United States - Vatican Recognition: Background and Issues
United States - Vatican Recognition: Background and Issues
Samuel W. Bettwy
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SAMUEL W. BETTWY*
"A lawyer without history or literature is a mechanic . . .;[with]
some knowledge of these . . .an architect."'
In world affairs, the Roman Catholic Church and all its alter egos are
known generically as "the Vatican." Its leader is the "Pope," its
diplomatic agent is called the "Holy See," and its independent territory is
called "The State of Vatican City." The Vatican participates in
international conferences as well as in bilateral and multilateral treaties with
world nations. Nevertheless, the Church is not a state, nor does it claim
to be one. On January 10, 1984, the United States became the 107th
nation and the first superpower to establish reciprocal diplomatic relations
with the Vatican.2 Although other attempts had been made, never before
t Copyright Samuel W. Bettwy 1984.
* Project Editor, American Society of International Law; Member, California and Arizona
State Bars and the Bar of the District of Columbia; B.A. Economics, Pomona College; J.D.,
California Western School of Law; LL.M., Georgetown University Law Center. In 1981 the
author wrote: "[T]he United States may soon find it to be in its best interest and in the best
interest of the world to normalize relations with Vatican City." Bettwy & Sheehan, United
States Recognition Policy: The State of Vatican City, 11 CAL. W. INr'L L.J. 1, 20 (1981).
This Article is written in response to the mutual recognition which took place on January
10, 1984. It is also written as the author's graduate paper for the LL.M. degree in
International and Comparative Law at the Georgetown University Law Center. Special
acknowledgment is made of Mr. Robert Dalton, Assistant Legal Advisor for Treaty Affairs, Department
of State, and of Mr. Michael K. Sheehan, devout Catholic, educator, and jurist; both of
these scholars have provided the author with invaluable direction in the preparation of this
Article. All translations from the French are made by the author unless otherwise indicated.
W. ScoTT, Guy MANNERING ch. 37 (1906).
See U.S. and Vatican Restore Full Ties After 117 Years, N.Y. Times, Jan. 11, 1984, at 4,
col. 3. At his regular, daily briefing, John Hughes, a White House spokesperson, stated:
had such de jure recognition been accorded by these parties to one
United States-Vatican recognition is certain to arouse renewed
interest in the juridical personality of the Vatican according to international
law and the dictates of the United States Constitution. Three traditional
questions revived by the recognition are: 1) Does recognition of a religion
or a religious state violate the establishment clause of the United States
Constitution?, 2) Is Vatican City a state under international law?,5 and
3) What is the legal capacity of the Vatican in international affairs?0 A
scholar who focuses on the role of the Vatican only under United States
The United States of America and the Holy See, in the desire to further promote the
existing mutual friendly relations, have decided by common agreement to establish
diplomatic relations between them at the level of embassy on the part of the United
States of America, and nunicature on the part of the Holy See, as of today, January
Id. A reciprocal statement was made by the Vatican on the same day at Vatican City. Id. It
should be noted, however, that the title of this newspaper article is inaccurate; the United
States and the Vatican had never before established full ties.
' See infra notes 71-74 & 79-104 and accompanying text.
4 See Cullinan, The White House and the Vatican: The Legal Aspects, 38 A.B.A. J. 471, 472
(1952) (written in response to President Truman's nomination of General Mark Clark);
Baum, Danzinger & Stern, United States Diplomatic Relations with the Vatican in
International and ConstitutionalLaw (Jan. 1984) (written in response to President Reagan's
nomination of William A. Wilson), reprinted in Nomination of William A. Wilson: Hearing
Before the Senate Committee on Foreign Relations, 98th Cong., 2d Sess. 14 (1984)
[hereinafter cited as Confirmation Hearing]; Menefree, Crowns and Crosses: The Problems of
Politico-Religious Visits as They Relate to the Establishment Clause of the First
Amendment, 3 HARV. J.L. & PuB. POL'v 227, 227-28 (1980).
5 See JARRIGE, LA CONDITION INTERNATIONALE Du SAINT-SIEGE AVANT ET APRES LES
AcCORDS Du LATRAN (1930); Bettwy & Sheehan, United States Recognition Policy: The State
of Vatican City, 11 CAL. W. INT'L L.J. 1, 3-9 (1980); de la Briere, La Condition Juridiquede
la Cite du Vatican, 33 RECUEIL DES COURS 133 (1930); Ireland, The State of the City of the
Vatican, 27 AM. J. INT'L L. 271 (Supp. 1933); Rousseau, Etat de la Cite du Vatican, 37 REV.
GEN. DR. INT'L PUB. 145 (1930); Wigmore, Should a PapalState Be Recognized
Internationally By the United States? 22 ILL. L. REV. 881, 881-82; Wright, Status of the Vatican City,
38 AM. J. INT'L L. 452, 452 (Supp. 1944).
1 See H. CARDINALE, THE HOLY SEE AND THE INTERNATIONAL ORDER 99-128 (1976) (Father
Cardinale was the Vatican's Apostolic Nuncio (ambassador) to Belgium, Luxembourg, and
the European Economic Community); Cumbo, The Holy See and International Law, 2
INT'L L.Q. 603, 603 (1948); Kunz, The Status of the Holy See in InternationalLaw, 46 AM.
J. INT'L L. 308, 309 (Supp. 1952); Study on the Status of Permanent Observer to the
Organization of American States and on the Nature and Legal Status of the Holy See in
International Law, OEA/Ser. G. Cp/CG-892/78, Feb. 27, 1978 [hereinafter cited as OAS Study];
see also R. BOMPARD, LE PAPE ET LE DROIT DES GENS (1888); Y. DE LA BRIERE,
L'ORGANIZATION INTERNATIONALE Du MONDE CONTEMPORAIN ET LA PAPAUTE SOUVERAINE
(1924); J. LATOUR, LA PAPAUTE EN DROIT INTERNATIONAL (1983); N. NUCcITELLI, LE
FONDEMENT JURIDIQUE DES RAPPORTS DIPLOMATIQUE ENTRE LE SAINT-SIEGE ET LES NATIONS UNIES
domestic law or under international law, however, misses the overall role
of the Vatican in world politics. This role is inextricably related to the
historical development of the Vatican. Without a historical framework,
the scholar becomes lured into an analytical shell game.
Therefore, the first section of this Article presents a historical outline
of the Vatican with respect to its role in world politics. Given that
understanding of the Vatican, the second section narrows the examination to
the role of the Vatican under international law. The third section is
narrower still, examining the role of the Vatican under United States law.
The final section explores particular issues that arise from the United
States' recognition of the Vatican.'
The issues related to international law and the foreign policy of the
United States are: 1) Is the United States recognizing a church or a
state?, 2) What does the United States have to gain by formally
recognizing the Vatican?, and 3) How are the protection, privileges, and
immunities of American and Vatican diplomats and their missions affected? The
issues related to the domestic law and policy of the United States are: 1)
Does the recognition violate the principle of separation of church and
state?, 2) Will the tax status of the Vatican's mission in Washington, D.C.
be affected?, and 3) How are other United States laws governing affairs
with the Vatican affected?
I. A WORLD VIEW: AN OUTLINE OF VATICAN HISTORY
That aspect of the Vatican that has the greatest bearing on our
discussion of issues of international and domestic law is its seemingly dual
character as both a spiritual (religious or ecclesiastical) and a temporal
(secular or political) influence. If we imagine a spectrum of influence with
spiritual at one end and temporal at the other, the Vatican has run the
gamut at various times in its history. The outline below follows the
metamorphosis from the founding of the Church to the present day.' While
reading the outline and the sections that follow, consider what balance of
spiritual and temporal influence is being sought by the Vatican today and
what balance the international community and the United States will
See infra notes 140-172 and accompanying text.
' The outline of history given in this section of the Article is derived in great part from the
following sources: CHURCH AND STATE THROUGH THE CENTURIES: A COLLECTION OF HISTORIC
DOCUMENTS WITH COMMENTARIES (trans. & ed. S. Ehler & J. Morral 1954) [hereinafter cited
as COLLECTION OF HISTORIC DOCUMENTS]; C. DAWSON, RELIGION AND THE MODERN STATE
102154 (1935); P. HUGHES, A POPULAR HISTORY OF THE CATHOLIC CHURCH (1951).
Roman Empire (First Three Centuries, A.D.)
The first three centuries of the Church represent its least
temporalladen period. The Church was established by Jesus Christ who named the
apostle, Peter, as the first head or Pope of that Church:
And I say also unto thee, That thou art Peter, and upon this rock I will
build my church; and the gates of hell shall not prevail against it.'
On or near the year 42, Peter arrived in Rome where he founded the
Roman Catholic Church. The first Christians were a small minority,
attempting to survive and grow in the Mediterranean world of the Roman
Empire. To the secular (or pagan) Roman state, religion and politics were
one; the citizens of the Roman state were to practice the official religion.
Because of this, the Christians suffered persecution for their obedience to
the Church and its one God. When Roman society began to decay,
however, its citizens willingly turned to the ideal of citizenship in the
"Kingdom of God." In this way the universality of the Church successfully
rivaled the universality of the Roman Empire.
During the Roman Empire, the Church accepted the Roman states
invitation to participate in political matters. Emperor Constantine
(reigning from 308 to 337) officially tolerated the existence of the Church in his
Edict of Milan (313), and, by the end of the fourth century, the Roman
Empire had officially adopted Christianity. Although the organization of
the Church's hierarchy closely followed the organization of the Roman
state, the Church managed, unlike the Eastern Church of the Byzantine
Empire, to remain independent of the secular authority of the state. As a
consequence of the Church's ability to maintain its independence, the
Church did not fall with the Roman Empire; instead, it survived as a
unified repository of law, culture, and learning for the invading
The Dark Ages represent an era of even greater politicization of the
Church. Despite the threat imposed by the chaos of Western Europe and
the barbarian invasions, the Church maintained its ecclesiastical
independence. Paradoxically, independence required the Church's increased
political involvement in the affairs of the Western world. During this period
was the development of the "Gelasian" theory of Pope Gelasius I (494),
which set up the ecclesiastical-secular dualism of authority for Europe.
' Matthew 16:18 (King James).
This remained the position of the Church throughout the Dark Ages.
During this period, the influence of the Church was spread chiefly by the
monasteries of the Merovingian period (500-750); these monasteries,
cloisters of contemplative worship, later became the abbeys-open
centers of trade and culture, preserving the Carolingian Empire (750-980).
The territorial independence of the Church was established in the Papal
States in 754 with the acquisition of about 16,000 square miles of land in
the mid-section of modern-day Italy. This acquisition facilitated the
Church's policy of becoming a leading temporal influence.'0
The end of the Dark Ages saw the invasion of the Northmen from
the North and the Sarcens from the South. This resulted in the worst
chaos that Europe and the Church had experienced thus far. The Church
became suppressed by the temporal power of the feudal lords and
monarchs, who preserved the organization of the Church for the unity it
provided while themselves making the appointments of bishops and
D. The GregorianReformation of the Middle Ages (Eleventh Century)
The Church succeeded in regaining independence through the
reforms of the Popes, culminating with the efforts of Pope Gregory VII.
The reform was based upon a highly political and competitive theory of
the Church that maintained that spiritual authority should be superior to
temporal authority; the Church advocated its power to judge the
temporal authorities and to punish them for violations of Church law. This
reform, known as the "Contest of Investitures," resulted in the Concordat
of Worms (1122), in which the Church and the Holy Roman Empire
agreed upon a balanced dualism of independence for the two spheres of
E. Feudal Middle Ages (The Twelfth through the Fifteenth Centuries)
This final third of the Middle Ages saw the Church's successful
exercise of full spiritual and temporal power throughout Europe. During this
period of its history the Church was most politicized and steeped in
temporal influence. No emperor was able successfully to defy the Church's
supremacy over the temporal authority. The secular leaders sought the
Pope's sanction in all major decisions, such as the acquisition of and
entitlement to new territories. In addition, the Popes possessed the authority
both to crown kings and to judge them and their princes. Consequently,
1oSee COLLECTION OF HISTORIC DOCUMENTS, supra note 8, at 4-7; P. HUGHES, supra note 8,
"1 T. NEILL & R. SCHMANDT, HISTORY OF THE CATHOLIC CHURCH 162-65 (1965).
" See id. at 185-88.
the Church provided the unifying spiritual and temporal influence of the
After the Middle Ages, a profound transformation took place in the
role of the Catholic Church in Europe. With the rise of Protestantism, the
once unified Christian faith of the European states became divided. The
competition between Catholics and Protestants and the colonization of
Africa and America caused the spiritual influence of the Church to
dwindle,"3 allowing the secular powers to reclaim independent influence over
politics in their respective regions. Spiritual influence, both Catholic and
Protestant, nevertheless remained significant in determining secular
Rationalism (Seventeenth and Eighteenth Centuries)
Church influence diminished significantly during this period known
as the age of despotism or absolutism, during which temporal powers
regarded the influence of the Church as anachronistic. Secular rulers
believed that religion had to give way to rational or "enlightened" thinking.
Those rulers subjugated the Church's secular role through a wave of
anticlerical legislative reform. Rationalism is reflected in the decision of the
"Founding Fathers" of the United States, who sought to maintain a
separation of church and state affairs. Thus, this period was comparable to
the situation that existed when the Concordat of Worms was concluded;
the Church was once again confined to the realm of spiritual influence,
while the state was confined to its realm of secular influence.
The secular principles of despotism were finally extended, largely due
to the influence of thinkers such as Jean-Jacques Rousseau, to the
concepts of "liberalism" and "nationalism." The modern nation-state derived
its authority from the people, not from God; therefore, the influence of
the Church in the politics of the state was strictly excluded. As long as
these new states guaranteed the independence of the spiritual domain of
the Church, the Church's spiritual influence was preserved. Thus, the
Church became more active in treaty-making and lobbying constitutional
conventions. In other words, the Church participated in its own form of
" Id. Nevertheless, at that time the Church did not ignore the human problems created by
the European conquests of the Indian populations. The Church stood then as it does now
for the equality of all races and the need for humane and just treatment of those people
conquered by the-Europeans.
diplomacy, seeking independence from, but not domination over,
temporal powers. In addition, the Church found it necessary to compete with
capitalism and socialism, which were supplanting religion as the
principles of daily secular life. 4
The temporal influence of the Church was preserved through its
dominion over the Papal States, which, in the mid-1800's, had a population
of about three million. This final bastion of temporal character of the
Church, however, finally was eliminated by the national unification of
Italy, which took place between 1860 and 1870. During these years, the
King of Italy attempted to persuade the Pope to surrender his territories
for the unification. When the Pope refused, Italy took them by force. The
final acquisition took place in 1870 when the Italians marched into Rome.
The Pope refused to accept the King's unilateral term known as the Law
of Guarantees. 5 Instead, he declared himself to be a political prisoner,
confining himself to his palaces and giving rise to the so-called "Roman
Question." Not since the late Dark Ages or the Church's very beginning
had its temporal influence been so suppressed. The spiritual influence of
the Church, however, remained powerful and not totally divorced from
international politics. The Church continued to practice diplomacy in
order to secure guarantees of religious freedom within national jurisdictions
and, particularly during World War I, participated in efforts for world
Today's Isms (Twentieth Century)
Today the influence of the Church continues to be challenged by
nationalistic, social, and economic ideologies in two ways: (1) the
suppression of religious expression or worship, and (2) the "dehumanization" or
secularization of the daily lives of the citizenry.
The Roman Question had been resolved by the restoration of 108
acres of independent territory to the Vatican. But temporal influence was
not necessarily restored. Vatican City, with a transient population of
about 800 people, certainly does not embody the concept of a modern
nationalistic state, reflecting the ideals of some secularism. Nonetheless,
in practical terms, Vatican City does provide the Pope, as head of the
14 See C. DAWSON, supra note 8, at xx. Dawson wrote:
Religion gradually retreated into man's inner life, and left social and economic life to
the State and to a civilization which grew steadily more secularized. A man's debt to
religion was paid by an hour or two in church on Sundays, and the rest of the week
was devoted to the real business of life-above all, the making of money.
" The original Italian text is found in Gazetta Ufficiale del Regno d'Italia, May 15, 1871,
reprinted in COLLECTION OF HISTORIC DocuMENTs, supra note 8, at 285-91.
" See D. GRANDI & A. GALLi, THE STORY OF THE CHURCH 252-63 (1960).
Church, with an independent territorial base from which he can
administer the Church free of any secular power. The Lateran Treaty, in which
Vatican City was restored to the Vatican, states that the importance of
Vatican City lies in the fact that it permits "the Holy See to make its
voice better heard, to give greater value to its own suggestions, and to
negotiate with those who control the fate of nations, in a spirit of mutual
As a spiritual influence, the Roman Catholic Church is supreme; as a
temporal influence, it maintains a diplomatic corps under the title "the
Holy See," which participates in discussions of world politics with other
nations on a one-to-one basis and in the context of international
organizations. As a diplomatic entity, the Church is recognized by many states
as a viable political institution; its spiritual teachings are compatible and
often supportive of the goals of many peace-seeking nations."8 In short,
the Church seems to be seeking: 1) religious freedom to act separately
from and unhindered by affairs of nations so that it may continue its
spiritual missionary work within them, and 2) recognition that it is an
equal voice in the international community capable of exercising a
spiritual influence in the realm of international politics between and among
The Vatican exercises its international diplomacy through the title
"the Holy See"'19 rather than "Vatican City," although both titles are
used in other international contexts, such as international conferences. 20
Both titles have been used consistently since 1929. In fact, with respect to
" Speech by Pope Paul VI, audience of Members of the Diplomatic Corps accredited by the
Holy See (Jan. 12, 1970), reprintedin H. CARDINALE, supra note 6, at xx; see also id. at 115
("[tihe Holy See is the Juridical personification of the Church in the same way that the
state is of the nation") (footnote omitted).
" See The President and the Pope, 53 NEWSWEEK 64 (Jan. 23, 1984) (quoting a State
Department official); U.S. Catholic Spirit Agree, Says Delegate, Wash. Post, May 25, 1959.
19 H. CARDINALE, supra note 6, at 113.
10 Vatican City is a member of the Universal Postal Union, the International
Telecommunications Union, and the International Wheat Council. H. CARDINALE, supra note 6, at 265; 2
COUNTRIES OP THE WORLD 1175 (1983) [hereinafter cited as Background Notes]. The Holy
See is a member of the United Nations Conference on Trade and Development (UNCTAD),
the International Union for the Protection of Industrial Property (IUPIP), the Executive
Committee of the High Commissioner's Programme at the Office of the United Nations
High Commission for Refugees, the International Union for the Protection of Liberty and
Artistic Works, the International Geographic Union, and the Council of Europe
Resettlement Fund for National Refugees and Over-Population in Europe. Id. For a list of treaties
to which Vatican City and the Holy See are parties, see Bettwy & Sheehan, supra note 5, at
21-31 (1981); P. ROHN,4 WORLD TREATY INDEX 669-71 (2d ed. 1983). In 1958, the United
Nations agreed with the Vatican to discontinue usage of the name "Vatican City" in all
United Nations-sponsored international conferences to which papal authorities are invited.
R. GRAHAM, S. J., VA1cAN DIPLOMACY-A STUDY OF CHURCH AND STATE ON THE
INTERNATIONAL PLANE 346 n.11 (1959).
treaty-making, both titles have been used in conventions dealing with
topics ranging from the highly political to the highly technical, 1 in the
same fields of international law,22 by the same person on separate
occasions in conference activities,23 and to indicate membership in
international organizations.24 The titles have been used in the formation of the
same international agreements-with Vatican City as the signatory and
the Holy See as the ratifying authority.25 The reverse situation has never
occurred, and both titles have never been used at the same time in the
Since the Holy See and Vatican City are both headed by the Pope, it
is hardly conceivable that the two operate independently of each other.
Furthermore, there is no apparent basis for distinguishing the type of
international activity in which each participates. Other than in the field of
diplomatic relations, which is exclusively the practice of the Holy See, the
decision of which title shall be used in international affairs appears to be
arbitrary. Yet, even if it is arbitrary, such appearance would not be
inconsistent with the policies of the Vatican. As stated by Pope Paul VI: The
Church tries to avoid being "assimilated to institutes and organisms of a
"1 Vatican City has been represented at conventions on arbitration, atomic energy,
automotive traffic, bills of lading, cultural property, customs, diplomatic relations, grains, law,
narcotic drugs, postal arrangements, refugees, satellites, settlement of disputes,
telecommunications, tourism, and wheat. The Holy See has been represented at conventions on arbitration,
atomic energy, copyrights, counterfeiting, cultural property, diplomatic relations, industrial
property, intellectual property, judicial procedure, law, law of the sea, maritime matters,
narcotic drugs, nuclear weapons, patents, phonograms, postal arrangements, prisoners of
war, Red Cross, refugees, settlement of disputes, space, states' rights and duties,
telecommunications, terrorism, and trade and commerce. See Bettwy & Sheehan, supra note 5, at
2131; P. ROHN, supra note 20, at 669-71.
22 Both Vatican City and the Holy See have participated in conventions, at different times,
on arbitration, atomic energy, cultural property, diplomatic relations, law, narcotic drugs,
postal arrangements, refugees, settlement of disputes, and telecommunications. P. RoHN,
supra note 20, at 669-71.
13 Ameleto G. Cicognani signed the Convention relating to the Status of Refugees (189
U.N.T.S. 137) for the Holy See on July 28, 1951 in Geneva, and he also signed the
International Wheat Agreement (7 U.S.T. 3277, T.I.A.S. No. 3709, 270 U.N.T.S. 103) for Vatican
City on May 16, 1956, in Washington, D.C. As a young monsignor, Ameleto Cicognani was
present at the 1919 visit of Woodrow Wilson to the Vatican. Osservatore Romano, Jan. 5,
1919; see infra note 88. He later became Apostolic Delegate to the United States on March
17, 1933. 1950 ANNUARIO PONTIFICIO 42.
24 See H. CARDINALE, supra note 6, at 256; supra note 20.
"' See Constitution of the Universal Postal Union, done July 10, 1964, 16 U.S.T. 1291,
T.I.A.S. No. 5881, 611 U.N.T.S. 7 (see ratification at 639 U.N.T.S. 368); Universal Postal
Convention, done July 10, 1964, 611 U.N.T.S. 105 (see ratification at 639 U.N.T.S. 368);
Agreement concerning insured letters and boxes, done July 10, 1964, 611 U.N.T.S. 387 (see
ratification at 639 U.N.T.S. 369). For examples of other, related agreements, see Bettwy &
Sheehan, supra note 5, at 27.
temporal order with which it cannot nor should be confused."2 6
In our modern political world, territorial independence is a
fundamental element of international personality and equality among nations.
If the Vatican were to lose Vatican City as it lost the Papal States in
1870, the international personality of the Vatican would be called into
question.17 By refusing to engage in diplomatic relations with any nation
other than under the title "the Holy See," the Vatican is asserting,
without compromise, its authority to promote the primary aim of papal
diplomacy-the promotion of Church teachings. By participating in
international dialogue as both the Holy See and Vatican City, the two titles
being virtually interchangeable, the Vatican is reminding the
international community that it is an equal member, because it enjoys territorial
sovereignty, and that it is a unique member, because it is the supreme
organ of the Roman Catholic Church. For the Vatican, territorial
sovereignty is merely a temporal means to its spiritual end.2"
JURIDICAL PERSONALITY OF THE VATICAN UNDER INTERNATIONAL LAW
Who could have anticipated that scholars would labor so hard to find a
category in which to place an institution which quite obviously to the
AngloSaxon mind was a category by itself?2"
The role of the Vatican must be examined in a historical context to
understand its role in international law. Since international law is largely
what has been established through the customs and treaty-making of
nations between and among each other, it is inescapably related, at any
point in time, to the prevailing practice and thinking of nations. For
example, the "international" publicists of the Roman Empire expressed in
uncertain terms that Christianity was illegal; thus, the Roman Catholic
Church enjoyed no recognized juridical personality.3 0 On the other hand,
during the Vatican's virtual domination of international politics during
the Middle Ages, the publicists of the time were ecclesiastical scholars,
and the Church was proving their theories of the legality of not only the
Church's international personality but its international supremacy.'
" Speech of Pope Paul VI, supra note 17, at xvii.
,7 See infra note 125 and accompanying text.
28 H. CARDINALE, supra note 6, at 115. "The Vatican City ... is a State set up to insure the
absolute and visable liberty and independence of the Holy See, and to guarantee its
undisputed sovereignty, even in the international field." Id.
" Fenwick, Book Review, 29 Am. J. INT'L L. 713, 713 (1935) (reviewing THE LEGAL POSITION
OF THE HOLY SEE BEFORE AND AFTER THE LATERAN AGREEMENTS (1935)).
30 See, e.g., COLLECTION OF HISTORIC DOCUMENTS, supra note 8, at 4 (Christian persecuted
for failing to worship pagan gods).
3, See, e.g., COLLECTION OF HISTORIC DOCUMENTS, supra note 8, at 11. For the publicists the
church was the supreme international power, a power even greater than the royal power. Id.
With the rise of nationalism and the modern state, international
personality depended fundamentally upon territorial independence. When
the Church possessed such independence in the Papal States, its
international juridical personality could not be disputed even under the new
liberalism. During this period of the modern state, however, the Church lost
its temporal independence to Italy in 1870. Although the spiritual
personality of the Vatican on an international plane remained unequivocal, its
juridical personality was seriously doubted. Thus, during the period after
1870, the international publicists enjoyed a field day of academic
discourse, which was not ended by the establishment of Vatican City in
1929. Keeping in mind the historical and political context in which these
recent scholars have written allows a broader understanding of their
The JuridicalPersonalityof the Vatican Since 1870
The period from 1870 to 1929 was marked by a total lack of
territorial independence for the Vatican.3 2 During this period, however, the
Vatican continued to enter into a form of international agreement known as
the concordat."3 Most writers cite this activity as a major indication of the
Vatican's international legal capacity. 4 The main purpose of the
concordat is "to determine the status of the Catholic religion in [the] respective
territories" of nations3. 5 Although concordats are not to be classified as
treaties, they do have an international nature, albeit sui generis3. In
addition, the writers cite the fact that the Vatican continued to send and
receive diplomatic missions as evidence of the Vatican's international
leIn 494, Pope Gelasius I wrote:
There are. . . two powers by which this world is chiefly ruled: the sacred authority of
the Popes and the royal power. Of these the priestly power is much more important,
because it has to render account for kings of men themselves at the Divine tribunal.
Id. at 11.
32 Contra Cumbo, supra note 6, at 611. Some scholars have claimed that the territorial
independence of the Vatican was not interrupted during the period from 1870 to 1929. See
id.; see also Kunz, supra note 6, at 309 (Holy See always had been subject to international
3' See BLACK'S LAW DICTIONARY 263 (5th ed. 1979). The concordat is also known as a bill of
conscription in non-Catholic countries. A concordat is an agreement between a state and a
Pope, usually related to ecclesiastical affairs of the Roman Catholic Church within the state.
3 See Cumbo, supra note 6, at 607. Concordats are "the most weighty arguments in favour
of the personality of the [Holy] See." Id.; see also Kunz, supra note 6, at 310 (concordats
have all characteristics of international treaties and recognition as treaties by many states).
35 OAS Study, supra note 6, at 15.
3 S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 8 (2d ed. 1916). "Concordats
are agreements entered into by the Pope, not as a territorial sovereign, but as head of the
Catholic Church, and are accordingly not to be claimed as international treaties." Id.
The Vatican's main purpose is to promote the teachings of the
Roman Catholic Church; yet, it has been argued by some lay scholars that
no church, including the Roman Catholic Church, can be a subject of
international law.8s Therefore, it is not the Vatican's connection with the
Catholic religion alone that gives it international personality, assuming
the Vatican has any. The publicist Cumbo stated in 1948: "The view
commonly accepted [is] that the Holy See can only obtain an international
'status' when a territorial unity is recognized . . . ." Supporting this
statement is the fact that during the period from 1870 to 1929, the
number of nations having diplomatic relations with the Vatican fell for a time
to four.4 0 The United States, for example, withdrew its ambassador in
1867 after it had become clear that the Papal States would be annexed by
37 See Ireland, supra note 5, at 272; Kunz, supra note 6, at 310. The Vatican had the power
the Kingdom of Italy.4 In addition, the Vatican was excluded, at the
request of Italy, from participation in the Hague Peace Conference of 1899,
the London Treaty of 1915, and the League of Nations.4 In short, the
Vatican had capacity to express its spiritual sovereignty with other
nations in the form of concordats and diplomatic relations incidental to
them, but it had no independent capacity to conduct itself as an equal
with other sovereign states in international affairs.
Since 1929, the Vatican's participation in international affairs has
extended far beyond the results of ecclesiastical concordats and related
diplomacy. The Vatican has normalized diplomatic relations with over 100
nations;43 participated in numerous international conferences, becoming a
party to scores of conventions, treaties, agreements, and related
protocols;"4 and it now shares formal recognition with the United States, a
government noted for its constrained diplomatic policy toward the Vatican.
With respect to the Vatican's participation in international organizations,
both the United Nations and the Organization of American States have
accepted it as a permanent observer,45 and it is a full-fledged member of
several other international organizations.4 6
Apparently the Vatican recognized that spiritual sovereignty was not
enough to give it a universally recognized juridical personality; it sought
and acquired territorial sovereignty in Vatican City. Article 26 of the
Lateran Treaty, the constituent instrument of Vatican City, contains the
following acknowledgment of the need for territorial sovereignty:
The Holy See thinks that with the agreements signed today, adequate
assurance is made for what is necessary for providing it of due liberty and
itnhdeepCeanthdoelnicceCfhourrcthheinpaIstatolyralangdovtehrenmweonrltd.o47f the diocese of Rome and of
Although some nations and scholars continued to recognize the Vatican
as an international, juridical personality during its period of
4' See infra note 85 and accompanying text.
42 Kunz, supra note 6, at 312.
43 See The 1983 Diplomatic List of the Vatican, reprinted in Reprogramming Funds for
United States Mission to the Vatican:HearingBefore a Subcomm. of the House Comm. on
Appropriations,98th Cong., 2d Sess. 22-23 (1984) [hereinafter cited as House
Appropriations Hearing]. For a list of those nations exchanging ambassadors with the Vatican, see
1980 ANNUARIO PONTIFICIO 1134-54, reprinted in Bettwy & Sheehan, supra note 5, at 10
44 See supra note 20.
41 See OAS Study, supra note 6. For a general discussion of observer status, see Mower,
Observer Countries: Quasi Members of the United Nations, 20 INT'L ORG. 266 (1966).
6 See supra note 20; see also H. CARDINALE, supra note 6, at 256 (represented at United
Nations Specialized Agencies and other international organizations).
"I See Treaty of the Lateran, Feb. 11, 1929. 1929 ACtr APOSTOLICAB SEDIS 209, reprintedin
H. CARDINALE, supra note 6, at 326 app.
rial existence, lack of universal recognition as an independent territory
was a serious impediment to the Vatican's goal of securing worldwide
religious freedom for the Church and its followers. Clearly, the experience
and conduct of the Vatican is compelling evidence that today territorial
independence is a fundamental element of recognition as a juridical,
The JuridicalPersonality of Vatican City
The constituent instrument of Vatican City is the Lateran Treaty, in
which Italy granted territory to the Vatican."' This treaty reveals the
Vatican's own perception of itself and of Vatican City, and, because it is
an international legal instrument, defines the international legal capacity
of Vatican City. Articles 2, 3, 4, and 24 refer to the "sovereignty of the
Holy See" over Vatican City, but nowhere in the treaty is there specific
mention of the sovereignty of Vatican City itself. This fact has led more
than one lay scholar to conclude that Vatican City is a state, but not a
sovereign state; rather, they claim, it is a "vassal state" of the Vatican.4 9
Other legal writers have considered the legal capacity of Vatican City
apart from the language of the Lateran Treaty. These writers have
asserted that, as a practical ilatter, Vatican City lacks viable juridical
personality, because it lacks the nationalistic spirit of a modern state,50 it is a
diminutive or exiguous state, 51 and it lacks a diplomatic corps. Church
apologists have responded to these arguments, defending the status of
Vatican City as a state under international law. To the conventional legal
48 Treaty of the Lateran, art. 3, reprinted in H. CARDINALE, supra note 6, at 320.
" Bettwy & Sheehan, supra note 5, at 9; Cumbo, supra note 6, at 613; Kunz, supra note 6,
at 313; see also Ireland, supra note 5, at 288 (Vatican City described as "nominally
sovereign"). Le Fur characterizes the Vatican as "extratatique."Le Fur, Forewardto JARRIGE,
supra note 5, at xi. But see H. CARDINALE, supra note 6, at 116 (relationship between
Vatican and Vatican City characterized as "juristic union").
" Rousseau, supra note 5, at 146. Rousseau has recognized Vatican City's lack of juridical
personality because of its lack of nationalism:
The state is the juridical organ of the nation; it presupposes an army, and it possesses
a character-at least relatively speaking-of unity. Historically, the state had the
essential character of being national.
5' See Bettwy & Sheehan, supra note 5, at 9. Secretary of State Cordell Hull, commenting
on the question of the Vatican's membership in the United Nations, wrote:
As a diminutive state the Vatican would not be capable of fulfilling all the
responsibilities of membership in an organization whose primary purpose is the maintenance
of international peace and security. In a number of cases diminutive states were
refused admission to the League [of Nations] on this ground ...
Telegram from Secretary of State Cordell Hull to M.C. Taylor (Sept. 27, 1944), reprintedin
FOREIGN RELATIONS OF THE UNITED STATES 462 (1944).
mind, however, their explanations are abstruse."2
If customary law can be generalized from the tolerated conduct of
Vatican City in international politics, it can be said that Vatican City
enjoys at least de facto capacity. Although it has no diplomatic corps,
Vatican City (or at least the Vatican using the title Vatican City) has
participated in international conferences and signed numerous
multilateral and bilateral treaties,58 including a postal agreement with the United
States.5" It is also a member of the International Postal Union, the
International Telecommunications Union, and the International Wheat
Council.5" In no instance has its participation in any of these capacities been
challenged by another party.
If Vatican City has the capacity to conduct international affairs, is
this capacity independent of the juridical capacity of the Holy See? That
question remains academic, because no occasion has ever arisen in which
the Holy See and. Vatican City have both sought participation in the
same international conference, and the issue is not likely to arise.5" The
Pope is the recognized head of each entity, and the Vatican would have
nothing to gain by such a move.
6'See, e.g., H. CARDINALE, supra note 6. Cardinale argues for:
the existence of three distinct subjects of international law under the Pope's
sovereignty: the Church, the Vatican State and the Holy See. The Church and the Vatican
State, remaining distinct persons in international law, are united in virtue of a real
union, in the person of the Pope. As Sovereign of both the Church and the State, the
Pope uses the Holy See as a common supreme organ through which he exercises his
sovereignty with regard to both these international bodies. The Holy See is
indisputably recognised as the Pope's competent international agent for both the Church and
the State by international law and practice.
Id. at 116-117; see also R. GRAHAM, supra note 20, at 346 n.11. Although Graham insists that
the distinction between Vatican City and the Holy See is "clear in concept," he admits that
ambiguities in terminology "bedevil discussions on the subject." R. GRAHAM, supra note 20,
at 346 n.11. (
53 See Bettwy & Sheehan, supra note 5, at 12-31 (listing treaties signed by Vatican since
0' Agreement for the Exchange of International Money Orders, Nov. 24-Dec. 22, 1955,
United States-Vatican City, 7 U.S.T. 3205, T.I.A.S. No. 3700.
6 See supra note 20.
But see R. GRAHAM, supra note 20, at 202 n.13 (one is non-territorial institution, the
other a state); A. SERENI, THE ITALIAN CONCEPTION OF INTERNATIONAL LAW 293 (1943) (if
Catholic Church is international person, Catholic Church and Vatican City are distinct
international persons); Cumbo, supra note 6, at 613 ("body" of Vatican distinct from that of
See). The basis of Cumbo's conclusion is the Lateran Treqty, which he claims supplies "two
separate recognitions, the second of which actually refers to the Vatican City." Cumbo,
supra note 6, at 613. (emphasis added). Cumbo fails to note, however, that nowhere in the
Lateran Treaty is the sovereignty of Vatican City itself recognized. The OAS Department of
Legal Affairs concluded: ". . . (T]he legal personality of the Holy See is independent of the
existence of a state that may be joined to it, as was the case with the Papal States, which
existed until 1870 and Vatican City, since 1929." OAS Study, supra note 6, at 14.
Many lay scholars have considered the juridical personality of either
the Holy See or Vatican City, but none have considered the
characteristics of both as parts that, when combined, form a whole-the Vatican.
Even ecclesiastical scholars have examined both entities, invariably
concluding that each possesses a separate, independent personality. 7 Given
actual international practice, it is probably accurate to conclude that the
Vatican itself has an international juridical personality whether it acts as
the Holy See or Vatican City, and that this personality has gained more
universal recognition during the Vatican's enjoyment of territorial
sovereignty than it has without such enjoyment. Without territory, the Vatican
is a second-class international person, although it is still capable of
protecting intranational interests through diplomacy. With territory, even if
it is only a "token" state, the Vatican is allowed an equal voice in
international political and legal discussions.
III. JURIDICAL PERSONALITY OF THE VATICAN ACCORDING TO UNITED
STATES LAW AND POLICY
The United States was founded by people, traditions, and principles
that reflected the thinking of the times about policy toward religion in
general and the Vatican in particular. Many of the colonists from Europe
were seeking religious freedoms that were denied in their homelands. The
drafters of the United States Constitution were particularly influenced by
the writings of eighteenth century rationalism as interpreted by John
Locke and thinkers like him. Thus, the separation of church and state as
we know it today is the product of both anti-state and anti-religious
thinking. United States-Vatican relations have taken place during those
periods of history when secular and religious influences have remained at
arms length and territorial independence has been a fundamental
element of international juridical personality. Nonetheless, the United
States has shown an interest toward the Vatican that surpasses the
technical requirements of statehood. The United States and the Vatican share
a reverence for the fundamental principles of peace and freedom. In each
instance in which these principles have been defied, the United States has
made gestures to strengthen ties with the Vatican.
Outline of History of United States-Vatican Relations
Relations between the United States and the Vatican have been
continuous, though inconsistent, since 1797, when consular relations were
es", See supra note 56. Cardinale argues that the Pope and the Roman Catholic Church are
separate, juridical persons in international law. H. CARDINALE, supra note 6, at 73-128.
tablished. United States-Vatican relations may be broken down into the
following categories: consular, non-reciprocal diplomatic, unofficial, and
full diplomatic. These categories are examined chronologically, with some
overlap between consular and non-reciprocal diplomatic relations from
1848 to 1868.
1. Consular (1797-1895). In 1797, John B. Sartori became the first
United States consul to Rome."' The American consular presence in
Rome continued without interruption until 1870, when the Papal States
were annexed and the consulate was transferred to Italy.59 There were
also consuls, for varying periods of time between 1797 and 1870, at
Ancona, Ravena, Civitavecchia, Ceprano, Comacchio, Fiumicino, Ostia, and
Porto d'Anzio. The primary purpose of the consulate offices was to
encourage commerce between the United States and the Papal States;
secondarily, the consulates were to report their observations of important
political events to the State Department.
The Papal States sent consuls general to the United States between
1826 and 1895. In 1876, the exaquatur of Louis B. Binsse was challenged
by the Italian government after the annexation of the Papal States to
Italy. Secretary of State Hamilton Fish refused to seek withdrawal of the
exaquatur,so the situation remained unresolved until Mr. Binsse's death
in 1895.60 Notwithstanding these occasional difficulties, the consular
relations in both countries were described as being very friendly. In fact, in
the Papal States, American consular representatives, unlike the
representatives of any other state, "were received on the same footing at all
festivals and formal affairs as full diplomatic functionaries of other
2. Non-reciprocal diplomatic relations (1848-1868). Formal
diplomatic relations began in 1848 when President Polk sent Jacob L. Martin
as chargg d'affaires-whichappointment was later raised to the rank of
Minister-to the Papal States. 2 During this period from 1848 to 1868,
" Stock, American Consuls to the PapalStates: 1797-1870, 15 CATH. HIST. REv. 233, 233-34
(1929); see L. STOCK, CONSULAR RELATIONS BETWEEN THE UNITED STATES AND THE PAPAL
STATES: INSTRUCTIONS AND DESPATCHES xxiii (1945).
11 See Stock, supra note 58, at 250-51. The American consuls during the period were John
B. Sartori (1791-1823), Felix Cicognani (1823-1837), George Greene (1837-1845), Nicholas
Browne (1845-1849), William C. Sanders (1849-1856), Daniel Le Roy (1856-1858), Horatio
de V. Glentworth (1858-1861), W. J. Stillman (1861-1865), Edwin C. Cushman (1865-1869),
and David M. Armstrong (1869-1870). See L. STOCK, supra note 58, at xi-xxii.
60 See L. STOCK, supra note 58, at xxxviii-ix.
",Stock, supra note 58, at 251.
62 L. STOCK, UNITED STATES MINISTERS TO THE PAPAL STATES xxiii-xxiv (1933). A charg
d'affaires is a diplomatic representative two steps below the full rank of ambassador. See
Protocol of Vienna, supra note 37, art. I. For the legislative history of the congressional
appropriation, see CONG. GLOBE, 30th Cong., 1st Sess. 403-10 (1848).
the Vatican never reciprocated with a diplomatic representative of its
own to the United States.' s Hence, diplomatic relations between the
United States and the Vatican were non-reciprocal. By 1867, however,
annexation of the Papal States to the Kingdom of Italy was well under way.
Congress, in an apparent response to the situation, withdrew
appropriations "for the support of an American legation at Rome. 6' 4 In 1871, after
annexation was complete, President Grant formally recognized that the
Papal States had ceased to exist.65
3. Unofficial (
). The Vatican established non-diplomatic
representation in the United States in 1893 when it sent its first apostolic
delegate to Washington, D.C."6 The delegation was continuous until its
transformation in 1984 to an embassy for the Vatican's pro-nuncio to the
United States. The United States did not "reciprocate" the Vatican's
unofficial representation until 1939, and evenafter that United States
representation was not continuous.
President Franklin D. Roosevelt began unofficial representation at
the Vatican by sending Myron C. Taylor as his personal representative to
the Pope.67 After Taylor resigned in 1950, the practice of sending a
permanent personal representative did not resume for nearly twenty years6. "
In the meantime, however, Presidents Eisenhower, Kennedy, and
Johnson did make personal visits with the Pope, and Presidents Eisenhower
and Johnson both sent personal representatives for certain special
occasions at Vatican City." In 1970, President Nixon resumed the practice
63 H. CARDINALE, supra note 6, at 200.
" Act of Feb. 28, 1867, ch. 99, 14 Stat. 412, 413 (1867); see also L. STOCK, supra note 62, at
xxxix (Congress sympathetic to Italian desire for united Italy).
" See 9 COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 4098 (J.D.
Richardson ed. 1897).
" 1895 ANNUARIO PONTIFICIO 670.
67 See 1 DEP'T ST. BULL. 711-12 (1939). President Truman later reappointed Taylor to the
same position. 14 DEP'T ST. BULL. 818 (1946).
" Ambassador Wilson testified before the Senate Foreign Relations Committee on February
As you perhaps know, various Presidents from President Roosevelt until President
Reagan have sent personal envoys. That has not been a continuous situation. There
were three Presidents there that did not send a personal envoy, so it has been a
discontinuous situation and one which does not tend to create a feeling of
permanence between the two nations-that is, the United States and the Holy See.
Confirmation Hearing, supra note 4, at 6.
19 See 2 WHITEMAN, DIGEST OF INTERNATIONAL LAW 543-44 (1963) (President Eisenhower's
personal representative attended funeral of Pope Pius XII); 54 DEP'T ST. BULL. 230 (1966)
(President Johnson sent representatives to Pope to explain his Vietnam policy). The first
United States President to visit the Vatican was Woodrow Wilson who met with Pope
Benedict XV on January 4, 1919. President Wilson was in Europe attending the Paris Peace
Conference, at the conclusion of World War I. President Eisenhower was the second
President to visit the Vatican. See 2 WHITEMAN, supra,at 544. For an account of other
presidenstarted by President Roosevelt by appointing Henry Cabot Lodge as his
personal representative to the Vatican. Ambassador Lodge continued his
service under President Ford; President Carter sent David Walters and
then Robert F. Wagner, and President Reagan sent William A. Wilson.70
4. Full diplomatic relations.Full diplomatic relations with the Papal
States were considered but rejected by the Congress in 1847.71 In 1951,
President Truman attempted to name General Mark Clark as
ambassador to Vatican City, but strong political pressure forced withdrawal of the
nomination.7 2 President Eisenhower was strongly urged by his staff to
establish diplomatic relations, but continuing public opposition precluded
his doing So. 7 1 President Nixon also considered the establishment of
diplomatic relations with the Vatican, but he sent a personal representative
instead to avoid a battle with Congress.7 4
Finally, on November 22, 1983, Congress quietly passed a bill that
repealed the 1867 ban on appropriations for an American legation at
tial visits, see JFK's Vatican Visit Gains Significance, Wash. Post, July 2, 1963, at -, col.
_; see also 58 DEP'T ST. BULL. 77-78 (1968) (President Johnson visited Pope Paul VI in
1968); 80 DEP'T ST. BULL. 17 (Aug. 1980) (President Carter met with Pope John Paul II in
1980); 82 DEP'T ST. BULL. 20-22 (July 1982) (President Reagan met with Pope John Paul II
in 1982). At least four United States Presidents have met with popes either before or after
their incumbency in the White House. President Grant met with Pope Leo XIII in March
1878, after his term as President, and President Taft met with Pope Leo XIII in June and
July of 1902, see Baldwin, The Mission of Gov. Taft to the Vatican, 12 YALE L.J. 1, 3
(1902), prior to becoming President. President Hoover met with Pope Benedict XV in 1920,
before becoming President, and both Presidents Truman and Hoover met with Pope Pius
XII after their respective presidencies had ended. See Folliard, Presidents at Vatican,
Wash. Post, Nov. 17, 1959, at _. col. _.
70 63 DEP'T ST. BULL. 15 (1970) (Henry Cabot Lodge); Nomination of William A. Wilson, 20
WEEKLY COMP. PRES. Doc. 22 (Jan. 16, 1984) (William A. Wilson).
71 See CONG. GLOBE, 30th Cong., 1st Sess. - (1948).
71 25 DEP'T ST. BULL. 894 (1951); H. CARDINALE, supra note 6, at 201.
71 In 1952, Eisenhower, then a Republican presidential candidate, stated that he had "never
favored the appointment of an ambassador to the Vatican." Ike Never for Envoy to
Vatican, Aide Says, Wash. Post, Oct. 21, 1952, at -, col. _. In 1953, Lutherans and
Protestants reacted angrily to a rumor that Claire Booth Luce was secretly engaging in diplomatic
relations with the Vatican for the President. Church, State Split Upheld by Mrs. Luce,
Wash. Post, Feb. 18, 1953, at 6, col. 3; ProtestantGroup Asks if Mrs. Luce is Vatican
Envoy, Wash. Post, Feb. 10, 1953, at 12, col. 3. In 1954, Undersecretary Walter Bedell Smith
testified before the House Appropriations Committee that he "thought it would be a good
idea to establish relations with the Holy See." This was met with immediate, fierce
opposition by Church groups. Vatican Envoy Idea Attacked by Baptists, Wash. Post, March 12,
1954, at 48, col. 2; U.S. Vatican Diplomatic Link Favored,Wash. Post, Feb. 24, 1954, at 7,
col. 1. The Baptist Joint Committee on Public Affairs adopted a resolution of its "unshaken
conviction that any diplomatic relationship . . . is a violation of the historic American
principle of the separation of Church and State." Vatican Envoy Idea Attacked by Baptists,
Wash. Post, March 12, 1954 at 48, col. 2.
See U.S. Rules Out Vatican Envoy, But Plans Ties, Wash. Post, July 4, 1969, at -, col.
Rome and provided for the establishment of United States diplomatic
relations with the Vatican.75 Shortly after that, on January 10, 1984,
President Reagan took his cue from Congress and appointed his current
personal representative, William A. Wilson, as ambassador to the Holy See.7"
The Senate confirmed the nomination on March 7, 1984. 77 Congress
approved appropriations for an ambassadorial mission on June 28, 1984,
marking the first time that the United States and the Vatican have
established full diplomatic relations.
This historical review provides a backdrop for examining the United
States perception of the status of the Vatican. That perception must be
viewed through the eyes of the powers that have an influence on United
States foreign policy.
United States Foreign Policy Toward the Vatican
In order to examine the policy of the United States government
toward the Vatican, one must determine who the policymaker is, what the
policymaker has said the policy is to be, and how it is actually carried
out. The government and political system of the United States is
designed so that the power to shape foreign policy rests with more than
one person or group. To varying degrees, policy is determined by the
President and the executive branch, Congress, the courts, and public
With respect to recognition policy, the interplay of these four
policymakers can be described as a chain reaction. The power to recognize
foreign governments rests exclusively with the President who reacts to some
political circumstances in arriving at the decision to recognize a certain
foreign government. The people may react in anticipation that the power
will be exercised by the President. This usually occurs when the
President releases a "trial balloon" to test public reaction before committing
'0 Act of October 20, 1983, Pub. L. No. 98-164, § 134, 97 Stat. 1017, 1029 (1983). Bills were
introduced in each house of Congress. See S. 1342, 98th Cong., 1st Sess. (1983); H. 2915,
98th Cong., 1st Sess. (1983). The Senate bill, introduced by Senator Percy, was postponed;
the House bill was passed in lieu of it. See S. REP. No. 143, 98th Cong., 1st Sess. (1983); H.
RaP. No. 130, 98th Cong., 1st Sess. (1983); H. REP. No. 563, 98th Cong., 1st Sess. (1983)
(conference report). The House bill was signed into law by President Reagan on November
22, 1983. 19 WEEKLY Comp. PRas. Doc. 1614 (1983). Prior to introduction of the bills,
Representative Zablocki introduced a joint resolution on June 30, 1983 (H.R.J. Res. 316, 98th
Cong., 1st Sess. (1983)), and Senator Lugar introduced a companion proposal on August 3,
1983 (S. 1757, 98th Cong., 1st Sess. (1983)), both of which called for establishment of
diplomatic relations with the Vatican. See 129 CONG. REc. E3316 (daily ed. June 30, 1983)
(remarks of Representative Zablocki).
70 See 20 WEEKLY CoMP. PREs. Doc., supra note 70, at 22.
7, 130 CONG. REc. S2413 (daily ed. Mar. 7, 1984). For the related debate, see 130 CONG. REc.
at S2384-90. For the subcommittee report, see Confirmation Hearing, supra note 4.
to the recognition of a government. After the President exercises the
power of recognition, the United States Senate reacts by reviewing the
President's choice of ambassador, and the entire Congress reacts by
deciding what funds, if any, will be appropriated to the establishment of an
ambassadorial mission to the newly recognized government. The Congress
also responds to the reaction of the people. The President's recognition
may withstand the political processes of Congress and the people, but it
still remains vulnerable to judicial review. If the people react to the
recognition by challenging its legality, it may undergo scrutiny by the courts.
This last stage of the chain reaction has yet to be reached in the case of
Below, each policymaker is examined separately in the context of
four critical periods of Vatican history: 1) the existence of the Papal
States (until 1870), 2) the period of the "Roman Question" (
3) the existence of Vatican City before normalization of diplomatic
relations with the United States (1929-1983), and 4) the period since the
normalization of relations (1984 to the present).
1. The President. The President may wish to recognize the Vatican
for a particular reason of foreign policy or international relations, but the
President is also constrained by legal considerations and domestic
politics. Legally, the establishment clause of the first amendmentc8 prohibits
governmental support of a religion; politically, many people are extremely
defensive of the principle of separation of church and state. In a number
of cases, Presidents have made overtures toward the Vatican. This Article
examines the political motivations for those overtures and notes the
statements made to divert or prevent adverse public reaction.
(a) 1797-1870. Despite the fears expressed by John Adams in 1779,
President George Washington established consular relations with the
Papal States in 1797."° The President's purpose in establishing consular
relations was two fold: politically, the relations gave the newly formed
United States more indicia of independence, particularly among
Europeans; commercially, the relations gave the United States greater access to
the seaports of the Papal States.
In 1848, relations were upgraded, upon the proposal of President
Polk, by the appointment of Ministers to the Vatican." Polk was urged
by his advisers to establish diplomatic relations despite significant
antiCatholic sentiments that existed throughout the country.8" Secretary of
State Buchanan stated at the time that diplomatic relations were being
" U.S. CONST. amend. I.
" Stock, supra note 58, at 233-34; see infra note 111 and accompanying text.
" IV A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS: 1789-1897, at
(J.D. Richardson ed. 1897).
"' I VATICAN POLICY IN A REVOLUTIONARY WORLD 460-64 (1963).
established with the Papal States and not with "the Pope as head of the
Catholic Church." His specific instructions to Jacob Martin, the first
Minister to the Papal States, were:
Most, if not all, the Governments which have diplomatic representation at
Rome are connected with the Pope as the head of the Catholic Church. In
this respect the Government of the United States occupies an entirely
different position. It possesses no power whatever over the question of religion.
. . . Your efforts therefore will be devoted exclusively to the cultivation of
the most friendly civil relations with the Papal Government, and to the
extension of the commerce between the two countries.. . . It might be proper,
should you deem it advisable, to make these views known, on some suitable
occasion, to the Papal Government, so that there may be no mistake or
misunderstanding on this subject.82
During the Civil War, relations with the Vatican became more
political and less commercial. The Confederate South sought recognition of its
government, and the government in Washington threatened to break off
relations with the Vatican if it responded positively to those overtures.8 3
Vatican relations were important to both sides, particularly with over
three million Catholics living in the divided nation.8 4 When the extinction
of the Papal States became inevitable, the President was forced to
reconsider existing Vatican relations; without territory, the Vatican would lose
its membership in the family of nations. Secretary of State Seward
instructed his Minister, Rufus King:
Should the sovereignty at Rome undergo a revolutionary change, you will
suspend the exercise of diplomatic functions within the territory in which a
new government shall have been established. Should the present
government remove and take up a residence in any other place, whether in or out
of Italy, you will not be expected to follow it until the case, as it shall then
exist, shall have received the attention of the President, and until his views
thereupon shall have been made known.88
8 Memorandum from Secretary of State Buchanan to Jacob L. Martin (Apr. 5, 1848),
reprinted in 1 J. MOORE, DIGEST OF INTERNATIONAL LAW 130 (1906) (emphasis added)
[hereinafter cited as Buchanan Memorandum].
" L. STOCK, supra note 58, at xxxvi. In 1863, Jefferson Davis, President of the Confederate
States during the Civil War, sought recognition from Pope Pius IX as head of the Papal
States, but he received only an ambiguous reply. See Letter from Pope Pius IX to Jefferson
Davis (Dec. 3, 1863), reprinted in 1 J. MOORE, supra note 82, at 211.
4 See Alvarez, The Papacy in the Diplomacy of the American Civil War, 69 CATH. HIST.
REV. 227, 228 (1983). For other articles on United States-Vatican relations during the Civil
War, see L. STOCK, CATHOLIC PARTICIPATION IN THE DIPLOMACY OF THE SOUTHERN
ACY (1931); Stock, The United States at the Court of Pius IX, 3 CATH. HIST. REV. 103
" Letter from Secretary of State Seward to Rufus King (Aug. 16, 1866), reprintedin 1 J.
MooRE, supra note 82, at 131.
The President made those views known when the annexation of the
Papal States to the Kingdom of Italy was complete. In 1871, President
Grant formally terminated diplomatic relations with the Vatican. ss
Reciprocal consular relations also came to an end, and David Armstrong, the
last consul to the Papal States, became the first consul to the newly
unified Kingdom of Italy. 7
(c) 1870-1929. During this period, when the Vatican enjoyed no
territorial independence, relations with the United States government were
virtually nonexistent. However, United States diplomats could not always
avoid encountering papal diplomats in foreign countries that continued to
recognize the Vatican. The Secretary of State instructed the American
diplomatic corps to extend courtesies to those papal diplomats, but never
to "address the Pope personally.""8 A notable exception to this policy was
made by President Wilson on January 4, 1919, when he made a personal
visit with Pope Benedict XV in Rome." President Wilson was in Europe
to attend the Paris Peace Conference following World War I, from which
the Vatican had been excluded by the demands of Italy. Wilson's visit
was perhaps the first official acknowledgment by the United States
government of the spiritual domain of the Vatican.
Another unavoidable crossing of paths of the United States and the
Vatican occurred in 1902, when William H. Taft was appointed, as
Governor of the Philippine Islands, to negotiate with Pope Leo XIII "for the
purchase of property from the owners thereof, and the settlement of land
titles" in the Philippines." To avoid the question of recognition, Taft was
appointed not by President Theodore Roosevelt, but by his Secretary of
War. The orders stated:
Your errand will not be in any sense or degree diplomatic in its nature, but
it will be purely a business matter of negotiation by you as Governor of the
(d) 1929-1983. Diplomatic and consular relations between the United
States and the Vatican ceased to exist in 1870. Therefore, when certain
United States Presidents after 1939 began to maintain contacts with the
" See supra note 65 and accompanying text.
87 See H. CARDINALE, supra note 6, at 284. The Vatican never withdrew the exequatur of its
consul to New York, Leo Binsse, so the consul remained there until his death in 1895. The
Italian government complained of the situation, but Secretary of State Hamilton Fish did
nothing to change it. Id.
8 Letter from Secretary of State Bayard to Mr. Dwyer (Jan. 31, 1887), reprinted in 1887
FOREIGN RELATIONS OF THE UNITED STATES 642.
88 See Kissling, Presidentat Vatican, Wash. Post, Nov. 13, 1959, at -, col. _; Folliard,
supra note 69, at __, col. _.
" See Baldwin, supra note 69, at 3.
Vatican, the State Department and the President's legal advisors were
hard-pressed to explain how such contacts could exist without implicitly
establishing diplomatic relations between the United States and the
In 1939, during the political turmoil in Europe, President Roosevelt
sent his personal representative, Myron C. Taylor, to the Pope.2 In a
letter to the Pope, President Roosevelt stated that the reason for his
gesture was "in order that [their] parallel endeavors for peace and the
alleviation of suffering may be assisted."' 3 Near the time of the appointment,
Secretary of State Welles stated that "while . . .this Government has not
established formal diplomatic relations with the Government of the
Vatican City State, it nevertheless is a sovereign state . . ."9" It could be
implied that the Executive's position at the time was that personal
representatives were being sent to the Vatican in its temporal, rather than
In 1951, during the Korean conflict and the Cold War between the
United States and the Soviet Union, President Truman stated:
It is well known that the Vatican is vigorously engaged in the struggle
against Communism. Direct diplomatic relations will assist in coordinating
the effort to combat the Communist menace.98
In 1951, Truman nominated an ambassador to Vatican City, not to the
Holy See or the Pope." President Truman's move failed, however, due to
adverse public opinion; consequently, the State Department offered this
assurance: "The United States Government has not established
diplomatic relations with the Government of Vatican City and has not
recognized that Government.' 7 The wording of this statement once again
suggests a distinction between the spiritual and temporal capacities of the
In 1959, President Eisenhower presented a new challenge for his
lawyers when he paid a personal visit to Pope John XXIII." If the President
were to visit the Pope, the head of Vatican City, it could be argued that
under international law, formal recognition had taken place. Since the
" 1 DEP'T ST. BULL. 711 (1939).
93 Letter from President Roosevelt to the Pope (Dec. 23, 1939), reprinted in 1 DEP'T ST.
BULL. 711, 712 (1939).
" Letter from Undersecretary of State Sumner Welles to M. Hazen (May 26, 1939),
reprinted in 2 WHITEMAN, supra note 69, at 538 (emphasis added).
" 25 DEP'T ST. BULL. 894 (1951).
" See supra text accompanying note 72.
" Letter from Assistant Secretary of State McFill to Senator Smith (March 28, 1952),
reprinted in 2 WHITEMAN, supra note 69, at 541 (emphasis added).
" See generally 2 WHITEMAN, supra note 69, at 544 (account of preparations for Eisenhower
purpose of President Eisenhower's visit, however, was not to normalize
diplomatic relations with the Vatican, and because such a purpose was to
be avoided given the recent experience of the Truman administration, the
executive was forced to change its characterization of the Vatican as a
temporal domain to a spiritual domain."
The Legal Advisor to the White House called the visit one between
"the President . . . [and] the Pope in the Pope's capacity as supreme
pontiff of the Roman Catholic Church, as a spiritual leader . . 1 On
its face, this new position would seem to raise more problems than it was.
designed to solve. Does not this position reverse the State Department's
1848 position that the United States government "possesses no power
whatever over the question of religion?" 101 Perhaps the statement should
be disregarded since it was made under political pressure to explain an
anomalous situation and since it is not consistent with either prior or
subsequent statements of the Executive. Nevertheless, it does indicate a
continuing recognition that the Vatican consists of both spiritual and
In 1970, at the peak of the Vietnam conflict, President Nixon
reestablished the practice of sending a personal representative to the Pope,"'c
despite the adverse public reaction that resulted. The President
explained his motivation for the move:
What is important is that the United States have with the Vatican close
consultation on foreign policy matters in which the Vatican has a very great
interest and very great influence.'
Representatives to the Pope have been appointed by. every subsequent
President,10 ' culminating in President Reagan's diplomatic recognition of
the Vatican in 1984.
(d) Since 1984. In 1984, at a time when United States-Soviet
relations were said to be the worst ever, President Reagan appointed an
ambassador to the Holy See, not Vatican City as attempted by President
Truman. 05 In addition to stating that the Vatican met the minimum
requirements of statehood, Deputy Secretary of State Kenneth Dam
pointed out that recognition was particularly motivated by the Vatican's
worldwide sphere of political influence:
This is not a question of establishing relations with the Church or with the
religion. The fact of the matter is that the Vatican is very active all over the
world on many, many different kinds of issues. . . . There are immigration
questions. There are narcotics questions, and questions on education, the
humanitarian distribution of food and medicine.
These are the things that we want to talk to them about-not about
religion, so I think that is the fundamental point. 00
Since, according to Vatican policy, diplomatic relations could not be
established with Vatican City, President Reagan had no choice but to use
the title "Holy See" in announcing the recognition. So, how does the
executive branch officially characterize the Holy See? Is it considered a
temporal personality, consistent with United States former policy toward
the Vatican? Or is it viewed as a spiritual personality as described by the
Legal Advisor in 1959? Or is it both? The State Department's publication
Background Notes reads:
The State of the Vatican City, seat of the Holy See and administrative and
spiritual capital of the Roman Catholic Church, is recognized by many
nations as an independent sovereign state under the temporal jurisdiction of
the Pope. Diplomatic representatives are accredited formally to or from the
Holy See itself. 07
The statement seems to suggest that diplomatic representatives who are
"formally" accredited to the Holy See are, in actuality, representatives to
Vatican City. Consider as well statements made by State Department
officials in congressional hearings and to the public on the subject of
President Reagan's recognition. Immediately after the recognition, on January
10, 1984, executive statements were made and reported as follows:
Both Larry Speakes, the White House spokesman, and John Hughes, the
State Department spokesman, said there was no violation of the separation
104See supra note 70 and accompanying text.
See supra note 72 and accompanying text; H. CARDINALE, supra note 6, at 201.
'" See 1984 House Appropriations Hearing,supra note 43, at 17-18.
0 Background Notes, supra note 20, at 1177.
of church and state because the United States was recognizing the Holy See,
rather than the Roman Catholic Church itself. 08
On February 9, 1984, one month after the recognition, Deputy
Secretary of State Kenneth Dam testified before an appropriations
subcommittee that was considering funding an ambassadorial mission to the Vatican
[T]here is a distinction in diplomatic practice in international law between
the Holy See and the Vatican. The Vatican, itself, has the physical territory.
The Vatican City has many of the same attributes that you would find
in any country....
The Holy See is the government of Vatican City, but it also has activity
which is disproportionately large obviously to the size of Vatican City, in
the sense of a nation or a country ...
I think that the reason that there has been some debate about whether
it [the Holy See] is really a nation under international law is because of its
size . . . that is the major problem that has troubled international legal
scholars when they have approached this as a kind of academic issue ...
When we accredit an Ambassador to the Court of St. James, you could say
that that Ambassador is being accredited to a head of a religious order or
religious group. But the reason we have an Ambassador in England is
because England is an international entity with which other nations maintain
relations, and that is the sole reason why we are planning to have
diplomatic relations with the Vatican."'
2. Congress. Whereas presidents have consistently shown a desire to
establish relations with the Vatican, the Congress, until recently, has
been more reluctant.
(a) 1779-1870. This first and oft-quoted statement was made by John
Adams in 1779 before the Continental Congress:
Congress will probably never send a Minister to His Holiness who can do
them no service, upon condition of receiving a Catholic legate or nuncio; or,
in other words, an ecclesiastical tyrant which, it is to be hoped, the United
States will be too wise ever to admit into their territories."'
Ironically, eighteen years later John Adams inherited Vatican consular
relations established by President Washington.
When President Polk proposed the establishment of diplomatic
rela"'i U.S. and Vatican Restore Full Ties After 117 Years, supra note 2 (emphasis added).
The Washington Post reported that the State Department indicated that the Holy See was
recognized as having an "international personality distinct from the Roman Catholic
Church" because the Vatican is a "sovereign city-state." U.S., Vatican Set Formal Ties,
Wash. Post, Jan. 11, 1984, at 16, col. 1 (emphasis added).
"09 See 1984 House Appropriations Hearing,supra note 43, at 13.
11 Id. at 31 (emphasis added).
i 7 WORKS OF JOHN ADAMS 109-10 (1853).
tions with the Vatican in 1848, the United States Congress bitterly
debated the issue. "' During those debates, Senator Calhoun, who voted for
the appropriation of funds for a mission to the Vatican, stressed the
importance of maintaining diplomatic relations with the temporal and not
the spiritual personality of the Vatican:
I feel assured, that to give precedence here to the Pope's legate, upon
spiritual grounds, which is the case in Europe, would produce a very
undesirable and dangerous excitement. If the Pope should entertain any design of
sending a legate to this government, I trust that the precaution of informing
him with regard to the difficulty on the point will be observed . . ..
Congress (and the President) therefore acknowledged the
international legal capacity of the Vatican, but only as a temporal sovereign.
Moreover, Vatican representatives were afforded the rank of chargk
d'affaires, even though President Polk had. proposed the higher rank of
(b) 1870-1929. The extinction of the Papal States logically implied
discontinuation of diplomatic relations because the United States
relations were with the Papal States and not directly with either the Holy
See or the Pope. Indeed, Congress withdrew its appropriations for a
diplomatic mission three years before extinction of the States was final." 5
During the remainder of this period neither Congress nor the President
raised the issue of restoring Vatican relations.
(c) 1929-1983. In 1938, nine years after Vatican City became an
independent territory, Congress granted de facto recognition of its existence
by passing a law concerning the validation of official records of Vatican
City."' The law remains in force today. In 1951, President Truman
attempted to transform that de facto recognition into de jure recognition
by appointing an ambassador to Vatican City. Consistent with its refusal
to grant full diplomatic status to a legate in 1848, Congress unofficially
opposed the move;"7 the nomination was later withdrawn, before it could
be considered in committee or on the floor. Nevertheless, in 1956,
Congress reaffirmed its de facto recognition of Vatican City by authorizing
"' See CONG. GLOBE, 30th Cong., 1st Sess, app. 403-511 (1848).
Id. at 410 (emphasis added).
.. Id. at 520-21; see supra note 62.
"8 14 Stat. 413 (1867). But see H. CARDINALE, supra note 6, at 200:
The American Mission to Rome was brought to a close in 1867, when Congress
refused to continue the appropriation for it on the ostensible reason of the mission's
political insignificance. It was really moved to take the decision by the erroneous
charge that the American Protestant Church had been ordered to remain outside the
walls of Rome, obviously mistaking it for St. Paul's Basilica outside the walls!
"' Act of June 25, 1938, ch. 682, 52 Stat. 1163 (codified at 22 U.S.C. § 4222 (1982)).
"7 See H. CARDINALE, supra note 6, at 113.
the issuance of a Treasury check drawn to the order of Vatican City to
pay for accidental damage caused to Vatican buildings by American
bombers during World War I."'
(d) Since 1984. When the ban on appropriations for an embassy was
lifted in 1983, there was little opposition in Congress. " ' This support
represented the first time that Congress indicated a willingness to establish
full diplomatic relations with the Vatican and the first time that Congress
had initiated the idea.
After President Reagan nominated William A. Wilson as ambassador
to the Vatican, 2 ' Congress had its first chance to discuss the issue of
establishing diplomatic relations with the Vatican in the Senate
confirmation hearings.' 2 1 There was no debate about the qualifications of Mr.
Wilson, although that was, technically, the only issue open for discussion. All
discussions focused upon the wisdom of establishing diplomatic relations
with the Vatican.1 2 Senator Hatfield stated:
I think when we stand here in the Senate and say that we are sending an
ambassador, a political representative, to a church, and that is what the
Holy See is; it is a church, we are making a grave error. l"
In defense of the recognition, Senator Murkowski explained the
[W]e are not recognizing a particular religion, but instead are
enhancing a diplomatic avenue for the advancement of peace and stability in the
Senator East, on the other hand, emphasized the religious basis for
I think it is clear that, barring the presence of the Vatican in that small
piece of territory in Italy, we would not be recognizing it. So, in effect, what
we are doing is to give political status at the highest level to what is
fundamentally a spiritual entity.""
" Act of July 3, 1956, ch. 514, 70 Stat. 495. For the legislative history, see H.R. REP. No.
2251, S. REP. No. 2292, 84th Cong., 2d Sess. (1956) (Comm. Rep. on H.R. 10766).
"' See Confirmation Hearing, supra note 4, at 4-5 (remarks of Sen. Wilson). On October 5,
1983, opponents of the legislation held a press conference on Capitol Hill. See Congress
Moves Toward EstablishingDiplomatic Ties With Vatican, The Christian Sci. Mon., Nov.
7, 1983, at 9, col. 1.
12020 WEEKLY COMP. PRES. Docs. 22 (1984).
121See 130 CONG. Rac. S2384-90 (daily ed. Mar. 7, 1984). Wilson was nominated on
February 2. See Confirmation Hearing, supra note 4, at 14.
122 See 130 CONG. REc. 2384-90 (daily ed. Mar. 7, 1984).
2, Id. at S2385.
4 Id. at S2387.
12 Id. at S2386.
Despite the apparent wariness of certain Senators, Mr. Wilson's
nomination was approved by a vote of 81 to 13.12"
3. Public Opinion. The objections raised by private groups and
individuals in the United States to the recognition of the Vatican have been
based in almost every case upon religious grounds, so the sponsors of the
opposition are usually non-Catholic church groups or anti-religion groups.
Whether or not the opposition is based upon anti-Catholic bias, jealousy,
or other deep-felt principles, the arguments are always presented in
constitutional terms. Many believe that establishing relations with the
Vatican, regardless of the title used by it, violates the basic principle that
matters of church and state should remain separate.
(a) 1797-1870. Anti-Catholic sentiments were strong during this
period, so it is not surprising that the actions of President Washington to
establish consular relations and of President Polk to establish diplomatic
relations were met with domestic opposition. However, because the Papal
States comprised a territory of significant size and population, little
doubt could be raised about the Vatican's juridical personality as a state.
(b) 1870-1929. During this period, no recognition of the Vatican was
made or attempted by a President of the United States, so the issue was
never raised before the public. When President Wilson, however, visited
Pope Benedict XV in 1919, he was particularly sensitive to the adverse
public opinion it could arouse among Americans. Mrs. Wilson, the
President's wife, wrote:
Being a Protestant, and knowing the temper of many of our people at home
regarding the Pope, the President decided he would call on his old friends
. . in charge of the American Episcopal Church in Rome.'27
(c) 1929-1983. Interest in establishing relations with the Vatican had
burgeoned under Franklin D. Roosevelt's administration; under President
Truman, the fully blooming prospect of diplomatic relations incurred a
severe wave of criticism by virtually all church groups. Their attack was
so strong that the issue never reached the stage of formal debate in either
Congress or the courts and the nomination was withdrawn in defeat.'
President Eisenhower also manifested an interest in establishing relations
with the Vatican by visiting the Pope in 1959, becoming the second
" See id. S2390 (1984). The subcommittee vote was 14 to 1 in favor of Mr. Wilson. See id.
127 E. WILSON, MY MEMOIR 216-17 (1939). For evidence of anti-Catholic bias that appeared
during the presidential campaign of Al Smith, see Calls Romanism Crux of Campaign,N.Y.
Times, Oct. 8, 1928, at 1, col. 6.
" See H. CARDINALE, supra note 6, at 201. The twenty-fourth annual session of the Georgia
Baptist Convention, November 13, 1945, considered "the appointment of Mr. Taylor, even
as a war measure, a direct violation of the Constitution of the United States. See 91
CONG. REc. A5035 (1945).
United States President to do so. There was talk throughout his
administtoratdieonnouonfcperoamnoytirnugmodripsl otomtahtiact reeflfaetcito.n2s9, but church groups were quick
During the 1960 campaign, President Kennedy's catholicism aroused
fears that, as President, he would be a minion of the Pope. Kennedy,
therefore, was forced to deny any interest he might have had in
establishing relations with the Pope.'30 In 1969, when President Nixon indicated
an interest in establishing permanent diplomatic relations with the
Vatican, the opposition of church groups was tremendous. In several
newspapers, a full-page ad signed by forty religious leaders entitled "DON'T DO
IT, MR. PRESIDENT!" appeared.' 3 1
(d) Since 1984. The most recent attempt to establish diplomatic
relations with the Vatican by President Reagan has also met with public
resistance, but much milder and less widespread, by comparison, to the
resistance in 1951. There is some speculation that the opponents of the
recognition are saving their strength for a constitutional battle in the
courts, to settle the issue once and for all. 3 2 Once again the argument is
framed in constitutional terms-not only would the recognition amount
to a promotion of the Catholic religion, but the Catholic religion would
receive an unfair advantage since no other religion qualifies for
diplomatic recognition according to the minimum criterion of territorial
Whether or not the constitutional arguments are sound, they
demonstrate that many Americans see little, if any, distinction between the
Pope, the Church, the Holy See, and the Vatican City. Apparently they
are not persuaded by the abstract arguments of the State Department
designed to avoid the constitutional issue. Since this issue has not
discouraged Congress and the President from their latest attempt at
recognition of the Vatican, the next obvious forum for debate is the courts. The
question of recognition of the Vatican finally will have matured from a
political issue to a legal issue.
4. The courts. To date, the courts have not had the opportunity to
review the acts of Congress and the President with respect to the Vatican.
While judicial review may be viewed as a form of "political
decisionmaking," court dicta about the status of the Vatican probably has been less
1" See supra note 73.
'SOSee 1960 CONG. Q. ALMANAC 809; Anti-Catholic Views Found Widespread in Parts of
South, N.Y. Times, Sept. 4, 1960, at 1, col. 6.
"I See Mini-UproarOver Vatican Envoy, Wash. Post, March 8, 1969, at -, col. _;
Baptists Ask Ban on Envoy to Vatican, Wash. Post, March 7, 1969, at -, col. _. For a
transcript of the 1969 news conference that spurred the public's anger, see 60 DEP'T ST. BULL.
I" See infra note 154.
politically motivated than the statements made by congressmen and
spokesmen of the executive branch."'3
(a) 1870-1929. There is no reference before 1870 in the reported
federal cases to the status of the Vatican. In the case of Ponce v. Roman
Catholic Church in 1907,'1 the Supreme Court made this observation:
The Holy See still occupies a recognized position in international law, of
which the courts must take judicial notice. "
In support of its statement, the Court quoted the legal historian John
Bassett Moore who characterized the Vatican at the time as a recognized
spiritual sovereign, despite its loss of temporal dominion."3 ' The above
statement of the Court is perhaps the sole official statement of the United
States government that was made about the personality of the Vatican at
any time from 1870 to 1929. It indicates a recognition by the judicial
branch that the Vatican possessed at least a spiritual, if not temporal,
(b) 1929-1983. In 1980, the Third Circuit Court of Appeals decided
Gilfihlan v. City of Philadelphia.317 In Gifillan, taxpayers opposed
expenditures made by the City of Philadelphia to construct a special
platform and to provide for other assistance for a mass performed by the
Pope in a public area known as Logan Circle. In making its decision to
prohibit such expenditures, the court distinguished the religious from the
diplomatic functions of the Vatican, finding that in the particular case at
issue, the religious function was being exercised and not the diplomatic
one.3 " The dissent, however, made an even stronger statement about the
secular personality of the Vatican:
Pope John Paul II is no ordinary bishop; he is the head of a secular state,
albeit a theocratic one. The Holy See is an independent papal state, located
in Vatican City ....
Sovereignty in this independent papal state is exercised by the Pope
upon his election as the head of the Catholic Church. 139
In sum, the few statements made by the judiciary on the status of the
Vatican do not, except in the dissenting opinion of Gilfillan, place
emphasis on the requirement of territoriality as a basis for finding
recogniza3 The courts refrain from deciding "political" questions as well. See infra notes 159-161
and accompanying text.
210 U.S. 296 (1908).
" Id. at 318.
Id. at 318-19 (quoting 4 J. MooRE, supra note 37, at 39).
.- 637 F.2d 924 (3d Cir. 1980), cert. denied, 451 U.S. 987 (1981).
l 637 F.2d at 930-31.
, Id. at 935; see also O'Hair v. Andrus, 613 F.2d 931, 937 (D.C. Cir. 1979) (Pope permitted
to offer mass on National Mall in Washington, D.C.).
ble personality. In fact, courts have acknowledged the personality of the
Vatican when it possessed no independent territory, and cited its
diplomatic and not its territorial independence when determining whether it
acted for a secular purpose.
ISSUES RAISED BY UNITED STATES RECOGNITION OF THE VATICAN
Certain issues arise in the minds of American jurists and laity
because both the United States' fundamental principle of separation of
church and state and because the distinction between the secular and
religious affairs of the Vatican remains ambiguous. Those issues generally
are related to foreign and domestic affairs. Let us consider first the
foreign affairs issues.
A. Issues Related to United States Foreign Policy
1. Is the United States recognizing a church or a state? How is the
international juridical personality of the Vatican relevant to the legality
of Vatican recognition under United States law? If the courts are
concerned with whether the President's recognition promotes a secular
purpose, then it could matter whether the Vatican is an independent state.
Moreover, it could matter whether the Vatican's international influence,
from which the United States desires to benefit, is considered secular or
religious. "Diplomatic" influence can be either secular or religious.
Likewise, peace and freedom may be both secular and religious objectives.
Today, the Vatican does not dominate governmental functions of other
nations as it did in the Middle Ages, nor has it managed to acquire any
significant amount of territory or permanent population within that
territory. Yet, it has risen to a prominent and important position in the
international community. The reason for this rise in position could be
attributed to several things: international law, universal and fundamental in its
purpose, is easily identifiable with Catholicism which is based on the
principle of universality; our secularized societies are turning to spiritual
guidance to fill the voids left (or created) by political and economic
ideologies; jealousies among nations naturally invite the company of a
"neutral," yet politically powerful participant; and the serious attempts of the
Vatican to achieve world peace and freedom are a natural complement to
the goals of most, if not all, nations. The importance of the Vatican to
other independent nations is basically political, whereas the importance
of independent nations to the Vatican is basically religious; the Vatican's
main purpose is to spread Christianity throughout the world. In short,
whereas recognition may fulfill a secular foreign policy objective of the
United States and other nations, it also fulfills a spiritual policy objective
of the Vatican. Are the two objectives reconcilable?
Although the United States will probably not go so far as some
nations have by concluding a concordat141 with the Vatican, it will, in effect,
further the religious purposes of the Vatican. Otherwise, the Vatican
would have no interest in establishing diplomatic relations with the
United States. Perhaps it is accurate to characterize the exchange of
embassies as a compromise-meaning, the United States is willing to further
the religious purposes of the Vatican if the Vatican is willing to further
the foreign policy objectives of the United States.
2. What does the United States stand to gain by formally recogniz
ing the Vatican? Presidents since Franklin D. Roosevelt have sent
personal representatives to the Pope; why alter this informal practice,
thereby raising the constitutional question and risking injury and offense
to other religious groups? As Galloway pointed out in his study on United
States recognition policy, only "in the few instances in which the United
States perceives major interests at issue [does it show] a tendency to
revive the use of recognition to pursue policy goals."'
When Congress was considering appropriation for a charg d'affaires
to the Papal States in 1848, Senator Badger asked the question: "[W]hat
on earth can induce us at this time to establish this mission . . .?1142
The benefits of any relations with the Vatican were recognized by
numerous Presidents, all of whom took active steps to establish or
maintain existing relations. In general, the Vatican operates a sophisticated
foreign service through which it plays an active role in international
affairs. In this role it has access to a great deal of information that can be
useful to the United States in policymaking and decisionmaking. In
particular, the Vatican has more experience than the United States in
dealing successfully with the Communist world,143 where many of its followers
live. The United States government also works on a daily basis with the
Vatican on such issues as immigration policy, refugee resettlement, and
food and medicine distribution. The Vatican as a mediator has proven to
be a diplomatic avenue for the advancement of peace and stability in the
140 See supra notes 33-36 and accompanying text. For a general review of United
StatesVatican relations up to 1951, see M. HASTINGS, UNITED STATES-VATICAN RELATIONS: POLICIES
AND PROBLEMS (unpublished manuscript 1952) (copy available through library loan,
University of California at Berkeley, call no. JX 1428/C36H3/**).
141 L.T. GALLOWAY, RECOGNIZING FOREIGN GOVERNMENTS-THE PRACTICE OF THE UNITED
STATES 124-25 (1978). Reagan is accused of playing domestic politics by recognizing the
Vatican. See Reagan's Vatican Move Assessed for Its Political and Constitutional
Implications, Christian Sci. Mon., Jan. 12, 1984, at 1, col. 1. President Truman was accused of the
same thing for his nomination of a Vatican representative. R. GRAHAM & R. HARTNETT,
DIPLOMATIC RELATIONS WITH THE VATICAN 5 (C. Keenan ed. 1952).
'42 CONG. GLOBE, 30th Cong. 1st Sess. 477 (1848) (remarks of Sen. Badger).
'3 "The Vatican, it is said, knows more about what is going on in Eastern Europe and Latin
America, including Cuba, than perhaps even the U.S. State Department." R. Warshop,
Washington and the Vatican, Feb. 20, 1969, Editorial Research Reports.
By formalizing relations with the Vatican, Ambassador Wilson
believes that the Vatican "will have more confidence in us and will exchange
information with us more freely ... "14 because the relationship will be
made more permanent, less susceptible to the vagaries of world politics
and to the ephemeral foreign and domestic policies of Presidential
administrations. Additional advantages include the United States ambassador's
right of access to the Pope as chief of state; the creation of Senate
oversight and access to information on Vatican activities; the promotion of
the United States ambassador to a rank no longer subordinate to those of
106 other nations that formally recognize the Vatican; and a statement to
the world of the United States' commitment to world peace and
freedom. " 6
Perhaps the most obvious current situation of general concern is the
worrisome state of Soviet-American relations. Focal points of that
concern include South America, Africa, the Middle East, and all of Europe.
The possibility of nuclear war is on the lips of the general public, and
Western Europe considers itself to be a possible future target of Soviet
aggression. Because it is well known that the Vatican, a powerful foe
against communism, has always offered a neutral place for any country to
express its views, recognition of the Vatican is an understandable step to
be taken by the United States. " 7
3. How are the protection,privileges, and immunities of American
and Vatican diplomats and their missions affected by recognition?
(a) United States diplomats accredited to the Vatican. Of the 106
other nations that have established diplomatic relations with the Vatican,
only forty-five have actually exchanged embassies, and none of those
forty-five nations maintains an embassy within the boundaries of Vatican
City. Rather, the embassies are located in the city of Rome, Italy. Since
the Vatican will not accept an ambassador who is also accredited to the
See, e.g., H. CARDINALE, supra note 6, at 89 n.26.
'" Confirmation Hearing, supra note 4, at 11.
Id. at 3, 9, 10, 13; Full U.S. Ties with Vatican Expected Soon, N.Y. Times, Dec. 31,
1983, at 3, col. 2 (remarks of Sen. Lugar); R. GRAHAM & R. HARTNETT, supra note 141, at 15;
What the U.S. Does and Doesn't Win by Diplomatic Recognition of the Vatican, Christian
Sci. Mon., Jan. 13, 1984, at 10, col. 3.
1,7See Confirmation Hearing, supra note 4, at 10; Bettwy & Sheehan, supra note 5, at
1820. The Vatican is "this nation's most useful ally abroad in the ideological warfare against
communism. . . ."Cullinan, supra note 4, at 471. "The Pope is Stalin's most dangerous
opponent in the struggle for dominance in Europe.... The Pope Versus Stalin, N.Y.
Daily News, Dec. 4, 1944 (editorial). "It is well known that the Vatican is vigorously engaged
in the struggle against communism. Direct diplomatic relations will assist in coordinating
the effort to combat the Communist menace." 25 DEP'T ST. BULL. 894 (1951). "Catholicism is
synonymous with nationalism in countries that wish to defy Soviet domination." Dunn, The
Vatican's Ostpolitik: Past and Present, 36 J. Irr'L ArF. 247 (1982).
Italian government, pursuant to its right under the Vienna Convention on
Diplomatic Relations,1 4 8 the United States must either offer an
ambassador who already is accredited to a country other than Italy 4 9 or an
independently accredited ambassador who heads a mission in some other
territory arranged for by the Vatican according to its obligation under the
Vienna Convention.'"0 It has offered the latter.
How, then, does the Vatican assure protection, privileges, and
immunity to American diplomats and their mission which are accredited to it,
yet residing in Rome? In Article 12 of the Lateran Treaty between the
Vatican and Italy, Italy agreed:
Envoys of foreign governments to the Holy See will continue to enjoy on
Italian territory all of the prerogatives and immunities which accrue to
diplomatic agents according to international law, even though their States shall
not have diplomatic relations with Italy. It is agreed that Italy pledges for
ever in every case to let pass freely correspondence of all States, including
belligerents, both to the Holy See and vice versa, as well as to permit free
access of bishops of the whole world to the Apostolic See.
[D]iplomats and Holy See couriers sent in the name of the Supreme Pontiff
enjoy in Italian territory, even in time of war, the same treatment due to
diplomats and diplomatic couriers of other foreign governments according
to the regulations of international law.'"
By this agreement, then, Italy becomes a "receiving state" of the
United States mission to the Vatican and would therefore be bound to
provide protection, privileges, and immunities under the Vienna
(b) Vatican diplomats accredited to the United States. Since the
Vatican's embassy will be located within the United States-in
Washington, D.C.-the United States government must directly provide
protection, privileges, and immunities itself, pursuant to the Vienna
Convention. The United States has ratified the Vienna Convention, but it has
148 See Article 5(1) of the Vienna Convention on Diplomatic Relations, done at Vienna, Apr.
18, 1961, 23 U.S.T. 3227, 3232, T.I.A.S. No. 7502, 500 U.N.T.S. 95 [hereinafter Vienna
Convention]. The Vienna Convention states:
The sending State may, after it has given due notification to the receiving States
concerned, accredit a head of mission or assign any member of the diplomatic staff, as
the case may be, to more than one State, unless there is express objection by any of
the receiving States.
Id. (emphasis added). The Convention was entered into for the United States on December
13, 1972. See 22 U.S.C. §§ 252 et seq. (1982).
"9 Vienna Convention, supra note 148, art. 6, at 3233.
153 See Lateran Treaty, supra note 47, art. 12, reprinted in H. CARDMNALE, supra note 6, at
1'See Vienna Convention, supra note 148, art. 22, at 3237-38.
reserved the following power:
The President may, on the basis of reciprocity and under such terms
and conditions as he may determine, specify privileges and immunities for
the mission, the members of the mission, their families, and the diplomatic
couriers which result in more favorable treatment or less favorable
treatment than is provided under the Vienna Convention."s'
Applying the principle of reciprocity, the extent of United States
protection, privileges, and immunities for Vatican diplomats and their
mission will depend, at least in theory, upon the extent to which the
Italian government does the same for United States diplomats to the Vatican
and their mission in Rome.
B. Issues related to Domestic Law and Policy
1. Does the recognitionviolate the principle of separationof church
and state? It appears that non-Catholic church groups have decided not
to rally public opinion against Vatican recognition as they did during the
presidential administrations of Truman, Eisenhower, and Nixon; instead,
the issue will probably be brought before the courts'54 in an effort to
settle the question once and for all. If court action is brought, however, the
issue will not simply be one of the constitutionality of the recognition. A
claimant must prove standing and the court must find the issue to be
justiciable. It is possible, therefore, that the issue would never be reached.
(a) Standing. Who would have standing to sue? The most likely
candidate would be a taxpayer, since the Supreme Court in Frothinghamv.
Mellon'5 5 stated that a taxpayer, although suffering a generalized
grievance, has standing to attack federal spending in violation of the
establishment clause of the United States Constitution. In Flast v. Cohen,'" the
Court stated that the establishment clause "specifically limit[s] the taxing
and spending power conferred by Art. I, § 8... ,,57 meaning that a
"taxpayer will have a clear stake as a taxpayer in assuring [that his or her
constitutional rights] are not breached by Congress."' 55 Since Congress
has appropriated funds for the maintenance of an ambassadorial mission
to the Vatican and for protection of the Vatican's mission in Washington,
the issue is now ripe for litigation by a United States taxpayer.
.63 22 U.S.C. § 254(c) (1982).
,' "The legislative battle isn't over," said a spokesman for AU [Americans United for
Separation of Church and State]. "But even if it is passed and if the President nominates an
ambassador, we would go to court." Congress Moves Toward EstablishingDiplomatic Ties
with Vatican, Christian Sci. Mon., Nov. 7, 1983, at 9, col. 3.
185 262 U.S. 447 (1923).
' 392 U.S. 83 (1968).
II6d. at 105.
(b) Justiciability. Once standing is established, a court would
undoubtedly consider whether the issue presented is justiciable; that is, does
the court have the power to review actions by the President and the
Congress to recognize the Vatican? In Baker v. Carr1,5 9 the Supreme Court
addressed in dicta the particular question of the courts' power to review
the recognition of another country, stating that the courts do have the
power to "examine the resulting status and decide independently whether
a statute applies to that area."' The Court also stated:
[R]ecognition of foreign governments so strongly defies judicial
treatment that without executive recognition a foreign state has been called a
"republic of whose existence we know nothing," and the judiciary ordinarily
follows the executive as to which nation has sovereignty over disputed
A court considering review of the recognition of the Vatican could
distinguish it from non-justiciable types of recognition, since the real
issue is the "status" of the Vatican and not an issue of who has sovereignty
over Vatican City. If a court found that it had the power of review, it
could proceed to the substantive issues, namely: What is the status of the
Vatican?; and given the status of the Vatican, is -the recognition
(c) Constitutionality. The question of the constitutionality of the
recognition has been vigorously analyzed by other authors.1s2 To those
studies should be added the GilfiUan case, s in which the Third Circuit
gave an indication of how the issue would be phrased and decided. The
case rested on the "narrow question of the constitutionality of the
expenditure by the City of Philadelphia of more than $200,000 to construct a
special platform and to provide other extraordinary assistance for the
papal ceremonies at Logan Circle .. ,",' The Court held that "challenged
City expenditures [did] violate the establishment clause of the first
amendment. ... "" In so holding, the court examined whether the
Pope's visit involved "any diplomatic role" and whether it involved any
"religious purpose." The court found that "the type of aid provided by
10 369 U.S. 186 (1962).
', Id. at 212.
101 Id.; see also Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) ("[i]t has been
specifically decided that 'who is sovereign, de jure or de facto, of a territory is not a judicial,
but a political question, the determination of which by the legislative and executive
departments of any government conclusively binds the judges,. of that government' ") (quoting
Jones v. United States, 137 U.S. 202, 212 (1890)).
l See supra note 4 (articles considering constitutionality).
o Gilfillan v. City of Philadelphia, 637 F.2d 924 (3d Cir. 1980), cert. denied, 451 U.S. 487
' Id. at 927.
1 Id. at 934.
the City was plainly of a type intended to advance religion, not
diplomacy."1'66 The court implied, therefore, that expenditures for the
diplomatic activity of the Pope are constitutional and that the intention of the
government in making the expenditure, not the intention of the Pope,
determines whether the activity is religious or diplomatic.
If other courts follow this same line of reasoning to determine
whether United States recognition of the Vatican is constitutional, the
intent of the President and Congress would be determinative. Since both
branches have left little doubt in their statements that the purpose of the
recognition is diplomatic and not religious, as long as that purpose is
consistently pursued, the courts should find no violation of the establishment
2. Will the tax status of the Vatican's mission in Washington, D.C.
be affected by the recognition? Before formal recognition, the Vatican
occupied premises in Washington, D.C. The United States recognized the
mission to be charged with ecclesiastical duties only. Therefore, the
mission and its Vatican employees were entitled to the tax exempt status
provided by the Internal Revenue Code. Section 501(a) of the Code
provides an exemption from taxation of "religious and apostolic
organizations. .... ,1'7 The question arises whether the Vatican will continue to
enjoy the same tax status in its new ambassadorial mission.
In terms of its status, the question becomes whether recognition has
transformed the status of the Vatican's mission in Washington, D.C. from
one of a "religious" or "apostolic" organization to one of a "diplomatic"
mission. Article 23 of the Vienna Convention Diplomatic Relations reads:
The sending State and the head of the mission shall be exempt from all
national, regional or municipal dues and taxes in respect of the premises of
the mission, whether owned or leased, other than such as represent payment
for specific services rendered.'68
Article 34 reads: "A diplomatic agent shall be exempt from all dues
and taxes, personal or real, national, regional or municipal," with certain
exceptions such as sales, service, estate, and commercial income taxes.' 6 '
Apparently the tax effect will remain virtually the same, whichever
status applies. Since a court deciding whether United States-Vatican
recognition is constitutional will look to the question of whether the
executive and legislative branches further a diplomatic or a religious purpose,
the Internal Revenue Service would be well advised to classify the tax
exempt status of the Vatican's Washington mission as one of a diplomatic
'" Id. at 930 n.4.
167 I.R.C. § 501(d) (1982); see also Treas. Reg. § 1.501(d)-l(a).
' See Vienna Convention, supra note 148, art. 23(1), at 3238.
'*' Id., art. 34, at 3242-43.
mission pursuant to the Vienna Convention.
3. How are United States laws related to Vatican City affected?
There are several federal statutes and regulations that refer either to the
Vatican, Vatican City, or the Holy See.1 70 In all cases except one, the
legislation creates ambiguities in name only. One piece of the legislation,
however, does create a significant ambiguity in the status of the Vatican.
On June 25, 1938, Congress passed a law, stating:
[U]ntil the United States shall have consular officer resident in the State
of the Vatican City, a copy of any document of record or on file in a public
office of said State of the Vatican City, certified by the lawful custodian of
such document, may be authenticated, as provided in section 1741 of title
28, by a consular officer of the United States resident in the city of Rome,
Kingdom of Italy, and such document or record shall, when so certified and
authenticated, be admissible in evidence in any court of the United
Such a law is necessary for document validation only if the related
country does not have diplomatic relations with the United States.
Hence, failure to repeal this statute may imply that the United States
does have diplomatic relations with the Holy See but not with Vatican
One could argue that this statute automatically ceases to be effective
when the "United States shall have a consular officer resident in the
State of the Vatican City," but the United States embassy will be located
outside the boundaries of Vatican City, in Rome. It can also be said that
the consular officer accredited to the Vatican will be "a consular officer of
the United States resident in the city of Rome, Kingdom of Italy," so that
all the statute does now is empower that consular officer to do what he or
she can do anyway. However, an ambiguous situation could arise,
theoretically, since the statute also empowers the consular officer accredited to
Italy to authenticate Vatican documents. The harm in this could be
two370 The following are regulations in which the term "Vatican City" appears: 49 Fed. Reg.
8693 (1984); 48 Fed. Reg. 22,251 (1983); 48 Fed. Reg. 10,056 (1983) (to be codified at 22
C.F.R. pt. 201); 47 Fed. Reg. 52,261 (1982); 46 Fed. Reg. 48,660 (1981) (to be codified at 36
C.F.R. pts. 701-03); 45 Fed. Reg. 80,215 (1980); 45 Fed. Reg. 54,031 (1980) (to be codified at
15 C.F.R. 373); 15 C.F.R. § 373 Supp. No. 3 (1983); 15 C.F.R. § 373 Supp. No. 2 (1983); 22
C.F.R. § 92.39 (1983); 22 C.F.R. § 201.11 (1983); 31 C.F.R. § 500.322 (1983); 31 C.F.R. §
515.322 (1983); 36 C.F.R. § 701.15 (1983).
The following regulations use the term "Holy See": 47 Fed. Reg. 31,384 (1984) (to be
codified at 50 C.F.R. pt. 17); 8 C.F.R. § 242.2 (1983); 19 C.F.R. § 133.31 (1983); 50 C.F.R. §
1-96 app. A to ch. 1 (1982).
The term "the Vatican" appears in 47 Fed. Reg. 13,071 (1982).
The following are statutes in which "Vatican City" appears: 17 U.S.C. § 9 (1976); 18
U.S.C. § 3491 (1982); 22 U.S.C. § 4222 (1982); 28 U.S.C. § 1741 (1982).
-1- 22 U.S.C. § 4222 (1982) (emphasis added).
fold: 1) it allows infringement upon the sovereignty and independence of
Vatican governmental acts, and 2) it could unintentionally suggest that
the procedure for authenticating "Vatican City" documents is different
from the procedure for authenticating "Holy See" documents, since
official documents of the Holy See can be authorized only by a consular
officer accredited to the Holy See, whereas official documents of Vatican
City according to the statute, can be accredited by a consular officer
accredited to Italy or by a consular officer accredited to the Holy See. In
order to maintain a consistent statement of its policy, it would seem that
the State Department would be well advised to seek repeal of 22 U.S.C. §
United States-Vatican relations began soon after the establishment
of the United States. At that time, the influence of the Vatican was well
known to Americans particularly because of their European heritage;
European history from 42 A.D. had been inextricably related to, if not
dominated by, Vatican history. The United States was founded, however, upon
the prevailing thinking-liberalism that itself evolved from rationalism.
Such thinking demanded assurance that the principle of separation of
church and state be preserved, as it was, in the very constituent
instrument of the new nation. Despite the principle and the Constitution that
preserved it, United States presidents consistently have expressed an
interest in maintaining relations with the Vatican, recognizing that the
importance of the Vatican's political influence outweighs or otherwise goes
beyond the Vatican's religious personality.
In the realm of international law and politics, the juridical
personality of the Vatican may be sui generis, but it has become well established;
United States recognition of the Vatican therefore is undoubtedly
international customary practice. In the realm of United States law and
politics, it would appear that the question of Vatican recognition has finally
graduated from being a political one to being a legal one. Soon a United
States court will probably be asked to decide whether United States
recognition of the Vatican violates the principle safeguarded by the
establishment clause of the first amendment. However the courts react, it will
necessarily be either an implied or express statement of whether
recognition of the Vatican is subject to judicial review; whether there are first
amendment constraints on United States foreign policy and diplomatic
practice; and, most broadly, the relevance of international religious,
political influence to the United States and its foreign policy goals.
R~glement on the Precedence of Diplomatic Agents , signed at Vienna, March 19, 1815 , art.
I , 64 C.T.S. 2 [hereinafter cited as Protocol of Vienna]. Article I states: Les Employ~s Diplomatiques sont partag~s en trois Classes. Celle des Ambassad~urs, Legats ou Nonces. Celle des Envoy~s, Ministres, ou autres Accr~dites aupr~s des Souverains . Celle des Charg6s d'Affaires accr6ditks aupr~s des Ministres charges des Affaires Etrangrs .
Id. (emphasis added). The United States Department of State adopted the seven rules of the Congress of Vienna . See 4 J. MOORE , A DIGEST OF INTERNATIONAL LAW 430-31 ( 1906 ).
8 See M. FALco, THE LEGAL POSITION OF THE HOLY SEE BEFORE AND AFTER THE LATERN AGREEMENTS (A. Campbell trans . 1935 ). While some publicists have argued that a church cannot be a subject of international laws, other academics have expressed a contrary perception of the Church's juristic character: The Church, like the States, possesses an international juridic personality and she does so of necessity because the same reasons which have attributed this quality to the States are found with as much, and sometimes more, certainly and clarity in the Catholic Church .
H. CARDINALE , supra note 6, at 82 (footnote omitted).
39 Cumbo, supra note 6, at 605; see also L. OPPENHEIM, I INTERNATIONAL LAW 228 (4th ed.
McNair 1928 ) (Holy See prohibited from concluding international treaties or voting at international congresses or conferences).
" Background Notes, supra note 20 , at 1177. According to the Vatican yearbooks, Annuario Pontificio,the following numbers of nations maintained diplomatic relations with the Vatican from 1870 to the present: 1870 :65 1880 : 8 1890 :11 1900 :12 1920 :17 1930 :36 1950 :43 1970 :65 1984 : 107