Vol. 2, No. 2 Fall 2012
Journal of Christian Legal Thought James W. Skillen, Public Political Philosopher 3 _______________________________________________ Digging Deep: Jim Skillenâ€™s Christian Legal Society Contribution to a Christian View of Public Justice 4 _______________________________________________ The Collected CLS Essays of James W. Skillen 6 _______________________________________________ Abstracts 18 _______________________________________________ Speaking of Religious Freedom: Midway 21 _______________________________________________
Journal of Christian Legal Thought Fall 2012
Journal of Christian Legal Thought Vol. 2, No. 2 • Fall 2012 Published by The Institute for Christian Legal Studies, a Cooperative Ministry of The Christian Legal Society and Regent University School of Law The Mission of ICLS is: To train and encourage Christian law students, law professors, pre-law advisors, and practicing lawyers to seek and study Biblical truth, including the natural law tradition, as it relates to law and legal institutions, and to encourage them in their spiritual formation and growth, their compassionate outreach to the poor and needy, and the integration of Christian faith and practice with their study, teaching, and practice of law. Editorial Advisory Board: William S. Brewbaker, III Associate Dean and William Alfred Rose Professor of Law University of Alabama School of Law Zachary R. Calo Associate Professor of Law Valparaiso University School of Law Kevin P. Lee Professor, Campbell University School of Law C. Scott Pryor Professor, Regent University School of Law Michael A. Scaperlanda Gene and Elaine Edwards Chair of Family Law, University of Oklahoma College of Law Robert K. Vischer Professor, University of St. Thomas School of Law Editor in Chief: Michael P. Schutt Associate Professor, Regent University School of Law Director, Institute for Christian Legal Studies Editorial Assistant: Greta Pilgrim
Statement of Purpose The mission of the Journal of Christian Legal Thought is to equip and encourage legal professionals to seek and study biblical truth as it relates to law, the practice of law, and legal institutions. Theological reflection on the law, a lawyer’s work, and legal institutions is central to a lawyer’s calling; therefore, all Christian lawyers and law students have an obligation to consider the nature and purpose of human law, its sources and development, and its relationship to the revealed will of God, as well as the practical implications of the Christian faith for their daily work. The Journal exists to help practicing lawyers, law students, judges, and legal scholars engage in this theological and practical reflection, both as a professional community and as individuals. The Journal seeks, first, to provide practitioners and students a vehicle through which to engage Christian legal scholarship that will enhance this reflection as it relates to their daily work, and, second, to provide legal scholars a peer-reviewed medium through which to explore the law in light of Scripture, under the broad influence of the doctrines and creeds of the Christian faith, and on the shoulders of the communion of saints across the ages. Given the depth and sophistication of so much of the best Christian legal scholarship today, the Journal recognizes that sometimes these two purposes will be at odds. While the Journal of Christian Legal Thought will maintain a relatively consistent point of contact with the concerns of practitioners, it will also seek to engage intra-scholarly debates, welcome interdisciplinary scholarship, and encourage innovative scholarly theological debate. The Journal seeks to be a forum where complex issues may be discussed and debated. Editorial Policy The Journal seeks original scholarly articles addressing the integration of the Christian faith and legal study or practice, broadly understood, including the influence of Christianity on law, the relationship between law and Christianity, and the role of faith in the lawyer’s work. Articles should reflect a Christian perspective and consider Scripture an authoritative source of revealed truth. Protestant, Roman Catholic, and Orthodox perspectives are welcome as within the broad stream of Christianity. However, articles and essays do not necessarily reflect the views of the Institute for Christian Legal Studies, the Christian Legal Society, Regent University School of Law, or other sponsoring institutions or individuals. To submit articles or suggestions for the Journal, send a query or suggestion to Mike Schutt at michsch@ regent.edu.
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James W. Skillen, Public Political Philosopher By Michael P. Schutt Editor
ore than 25 years ago, writing in the Christian Legal Society Quarterly, Dr. Jim Skillen issued a challenge to the Christian citizen: “We need a public philosophy—a Christian view of government and politics that takes the public realm seriously on its own terms in God’s creation.” The crux of his defense of this assertion, packed into two short paragraphs, is a brief, beautiful roadmap for faithful thinking about government: Christians, at least, have the opportunity to approach government not as a necessary evil but as a blessing from God. We can take political life seriously on its own terms, not simply as a means to other ends. Instead of vacillating between an idolatrous worship of America on the one hand and a deprecating disregard of politics on the other hand, we can express a steady attitude of thankful regard for our country --- and attitude that carries with it a recognition of our responsibility to work continuously for the reform of its laws according to the demands of justice, so that the public trust can be served to the glory of God. But to do this, we need a genuine public philosophy --- a Christian view of government and politics that takes the public realm seriously on its own terms in God’s creation. The foundation of this conviction is not individual freedom but God’s lordship over his world. On that foundation we can then recognize that God created us to be public as well as private creatures. The public world is not foreign or secondary to our nature but part and parcel of the image of God.
. . . a “genuine public philosophy.” I am grateful that Dr. Skillen has spent a fruitful career laying out the boundary markers that will continue to guide us in that work. This edition of the Journal is dedicated to creating a renewed interest in Dr. Skillen’s early writings. For much of the 1980s and early 90s, he wrote regularly for the Quarterly, most often in his column “In the World.” These columns and feature essays are packed with timeless principles—despite being tied closely to the times. Although many, if not most, of those columns speak to topics of hot interest in the 1980s and early 1990s, they are laced with wisdom and application for our very different—yet very similar— times. References to Corazon Aquino, Glasnost, or John Naisbitt’s 1982 bestseller Megatrends, all fade into the background as Skillen brings to bear theological wisdom that reaches far beyond these historical moments. One of my favorites is Skillen’s brief commentary on the East German Communist government recognizing the 500th anniversary of Martin Luther’s birth in 1983. Chuckling at the irony, Skillen takes fewer than 800 words to sketch a brief view of the importance of history, compare the historical value of Luther and another influential German, Karl Marx, and conclude that Luther, in sharp contrast to Marx, “shines like the sun five hundred years after his birth.”
This challenge cries out for renewal today. A purely instrumental view of law and politics dominates the academy and the halls of the power. Despair and cynicism as to the role of the state run rampant through the current generation of students. And never has the danger of “Americanizing” our public theology been so apparent. What we need is
Luther and his followers were wrong in all kinds of social, political, and ecclesiastical decisions. Genuine biblical reformation in politics did not get very far in Luther’s day and still has not gotten very far in our day. But Luther’s appeal to the liberating gospel of Christ points us to that power that can produce a genuine reformation of life, even in criticism of Lutheranism (and Calvinism, and Anabaptism, and Catholicism). The gospel of Christ transcends Luther; it calls to account the history of human responses to God and offers reformation through divine renewal. continued on page 8
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Digging Deep: Jim Skillen’s Christian Legal Society Contribution to a Christian View of Public Justice By Bruce Wearne
his edition of the Journal of Christian Legal Thought brings together 31 articles that were published in the Christian Legal Society Quarterly between 1983 and 1994 in a column titled “In the World.” At the time, Skillen was the director of the Center for Public Justice. These articles came to my notice a few years ago when I was editing an online bibliography of Skillen’s work. Upon reading them, I came to the view that, as a collection, they still have a vital contribution to make to those engaged in law, government, and politics, but not only those who are older. Younger Christian citizens who are considering how they are to serve the Lord and their neighbors in their adult work may also find great benefit, if not inspiration, from this collection. At that same time I became aware of Skillen’s paper, “Christian Faith and Political Freedom: Can Christians Make a Constructive Contribution to Contemporary Politics?” delivered at the Christian Legal Society’s 1981 Conference, “Freedom and Faith: the Impact of Law on Religious Expression and Freedom in the 1980s.” From my reading of this paper and these articles I came to the view that they remain a pertinent stimulus for our self-critical reflection about our Christian political responsibility today. Together the conference paper and journal articles disclose a broad and coherent Christian perspective on civic and legal responsibility, which Skillen had been developing since his graduate-school days at Duke University in the early 1970s. The 1981 conference presentation is an important piece because it offers a deft explanation of why American evangelical Christians find it so difficult to come to a shared understanding of their public responsibilities. The point was not only to outline differences among mainline evangelicals (such as Carl F. H. Henry), Anabaptists (such as John Howard Yoder, Jim Wallis and Ronald Sider), and Moral Majority conservatives (such as Tim LaHaye and Jerry Falwell), but also to show how those differences arise from contending streams of thought in the mind of Augustine (354430), the most influential church father. Skillen suggests that Western evangelical Christians, generally speaking, continue to hold the Augustinian view that government was established because of sin, that God did not create humans
for life in political communities. For over 40 years, Skillen’s writings have sought to challenge that view on biblical grounds. He continues to argue that the “power of the sword” to restrain and punish public injustice may have been added to government’s responsibilities because of sin, but the underlying meaning of political life is grounded in God’s creation and not in human rebellion. These 31 short pieces from the CLS Quarterly present us with his persistent attempt to show the positive meaning of government and citizenship, albeit as one dimension of what it means to be created in the image of God. Skillen’s overall thesis, that Christian engagement in politics and government is about loving our neighbors with public justice, has lost none of its relevance since these articles first appeared. Skillen goes on to say that the modern and more secular idea of government’s “unnatural” origin has had a huge influence on Americans, including American Christians. In fact it derives from English philosopher, John Locke (1632-1704). Locke’s view was that individuals are naturally free and independent. They decide by contractual agreement to create a government in order to protect their lives, liberties, and properties from those who endanger them. And so, from the combined influence of Augustine and Locke, many Americans persist in thinking of politics and government as a necessary evil. By contrast, Skillen will later observe, Americans tend to characterize themselves by their love for their nation, and many even believe it is God’s chosen nation, a new Israel. And in this way a suspicion and a low regard of government goes hand in hand with love of the nation that stands as a symbol of individual and national freedom. But, Skillen insists, the combination of these ideas is not Christian. In biblical terms, humans do not create government by contract out of their own sovereignty; in fact, the Bible holds up a high view of government’s God-ordained responsibility.1 Some Christians in the United States and other parts of the world instinctively believe that the way to fix political problems is to put more “good guys” (i.e. either more conservatives or more liberals, depending 1 This idea is also developed in Skillen’s 1985 essay “Needed: A Public Philosophy,” reprinted in full below. – Ed.
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upon what side you are on) into public office. But what is so Christian about that? And further, what are the “good guys” expected to do to establish greater justice for all once they have attained public office? This then comes down to the question: what, after all, is the task of government? These are questions that call for substantial answers, not slogans about more or less government, greater freedom, and keeping America great. Christians generally, as well as those engaged professionally as lawyers, elected representatives, and public servants, need to find ways to work together, digging deep to gain the political wisdom and insight necessary for promoting sound government and vibrant, healthy citizenship. That is one reason why organizations like the Christian Legal Society are so important. They should not be viewed by Christian citizens as merely some “optional club” for those so interested. In these articles, Skillen addressed problems and situations that were current in the 1980s and 1990s, but many of the same issues are still with us, and some in an even more complex and intractable form. As op-ed pieces these are illustrations of Skillen’s understanding of how political responsibility should be approached from within the complex differentiated reality of our lives. These pieces, on their own, don’t provide easy answers, but seek to provide a perspective from which complex, seeming irresolvable problems, can be better understood. We hope that the re-publication of these articles will be of assistance to all who read them, and especially to teachers and students of political studies, civics and history. Of course, because these articles are from the 1980s and 1990s, they will require readers to investigate (or perhaps refresh their knowledge of) historical situations that may have slipped from memory. An online discussion guide will make some suggestions for further research that may assist readers in deepening their knowledge of the Christian political principles and historical understanding to which Skillen has appealed. This collection of his short pieces can serve another timely purpose as well, for it exhibits the craft of political journalism. More Christian young people need to be encouraged to take up this calling, something that should be encouraged in our homes, churches, and by vital Christian organizations such as CLS. Consider the following (exemplary articles in parentheses): 1. Politics is about political habits, and insightful journalistic commentary on political habits from a Christian point of view can expose the assumptions citizens make about political success (You Win Some . . . You Lose Some), about their citizenship (Law, Politics, and Society: A Challenge for Christians), about the need for Christian political organizations (Untitled, 1985),
about the place of the church in public life (Christian Service is Not a Parachurch Activity), and also about the deeply embedded American habit of pragmatic activism (Don’t Just Do Something; Sit There!). As a precondition for seeking public office through election, candidates need to grow wise about the demands of public justice (Christians: Part of the Problem or Part of the Solution? and Will Politics Turn to God?). There will be questions about where one goes to sharpen one’s understanding of justice (The Mandate for Justice) and how to show respect for public offices (Step into My Office). We also need to understand why political administration that requires large bureaucracies is so often referred to in derogatory terms, when in fact the Bible says that administration is one of the gifts of God’s Spirit (The Gift of Administration). How aware are we of our country’s history (A Bicentennial to Open Our Eyes to the World, among others) and of the long-term undercurrents of contemporary affairs? (Lame Ducks, Paper Tigers and Real Power, and most of the other essays). Have we examined our assumptions about world affairs and the role Christians are playing in other countries around the world? (Can Nations Be Reconciled? Who Wields International Justice? and The Expansion of Our Shrinking Globe). And how does our vision of the future, and our hopes for the future, display itself in our practice of citizenship? (Another View of History). 2. High-quality political journalism can deepen our insight into reality. Civic responsibility is about the shaping of public life (Glasnost and Renewed Minds), alleviating poverty (The Poor are Still with Us), rescuing those in danger (Acts of God or Acts of Man?), working for reconciliation where, seemingly, there is endemic conflict (among others, Another View of History). There are people in great distress, both at home and abroad. Politics may mean joining a movement to call responsible parties to action, but how can we know who bears what kind of responsibility? Thoughtful, probing journalistic commentary is needed here (What is a Monument to Justice, for example). Who is responsible for what? That is the question that every commentator on public affairs needs to ask, and ask it continually. What is the proper task of government? How should it work with nongovernment institutions, such as schools and welfare agencies? (Toward Political Maturity). What should political parties do, and is it legitimate to organize Christian lobby groups? (We’re Facing a Political Crisis, and at least six others). 3. Addressing these questions requires honest and ardent conversation and argument. That is another point where political journalism comes in. Christian citizens should not try to avoid political disputes or refuse to talk about the highly contentious issues. continued on page 8
Journal of Christian Legal Thought
The COLLECTED CLS Essays OF JAMES W. SKILLEN The essays that follow were published in the Christian Legal Society Quarterly between 1983 and 1994. Every essay written by Dr. Skillen for the Quarterly is included below, either reprinted in full, abstracted, or listed. Each article is reprinted in full at the CLS website.
You Win Some . . . You Lose Some (1983)
ome of the current political battles of great concern to Christians lead me to think of an analogy from the world of sports. Any team knows that it is likely to lose some games during a season, but it strives for a winning season. In the end it is the whole season that matters, not just the individual games. In recent weeks the Supreme Court and Congress have again strengthened the awful cause of abortion on demand. At the same time, progress continues to be made, especially in the courts, with regard to freedom of education. The Supreme Court’s 5-4 decision upholding Minnesota’s right to give a tax deduction to those who pay tuition for their children’s education1 is perhaps the most notable constructive example. Other instances of progress and regress on issues of equally great importance could also be cited. But what does this have to do with winning and losing some games? Here is my concern: I have the impression that among many of us Christians there is too little concern with the character of the ‘’whole season” and too much elation or despair over winning or losing “one game.” Take abortion, for example. Millions of unborn children have been aborted in the last ten years because of bad laws and bad judicial decisions that do not adequately protect children, pregnant women, and the very character of marriage and the family. Many Christians have been looking for the “big win” that will once and for all end this horrible slaughter.
________ James W. Skillen, now retired, directed the Center for Public Justice for 30 years. He is the author or editor of 15 books and frequent contributor of essays and commentary to a diverse range of magazines and journals. He earned his Ph.D. at Duke University in political science and international relations, his B.D. at Westminster Theological Seminary, and his B.A. at Wheaton College. His books include With or Against the World? America’s Role Among the Nations, and A Covenant to Keep: Meditations on the Biblical Theme of Justice.
Various constitutional amendments and congressional laws have been proposed, only to be defeated or ignored. Despair and discouragement are setting in for many. Some are even beginning to discuss civil disobedience and acts of obstruction to oppose such an awful evil. Those who still have some strength and hope left are looking for yet another way to win the big and final game that will stop abortion. In a valuable commentary in mid-June, 1983, George F. Will wrote something that puts this abortion problem in a different light. To be sure, he called the Supreme Court’s rulings in support of abortion on demand a ‘’travesty.” But he also listed a wide variety of other legal decisions that are being made in recognition of fetal rights. His point, obviously, was to show the contradiction in granting the unborn all kinds of health and inheritance rights while refusing to give them the right to life. Yet the effect of his argument is to do more than this. It helps to shed light on the long path that we will have to travel to bring that contradiction up for judgment and to establish a whole complex network of laws that will deal with the full meaning of life for children, both pre-birth and post-birth. So the challenge is this: Are we Christians ready to do enough homework, pursue enough research, get organized sufficiently, cooperate across denominations, occupations, and regions of the country, in order to “play ball tor the whole season?” In other words, can we see ourselves as citizens with broad responsibilities to our neighbors that endure across decades and throughout complicated, interlocking segments of the larger political, legal, and economic order? Are we willing to develop a plan for the “season” that will allow us to work for public justice for family life, educational life, foreign policy, economic policy, and all the rest? Or will we remain preoccupied with winning or losing single games on single issues? There is no reason for us to despair where justice is losing, nor is there room for great elation with small steps of progress. Much work and many opportunities are still open to us in the courts, in Congress and state legislatures, in the media, and in educational opportunity. continued on next page
1 Mueller v. Allen, 463 U.S. 388 (1983) – Ed.
Journal of Christian Legal Thought
Think of the Polish laborers who don’t even have the right to organize any longer. Think of the peasants in places like Guatemala and Afghanistan who can barely stay alive, and even then without being able to count on the protection of their rights by a healthy government. Our problem, I think, is that most of us in America are (as they say in sports) “coming off of a winning season.” In other words, we have had things pretty good for the past few decades or generations. If life gets discouraging, or if we can’t win games as easily as we would like or regularly as in the past, we begin to think of history as falling from some golden past to the present evil day. That is a luxury that should embarrass us. Who promised us a rose garden? What team was ever promised a winning season simply because it enjoyed one last year? Politics and the law are not games to be won but lifetime responsibilities to be carried out in patience, endurance, and obedience to the Lord Jesus Christ who called us to serve him and all our neighbors. Yes, we should fight abortion-on-demand, and yes, we should work to protect religious and educational freedom. But a single big game that settles it all will never be played. Day after day, week after week, we will have to be at work trying to put together a winning season by doing justice in all dimensions of public life and by working out a strategy to overcome complicated problems that will not be resolved with one big blow. To endure in that kind of world we need the grace and strength of the One who gives life and purpose, who sheds light on our path. In our own strength we will simply get tired and quit after a 13-game losing streak. And that would be foolish if the season is 150 games long and we can win 137 of them for our neighbor’s good and for God’s glory.
Needed: A Public Philosophy (1985)
ould you choose a law partner simply because of good looks? Would you marry someone simply because of an ability to cook? Of course not. Why not? Because there is much more to the practice of law or marriage than one function, even a function as important as making a good appearance or preparing good food. A decision of this magnitude requires wise judgments about the whole meaning of a law practice or marriage. Why, then, do we vote for political candidates because of their stand on a single issue or because of their appearance? Do we think that politics and government are not very important? Can politics be reduced to a single, simple function or issue? What
is the larger meaning of politics and government or is there none? Part of the predicament here can be explained, I believe, by exposing our ambivalence toward politics. Let me illustrate the approach/avoidance conflict we have with government by describing two different recordings that are firmly fixed in my memory. One plays on the Fourth of July and election day. The voices are those of my parents and friends: “This is the greatest country in the world. We should show our patriotism by voting, by celebrating our independence, and by praying for our leaders. One of the most wonderful privileges we have is to live in a free country.” The second recording contains the same voices. It plays on the occasion of the Watergate scandal or when the subject of government bureaucracy comes up or when a young person is trying to decide on a career: “Politics is politics; what more can you expect? It’s the devil’s business. Those who go into politics must be power hungry or nuts. The last thing you want to waste your life on, son, is politics. If you want to serve the Lord, choose an occupation in which you can really serve people and stay away from temptation.” Not until a few years ago did I bring these two recordings together and listen to them at the same time. Only then did I realize how contradictory they are. During my youth these “speeches” were always given at different times, so no one ever commented on their seeming incompatibility. The great country, which we applaud on the Fourth of July because it exists to make us free and to serve our interests, becomes the pit of evil power brokers when we look at its corrupt officials, its dirty election campaigns, or its inefficient bureaucracies. Our approach/avoidance conflict with government is rooted in a fundamental American political ideology that asserts the autonomous freedom of individuals on the one hand and the necessity of some kind of government on the other hand. We want government and don’t want it at the same time. This ambivalence traps government as well as the people in contradictions that are unavoidable, and it may eventually lead to government failure and societal collapse. What shall we do? Is there another route to take? Christians in America have another approach open to them if they choose. On biblical grounds we can recognize that government is given by God for our good. It is not simply a necessary evil that arises from our desire to protect individual freedom. It is part of our life with God by which we are supposed to serve him and our neighbors. Government is one of God’s ministers to us. We are more than family creatures, laboring creatures, and worshipping creatures. We continued on page 9
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James W. Skillen, Public Political Philosopher (continued from page 1)
It has been a pleasure to read or re-read these essays that draw great and timeless truths from the events of the times, and I am convinced that readers new to Dr. Skillen will benefit from his wisdom and insight in their work developing “a genuine public philosophy” today. In the pages that follow, thirty-two such essays are listed, abstracted, or published in full. Eleven essays are reprinted here in full, another nine are abstracted, and the remaining 12 are listed with links to the full pieces. (Every article is available in full on the Christian Legal Society website—the links are indexed on the website and hyperlinked from the electronic version of this document). In addition, for those interested in further study, we have prepared online study guides for many of these pieces, suitable for use in classroom settings, for personal study, or with prelaw or law fellowship meetings. It is our sincere hope that Dr. Skillen’s writings continue to have wide readership and influence among young scholars and practitioners. I want to close by thanking Dr. Bruce Wearne, who was instrumental in making this project come to pass. The idea was his, and he played an important role in its execution as well. Not long ago, in his work examining the writings of important Christian scholars, Dr. Wearne came upon Dr. Skillen’s early articles in the CLS Quarterly and was convinced that they should be collected, in his words, “to encourage a new generation of Christian students in their pursuit of public justice.” I pray that this issue of the Journal will do just that. Thank you, Dr. Wearne, for making this happen. And thank you, Dr. Skillen, for your faithfulness over the past five decades of public life, and for continuing to walk out your calling to challenge God’s people to do justice and to walk humbly with Him.
________ Mike Schutt is the director of the Christian Legal Society’s Law Student Ministries and the Institute for Christian Legal Studies, a cooperative ministry of CLS and Regent University School of Law. He is the author of Redeeming Law: Christian Calling and the Legal Profession (InterVarsity Press 2007) and is an associate professor at Regent University School of Law.
Digging Deep: Jim Skillen’s Christian Legal Society Contribution to a Christian View of Public Justice (continued from page 5) Balanced political journalism can help readers understand the nature of differences, some of which have very deep historical roots (Luther and Marx in 1983, Another View of History, among others). 4. The right kind of political journalism can help us distinguish between the high office of government and the deeds of those who fill those offices. Public service is not an easy business. It is hard, complicated work. Laws, executive actions, and judicial rulings that are inadequate, misguided, or unjust should be addressed critically in ways that point to what ought to be done without stooping to nasty name calling and the denigration of individuals. Personalizing offices of responsibility can lead to a disregard of government and the breakdown of trust in a political community. (Needed: A Public Philosophy, and at least seven others address this theme). 5. Political journalism has an important nurturing task in civic education, and should be crafted with an awareness of the political needs of an up-and-coming generation of younger citizens. Such journalism, sensitive to its political calling, aims to promote wise insight that can be passed on to a younger generation as they prepare themselves for adult citizenship. Our hope and prayer is that this edition of the Journal will encourage renewed reflection and action in tune with our God-given political responsibility to promote public justice. We also hope that this publication can help to inspire and strengthen Christian political journalism. We need new generations of students who will give themselves to legal, political, governmental, and journalistic callings in thankful service to our Lord, Jesus Christ, the First and Last Word of life and justice.
________ Dr. Bruce Wearne, who lives in south-eastern Australia at Point Lonsdale, has been promoting a biblically-directed Christian social theory since his undergraduate studies at Monash University (1969-1971). Along the way he has published an extensive critical interpretation of the theoretical development of Talcott Parsons (1902-1979) and also serves on the editorial board of The American Sociologist. In recent times he has been editing online annotated bibliographies of the works of various “reformational” scholars for “All of Life Redeemed”, UK. James W Skillen has been one of those scholars and it was while examining Skillen’s 1980s and 1990s contributions to the Christian Legal Society Quarterly that he concluded that these should be brought together in one volume to encourage a new generation of Christian students in their pursuit of public justice.
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The Collected CLS Essays of James W. Skillen (continued from page 7)
are also public, government-responsive creatures in God’s world. The Bible holds up not only the shepherd, the bridegroom, the father, and the gardener as images of God, but also the judge, the king, the governor, and the peacemaker. Old Israel and the new Israel are not collections of individuals, each seeking personal freedom. God’s people are communal creatures with responsibility for one another and for their neighbors in all areas of life. Christians, at least, have the opportunity to approach government not as a necessary evil but as a blessing from God. We can take political life seriously on its own terms, not simply as a means to other ends. Instead of vacillating between an idolatrous worship of America on the one hand and a deprecating disregard of politics on the other hand, we can express a steady attitude of thankful regard for our country --an attitude that carries with it a recognition of our responsibility to work continuously for the reform of its laws according to the demands of justice, so that the public trust can be served to the glory of God. But to do this, we need a genuine public philosophy --- a Christian view of government and politics that takes the public realm seriously on its own terms in God’s creation. The foundation of this conviction is not individual freedom but God’s lordship over his world. On that foundation we can then recognize that God created us to be public as well as private creatures. The public world is not foreign or secondary to our nature but part and parcel of the image of God. The limits of government, in this view, are to be found not in an imaginary autonomous individual but in the fact that God has given many different callings and boundaries to his creatures. Governments ought not to own all the enterprises or interfere with churches or dictate all the conditions of family life. They ought not to decide what is a true scientific theory or a good musical composition. Human government has its limits because God has given responsibilities to families and schools, to businesses and churches, to artists and scientists --- responsibilities that do not belong to government. At the same time, however, government exists to govern a political community. The public trust is not a mirage, nor is it something that automatically takes care of itself if everyone seeks his own private interest. The public trust requires publicly minded citizens and leaders who will concentrate on making wise judgments to promote the public welfare. Interestgroup politics will not work any more than a law practice or marriage will work if the people in those institutions misuse them for external ends.
More than ever before, we need to clarify the true purpose and meaning of public life in its relationship to all the different private realms of our lives. Coming to understand the meaning of public life, public law, and the common trust that we share with people both in this country and throughout the world is part of what it means to understand the kingship of Christ. His kingdom is not just one among many on earth. It is not for Jews only or for one nation of Gentiles. Christ claims all authority over the whole earth, in the political arena as well as in every other sphere. If you think about politics only on election day or the Fourth of July, and if you vote primarily on one issue or because of the good looks (or good sounds) of a candidate, then stop for a moment and consider the consequences. Don’t you think God is calling us and our government to something much more responsible than that?
“in . . . the world” [Untitled] (1985)
requently someone will ask me if I think the country would be better off if more Christians entered public office. My response is seldom an unequivocal yes. Why my hesitation? How would you respond to the following question?: “Wouldn’t we all be better off if more Christians were teachers, farmers, and journalists?” Or reshape the question slightly by putting it this way: “If a group composed entirely of Christians got together to organize a school, wouldn’t they be creating a Christian school?” Most of us would respond rather quickly, I suppose, by saying that it all depends on whether the Christians involved know anything about teaching, farming, business, journalism, and so on. In other words, if Christians without talent for, or knowledge of, education try to organize a school, it will probably not be much of a school. Therefore, it will hardly be a Christian school. Returning, then, to law and politics, one’s answer to the question about Christians in office really depends on how one understands the connection between Christianity and the nature of those public offices. If Christians who have no talent for public life end up filling public offices, then the results could be very bad indeed. The first conclusion we can reach, therefore, is that a general confession of faith in Christ is not sufficient to qualify a person for public responsibility. But where does this conclusion lead us? Are we saying that one’s Christian faith is simply a private, personal irrelevancy when it comes to the great secular matters of law, politics, education, farming, and business? Doesn’t that conclusion promote the very secularization of continued on page 10
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The Collected CLS Essays of James W. Skillen (continued from page 9)
life that many Christians now want to oppose? Are the standards for judging competence in education, farming, law, politics, and journalism unrelated to Christian faith? If we say that a general confession of Christian faith is not sufficient to qualify someone for public office, aren’t we forced to conclude that it makes no difference whether Christians or nonChristians fill public offices as long as they have sufficient expertise in their field? No, I am convinced that we are off on the wrong track if we force this kind of “sacred/secular” division onto our life in this world. Rather, we should reconsider the meaning of “Christian faith” and what we mean by professional “competence” to fill an office or a job. First, what does it mean to make the general confession that Christ is Lord? It should mean that we are ready to follow Jesus Christ as disciples, willing to obey him in all things. Following Jesus entails obeying God’s commandments (I John 5:1-5), bearing fruit as branches in his vine (John15:5-8), and doing everything to the glory of God (I Corinthians 10:31). What is the cause of Christ that we should promote if we confess him to be Lord? The New Testament makes clear that Christ’s cause is nothing less than the restoration and reconciliation of the whole creation. The world of social and political affairs, of farming and business, of family life and worship-all of these Christ claims as his own (Matthew 28:18; Romans 12:18; I Corinthians 15:20-28; II Corinthians 5:11-21; Colossians 1:15-20). A confession of faith in Christ, therefore, is not a private irrelevancy disconnected from the realities of life. Rather, allegiance to Christ as Lord means an allegiance to his reign over everything on earth because he is the one in whom and for whom all things were created in the first place (John 1:13; Hebrews 1:1-2). To confess Christ is to accept responsibility for life in this world on his terms. It means plunging into the reconciling stewardship of all areas of life. Following Jesus demands just the opposite of treating public life with secularizing carelessness; it demands that we find out how to serve God in public on his terms. Now let’s turn back to consider what we mean by “competence” to fill an office. Although it is true that both Christians and non-Christians have gifts and talents and insights for politics, law, farming, journalism, education, and all the rest, it is also the case that people develop and orient these Godgiven abilities in different ways—either in service to God or in sinful disobedience to him. At issue is precisely how politics and law should be shaped by human beings. By what standards or criteria should the judge or elected official make judgments? How should government act in order to do justice? These questions cannot be answered by some neutral,
technical rationality. Everyone does not agree about the criteria for making these judgments. Precisely here is where a Christian vision of life, articulated by those with special gifts and competence in public affairs, needs to work its way out in shaping law and government. God did not create his world one way and then send his Son into that world on terms that were unrelated to the original creation. The judge and redeemer, Jesus Christ, is the Word of God through whom everything was created. The one who created men and women with talents and abilities for farming, teaching, and developing the art of government is the same God who is redeeming the world through Jesus Christ. How, then, do I answer the original question? If those to whom God has given wisdom for discerning and doing justice will enter office with the purpose of allowing their abilities to be guided by the creative and redeeming work of Christ, then, yes, I believe our country and the world will be better off. But, on the contrary, if people without redemptively-guided, creationally-given competence for law and politics enter those offices, even if they are Christians, and especially if they try to separate their faith from their politics, then, no, I don’t think we will be better off. The scorecard we need is biblical revelation illuminating the true nature of the creation, guiding those with God-given gifts and talents into vocations where they are most competent to fill their calling in Christ.
Christian Service is Not a Parachurch Activity (Summer 1986)
he prefix para means alongside of, or beside. It characterizes something that may be auxiliary or supplemental to something else. A paramedic is someone who assists a medical professional. A parasite is something that lives off something else. In the New Testament, the believers in Christ are variously referred to as the people of God, the bride of Christ, the house or temple of God, the Church and the body of Christ. In this sense, the Church is the body of believers in an all-encompassing sense. Everything they are and do belongs to Christ. Their lives are being totally renewed and redirected as His new people. Therefore, when Paul writes to the Church in Ephesus or Corinth, he addresses their family relations, their business activities, their political responsibilities—everything. Over the past centuries the word Church has come to have other meanings and designations. Most frequently today it refers to a building, to a
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denominational institution or to a particular set of activities and functions connected with worship and church officials. This is far too restricted to bear the meaning of ‘’the people of God,” or ‘’the bride of Christ’’ or the “Church.” Today we also use the word parachurch to refer to a host of organizations and activities including independent evangelistic and mission organizations, publications, youth clubs, and dozens more. All of these may be quite worthy of praise for what they do, but referring to them as ‘’parachurch’’ helps to reinforce a very problematic mindset among Christians. We are in the habit of dividing life between ‘’church-related” (or ‘’sacred’’) activities and ‘’secular’’ areas such as our economic, political, educational and entertainment activities. This falsely divides human life into two worlds. Implicitly, if not intentionally, we disconnect Christ from a large part of His world. We deny the meaning of Christ’s lordship over His entire creation. Then, when we want to overcome this false dualism, we try to connect a “sacred” part with a ‘’secular’’ part of life. This is the origin of some of the so-called parachurch organizations. They arise from the felt need to relate Christianity to an area of life that is not very “sacred” in our experience. Yet most often the effort ends up being little more than attaching prayer, personal fellowship, or evangelism to the “secular’’ activity without doing much to alter or effect the way we function in that arena itself. As Christians, we do not, for the most part, distinguish ourselves in the way we carry out our economic or political or entertainment lives. We live as Christian ‘’parasites’’ on the supposedly secular world. We take for granted our jobs, governments, newspapers, television shows and fast-food restaurants as if they have no specifically Christian meaning, no ultimate value before God. Hanging on like parasites and taking what we can, we give serious Christian attention to only a few ‘’sacred” activities. When we feel compelled to act as Christians in the “secular” world, we then try to attach something ‘’sacred’’ to the ‘’secular’’ activity. In other words, we attach a “Christian’’ parasitic organization to the university, or the business, or the media or the political institutions, while leaving those institutions themselves unexamined, unreformed and, in some cases, untouched. Law and politics (or anything else in creation) should not be treated this way. Nothing in this world is truly disconnected from God, from His word, from His call to do justice. In everything you do, says Paul, do all to the glory of God. There is nothing ‘’secular’’ in this world. Everything is religious in the sense of being directly open before the will and word of Godopen to His judgment and blessing. Christian service in the legal profession, therefore, ought to be offered by asking how the law should be made and used to serve God and neighbor according
to his standards of justice. The law has to be taken seriously on God’s terms. It must not be treated as a disconnected “secular’’ activity to which we attach ourselves as ‘’Christian’’ parasites along for the ride. Nor may we treat law as something that can be approached merely with “parachurch’’ activities, such prayer meetings, Bible studies, and fellowship meetings. Genuine Christian service in law and politics is simply the effort to obey God inside the full reality of law and government. Christian political or legal service should be the body of Christ acting obediently in the public arena of life. A Christian family does not consist of a parasitic hour of devotions attached to a godless lifestyle among father, mother and children. Christian farming is not prayer and gospel singing on the tractor while the farmer destroys his soil, pollutes his water and sells spoiled grain. There simply is no honest and legitimate way to live before the face of God with a “para-” mentality. Either all of life is God’s or it is not. If it is, then we must live that life according to the standards God has given us for every part of it, taking seriously farming and family, business and entertainment, politics and law, each in its own right, each on God’s terms. Churches or groups of Christians should not create “parachurch’’ organizations in order to approach politics, law, business and the media. All that is needed is for Christians to act together with communal responsibility in their legal, political and economic lives as direct servants of God, in direct response to his mandates. Such action is not “alongside” or “beside” anything. It is inside the reality of being God’s people in His world.
Don’t Just Do Something; Sit There! (Fall 1986)
on’t just sit there; do something!” That is the longstanding American response to problems. That is America at its pragmatic best. But what if every little thing we “do” makes the problems worse? What if our problem is the very fact that we are too pragmatic, too quick to take action before sizing up the real nature of the crisis? Then, perhaps, the challenge we need to hear is, “Don’t just do something; sit there!” In other words, maybe it is time for Americans, especially Christian Americans, to think deeply about the nature of our cultural, political, legal and educational predicament to discover what is missing. This is certainly one of the challenges that will hit you if you read the new and highly enjoyable book by William Lee Miller, The First Liberty: Religion and the American Republic (Alfred Knopf, 1986). After wonderful chapters on Thomas Jefferson, James Madison and Roger Williams, Miller surveys the
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last two centuries of American struggles over First Amendment issues. Up until very recently, the “WASPs” were basically in charge—those white, Anglo-Saxon Protestants who had a vision for a Christian America. What was their biggest failure? According to Miller, “the Protestant Christianizers of America did not have a social and political philosophy that admitted, or criticized, what they were doing . . . .” The characteristic contribution of American religion to American civic understanding therefore has been not perspective, wisdom, nor depth of insight, but the rousing of the sentiments and energies for particular acts of charity, generosity, and social reform. Miller continues, “The characteristic vices, have been those of a vulnerably oversimple implicit social conception: a radical pietistic individualism of the change of heart, which knows too readily what is ‘moral’ and expects too easily to persuade people to do it—and topples into cynicism when that does not happen” (pp. 26667). The difficulty we face today is that we can no longer take for granted a cultural consensus, a broad agreement on basic principles about the nature of law and politics in our society. In some respects, it is good that old errors are no longer taken for granted and that new options are before us. On the other hand, we know that much of the pragmatism, relativism and secularization of life since late in the nineteenth century has left us in a serious situation. Precisely now, therefore, we must be able to assess our circumstances with a critical historical and philosophical mindset. We need to know where we are and how we got here. We need to decide how to put forward a deepened Christian point of view for public debate—a point of view that sheds new light on the legal and political issues of our day. Yet here is where we find ourselves in the weakest position because we have been too busy acting for the moment, absorbing the spirit of our age, and not knowing what a Christian philosophy of law or politics demands. Our religious sincerity has been concentrated in personal piety and personal charity, but not carried into cooperative effort with other lawyers and citizens to discover and promote a more solid Christian approach. Miller says that if you read nineteenth- and twentieth-century descriptions of the “typical American” and compare these descriptions with what is “characteristic” of Christians in the same time period, you will find almost identical words and phrases repeated again and again: “individualistic, voluntaristic, ‘moralistic,’ ahistorical, self-reliant . . .” (p. 272). Not all of these characteristics are bad, of course. But note what is missing, at least by biblical standards: thoughtfully wise, patient, enduring, preoccupied
with the neighbor’s welfare, communally focused, expressing dependence on God, persevering and so forth. All too often, we Christians are as splintered in our opinions and as individualistic in our responses as everyone else. We are ready to act, ready to climb high on our “moralistic” horses to condemn evil and ready to urge some authority somewhere to solve our problems quickly. But are we helping to explain the full, comprehensive nature of America’s predicament, or are we offering a better philosophy and program for public life as a community of people who obviously love our neighbors and our country? Thanks be to God that some Christians are trying to do this. Let us give thanks that organizations such as the Christian Legal Society exist, and that its programs include efforts such as the Jurisprudence Project aimed at discovering the roots of a Christian approach to law. And yet, we must also fall on our faces in repentance before God, even as Daniel did in exile, asking for the forgiveness of our sins and the sins of our people. Miller’s judgments are all too accurate about the Christian, particularly the Protestant, contribution to American culture. We have been too quick to adopt the optimistic, pragmatic attitude of our fellow citizens—being convinced that we can solve any problem just by working a little harder with the same tools that were handed down to us. We have not done enough to step back and “sit there” long enough to hear a word from the Lord about the shape of our society, its laws, its political institutions. Now is certainly the time to act! It is time to do something! But what we need to do—the most practical thing we can do—is to go in search of the wisdom, intellectual depth and cultural substance that grow out of God’s wisdom and God’s will for the world. If we will do that, and do it together as a community of Christians, then our light might shine brightly enough to help both us and our fellow citizens in the midst of today’s crises.
Christians: Part of the Problem Or Part of the Solution? (Summer 1987)
he May 25, 1987, Time magazine portrayed the United States as undergoing a grave ethical crisis. Some dismiss such alarmist rhetoric as inappropriate for a weekly secular news magazine. Others say our society’s sick condition is much worse than imagined—that the U.S. is under severe judgment. What do news stories revealing sexual immorality in the televangelism world, deception among top appointed political officials and unethical trading on Wall Street tell us? Beyond the questions of personal misbehavior lie numerous additional problems of serious national
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concern. Will we ever put the destructive drug culture behind us? Are the schools really preparing our children for a responsible future? Do we see any possibility of reaching a society-wide consensus on what to do about issues as new and disturbing as surrogate motherhood, genetic engineering and AIDS? At the highest public-policy levels we face challenges calling for the utmost wisdom and determined responses. International trade, budget and financial crises spark ever-increasing warnings about trade wars, deep recessions and even a potential world depression. Congress and the President show little evidence of being able to provide coordinated leadership to guide us through this trying economic era. Arms negotiations with the Soviet Union seem both more promising and more threatening than we have known for some time, but do we know how to make the most of the current situation? The Middle East, Central America, South Korea and South Africa all represent potential explosions of immense proportions, crying out for multilateral international diplomacy in which the U.S. should be engaged. But is the U.S. ready to give capable leadership? In the midst of all these critical and confusing circumstances, are Christians offering some solutions to the problems, as we imagine we are, or are we simply part of the problem—part of a self-interested, materialistic culture that is running away from responsibility rather than shouldering it? To make a difference, we need to examine ourselves in the light of God’s Word to see how to repent from sin and turn to paths of righteousness in our families, professions, churches and neighborhoods. We must also step forward to serve and reform the public order. Just laws and good public policies will not automatically flow from a renewal of individual ethical concern, and public justice will not automatically take care of itself if we simply concentrate hard enough on our families and schools and churches. This is not to say, however, that we can neglect any aspect of personal ethics in areas in which we hold responsibility. A healthy republic and a relatively peaceful international community cannot be built on sexual immorality, deceitful bankers, slovenly employees, drug-addicted children and preachers enticing followers with dreams of materialistic success. Equally true is the fact that the moral recovery of society must take shape in each area of life—including the political and legal realms—by way of dedicated, purposeful action fit for each arena. A republic cannot be reformed apart from action by citizens prepared to serve their civic neighbors through laws and policies that do justice to all. Political renewal requires political action. Legal reform requires wise jurisprudential acts and judgments. No shortcuts are available. Nothing human automatically takes care of itself.
Now is the time for Christians to accept their civic responsibility with thanksgiving, to join together for service and to give public evidence of a selfless concern for justice that others will not believe possible until they see it demonstrated. Today is indeed a day of God’s judgment, a time for repentance. But by God’s grace, as long as it is still today, we also face opportunities to offer light in the darkness and to put some leaven in the loaf. What will you say to your children about this dark American hour? What evidence will your law practice show that you are part of the solution and not simply part of the problem? Remember, your actions will speak louder than your words!
THE MANDATE FOR JUSTICE (Fall 1987)
s talking about a biblical mandate for Christians to do justice anything more than idealistic rhetoric? After all, isn’t the reality of politics and of a law practice little more than the struggle to keep the worst from happening, an effort to mediate and accommodate differences so that the parties each get a little of what they want? We might want justice, but justice will only come with the return of Christ. Is there any reason for working toward justice now? Contrary to the arguments of idealists and realists, I strongly believe that God’s mandate to do justice, and not simply to wish for it, is an integral part of the daily Christian life. When Jesus told His followers, “Unless your righteousness surpasses that of the Pharisees and the teachers of the law, you will certainly not enter the kingdom of heaven” (Matthew 5:20), He was directing them to pursue justice. Jesus Christ has the authority to give this command because He is not merely a private household god. He did not retreat into the heavens (or the grave) as a defeated idealist leaving us to remember Him as a great teacher of private ethics or as one who might attain public importance at some later date in history. Jesus is Lord and King now. As the One who conquered sin and calls us to be joint heirs in His kingdom, He demands justice. Obedience to Christ requires more than private love and honesty among family members, church members and nearby neighbors. We who support the government with our taxes and votes cannot ignore the fact that public laws will always be either just or unjust—never neutral— and that we bear some responsibility for whether they are just or unjust. When I speak of God’s command to do justice, I am speaking of something more than mere ethical responsibility. Treating our neighbors justly is not something we do in addition to knowing God or alongside our communion with God. Rather, doing
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STEP INTO MY OFFICE (Summer 1988)
The Collected CLS Essays of James W. Skillen (continued from page 13)
justice in public as well as in private is an inextricable part of being in fellowship with God and knowing Him. This concept was illustrated when the prophet Jeremiah delivered a word from God to Shallum, son of Josiah. Shallum followed his father as king of Judah, and through Jeremiah God condemned him for perpetrating great injustice: “’Did not your father Josiah have food and drink? He did what was right and just, so all went well with him. He defended the cause of the poor and needy, and so all went well. Is that not what it means to know me?’ declares the Lord.” (Jeremiah 22:15-16). Thus, for a king to know God meant being in accord with God’s command to do justice. God is saying that if we fail to do justice we do not know Him. Thankfully, the good news of Christ Jesus is that His righteousness, not ours, saves us. Christ’s call to do justice is not self-saving. The only way that our righteousness can surpass that of the Pharisees is if we become robed with Christ’s righteousness. The only way we can love and serve our neighbors is if Christ’s love pours through us to them. We cannot manufacture justice out of our own goodness, nor can we save ourselves through good deeds. The simple message of the gospel is true for all of life, including politics. We are enabled to serve God and our neighbors only because God first loved us in Christ Jesus. To enter into the new life that Christ alone can give necessitates becoming His disciple. Then, if we are to live as His disciples, we must learn to obey Him in all things. Thus, the pursuit of justice is an essential part of Christian discipleship. To ignore this call is not merely to fail in loving our neighbors, it is also to endanger our very relationship with Christ. To pretend to love God in Christ without constantly repenting of sin and turning to obey His commands is, according to John, to live as a liar (John 2:3·6). Jesus himself insisted, “Not everyone who says to me, ‘Lord, Lord,’ will enter the kingdom of heaven, but only he who does the will of my Father who is in heaven” (Matthew 7:21). God did not give us the option to do justice; rather, pursuing justice must be a hallmark of our lives. As we work in the give-and-take world of American law and politics, we cannot ignore the realities before us, but we should also remember that God and His mandates are realities of far greater weight than anything else we encounter in our daily work. It is to Him that we must ultimately “give account” (Hebrews 4:13). The commands to love God, serve our neighbors and do justice all go together. Encouraging one another to fulfill these commands is far more than idealistic rhetoric; it is one step toward being in the world but not of it.
sking someone to step into your office might mean as little as inviting that person to “come in out of the cold,” or to join you “where you can have some privacy.” But it can also mean much more. You might be asking someone to “step into your shoes” in order to see a situation from your point of view. If you hold a “high” office of judge or governor or attorney general, you might be inviting someone to recognize the special responsibilities that your office holds—responsibilities that can only be fully appreciated from an inside view. Although the word “office” means many things today, it continues to draw attention to the particular responsibilities, functions and obligations that people possess in different situations. A “public office” is usually defined explicitly by laws and statutes; a church office derives from an ancient vintage. The existence of such offices provides Christians with at least three important tools for seeking and conveying truth in the present world: 1) they point us to the Creator; 2) they teach discipline, humility and submission; 3) they can show us how to live thankfully as God’s stewards. The Reality of Office In the broadest sense, “offices” are the varieties of duties and responsibilities to which God calls us with our diverse talents. Because this world is not in arbitrary chaos, its historical shape does not arise from us ex nihilo. We can only shape what the Creator gives us to shape. Families, schools, governments and business enterprises take on particular shapes because everything that we do is a creaturely response to the multiple arenas of human accountability God created for us. If, for example, we could help more citizens think about the office to which the American president is called rather than simply about the personalities and ideologies of the candidates, we all might make better selections at election time. We could understand the responsibilities of the presidential office and compare candidates’ abilities to fulfill them. The reality of office also teaches discipline, humility and submission. People who mistakenly think of their power and prestige as something of their own making tend to be proud, excessive and overstep boundaries. Those who realize that they hold an “office” of accountability will be willing to accept the disciplines of the office; their evaluation by peers and superiors; and the legal and moral limits of that office. Rather than misusing the office as a means toward other ends, they will seek to be good stewards of the particular duties with which they are charged. The “rule of law” is one part of our tradition that points to the concept of “office” if properly used. Human beings should exhibit modesty, patience and
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submission to the rules that define particular offices. If established laws are unjust or a new situation arises, then the wise officeholder will seek a healthy reform of the rules so that humble service can continue. He or she will not be satisfied with disobeying the rules or destroying the office. God is Sovereign Finally, the idea of “office” can point us toward thankful lives as God’s redeemed stewards. On occasion most of us have had the feeling that the world’s irresponsibility and lawlessness are overwhelming. Bankruptcies, famines, federal deficits, stock market crashes, court cases backing up, family and school breakdowns and immoralities of all sorts make us wonder whether any aspect of our social order will remain by the end of the century. “Does anything make sense any more?” we ask. Our understanding of “office” tells us that God is upholding His creation, keeping the rainbow in its place, showering us with grace for redeemed lives. Every office you hold in your business, law firm, church, home or community makes you the recipient of a gift from God. He has given you a task to perform as a service for Him and for your neighbors. You and I don’t hold the world together; God does. As long as it is still today, and as long as we hold any offices, let us thank God for upholding us as we witness to His truth and justice, to His love and power. When Paul and other apostles wrote to the Christian churches, they addressed the followers of Christ in all their offices: church members and leaders; employers and employees; husbands, wives and children; citizens and more. As the redeemed of the Lord, we can give thanks by learning how to be faithful stewards of the offices to which God has called us. Those who remain faithful will hear the Lord say, “Step into my office, good and faithful servant. You have been trustworthy with a few things. I will make you ruler over many things as a joint heir with your elder brother Jesus, the head officer in My Kingdom.”
Another View of History? (Fall 1989)
ho would ever have imagined that one of the raging media debates of our day would be about the end of history? The earthshaking events of our time, from elections in Poland to the crushing of youth protesters in China, from the mounting Third-World debt crisis to the slow collapse of apartheid in South Africa are all driving even the most pragmatic and agnostic functionaries of the West to think about the “big picture.” U.S. State Department staff member Francis Fukuyama’s article “The End of History?”, published in the summer issue of The National Interest journal, sparked this brush fire. His argument draws on the
philosophy of Hegel (less than two centuries old) to suggest that Western liberal democracy may now mark the final synthesis of human political development. In other words, the collapse of communist and fascist ideologies along with the privatization of religion is leading humankind to the realization that nothing more rational and satisfactory than liberal democracy can organize future human society. History is reaching “completion.” Reactions to Fukuyama’s article have exploded across the pages of countless journals, newspapers, and magazines (including Time’s, September 4). Christians must enter this debate, but we must do so with a serious and critical intent. At the most obvious level, we, too, should express thankfulness for the growing worldwide evidence that an “open society,” which joins representative government with constitutional protections for free initiative, is being recognized as the standard. We should add our voices to those calling for the end of repressive communist, fascist and racist regimes. On a deeper level, however, we must not accept the confining terms of this debate. Didn’t a great deal of political philosophy precede Hegel? Doesn’t anyone recall Augustine, that Christian “founding father” about 1500 years older than Hegel who first helped the Western world to realize that the end of Rome would not mark the end of history? Westerners, including most Americans, have grown so accustomed to thinking of history and politics within a closed secular world of human decision-making that they have lost sight of the grander vision of human history that biblical believers have grasped since the days of Abraham or at least since the time of Isaiah. Hegel is simply one of the most comprehensive secular thinkers of recent times-a philosopher who, like Marx following him, tried to reduce all the dynamic dimensions of the Christian vision to the intra-worldly dynamics of Reason. If people around us are finally willing to start discussing the “big picture” of the meaning of history, then by all means let us widen the discussion to consider the full meaning of human existence in God’s world. Answering why democratic government is better than dictatorship and why a pluralistic society is better than a totalitarian one requires an understanding of God’s original and ultimate purposes for His image. Reflections on the end of history must go far beyond considering the “rationality of capitalism and democracy” to anticipating God’s climactic self-revelation at the great banquet feast in the City of God-the new Jerusalem. Perhaps Fukuyama’s greatest challenge to Christians comes in his judgment that all “religious impulses” in today’s world, with the possible exception of Islam, “have been successfully satisfied within the sphere of personal life that is permitted in
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liberal societies.” For this reason, he believes, religion does not hold the key to the future. While we may acknowledge that a liberal society usually makes room for religion, surely we ought to be dismayed that Fukuyama and most others see little evidence of any grand and healthy Christian impact on society that reaches beyond “personal life.” He seems not to recognize, for example, the extent to which Christianity helped, and continues to help shape the contours of the “open society” that he applauds. Perhaps one day, even before the return of Christ, the public will be discussing “the end of Hegel” as more and more people begin to see history from a biblical and Augustinian perspective. But that day will come only if Christians throughout the world reject the notion that Christianity is simply a personal matter amply satisfied within the confines of the liberal state.
Apocalyptic Visions in Times of Trouble (Spring 1991)
resident Bush2 may be hopeful about the United States establishing a new world order, but not many people are dancing in the streets to celebrate its arrival. For all the joy about the about the end of the Cold War, signs of trouble and deep anguish far outweigh the emerging world peace both at home and abroad. Although most Americans seem to be optimistic now that the allies have liberated Kuwait from Saddam Hussein’s control3, many people are using apocalyptic language to talk about the times in which we live. Christianity Today reported on a church called the Kansas City Fellowship whose leaders are prophesying that “we are on the brink of tumultuous change” (January 14, 1991). In his popular book Armageddon, Oil, and the Middle East Crisis (Zondervan1990), John Walvoord explains why we should expect the rapture of true believers very soon: The Gulf War was just a prelude to the final events. Here at home, many people point to the agonies of the drug culture, urban degradation, economic decline and moral decay as indications of God’s judgment on America—His rejection of a once-chosen nation.
2 George Herbert Walker Bush, the 41st President (19891993). –Ed. 3 A US-led coalition force fought against Iraq from August 1990 to February 1991 (the “Gulf War”) in response to Saddam Hussein’s invasion of Kuwait. –Ed.
Apocalypse When? One curious factor in all of this, from my point of view, is the extent to which Christians emphasize the apocalyptic element. Whether their focus is on judgment against evil or on the victory of God’s righteousness, more often than not their vision is one of a “final battle” or of a “trumpet-sounding judgment.” Why should this seem curious or strange? The reason is that the Scriptures contain many different images of what the “end times” are all about. The image of battlefield apocalypse is only one of them. Moreover, when it comes to motivating Christians to be patient and to endure hardships in “the last days,” the Bible most often emphasizes something quite different. If ever there was a prophetic Christian leader who could have painted apocalyptic pictures, it was the apostle Paul. He had seen visions of judgment and resurrection. He knew that The End would come after Jesus Christ “has put all his enemies under his feet” (1 Cor. 15:25). Paul spent much of his life in prison—unjustly—because of Jewish and Roman persecution. Rome was the world empire that already stood condemned by Christ’s victory. Every letter he wrote could have been filled with apocalyptic visions. Yet, more often than not, Paul’s admonitions to the churches focused on the coming love feast, on the climactic marriage of Christ and his Bride and on God’s final communion with His people. Paul’s concern is to motivate self-sacrificing love and careful nurture rather than speculation about the apocalypse. In his letters to the Thessalonians, Paul speaks to some of the saints’ end-times worries. He urges them to comfort one another with the hope of salvation and to put on the armor of faith and love so they can “warn everyone” (I Thess. 5:14). To the Philippians, Paul writes to urge gentleness in behavior and to encourage them not to be anxious about anything. Concentrate now, he tells them, on whatever is true, noble, right, pure, lovely, admirable, excellent or praiseworthy (Phil. 4:5, 8). The anticipated “end” is like the fulfillment of childbirth (Rom. 8:18-25), the completion of a love-communion that has already begun (1Cor.13), the final resolution of all conflicts in peace (2 Cor. 5:17-21), the final union with Christ in marriage (Eph.5:22-32; 4:3-6). In fact, Paul continually urges Christians to identify with the cross of Christ-(to boast of nothing but Christ’s strength and their own weaknesses) and to share in Christ’s sufferings (Phil. 3:10; 2 Cor.11:16-12:10). A Time for Dedication Our most urgent need, it seems to me, is not a better map or scorecard for the apocalyptic events of the end times but rather a more vigorous dedication to performing the deeds Christ has called us to do continued on next page
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now. We need to act in ways that demonstrate to every neighbor how God is adopting children into His family. In the Scriptures, the apocalyptic emphasis does not stand by itself, and it is not sufficient to convey the full picture of what God is doing in these end times. As the writer of Hebrew says: “And let us consider how we may spur one another on toward love and good deeds . . . all the more as you see the Day approaching” (Heb.10:24-25).
Viewpoint: When Citizens Can’t Agree (Winter 1994)4
ne truth is simple enough to understand: If citizens in the same country find themselves fundamentally at odds over very basic matters such as slavery, abortion or the legitimacy of government itself, then it is quite possible that political order may collapse into civil war or into some lesser display of chaos. Radical disagreement at the foundations cannot be papered over by handshakes and smiles. The question about American society in this age of increasing relativism and multiculturalism is whether the disagreements are fundamental or only superficial. I think the disagreements are of both kinds, and Christians ought to work diligently to distinguish them. We should not make too much of superficial differences, but neither should we underestimate the importance of deeper differences. Even at the level of deeper disagreements, we should not be too quick to react defensively, Consider, for example, how we might respond to deconstructive relativists. Their error, from a Christian point of view, is that they seem to believe that everything is relative. But the moment of truth in their argument is that their own position must therefore be relative. So we need to ask how we can “relativize” their relativism. It would be a mistake, I believe, for Christians to try to do this by asserting that our own position is not relative. All human actions, arguments and affirmations are relative; the question is, ‘’What are they relative to?’’ We are Relative to God The difference between a Christian answer to this question and a relativist answer is illuminating. We Christians should freely admit to our own fallible, limited, non-absolute standpoint as human beings. But we take our stance and assume our responsibilities in relation to God. We confess that we and all creation are relative to the Creator/Redeemer. Fully committed relativists, on the other hand, affirm that their viewpoint and responsibilities are relative to nothing at all (or are relative to nothing other than their own relativity). This relativistic confession follows from the 4 This is last piece Dr. Skillen contributed to the Quarterly. – Ed.
firm, dogmatic starting point that most modernists and postmodernists have taken, but it ends in selfcontradiction. If nothing in this world—including human reason, human will, human justice or human law—can be taken to be an absolute standard by which to judge everything else, and if nothing beyond this world exists, then of course everything must be relative. But if one insists dogmatically on this position, then one must also admit that such dogmatism functions as the single firm truth to which the relativist is committed. To insist absolutely on the truth that all is relative, however, is to contradict the very affirmation of relativism. Dogmatic relativism thus shows itself to be grounded in a blind and contradictory faith. A Christian starting point leads in a different direction. If we admit that everything about this world—including all of our human thoughts, actions, laws and political systems—are relative to God, then we will agree with the relativists about the relativity of everything human, but we will reject their dogmatic starting point that excludes the Creator/Judge/ Redeemer from the outset. Instead, with bold, openeyed faith, we will take our firm stance in relation to God rather than in relation to nothing or in relation to a dogmatically asserted relativism. A Position of Humility For Christians, this is an important expression of true humility. Christians should never claim that our legal reasoning or political positions are God’s will, as if we have been granted authority to make divine judgments about ourselves and others. Rather, we should always argue that our legal reasoning and political proposals represent only our human attempt to respond in obedience to God’s will. God alone will judge whether we are doing His will. We should recognize and willingly affirm our own relativity when we insist on acknowledging God alone as the one who is truly absolute and non-relative. Among other things, this approach has the advantage of being logically consistent. In affirming human relativity (relationship) to God we acknowledge that we cannot escape the requirement that human beings must always depend on a nonrelative foundation beyond themselves, By pointing to the Lord as the only secure foundation for human life, we expose ourselves, as we should, as limited and relative. But consistent with this humility (which conforms to reality) we avoid the logically inconsistent error of insisting that something relative is absolute. Everything created is relative to God, and God is the only absolutely sure foundation for all that has been created. As Christians we need not react defensively to postmodern deconstructionists and relativists. Rather, we should act with humble yet bold firmness in arguing with them as we bear witness to the One on whom we depend.
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Abstracts Christian Faith and Political Freedom: Can Christians Make a Constructive Contribution to Contemporary Politics? Paper presented at the Christian Legal Society Conference, April 23-26, 1981, Notre Dame, IN. This paper sets out to answer the key question of whether, why and how Christians “manifest a commitment to constructive politics” and how “civic life and political responsibility fit within the priorities of the Christian life.” In addition, it asks whether there are “norms of justice which should guide Christians in their efforts to establish good laws and to oppose bad ones,” and, most tellingly, whether we should “look for anything distinctively biblical in all of this, or are Christians in the same boat as everyone else when it comes to politics and government?” For answers, Skillen looks to the historical streams of thought and action that have shaped western Christianity. Skillen cites Augustine as the key figure in that history. His influence is evident today in almost every Christian approach to politics. One might think that the widespread Christian dependence upon themes in Augustine’s writings would help to bring them together and to consolidate their political contribution. But in fact political unity, as in other areas of Christian cultural activity, remains problematic. Skillen’s analysis begins to explain the “Augustinian” aspect of this lack of unity, by showing how the perspectives put forward by prominent evangelical scholars (Carl F. H. Henry, Tim LaHaye of Moral Majority, John Howard Yoder, Jim Wallis, Ronald Sider) diverge significantly from each other. It is found that they rely on different emphases that were present in the political writings of Augustine at different stages of his life. Thus there is a preliminary need to address the inner contradictions within Augustine’s political perspective as American evangelicals deepen their understanding of their political differences. In conclusion, Skillen outlines an alternative constructive approach to politics, indebted in various ways to Augustine, but seeking to overcome the inherent ambiguities that can be found in his thinking. Politics will have to be connected more directly to both creation and redemption in Christ if this approach is to emerge. Creation, Evolution, and the Courts, Quarterly, Vol. 4, nos. 2 - 3, at 40 (1983). This column evaluates a 1981 court battle over an Arkansas law requiring schools to teach creation
science if they teach evolution, drawing wider conclusions about education and the state: “Apart from our peculiar system of public education with its assumptions about what is ‘secular’ and ‘religious,’ the courts would not even entertain a problem such as the one created by the Arkansas law, nor would Arkansas have passed the law in the first place. Would the public courts be willing to settle a debate between two state university scientists over which of them has the most accurate scientific hypothesis? Of course not! The courts would say that is a matter for scientists to settle. Would the courts be willing to decide whether or not the General Assembly of the United Presbyterian Church (for example) has established the best Sunday School curriculum for its member churches? Of course not! They would say that is a matter for the Church to settle.” Skillen concludes: “The ruling perpetuates a system of inequitable government control over education that cannot do justice to the genuine diversity of approaches to science, education, and moral training. Curricular decisions about the teaching of science, Bible reading, and countless other details must be taken out of direct government control and returned to educators and parents through the establishment of a genuinely pluralistic system of education in America.” Luther and Marx in 1983, Quarterly, Vol. 5, no. 2, at 21 (1984). Skillen assesses history and its influence by contrasting the emptiness of the Marxian vision with the richness of the redemptive gospel of Christ. “What becomes historically influential is not necessarily what is true, or good, or just,” explains Skillen, because “History is the unfolding of God’s creation, stamped by the human choices God allows his own image to make. History is the responses of the human generations to God, whether in obedience or disobedience.” In light of this, “The history of racism, of trampling on the poor, of Hitlers and Stalins, of religious wars and arms races bears testimony to the disobedience of God’s image. In rebellion against God we have created institutions, life styles, and societies that oppress our neighbors and ourselves. Liberation from these historical dead-ends is possible only by the redirecting power of God’s grace as it leads us to repentance and reformation in conformity with his Word.” Skillen goes on to say that “This is where Luther shines like the sun five hundred years after his birth. Luther and his followers were wrong in all kinds of continued on next page
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social, political, and ecclesiastical decisions. Genuine biblical reformation in politics did not get very far in Luther’s day and still has not gotten very far in our day. But Luther’s appeal to the liberating gospel of Christ point us to that power that can produce a genuine reformation of life, even in criticism of Lutheranism (and Calvinism, and Anabaptism, and Catholicism). The gospel of Christ transcends Luther; it calls to account the history of human responses to God and offers reformation through divine renewal.” Acts of God or Acts of Man? Quarterly, Vol. 7, no. 1, at 31 (1986). Skillen investigates the nature and cause of “natural disasters” through the book Natural Disasters: Acts of God or Acts of Man by Anders Wijkman and Lloyd Timberlake. He lays out a Christian perspective on disaster relief that is both preventative and merciful. “If I told you that I found a dead man in the street outside my office who had died from the freezing cold, would you say, ‘Oh, what a tragic natural disaster’? . . . No, in [this case] you would undoubtedly recognize the important interconnection between human responsibility and the vagaries of nature. Cold may have killed the man, but we his neighbors must have failed in our responsibilities to take him in.” “The next time you discover water in your basement or see starving children on the evening news, don’t ask God, ‘Why?’ as if he were solely responsible. Ask in faith what God would have us do to alleviate suffering, to redesign housing codes, to enforce zoning laws, to improve international development efforts, and to end both legal carelessness and illegal fraudulence so that the ‘acts of man’ can become ‘acts of mercy rather than ‘acts of negligence and injustice.’” Justice for Education, Quarterly, Vol. 8, no. 2, at 31 (1987). This article examines the education policy that blocks parental choice and discriminates against fair opportunity among students, arguing that justice in education is only possible when parents have a choice in their child’s schooling and when governments have the right to promote educational pluralism. “Despite all the well-intentioned efforts of the dominant public school establishment to promote free and fair schooling for every American child, it has not succeeded. Public schooling based on geographic districting and taxation will always be inequitable. Public schooling that assumes governmental rather than parental ‘principalship’ can never do justice to families. And public schooling that pretends to serve everyone fairly by excluding viewpoints that do not meet a general test of secularity can only provide a highly prejudicial and discriminatory education.”
“Americans need to move away from the mistaken assumption (which is not constitutionally mandated) that government’s responsibility for education requires it to monopolize public schooling . . . Parents do have the right to select schools of their choice for their children. Governments do have the right to promote educational diversity.” Skillen concludes that “Justice requires limited government, recognition of parental principalship and the type of pluralism that is genuinely nondiscriminatory with respect to race, religion, educational philosophy and geographic location.” The Gift of Administration, Quarterly, Vol. 9, no. 3, at 26 (1988). In light of the (then) upcoming presidential election, this column looks at the essential characteristics of a good administrator and the goal of this administrator to treat those under him humanely and to utilize his or her gifts with discernment. “Whether administering a small office or a large plant, a mediumsized church or a huge corporation, the question of administrative gifts and qualifications comes to the fore . . . What qualifications are we seeking? Which ought we to seek?” “The gift of administration is a gift of God by creation and redemption. It is a humble stewardship of naming and serving through which we help communities lift up to God the talents and resources He has given His creatures. This is not a private possession of Christians, however. Through faithful administration, Christians can help humanity understand Who really runs this world and how the ultimate Administrator wants the world to serve Him.” Toward Political Maturity, Quarterly, Vol. 9, no. 4, at 28 (1989). This essay, addressing the political immaturity of American Christians, encourages readers to see that political involvement is more than “special-issue concerns” – it is about enlivening civic education in such a way that deepens and enriches the Christian public philosophy. “What about Protestant Christians? For more than a decade now, a revitalized public involvement has characterized evangelical and fundamentalist Christians. Pro-life and anti-pornography groups, Moral Majority and Pat Robertson, and religiously motivated anti-nuke and pro-environment lobbies have spent hundreds of millions of dollars. But what is the evidence of wiser, more astute and more comprehensively just approaches to politics in this circle of American citizens?”
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Abstracts (continued from page 19) Skillen concludes by challenging his readers: “As a new administration and Congress begin their work in 1989, those of us who feel a moral drive behind our pubic involvement should step up to a higher level of public debate and political thought. Our country, our neighbors and our fellow believers need a higher level of reasoning and public service from us in the decade ahead. Christians must grow up to political maturity and join the contemporary political debate in a newly serious and public way.” Will Politics Turn to God? Quarterly, Vol. 11, no. 1, at 31 (1990). “The Western world is deeply dependent on many of the same Enlightenment ‘certainties’ that gave birth to Marx’s radical vision—the often arrogant faith in human reason and autonomy. Many of us now congratulate ourselves that the world is getting better simply because communism is collapsing and the Soviet Union is losing its empire. But what about our future? Is it to be defined simply by our own nationalism, our trust in scientific and technological progress, our quest for more consumer products? Or is it time for social and political reformation here as well as elsewhere in the world? If so, where will we turn to find firm foundations for justice, stewardship and social responsibility?” These questions are not easily answered. “Much argument – even within Christian circles – clearly lies ahead of us. Nevertheless . . . God may be opening opportunities for new public discussion of Christianity and the foundations of society and politics.” And Christians must join this debate with care. The Expansion of Our Shrinking Globe, Quarterly, Vol. 12, no. 2, at 4 (1991). This article investigates the modern problems that come with shrinking distances and expanding materialism and encourages Christian Americans to take a look at these problems through the lens of the redemptive gospel that spurs us on toward true “love and good deeds.” “Faster planes and ships, direct-dial phones, electronic bank transfers, radio and television have all contributed to a proximity of people and an immediacy of communication never before possible.” “But as the world’s distances seem to shrink, its expansion on other fronts steams full speed ahead. Human populations multiply; the production and concentration of wealth increases; armaments spiral upwards both in power and in numbers; waste material—some of it toxic—piles up faster than
dump sites can accommodate it; peoples and nations reach out for more resources, more land, more independence. Skillen cautions that the answer is not in American “me-first-ism;” rather hope lies in a “renewed conviction that the good news of God’s redemption in Jesus Christ comes to the whole world. The world does not need American exports; it needs the Gospel. Americans do not need greater trade advantages or a more secure oil supply; we need to hear God’s powerful word of judgment and forgiveness that can turn people onto new paths of justice, stewardship, mercy and Christian solidarity throughout the world.”
Remaining CLS Essays Toward Paralysis or a New Vitality, Quarterly, Vol. 4, no.1, at 40 (1983). Law, Politics, and Society: A Special Challenge for Christians, Quarterly, Vol. 6, no. 1, at 12 (1985). Schools, Religion and Fairness: An Opinion about the Supreme Court’s Opinions, Quarterly, Vol. 6, no.3, at 31 (1985). A Bicentennial to Open Our Eyes to the World, Quarterly, Vol. 8, no. 1, at 31 (1987). Lame Ducks, Paper Tigers and Real Power, Quarterly, Vol. 9, no. 1, at 28 (1988). What is a Monument to Justice? Quarterly, Vol. 10, no. 1, at 31 (1989). Glasnost and Renewed Minds, Quarterly, Vol. 10, no. 2, at 31 (1989). Is Government Dead? Quarterly, Vol. 10, no. 4, at 31 (1990). Can Nations be Reconciled? Quarterly, Vol. 11, no. 2, at 31 (1990). Who Wields International Justice? Quarterly, Vol. 11, no. 3, at 31 (1990). We’re Facing a Political Crisis, Quarterly, Vol. 11, no. 4, at 31 (1990). The Poor are Still Will Us, Quarterly, Vol. 13, no. 1, at 14 (1992).
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Journal of Christian Legal Thought
Speaking of Religious Freedom
Midway By Kimberlee Wood Colby Senior Counsel, Center for Law and Religious Freedom
e are witnessing one of the great religious liberty battles in American history. A year ago, in August 2011, the federal executive branch embarked on a deliberate campaign to force religious employers to pay for drugs and medical procedures to which they hold longstanding religious objections. This article offers a brief review of how the battle unfolded over the past year and where the lines have been drawn as the struggle enters its second year. A Synopsis of the HHS Mandate Controversy The Patient Protection and Affordable Care Act of 2010 (“PPACA”) requires all employers to provide employees with insurance coverage of certain drugs and procedures identified as women’s “preventive care” with no cost sharing. Congress left to HHS the task of identifying the specific drugs and procedures to be deemed “preventive care.” July 2011: HHS announces that “preventive services” include, inter alia, all FDA-approved contraceptives (including Plan B and ella), sterilization procedures, and reproductive education and counseling. Many persons consider Plan B and ella to be abortifacients. August 2011: Suspending normal rulemaking procedures, HHS announces an interim final rule, now known as the “HHS Mandate,” that requires employers to provide the above drugs and procedures without cost sharing. The Mandate includes an extraordinarily limited exemption for a small set of “religious employers.” To qualify, a “religious employer” must meet all four criteria: 1) its purpose must be to inculcate religious values; 2) it must primarily employ members of its own faith; 3) it must serve primarily members of its own faith; and 4) it must be a nonprofit organization described in Internal Revenue Code § 6033(a)(1) and § 6033(a)(3)(A)(i) or (iii) (i.e., churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of a religious order). January 2012: In response to the sustained outcry from the Catholic, Evangelical Christian, and Orthodox Jewish communities against the Mandate and its too-narrow definition of “religious employer,” HHS Secretary Sebelius announces that religious employers who do not qualify for the exemption will have an additional year to come into compliance with the Mandate, if they qualify for a “temporary enforcement safe harbor” -- but only if the religious employer takes affirmative action to certify that it
meets all of the following criteria: 1) It is organized and operated as a nonprofit entity; 2) It has not provided contraceptive coverage as of February 10, 2012, because of its religious beliefs; 3) It provides notice to its employees that contraceptive coverage is not provided; and 4) By the first day of its plan year, it selfcertifies that the first three criteria have been met.1 Secretary Sebelius’ announcement merely intensifies the religious liberty community’s objections because the Administration seems to believe that religious employers will abandon their religious convictions after considering the consequences of resistance. February 2012: President Obama announces that the objectionable definition of “religious employer” will be finalized into law. He also announces that HHS will propose, at a future date, an undefined accommodation for some additional, unspecified religious employers. The Administration claims that religious employers’ insurance issuers, or thirdparty administrators, will furnish free contraceptive coverage to employees without any cost to the employer or the employees. March 2012: The Administration issues an Advance Notice of Proposed Rulemaking (ANPRM) that fails to propose specific language, but rather seeks comments on how to structure an accommodation that provides free contraceptives to employees of religious employers without any cost sharing or cost to the employer. The ANPRM asks two basic questions: 1) who among religious employers should be given an accommodation, and 2) which third-party should be required to pay for the accommodation. May 2012: Beginning in November, some Catholic and Evangelical institutions and individuals file lawsuits seeking injunctive relief from the Mandate. The number of lawsuits cascades in May when 1 Department of Health & Human Services, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code, February 10, 2012, at 3.
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Midway (continued from page 21) numerous Catholic organizations simultaneously file a dozen lawsuits nationwide. By August, 26 separate lawsuits against the Mandate have been filed in federal court. June 2012: The United States Supreme Court upholds the constitutionality of the PPACA’s Individual Mandate as a legitimate exercise of Congress’ power to tax.2 The ruling does not address the HHS Mandate’s constitutionality. July-August 2012: One federal court in Colorado grants a family-owned business preliminary injunctive relief from compliance with the HHS Mandate because the Mandate does not satisfy the “least restrictive alternative” requirement required by the Religious Freedom Restoration Act.3 Two other federal courts, in the District of Columbia and Nebraska, grant the government’s motions to dismiss on ripeness grounds “[b]ecause the government has indicated its intention to amend the regulations to better take into account religious objections and because Plaintiff is protected in the interim by a safe-harbor provision, . . . [Plaintiff]’s injury is too speculative to confer standing and  the case is also not ripe for decision.” 4 August 2012: Beginning August 1, 2012,5 the Mandate takes effect for most religious organizations. A religious employer may avoid the Mandate only if it 1) has a grandfathered plan,6 2) qualifies for the too-narrow exemption for religious employer, or 3) qualifies for the temporary safe harbor.7 On August 15, HHS releases “revised” guidance on the “temporary enforcement safe harbor,” which 2 National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). 3 Newland v. Sebelius, 2012 WL 3069154 (D.Colo. 2012). 4 Belmont Abbey College v. Sebelius, 2012 WL 2914417 (D.D.C. 2012). See also, Nebraska ex rel. Bruning v. U.S. Dep’t of Health & Human Servs., 2012 WL 2913402 (D. Neb. 2012); Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. 2012). 5 An employer must comply with the Mandate when its next insurance plan year begins after August 1, 2012. 6 Grandfathered health plans,” that is, plans that are materially unchanged since PPACA’s enactment on March 23, 2010, are exempt from most of PPACA’s provisions. 42 U.S.C. § 18011. According to HHS estimates, 98 million individuals will be covered by grandfathered group health plans in 2013. Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,732 (July 19, 2010). However, government estimates suggest that half of the grandfathered plans will lose that status by 2013. Bernadette Fernandez, Cong. Research Serv., RL 7-5700, Grandfathered Health Plans under the Patient Protection and Affordable Care Act (PPACA) (2012) at 6-7. 7 An employer with fewer than 50 full-time employees may drop all health insurance coverage for employees; however, the employees are then required by the individual mandate to purchase health insurance that includes contraceptive coverage, even if they have religious objections. If employees do not purchase the objectionable insurance, they must pay a costly penalty. Employers of 50 or more full-time employees do not have the option of dropping coverage without paying heavy penalties.
successfully moots the Wheaton College challenge to the Mandate.8 The revised guidance extends the temporary enforcement safe harbor to otherwise qualified “non-profit organizations with objections to some but not all contraceptive coverage,” a matter which had been in some doubt. It also extends temporary protection to group health plans that took some action to try to exclude or limit contraceptive coverage before February 10, 2012, even if unsuccessful.9 The Mandate is Fundamentally Flawed The Mandate marks an extreme and troubling departure from the Nation’s historic – and bipartisan -- protection of religious conscience rights, particularly in the context of participation in, and funding of, abortion. Indeed, the PPACA itself provides conscience protections.10 President Obama’s Executive Order 13535, without which the PPACA would not have been enacted, also affirmed that “longstanding Federal Laws to protect conscience . . . remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.”11 By plucking a controversial definition of “religious employer” from two states’ laws, the Administration bypassed time-tested federal definitions of “religious employer” -- most notably the decades-old, preeminent federal definition of “religious employer” found in Title VII of the Civil Rights Act of 1964. Because Title VII protects religious educational institutions, hospitals, associations, and other religious employers, which the Administration’s definition excludes, the controversy would have been avoided by simply incorporating the Title VII definition of “religious employer.” The Administration’s protests that it simply drew the Mandate from California and New York contraceptive mandates, and that those laws were upheld in state court challenges brought by Catholic charities, actually demonstrate that the Administration knew from the start that Catholic institutions could not live with its excessively narrow definition of “religious employer.” In states with contraceptive mandates, religious employers can structure their insurance coverage to avoid providing objectionable coverage. Even in New York and California, religious employers could avoid objectionable coverage by self-insuring, dropping prescription drug coverage, or offering ERISA plans not subject to state regulation. The PPACA forecloses these options. In addition, while the exemption purportedly covers all churches, some churches, in fact, may 8 Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. 2012). 9 HHS, Guidance on the Temporary Enforcement Safe Harbor, August 15, 2012, available at http://cciio.cms.gov/resources/ files/prev-services-guidance-08152012.pdf. 10 42 U.S.C. § 18023 (a)(2)(A); Id. § 18023(b)(1)(A)(i). 11 75 Fed. Reg. 15599 (Mar. 24, 2010).
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fail to meet all four criteria. Churches with robust community outreach programs may be disqualified. Moreover, the current definition fails to specify which tenets, or what percentage of the employer’s tenets, a beneficiary or employee must hold in order to qualify for the exemption. Nor is it certain that the exemption covers all church employees. For that reason, CLS joined 125 other Christian organizations to object to the federal government’s bifurcation of the religious community into two classes: churches (supposedly protected by the exemption) and faith-based service organizations (unprotected by the exemption). As the letter explains: [B]oth worship-oriented and service-oriented religious organizations are authentically and equally religious organizations. To use Christian terms, we owe God wholehearted and pure worship, to be sure, and yet we know also that ‘pure religion’ is ‘to look after orphans and widows in their distress’ (James 1:27). We deny that it is within the jurisdiction of the federal government to define, in place of religious communities, what constitutes both religion and authentic ministry.12 Of course, now that such a narrow definition of “religious employer” has wormed its way into federal law, it is likely to spread to other federal and state laws. Any State is free to adopt the exemption in any context it chooses. Finally, the arguments advanced for making religious employers pay for contraceptives and abortifacients – women’s economic equality and avoidance of childbirth – are the core arguments used to justify all abortions. If the Administration succeeds in forcing religious employers to pay for contraceptives and abortifacients, the Mandate can be easily amended at a later date to compel religious employers to pay for all abortions. Indeed, the Institute of Medicine report that recommended coerced coverage of contraceptives and abortifacients suggests that coverage of “abortion services” was also considered, when it notes: “Finally, despite the potential health and well-being benefits to some women, abortion services were considered to be outside of the project’s scope, given the restrictions contained in the ACA.”13 The Mandate violates federal statutory and constitutional protections for religious liberty. The Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. 2000bb, exemplifies our national commitment to exemptions for religious individuals and institutions. RFRA places the burden on the federal government to demonstrate a compelling interest unachievable by less restrictive means to justify burdening citizens’ religious practices.
The government cannot meet this burden because the Mandate and PPACA exempt approximately 100 million employees that are covered by grandfathered plans. Employers with fewer than 50 employees need not provide coverage.14 Employers who are members of a ‘recognized religious sect or division’ that objects, on conscience grounds, to acceptance of public or private insurance funds are exempt.15 Of course, the Mandate’s own exemption of some religious employers demonstrates that the government’s interest is not compelling. Nor is the Mandate the least restrictive means of achieving the government’s purported interests of gender equality and childbirth avoidance. No one seriously disputes that contraceptives are widely available. For example, on January 20, 2012, Secretary Sebelius announced that religious employers would have to give specific information to employees, specifically that “contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.”16 For similar reasons, the Mandate also violates the Free Exercise Clause. The battle lines are drawn for a lengthy battle for religious liberty. But this past year’s fight has created unity among the religious liberty community and refined the arguments that should eventually prevail in the courts.
________ Kim Colby has worked for the Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases heard by the United States Supreme Court, as well as on dozens of amicus briefs in federal and state courts. She was involved in congressional passage of the Equal Access Act in 1984. 14 26 U.S.C. § 4980H(c)(2)(A). 15 26 U.S.C. §§ 1402(g)(1), 5000A(d)(2)(a)(i) and (ii). 16 Statement by U.S.Dep’t of Health and Human Serv’s Secretary Kathleen Sebelius, available at http://www.hhs. gov/news/press/2012pres/01/20120120a.html.
12 Letter to Secretary Sebelius from Stanley Carlson-Thies, Institutional Religious Freedom Alliance, and 25 religious organizations, June 11, 2012, http://www.clsnet.org/document.doc?id=367. 13 Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011) at 22.
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Essays by James W Skillen For Further Study: Online Resources A complete index of Dr. Skillen’s CLS essays www.clsnet.org/Journal/Fall2012/index Bruce Wearne’s bibliography of 50 key books and articles published by Dr. Skillen www.clsnet.org/Journal/Fall2012/50Key A Study Guide with Discussion Questions based upon the articles in this collection www.clsnet.org/Journal/Fall2012/StudyGuide
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Fall 2012 Skillen Issue