58.

11Edmund Waldstein, Integralism in Three Sentences, Josias (Oct. 17, 2016), https://‌thejosias.com‌/2016‌/10‌/17‌/integralism-in-three-sentences‌/ [https://‌perma.cc‌/X8B6-KGMH].

12Patrick J. Deneen, A Catholic Showdown Worth Watching, Am. Conservative (Feb. 6, 2014, 9:15 AM), https://‌www.theamericanconservative.com‌/a-catholic-showdown-worth-watching‌/ [https://‌perma.cc‌/L5NG-RCRG].

13Id.

14Id.

15Patrick J. Deneen, Why Liberalism Failed (2018).

16Clare Foran, Here’s What’s on Barack Obama’s Reading List, CNN (June 16, 2018, 4:03 PM), https://‌www.cnn.com‌/2018‌/06‌/16‌/politics‌/barack-obama-reading-list-mitch-landrieu‌/ [https://‌perma.cc‌/CCF5-V8GD].

17See, e.g., Chaput, supra note 8; Dreher, supra note 8; Nathaniel Peters, Grace Builds upon and Doesn’t Destroy Nature: On First Things, Baptism, and the Natural Family, Pub. Discourse (Jan. 15, 2018), https://‌www.thepublicdiscourse.com‌/2018‌/01‌/20884‌/ [https://‌perma.cc‌/FF4H-DULA].

18See, e.g., Robert P. George, You Can’t Take a Child from His Parents, Even if You Think You’re Saving His Soul, Cath. Herald (July 30, 2021, 10:00 PM), https://‌catholicherald.co.uk‌/you-cant-take-a-child-from-his-parents-even-if-you-think-youre-saving-his-soul‌/ [https://‌perma.cc‌/8FNV-KL22].

19See Melissa Moschella, Natural Law, the Common Good, and Limited Government: Friends, Not Foes, Pub. Discourse (Aug. 10, 2022), https://‌www.thepublicdiscourse.com‌/2022‌/08‌/83850‌/ [https://‌perma.cc‌/FG2U-J22R].

20See, e.g., Ryan T. Anderson & Robert P. George, The Baby and the Bathwater, Nat’l Affs., Fall 2019, at 172; Moschella, supra note 19.

21See, e.g., Adrian Vermeule, A Christian Strategy, First Things, Nov. 2017, at 41, 41 (“The problem is the relentless aggression of liberalism, driven by an internal mechanism that causes ever more radical demands for political conformism, particularly targeting the Church.”); Sohrab Ahmari, After the Liberalism Debates, Am. Conservative (Nov. 2, 2021, 12:01 AM), https://‌www.theamericanconservative.com‌/after-the-liberalism-debates‌/ [https://‌perma.cc‌/6978-FHTB] (“There’s no hankering for peace once you’ve faced the sharp end of liberals’ efforts to neutralize threats to their regime . . . .  On the personal front, meanwhile, liberalism’s aggressions against one’s true loves—in my case, the Catholic Church, my children’s innocence—have a way of focusing the mind and heart.”).

22See, e.g., Gerard V. Bradley, Sexual Identity Politics and Religious Freedom in a Secular Age, Pub. Discourse (Apr. 28, 2019), https://‌www.thepublicdiscourse.com‌/2019‌/04‌/50836‌/ [https://‌perma.cc‌/3D6X-TURN].

23See, e.g., Josh Boswell, EXCLUSIVE: ‘I Knew the Hormones Wouldn’t Work.  Why Did They Play with Her Life?’  Bereaved Mom Blames LA County for Her Teenage Daughter’s Suicide, Claiming School Pushed Her to Transition to a Male Instead of Properly Treating Her Depression, Daily Mail (Mar. 30, 2022, 9:25 AM), https://‌www.dailymail.co.uk‌/news‌/article-10612285‌/California-mom-claims-LA-school-encouraged-daughter-transition-blame-suicide.html [https://‌perma.cc‌/ELD3-ZWZM]; Melissa Moschella, Legal Kidnapping, Nat’l Rev. (Feb. 28, 2014, 9:00 AM), https://‌www.nationalreview.com‌/2014‌/02‌/legal-kidnapping-melissa-moschella‌/ [https://‌perma.cc‌/NG9J-UP3K].

24See, e.g., Roy Abernathy, Seeking Remedies for LGBTQ Children from Destructive Parental Authority in the Era of Religious Freedom, 26 Wash. & Lee J.C.R. & Soc. Just. 625 (2020); Anne C. Dailey & Laura A. Rosenbury, The New Parental Rights, 71 Duke L.J. 75, 135–42 (2021); Samuel Dubin, Megan Lane, Shane Morrison, Asa Radix, Uri Belkind, Christian Vercler & David Inwards-Breland, Medically Assisted Gender Affirmation: When Children and Parents Disagree, 46 J. Med. Ethics 295 (2019); Patrick D. Murphree, Schools in the Middle: Resolving Schools’ Conflicting Duties to Transgender Students and Their Parents, 86 UMKC L. Rev. 405 (2017); Maura Priest, Transgender Children and the Right to Transition: Medical Ethics When Parents Mean Well but Cause Harm, Am. J. Bioethics, no. 2, Feb. 2019, at 45; Boswell, supra note 23.