The Corpus Mysticum and Church Freedom:
A Response to Edward David

James Pennell

Interior of a Gothic Cathedral by Paul Vredeman De Vries, 1612. From the Los Angeles County Museum of Art.

This article is part of our “Religious Corporations and the Law” series.
If you’d like to check out other articles in this series, click here.

This article is in response to Edward David’s recent article in Canopy.

From a theological perspective, Christians should welcome Edward David’s critical reflections on Lockean liberalism’s eschewal of a corporate understanding of the Church as corpus mysticum. For it seems quite true — from an intra-ecclesial standpoint — that the members of Christ’s body should consider themselves as more than a mere voluntary aggregation of rights-bearing individuals. Instead, David argues in his book A Christian Approach to Corporate Religious Liberty that Christians should resurrect the medieval corpus mysticum Christi, a strong group realist notion of the Church whereby “Christ himself works from without” to make the Church what it is. This conception of the Church is primarily borne out in the actions by and through which the Church is constituted, namely, (1) the celebration of the Eucharist and of the other sacraments which flow from this primal sacrament; and (2) the activities that find their intelligibility in the Church’s being the Body of Christ — such activities can be described as “secular” or “worldly,” but they are also religiously motivated manifestations of the sacramental life, animations of the Church body through which Christ acts in the world. 

In this way, the Church is more than the internal inputs of her members; indeed, she is a supernatural (albeit real) person with an intention and will whose members are animated by the Spirit of Christ, in a way analogous to a human body’s members being governed by the soul. This robustly realist conception of the Church’s supernatural personhood should make believers wary of political liberalism’s tendency to splice groups into their most discrete units: voluntarily consenting individuals. And yet this is precisely the Lockean snare that David claims contemporary defenders of religious liberty have succumbed to in their efforts to speak the same individual-rights language of our current politico-legal regime. For instance, he points to the U.S. Conference of Catholic Bishops’s response to the federal government’s contraceptive mandate in its document Our First, Most Cherished Liberty, which describes churches as voluntary associations of free individuals, and yet says nothing of the Church as the Body of Christ. David argues that such a strategy of accommodating to individualistic voluntarism risks atomizing and desacralizing the Church, and runs counter to the markedly corporational understandings of the Church articulated in the ecclesiology of Vatican II (e.g., Lumen gentium and Gaudium et Spes). 

In this way, the Church is more than the internal inputs of her members; indeed, she is a supernatural (albeit real) person with an intention and will whose members are animated by the Spirit of Christ, in a way analogous to a human body’s members being governed by the soul. 

But if Christians embrace David’s call for a renaissance in corpus mysticum conceptions of the Church, there remain several thorny questions for an American legal regime that portends to agnosticism concerning the truth of such religiously-motivated claims. Is not the impartial judge or the Rawlsian public reasoner forced to say: “That’s all well and good for you to have such and such an understanding of your membership in your church; but this has little relevance for the law, for to grant it any weight would be to implicitly endorse it”? A genuine liberal commitment to neutrality would seem to require the same sorts of arguments from all corporate bodies, including those claiming a supranatural personhood by virtue of a mystical union with Jesus Christ. There is thus a legitimate political liberal concern that can be raised about the theocratic motivations that might underpin appeals to the corpus mysticum in contemporary legal debates surrounding church autonomy. As David writes, “As some might put it, appeal to the Church’s supernatural personality could be used as a trump card in legal discussion and thus lead to group domination and abuse of vulnerable third parties” (203). What’s more, appeals to the corpus mysticum rest upon a metaphysics about groups that most political liberals simply reject in favor of the view that corporate bodies are more or less legal fictions that are ultimately reducible to the individuals who constitute them. 

And yet, I agree with David that churches still have reason to assert a self-understanding that is decidedly corporational (or mystical, if you wish), and to question the general post-war strategy of exclusively articulating their freedoms according to the political liberal categories of individual-rights. I also want to suggest that the idea of the church as corpus mysticum can have normative significance in legal reasoning over religious liberty claims in a way that does not undermine the law’s commitment to non-establishment and individual rights, thereby working to assuage potential fears of non-neutrality. What’s more, while a retrieval of the corpus mysticum’s strong group realism strengthens the religious liberty claims of churches, it may paradoxically weaken the relative strength of religious liberty claims made by non-church corporate entities who do not possess the same sort of “strong group” identity claimed by churches. So how can the Church’s own theological beliefs in its corporate nature and supernatural mission merit legal solicitude without entailing an endorsement by the state of the truth of these beliefs? To see how this might be possible in actual legal practice, consider the following from the U.S. Supreme Court’s per curiam decision in Roman Catholic Diocese of Brooklyn v. Cuomo:

There can be no question that the challenged [COVID-19] restrictions, if enforced, will cause irreparable harm. . . . If only 10 people are admitted to each service, the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance.

This reasoning shows that the Court can recognize Catholic beliefs about the Eucharist, or Jewish beliefs about the Sabbath, as normatively relevant, even if not necessarily true in the eyes of the law. Indeed, how else would the Court be able to attribute “irreparable harm” to believers? For it’s hardly evident why not being able to attend Mass constitutes irreparable harm unless the Court recognizes as normatively relevant the Church’s own internal belief about the incalculable importance of its being able to carry out the God-given mission to act as the Body of Christ — a mission most fully realized in the celebration of the sacraments, chiefly the Eucharist. Without legal recognition of such normative significance, believers risk irreparable alienation from this saving Body. Thus, the privileged ascription of legal rights can, and should, follow from a recognition of the normativity of religious bodies’ own corporational self-conceptions. For these very self-conceptions make intelligible the activities for which churches exist, that is, activities of worship and service performed toward the end of their religious missions. If the law were to command such bodies to carry out acts they deem contrary to this mission — or conversely, to refrain from activities they deem necessary for this mission — churches would undoubtedly suffer irreparable injury. It seems quite clear to me that a recognition by the Court that churches see themselves as fulfilling this mission — and that they therefore suffer by not being able to carry out this mission — does not entail an endorsement of the truth of this self-conception.

While shifting to a corporational from an individual-rights centered approach strengthens the religious liberty claims made by churches (or those bodies whose activities serve an explicitly religious purpose), it may force believers to be less bullish in their defense of the religious liberty claims made by corporations whose purposes are not explicitly religious. Central to David’s analysis is the notion that groups should be considered primarily as group agents, “as the coordinated and social actions of individuals” (103). Thus, the problem raised by the religious liberty claims of non-church corporations is the fact that such groups generally coordinate their actions toward secular ends; and they pursue these ends without the sort of integral religious purpose the absence of which would render the corporation and its activities unintelligible. So, for example, while a contraceptive mandate may go against the religious beliefs of a CEO or individual member of a for-profit corporation, it is not entirely clear how such a mandate thwarts the corporation’s identity, defined primarily in terms of the end to which its actions are coordinated: e.g., providing a good or service in order to generate a profit for its shareholders. This teleological focus on the purposes for which groups exist thus simultaneously broadens the religious liberty claims that can be made by churches, while narrowing the scope of those claims available to non-religious corporations which largely pursue secular ends. ♦

James Pennell is a Barry Scholar at the University of Oxford, where he is studying for an MPhil in Theology (Christian Ethics). Prior to his time at Oxford, he worked in Washington, D.C. for the Federalist Society for Law & Public Policy Studies.

Recommended Citation

Pennell, James. “The Corpus Mysticum and Church Freedom: A Response to Edward David.” Canopy Forum, May 25, 2021.