Church v. State

Last week in the Governor's house at Albany, Alfred Emanuel Smith, four-time Governor of New York, thumbed the tattered pages of a manuscript of a roaring melodrama of old Ireland, The Shaughraun. Eyes twinkling with kindly memories he read his lines: in May he is to play the part of the black-hearted villain in the plot, Cory Kinchela, at the 100th birthday of St. James Catholic Church, Manhattan. In that parish his early days were spent; three times before he has played the villain of The Shaughraun.

But the Roman Catholic training that means so much to New York's progressive Governor, now bids fair to bar him from the politicians' ultima thule, the President's chair. In the South, Alabama's Catholic-baiting Senator Heflin of the untiring lungs, leads a chorus of Pope-fearing Protestants, others, more tolerant, seeing what power the Catholic Church holds over the minds of their Irish cooks and nursemaids, wonder whether any Roman Catholic can be an unbiased and independent servant of the State. Last week, two sober magazines, the Atlantic Monthly and the New Republic approached the question with dignity and understanding. In an editorial, "A Catholic President?" the New Republic says: "If Governor Smith is to have any chance for the [Democratic] nomination, he cannot continue for long to remain silent on questions about which his Catholicism may bias his American statesmanship. . . . Governor Smith can surely make it plain that he is willing to answer any honest and pertinent question about the relationship between his religion and his politics. That is the only way to lay the ghost of the Catholic menace. . . . Not until it is as easy to discuss Catholicism as it is now to discuss Methodism will a certain portion of the American people recover from fears of the 'Roman menace.'" In the Atlantic Monthly, snowy-haired, red-cheeked Charles C. Marshall, Manhattan lawyer and self-styled Anglo-Catholic posed "honest and pertinent" questions in "An Open Letter to the Honorable Alfred E. Smith." Retired Lawyer Marshall was once a partner of famed Law yer Choate; now he makes a hobby of Church History and Canon Law. In Albany, Governor Smith read the questions, promised to make a fair and complete answer. The essential conflict that Governor Smith faces is : The Roman Catholic Church maintains that in a direct conflict between the laws of Church and State, the jurisdiction of the Church prevails. Thus Pope Pius IX in a syllabus asserted: "To say in the case of conflicting laws that the civil law prevails, is an error." Pope Leo XIII in an encyclical letter wrote: "Over the mighty multitude of mankind, God has set rulers with power to govern and He has willed that one of them (the Pope) should be the head of all."

On the President, the Constitution of the U. S. bestows enormous discretionary powers; in the case of a conflict between the laws of Church and State, a Catholic Presi dent might be forced to deviate from his oath of office, or his allegiance to the Church. According to Roman Catholic law, education is a religious activity and be longs to the Church ; in U. S. theory it is a secular activity and belongs to the State.* According to the Roman Catholic Church (Pope Leo XIII): "It is not lawful for the State ... to disregard all religious duties or to hold in equal favor different kinds of religion"; the Supreme Court of the U. S. has stated that our "law is committed to the support of no dogma, the establishment of no sect." On marriage and divorce, U, S. law and Catholic law vary widely.

Protestants, viewing these points of variance with alarm, wonder how Governor Smith will grasp the horns of the dilemma. New York Democrats are confident; they have seen him discharge the public trusts for 25 years.

In practice, there has been no apparent conflict between his faith and his patriotism. And, broad- minded Catholics argue, the dilemma is more imagined than real, the conflicts between Church and State law more legalistic than actual. There is a difference between being Catholic in faith and Papal in policy.

PROHIBITION

Decisions

Last week in two Federal Courts, three U. S. Judges made rulings on the Prohibition law. In Chicago, Judges George T. Page and Albert B. Anderson of the U. S. Circuit Court of Appeals ruled that "nose evidence" is good evidence, that the mere smell of liquor in a restaurant is enough to cause that restaurant to be padlocked for a year. Law-abiding restaurant-keepers, must now employ detective- waiters to search customers for hip-flasks and hidden bottles before they serve them with cracked ice or ginger ale. Prohibition agents need no longer search and buy; they may sit at tables and sniff; a good smell will convict. -The court reached its decision on the intorpretation of one word of the law. Section 21 of the Volstead Act states: "Any room, house, building, boat, vehicle, structure or place where intoxicating liquor is manufactured, sold, kept or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same is hereby declared to be a common nuisance." The court ruled that it did not matter whether the customer or the proprietor "kept" the liquor, that "kept" was to be interpreted as "kept for commercial purposes."

Judge Alschuler dissented from his colleagues' opinion, said he would like to see the case carried to the highest court in the land and "settled once and for all time."

On the same day, in New York, Augustus Noble Hand, learned Judge of the U. S. District Court made a ruling. Ten barrels of grape-juice once reposed in the cellar of one Mrs. Josephine Maltone; a provident Nature turned them into a goodly wine with a 13% "kick." They were seized by Federal authorities, legally, Judge Hand held. He ruled: "Possession of grape juice for home use . . . becomes unlawful . . . whenever the liquid becomes intoxicating, whether through natural fermentation or otherwise." Thus he sternly interpreted the paragraph of the Volstead Act that states that a householder needs no permit and cannot be punished for manufacturing "non-intoxicating cider and fruit juices exclusively for use in his own home." The law, purposely or otherwise, ignored the obvious fact that cider becomes hard, fruit juices gather alcoholic strength in time; Judge Hand added what the law had forgotten. Many Wets chuckled, said Dry-voting farmers might change their tune under a ruling that prohibits their hard cider and home-brewed wine.

*One of the main points of dispute between the Calles Government in Mexico and the Catholic Church, is education. In dealing with Mexico as President, Mr. Smith would be faced with breaking either the traditional U. S. policy, or incurring the wrath of Catholics by disregarding Catholic teaching.