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Much has been written recently in the Catholic press about the unprecedented ruling by the current Washington administration’s U.S. Department of Health and Human Services (HHS), which, in the words of Cardinal Dolan, “unconstitutionally attempts to define the nature of the Church's religious ministry and would force religious employers to violate their consciences.”
Much less has been written about this case in the secular press, and getting even less space in the secular media are the 12 lawsuits filed by the Archdiocese of New York and 42 other dioceses, hospitals, schools and church agencies around the country, naming as defendants the heads of the U.S. departments of Health and Human Services, Labor and the Treasury.
The New York Archdiocese filed its lawsuit “to protect our religious liberties from unwarranted and unprecedented government intrusion,” an archdiocesan spokesperson said.
It is interesting to note, however, that a legal case with similar implications for the rights of free exercise of religion and freedom of conscience for Roman Catholics was fought in a courtroom here in New York City in the fledgling days of the American Republic, 199 years ago almost exactly to the day, in the year 1813.
The legal case was framed around the question of “Whether a Roman Catholic Clergyman be in any case compellable to disclose the secrets of Auricular Confession.” In this case, Father Anthony Kohlmann, a Jesuit priest who was acting as vicar general of the newly formed Diocese of New York, was ordered by the city magistrate to reveal the names of a couple of people who had possession of goods stolen from a Catholic merchant, James Keating. Keating had reported the theft of goods from his establishment to the city government and charges were filed against two people who had received the stolen goods, but these individuals did not commit the theft themselves.
Father Kohlmann had arranged restitution of the stolen goods to Keating after he learned the names of the thieves during a sacramental confession. Keating then attempted to withdraw the charges with the city government after full restitution was made, but the city magistrate summoned Father Kohlmann to the court to ask him for the names of the people who had stolen Keating’s property. Of course, Father Kohlmann could not and would not reveal anything told to him during confession, and when the news of this case was made public, it stirred the passions of those who bore much ill will towards the Catholic Church and its followers in the city. It is important to understand that Catholics were but a tiny minority at this time and that New York in 1813 was not a welcoming place for Catholics. Several Protestant ministers were extremely vociferous in their public condemnation of Father Kohlmann.
When the case was sent to the grand jury, the public had been incited to further heights of unrest after Father Kohlmann again refused to reveal the names of the perpetrators of the crime, since the names came to him through the confessional. He explained to the court that it was against canon law and his priestly vows to reveal anything he had learned during an act of confession. The magistrate was then prepared to charge Father Kohlmann with contempt of court for refusing to testify as ordered.
While nativism and anti-Catholicism in New York was quite prevalent in 1813 among the majority Protestant community, the city’s district attorney, Barent Gardinier, and the mayor, DeWitt Clinton, did not wish to have the city thrown into further religious dissension and turmoil, so they offered to nullify the prosecution of Father Kohlmann for his refusal to testify in the interests of civil peace. Several founding trustees of St. Peter’s Church, then the sole Catholic Church in the city, did not wish to have the case dropped. These included most notably Don Thomas Stoughton (then Consul-General of the Spanish government in America) and Andrew Morris (a naturalized Irish-Catholic immigrant to New York City, who was the first Catholic ever to be elected to public office in New York City and State). They were anxious to see this governmental challenge to their religious faith adjudicated in an open court. The district attorney and mayor reluctantly acceded to their request and on June 8, 1813, the Court of General Sessions brought the case to trial.
Father Kohlmann was defended by William Sampson, an Irish Protestant attorney who had been exiled from his homeland by Great Britain for his participation in the United Irishmen’s Rebellion of 1798. Sampson has been called America’s first civil-rights lawyer, and his spirited defense of Father Kohlmann was a masterpiece of jurisprudence. Much could be written about Sampson’s defense, but suffice it to say that on June 14, 1813, Mayor DeWitt Clinton issued a statement upon the verdict of “not guilty” in the case against Father Kohlmann:
“We speak of this question not in a theological sense, but in its legal and constitutional bearings. Although we differ from the witness and his brethren in our religious creed, yet we have no reason to question the purity of their motives, or to impeach their good conduct as citizens. They are protected by the laws and constitution of this country in the full and free exercise of their religion, and this court can never countenance or authorize the application of insult to their faith, or of torture to their consciences.”
The many lawsuits that have been filed against the HHS mandate and the heads of the Department of Health and Human Services, Department of Labor and Department of the Treasury will certainly make their way through the federal court system if no further relief is granted towards the Church and its institutions of education, charity and health care. Most probably, the case will eventually be brought before the United States Supreme Court to ascertain whether the recent HHS mandate can pass constitutional muster. We pray that the justices decide that these mandates violate, in every way possible, the principles outlined in “Our First, Most Precious Liberty,” a document released April 12 by the United States Conference of Catholic Bishops. It was written in reaction to the HHS mandates and the crushing financial impact that violation of the rulings will entail towards a religious organization that simply cannot comply with the dictates of the government, due to the laws of its faith.
Court cases aside, Catholics certainly should follow the recommendations of the United States Conference of Catholic Bishops and participate in the “Fortnight for Freedom” activities now taking place. We should also be in contact with our representatives in Congress to voice our displeasure with the HHS ruling, along with a recommendation for a firm legislative nullification of the mandates. In this election year, the Catholic community can also make our feelings known at the ballot box.
Mayor Dewitt Clinton had it exactly right nearly two full centuries ago, when he said of Father Kohlmann and other Catholics of the day: “They are protected by the laws and constitution of this country in the full and free exercise of their religion, and this court can never countenance or authorize the application of insult to their faith, or of torture to their consciences.”
Jim Garrity is historian of the Basilica of St. Patrick’s Old Cathedral in Lower Manhattan.
