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Journal of Christian Legal Thought 1

Proclaiming Enduring Truths


Evangelicals and Catholics Together On Law: The Lord of Heaven and Earth

Michael P. Schutt, Editor

Joint Statement by Evangelical and Catholic Legal Scholars


A Critical Time to Build A Stronger Free Speech Infrastructure Kimberlee Wood Colby

Vol. 3, No. 1 SUMMER 2013

Journal of Christian Legal Thought Vol. 3, No. 1 | SUMMER 2013 Published by The Institute for Christian Legal Studies (ICLS), 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 Dean & 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 inter-disciplinary 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

Summer 2013

Journal of Christian Legal Thought

Proclaiming Enduring Truths

By Michael P. Schutt, Editor


n May 1994, First Things published the now-wellknown statement of Christian unity, Evangelicals and Catholics Together. Its second paragraph begins:

the idea that public justice is a gift from God to be administered by human beings. In the meantime, we have lost the public vocabulary to talk about the relationship of justice, restitution, and the state, preferring instead the generic vocabulary of “social justice,” which identifies everything—from charity, mercy, and friendship, to environmental policy, private contracts, and pet care— as implicating public justice. At the same time, legal education and practice are experiencing a time of unprecedented upheaval. At the heart of the crisis is the poor job market accompanied by the rising cost of law school and corresponding high student debt loads. It is past time for a self-correction, and many are predicting the closing of a large number of law schools and major changes in legal education and its mission. In short, “the Christian mission in the world”— as it relates to law and public justice—“faces a moment of daunting opportunity and responsibility.” Evangelical and Catholics Together on Law is a timely and critical piece of cultural-theological commentary in the face of these crises in legal education and the administration of public justice. While our law schools may be in flux and confidence in the role of the state may be shaken, the kingdom of God, as the late Dallas Willard liked to say, is not in trouble. It is fitting that the Church—a pillar and buttress of truth—should proclaim and affirm the “enduring truths” that shape the “law’s place and role in society.” As Christians in the legal profession, this proclamation is a critical part of our calling. May this statement encourage reflection, discourse, and action toward, in its words, “a more just world.”

As Christ is one, so the Christian mission is one. That one mission can be and should be advanced in diverse ways. Legitimate diversity, however, should not be confused with existing divisions between Christians that obscure the one Christ and hinder the one mission. There is a necessary connection between the visible unity of Christians and the mission of the one Christ.

Ten years later, inspired by the same spirit of Christian unity and mission, a group of law professors began meeting together to discuss Evangelicals and Catholics Together on Law. The Journal of Christian Legal Thought, concurrently with the Journal of Catholic Social Thought, is pleased to publish the resulting document, the product of eight years of discussion, meeting, and drafting. The subtitle of the original Evangelicals and Catholics Together is The Christian Mission in the Third Millennium. Its opening sentence proclaimed that “the Christian mission in the world faces a moment of daunting opportunity and responsibility.” In the nearly two decades since this statement, we truly have witnessed a new era in the mission of the Church. We see, for example, growing political divisions and a shrinking demographic in the Western Church, with the light of the gospel shining brighter in Africa, South America, and Asia than ever before. The perceived mission of the Western state is changing, too. While a new generation of students has developed a renewed interest in international justice, human trafficking abuses, and the poor, it despairs more and more of the ability of Western institutions themselves to actually do justice in any systematic or meaningful way. While confident in various personal callings to do justice here and abroad, many have no confidence in even

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 the Law: Christian Calling and the Legal Profession (InterVarsity Press 2007) and is an associate professor at Regent University School of Law.


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A Joint Statement By Evangelical and Catholic Legal Scholars Over the last eight years, the evangelical and Catholic legal scholars listed below have met on several occasions to learn from each other and to consider the similarities and differences in our views of law. We were initially inspired by the Evangelicals and Catholics Together (ECT). Two of the ECT leaders, Richard John Neuhaus and Chuck Colson, encouraged us in our work and were members of our project until their recent deaths. We first met at Notre Dame University with leading church historians from our communities who traced our history of conflict (mostly) and cooperation (more recently). In much of that conflict, law has been used as a weapon by our communities against one another.  Then we met at Pepperdine University with some of our leading philosophers and theologians and explored our overlapping and conflicting ideas about law.  Thereafter, we met for drafting sessions at Villanova University and in New Orleans.  Patrick Brennan and William Brewbaker prepared a draft document, which was edited many times in light of the comments of the participants. The collaboration has yielded, not only the document below, but many significant friendships among those in our two communities. This statement is being published concurrently in the Journal of Christian Legal Thought and the Journal of Catholic Social Thought.

“Jesus Christ is Lord. This is the first and final affirmation that Christians make about all of reality.” Although confession of Jesus’ lordship has always been at the center of the Christian faith, we recognize that the significance of this basic Christian profession may easily be misunderstood by Christians and nonChristians alike. We begin, therefore, by affirming in unequivocal terms that the lordship of Jesus Christ over all of creation places substantial limits on what earthly rulers can rightly do. Jesus’ lordship over the human family is a cause for hope and thanksgiving because we believe in the deity of Jesus Christ – that is that Jesus and God the Father are one, ( John 10:30) and that “God is love” (1 John 4:16). Jesus’ lordship of love provides a model and standard for all earthly rulers. This world’s rulers regularly “lord it over” those they rule (Matt. 10:25), aggrandizing themselves at the expense of those whom they should be serving. Jesus, on the other hand, is “the exact representation of [the] being” of God (Heb. 1:3), who has revealed himself as love. He is not the “thief who comes to kill and destroy” but rather the “good shepherd [who] lays down his life for the sheep” ( John 10:11). The Great Commandment he left us is that we should love one another as he has loved us ( Jn. 13:34). He exempted no one — certainly not rulers — from this commandment. Shortly before he was crucified, he washed his disciples feet, and said, “I have given you a model to follow” ( Jn. 13.15), a model of humble service (Matt. 10:26). We acknowledge with sadness that Christians have too often forgotten or ignored this model and yielded to the temptation to attempt to convert spiritual standing into worldly power and authority and have also distorted Christian teaching to justify ungodly political positions and social actions. To be sure, Jesus’ claims on his creation are absolute, but, as he said, his kingdom is “not of this world” ( John 18:36). During Jesus’ earthly life, some urged him to assume the role of an earthly governor, which he refused to do (Luke 12:12-14; John 18:36). It is Jesus, not we, who establishes the terms of


e are Evangelical and Catholic lawyers and legal scholars who have been inspired by the “Evangelicals and Catholics Together” project (ECT) and its contributions to the unity and mission of the one church of Jesus Christ. Building upon that project, without being a formal part of it, we wish to speak from and to our respective communities about law, politics, and government. We speak from the conviction that law’s place and role in society are shaped by enduring truths — truths that transcend the differences among cultures and traditions — about God, about the world, about the human person, and about what the entire human family is called by its divine creator and redeemer to be.


We begin our statement with the initial affirmation of the first ECT statement: 2

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his rule, and he has revealed himself as the One whose should exist or that it should exist in the particular form kingdom will be established primarily through changed we know. Moreover, this world and the human beings hearts (Luke 6:43), through love of neighbor and of who inhabit it are not merely the result of impersonal God (Matthew 22:38-40; Luke 17:20-21), and through forces, but were chosen and willed by God in his eternal suffering and weakness and divine vindication (1 Cor. economy of love and declared by Him to be “very good 1:26-31; Phil. 2:5-11), rather than through the exercise indeed” (Gen. 1:8). of worldly power. The implications of our confession In this world—the particular world God has actually that Jesus is Lord are explored below, but we begin made and which we inhabit—human beings have been by underscoring our belief that the lordship of Jesus assigned meaningful roles to play in the development and does not mean that the church is divinely authorized execution of human law. The human vocation includes the to impose, should desire to impose, or is capable of respectful and loving rule over God’s creation that Scripture imposing the reign of Christ calls dominion, without which through force, arms, law, neither humans nor the created The confession that Jesus is Lord order can flourish. There is no politics, or government. Accordingly, we believe that escaping the mark that human should be welcomed as a guard the confession that Jesus is Lord agency leaves on the world. At against tyranny. The confession is times, the idea of dominion has should be welcomed as a guard against tyranny. It has often misused as a pretext for a reminder that any human ruler been served in this way in the past, as the callous disregard of God’s in the cases of the resistance to creation, but because human remains a mortal and sinful Nazi totalitarianism embodied beings live in God’s world and in human being who is subject to in the German Confessing his presence and under his law, Church’s 1933 Barmen we are not autonomous in our divine rule and accountable to Declaration, the resistance to lawmaking, judging, or execution God. It places limits on human racist officials and policies by of laws. God has spoken: He has many churches in the American “told [us] what is good” (Micah law and human lawgivers. civil rights movement, and the 6:8), in the Bible, in the person resistance to Communist rule of his Son, and in the gift of in Poland by the Catholic Church. This confession is a conscience. He has given us faculties to discern the divine reminder that any human ruler remains a mortal and ordering in the world. Law is thus not merely a means of sinful human being who is subject to the divine rule and social control to be manipulated by those in power to accountable to God. It places limits on human law and achieve their ends. Making, interpreting, and executing human lawgivers. Similarly, and as elaborated below, law consistent with divine ordering is a high calling, not a to confess that Jesus is Lord is to affirm that different power-grab or arbitrary assertion. human actors have different spheres of authority and God has made a world which is richly and jurisdiction, even as all serve under the Lordship of the pervasively diverse. Faithfully making, interpreting, one Christ. It is to affirm that Jesus alone is Lord of every judging, and executing laws for the sake of the common person’s conscience—meaning that no merely human good requires not only knowledge of right and wrong, ruler or authority, even one claiming to rule in God’s but also a wise understanding of creation, development, name, can replace Jesus as the one to whom each of us cultures, institutions, and the manifold potentiality must ultimately answer. Jesus’ lordship likewise calls into of human persons. The presence of a divinely given question what has been called the “tyranny of relativism,” moral order does not imply that diversity among laws which attempts to elevate human autonomy at the and legal systems is always something to be regretted. expense of truth. We affirm in unqualified terms that the Law appropriately responds to the characteristics human person enjoys inviolable and inalienable dignity in and needs of the cultures in which it emerges. It does, virtue of being created in the image and likeness of God however, entail limits and goals that are to be wisely and (Gen. 1:26). prudently discerned by those in authority, ordinarily in consultation with those whom they serve.



“In the beginning God created the heavens and the earth” (Gen. 1:1). Christians over the centuries have understood these words to mean, first, that God chose to create the world; it is not inevitable that the world

Though created good, the world fell into sin through Adam’s disobedience (Gen. 3:1-20; Rom. 5:18). As the 3

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consequence of and punishment due to the original sin world, that he gave his only Son, that whoever believes of human disobedience to the divine command, disorder in him should not perish but have eternal life. For displaced harmony, and this disorder, which is part of God did not send his Son into the world to condemn universal human history, is not merely external to the the world, but in order that the world might be saved human person (Gen. 3:17, 19; Rom. 8:21). In the words through him” ( John 3:16-17). And, just as God did not of the Second Vatican Ecumenical Council (1965), leave his creatures to their just deserts, he likewise did “What Revelation makes known to us is confirmed by not abandon his Son but resurrected him from the dead our own experience. For when man looks into his own and “exalted Him to the highest place and gave Him the heart he finds that he is drawn toward what is wrong and name that is above every Name” (Phil. 2:9). sunk in many evils which cannot come from his good Jesus began his earthly ministry by proclaiming the creator” (GS 13.1). inauguration of God’s kingdom, the new covenant, which With the fall came human alienation from God, from set aside the Mosaic covenant and Israel’s theocracy (Luke family, from neighbor and from the rest of creation (Gen. 22:20; Gal. 3:19, 23-25; Heb. 8:13), in favor of a kingdom 3). Christians have disagreed over whether government in which there is neither “Jew nor Greek, . . . slave nor free, . would have been a feature of . . male [nor] female.” (Gal. 3:28). human life had Adam remained Although Christ called himself unfallen, but the fundamental king and will assert his power as The disorientation brought disorientation in the human the final judge of all at the last about by sin equally besets those judgment (Matt. 25:31sqq), he heart brought about by original sin clearly generates a need for insisted that his kingdom was not who frame laws, pass judgment, law and government to restrain “of this world,” the present form evil by force and admonition. of which will eventually pass and administer the affairs of Without the restraining and away (John 18:36; 1 Cor. 7:29state, and history teaches that coordinating work of law, 31). Although Christ declared societies disintegrate as the at his ascension that he had been governments that do not respect powerful prey upon the weak. given all authority in heaven these limitations quickly become and on earth (Matt. 28:17), the Nevertheless, while just laws and good government are great apostles taught that, until its final oppressive. blessings, they are by no means consummation at Christ’s return, a sufficient remedy for human the Kingdom of God would be evil. They are provisional spread not by force of arms but institutions that preserve peace and order pending through “the foolishness of preaching” (1 Cor. 1:21), and the final realization of Christ’s victory over sin and the that Christians would have no final home in this world “principalities and powers” (Eph. 6:12). (Phil. 3:20; Heb. 11:10, 14-16; 13:14). Just laws and good government cannot finally While our respective traditions affirm the bring about ultimate stability and peace. As Christ’s fundamental gospel narrative of creation, fall, death and resurrection make clear, the alienation redemption, and consummation as set forth above, from God, family, neighbor, and creation that are we differ in significant respects in our understanding the consequence of human rebellion against God are of these events and their significance for law and ultimately beyond the capacity of human institutions to human government. In its understanding of creation, remedy. Nations rise and fall, prosper and decay, unable Reformation thought has tended to emphasize God’s ultimately to secure their own futures in the face of revelation of Himself and His will in Christ and in Holy unforeseen circumstances, external enemies, or internal Scripture and the importance of the human response decrepitude. The disorientation brought about by sin to God’s Word. Catholics have emphasized humans’ equally besets those who frame laws, pass judgment, participation in the divine wisdom, their sharing in and administer the affairs of state, and history teaches virtue of their created intelligence in the divine and that governments that do not respect these limitations providential ordering. In its understanding of the quickly become oppressive. consequences of the Fall, Reformation thought has Even so, the fall did not finally frustrate or end God’s more strongly emphasized the loss of human moral plan for his creation. The good Creator did not leave his freedom and capacity for moral discernment, which creatures to the just deserts of their fallen state. Instead, has, in general, fostered a more negative and restrained by giving his only Son as a sacrifice for sin, God sought understanding of the aspirations of the political order, to reconcile humanity to himself: “For God so loved the and a greater sense of the indispensability of Scripture 4

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for moral deliberation (2 Timothy 3:16-17). Catholics, on the other hand, have emphasized the sufficiency of grace to restore fallen human nature (2 Cor. 12:9), and this in turn has fostered a more ambitious assessment of the proper ends of political order. Catholics’ aspirations in terms of the political order have also been shaped by the sacred tradition in which they hold Scripture to be authoritatively interpreted by the Church. These tensions have led Western Christian legal and political theorists to offer a number of differing accounts of the appropriate aspirations of human rule in a fallen world. One reaction, associated with the radical Reformation (e.g., the Anabaptists), has been to regard legal and political institutions as pervasively flawed — instantiations of rule by demonic principalities and powers, participation in which should generally be of little interest to Christian believers. Another reaction, associated chiefly with the magisterial Reformation (e.g., Lutherans and Calvinists), has been slightly more positive. In this view, human political structures and human laws are a mixed blessing. On one hand, political stability facilitates the preaching of the gospel and allows human beings to live their lives in peace. Participation in such rule is not sinful but is a worthy human calling. Nevertheless, intractable human sinfulness counsels the construction of institutional frameworks intended to reduce the power of governments and of individual rulers within those governments. In the same vein, the so-called “Two Kingdoms” view has emphasized the provisional role of human law and government in the era between Christ’s resurrection and the final consummation of his rule. There are, as Jesus taught, two kingdoms in the world between the present and his return— Caesar’s and God’s. The secular state is a provisional institution incapable of producing the full healing and justice that the world requires. Forgetting this fact puts us in danger of trying to usher in a false utopia in the name of Christ. Finally, the Catholic and much of the Calvinist tradition have tended to be somewhat more hopeful about the capacity of Christians to construct and affect political and legal structures for the better, assuming that the redemption won by Christ in his cross and resurrection was intended to affect not only individual salvation but also cultural and social deliverance from sin, and that it is exactly the mission of the church to pursue this redemption in both its individual and its cultural dimensions. It is fair to say, however, that in each of these reactions— Anabaptist, Lutheran, Calvinist, Catholic —there is both a “now” and a “not yet” dimension; there is a firm hope that the death, resurrection, and reign of Christ will affect political structures here and

now, coupled with a realization that justice in our lives together will only be fully and finally realized when the two kingdoms are merged in the personal reign of Christ in the last day. In the radical Reformation, the “now” dimension is represented in the new political society embodied in the church. In the magisterial Reformation, the “now” dimension is reflected in the church and also, to some degree, in political structures that provide a context of relative peace and justice. In Christian circles that are more hopeful about the prospects of making Christ’s victory efficacious in this world prior to His return, the “now” dimension is instantiated not only in the church as a separate political society, but in the human political society at large. It follows that the “not yet” dimension in the worldly power structures looms largest in the radical Reformation and plays a significant role in the political theory of the magisterial Reformation. Even among those who are more hopeful about the abilities of government, however, there remains a recognition that the job cannot be completed through human agency alone, but will require the deliverance of Christ, the Desire of the Nations.


There is, then, no uniform Christian account of the appropriate aspirations of political authority. With few exceptions, however, Christians have been united in affirming that human political authority is, at least after the Fall, a blessing. Governmental authority is both ordained by God (Romans 13:1-4) and established for the benefit of humanity for the purpose of “punish[ing] those who do wrong and . . . commend[ing] those who do right” (1 Pet. 2:14). As a result, humans’ ruling and being ruled by other humans is not, in and of itself, an evil. Over the centuries, though, Christian reflection on ruling authority has again and again echoed St. Augustine’s teaching that Christ is the “founder and ruler” of the only true and lasting commonwealth, which is the City of God in heaven (Civ. Dei, 2.21). Earthly rule in the present age is thus provisional and temporary and, because it is undertaken by fallen human beings, bound to be a mixed blessing. The biblical message is unmistakable that the distinguishing mark of ruling authority is that it is like Christ himself, the servant of all. “You know that those who are recognized as rulers over the Gentiles lord it over them, and their great ones make their authority over them felt. But it shall not be so among you. Rather, whoever wishes to be great among you will be your servant; whoever wishes to be first among you will be the slave of all” (Mk 10:42-44. See also Mt. 20:24-28, Lk 22:24-27). In the socio-political order, ruling authority should be expressed in acts of service (Mt. 20:28). 5

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The biblical message is less revealing on the question of the specific forms the sociopolitical order is to take, and Christian reflection on this question has been varied, fruitful, and responsive to changing conditions. An important point of agreement has been that, in any rightly ordered society, there are plural authorities operating in different spheres, and that these other authorities must be respected by those in political authority. The first question concerning the form of the social order has been the deference owed by political rulers to the church-- reflected in the rights of the churches to govern themselves and the respect of freedom of conscience in spiritual matters. While both the church and individual conscience stand as limits on the aspirations of the political authority, in our own day the rights of the church have not been recognized as readily as those of individual conscience. Other limitations on the governing authority are marriage and the family. Christians understand marriage and the family to be natural social forms that the state neither invents nor reinvents, though it may recognize and regulate them in appropriate ways. Other social forms, too, are acknowledged by Christians as operating as limits on the governing authority. Whereas central strands of the liberal political tradition pit the lone individual against the governing power, Christians have generally agreed that, in addition to the church and the family, other groups and associations, sometimes referred to as mediating institutions, such as unions, nongovernmental civic associations, sodalities, universities, guilds, and such, are to be respected by the state and not absorbed by it. If it is correct to say that these institutions “mediate,” it would be misleading to imagine that they are somehow secondary, or merely instrumentally useful for checking the power of the state. Christians anticipate that a just state will respect and foster a healthy pluralism of social forms with a right to exist and operate (assuming they exhibit worthy moral purposes), for these institutions are where men, women, and children are formed and flourish. Evangelicals and Catholics part ways to some extent when it comes to giving an account of the role of the state in a society composed of plural societies. In Catholic social thought, the commitment to pluralism is expressed through the concepts of subsidiarity, solidarity, and the common good. The doctrine of subsidiarity bears more than a superficial resemblance to the Reformed doctrine of “sphere sovereignty,” according to which social spheres enjoy substantial autonomy, not by concession of the state, but by divine right. Subsidiarity and sphere sovereignty are alike in teaching that when aid is to be shared among societies or spheres, it is to be shared in a way that respects their autonomy and authority over their own common lives. For example, the work of struggling families is not to be outsourced entirely to

the state or even the Church, but is instead to be assisted and built up by them. Nevertheless, the concepts are in tension to some degree. In some theories in which the term “subsidiarity” occurs (for example, in discussions of American or European federalism), subsidiarity often operates as a policy of devolution, counseling that social activities are to be performed at the lowest or most local level at which they can be successfully performed. As developed in Catholic social thought, however, the principle of subsidiarity is not a policy at all. Rather, it is the principle that social functions should be performed at their proper levels, that is, at the level to which they have been assigned by creation, divine decree, or authoritative human judgment. Clarified but not created in the face of growing state monopolies, the principle of subsidiarity teaches that the work of the family, for example, is ordinarily to occur there, not because of its smallness but instead because that is where by nature and divine design it properly belongs. Closely related to subsidiarity is the principle of solidarity. Although often, and correctly, associated with the teachings of Pope John Paul II, this principle is a reformulation and modern application of earlier theories of the human person’s sociality. In fact, subsidiarity is itself the principle of respecting and, where necessary assisting, the societies or communities in which the human person’s natural sociality is worked out and built up through solidarity with others. In other words, what subsidiarity respects and protects is the solidarity that is the end and condition of human communities. Solidarity, for its part, is not a weak or superficial bonding among persons. What earlier political theory referred to as friendship can surely be an aspect of solidarity, but solidarity is never just one kind of relationship. Solidarity is the multitude of relations that hold a particular society or community together, and foster the common good of its members. What Catholic social thought affirms in these respects is often summed up under the principle of the priority of the common good. Societies, such as the family, the Church, and even the political community offer their participants common goods, goods that are not obtainable in diaspora. To participate in a family is to enjoy a good that is lost, and cannot be distributed, if the family is divided. What gives the common good its priority is its being good for all the members. No one flourishes alone, and, equally, no one flourishes in just one society, even political society. The human person’s natural sociality properly works itself out in myriad societies, each of which confers a common good on its participants. In the context of a healthy pluralism of the sort we affirm, each society will aim at its own 6

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common good, while also referring its united action to the common goods of other societies. Every society, because it cannot spontaneously and unanimously identify action toward its common good, will require the exercise of authority. In the Catholic account, authority coordinates common action. As we have already affirmed, all ruling authority is from God (Rom. 13:1). The aim and limit of such authority always is the common good, whether it be of the Church, the family, other societies, or political societies. Although we affirm together that life in communities of various sorts is an essential aspect of what it means to be human, and that, as a result, political ontology extends beyond the categories of “individuals” and “the state,” many Evangelicals have been hesitant to accord the state a significant directive role in achieving the political community’s common good and have been concerned that the idea of solidarity is too easily pressed into the service of ideologies that are fundamentally antithetical to pluralism. Three distinctive features of Reformation thought that undergird this Evangelical hesitancy are (i) the conceptual priority given to God’s purposes over our shared human nature, and the corresponding emphasis on the immediate and direct dependence of the individual on God and, consequently, on obedience to God’s commands, (ii) a robust doctrine of sin that emphasizes fallen humanity’s lack of substantial moral freedom and integrity, and (iii) an emphasis on the church as the primary locus of renewal. These starting points have led Evangelicals to question whether, after the Fall, the presumed harmonies of purpose and function implicit in some accounts of subsidiarity and solidarity can be reconciled with the realities of human conflicts. Similarly, the reality of political life after the Fall has led Evangelicals to question the desirability of the state’s assuming the role of directing (through force if necessary) the people toward a robust conception of the common good, which, in any particular case is likely to reflect the false gods of the community (or those in charge of it). Evangelicals have thus, for the most part, preferred to speak in terms of civil society rather than political community and to favor a role for the state that is more juridical and facilitative than directive. To describe a government as “juridical” and “facilitative,” however, does not imply that it should be indecisive or weak in the face of injustice.

exclaims, “[W]ill not God bring about justice for his chosen ones, who cry out to him day and night? Will he keep putting them off? I tell you, he will see that they get justice, and quickly” (Luke 18: 7-8). Although the Bible has much to say about what justice entails, it does not offer a conceptual account of justice, and no single conceptual account of justice holds sway among Christians today. Nevertheless, we affirm that justice is not merely a human construct—that, in the end, justice is done when God’s will is fulfilled, and injustice done when it is not. Moreover, the God who loves justice is always present and will be the ultimate Judge of the justice done by individuals and communities. Human justice is therefore never autonomous; the rulers and judges of this world—indeed, all human beings-- will render account before the judgment seat of Christ (2 Cor. 5:10). Human beings must seek justice. Although the basic standards of justice are “written on [our] hearts” (Rom. 2:15), we are prone to “suppress the truth” (Rom. 1:18). Unless we are seeking justice, those of us who may benefit from unjust arrangements will be tempted to “call evil good and good evil” (Is. 5:20). Like those to whom Isaiah spoke, we must “cease to do evil” and “learn to do good” (Is. 1:1617), having our minds transformed in order that we may discern God’s will (Rom. 12:2). Human beings must establish justice. A just society requires accessible processes for their grievances (Amos 5:15, 24). It requires just laws (Is. 10:1-2), and judges who will apply those laws impartially (Deut. 16:18-20; Micah 7:3; Is. 59:4). Human beings must do justice. Although biblical injunctions to “do justice” are frequently implicitly addressed to community leaders in a position to mete out justice, justice is not solely the obligation of those in political authority (Micah 6:8). Everyone is expected to do justice in his dealings with others. Justice is the responsibility of the community and not merely the government. Well-functioning institutions are thus necessary but not sufficient conditions for justice, which remains, at its core, a matter of human action and not merely a function of impersonal institutional design, as though a set of just “structures” could be implemented with the result that justice would then be forever established. It is no accident that concern for the poor and the vulnerable has figured prominently in Christian accounts of justice, both in the Bible and elsewhere. Indeed, after the Fall, the human condition is to be poor and vulnerable, in need of liberation from sin and death, and, at the same time, incapable of effecting that liberation. Jesus’s response to our spiritual poverty is to guide our response to the poverty of others: “For you


The Lord reveals himself as the One who loves justice (Ps. 33:5; 37:28), and enjoins those who belong to him to seek justice (Is. 1:17), to establish justice (Amos 5:15), to do justice (Micah 6:8), and to cry out against injustice (Prov 31:8-9; Is. 58:6). On one occasion, Jesus 7

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know the grace of our Lord Jesus Christ, that though he ambivalent, however. Although Reformation thought was rich, yet for your sakes he became poor, so that you has played an important part in the development of through his poverty might become rich” (2 Cor. 8:9). In rights discourse, and although increasing numbers of the same vein, Christians who administer justice must Evangelicals use the language of human rights, and even do so in awareness of the mercy they have received in contribute to the work of non-governmental human Christ. At a minimum, this has meant exercising one’s rights groups, many Evangelicals (like some Catholics) vocation in a spirit of humility and mercy. In addition, remain concerned that proliferation of rights talk may the Scriptures identify the most materially vulnerable undermine human dignity and political discourse. of society — the poor, the widow, the orphan, and Regardless of the scope and strength of our individual the alien--as special objects of God’s love. In Jesus’ commitments to the use of the language of human rights, inaugural sermon, quoting Isaiah, he identified himself we affirm that justice requires respect for the equal as having come “to preach good news to the poor, to dignity of every person, for human life from conception proclaim freedom for the prisoners and . . . to release the until natural death, for the integrity of marriage and the oppressed” (Luke 4:17-21 quoting Is 61:1-2). family, for freedom of conscience, for the liberty of the No statement of this sort would be complete without Church, for freedom of expression and assembly, for acknowledging that claims of justice are frequently, freedom to associate and organize, and for the freedom and especially so in the contemporary world, stated of mediating institutions. We do not suggest that these in terms of rights. Christians requirements exhaust the have reflected on the themes demands of justice, only that of human and group rights for they are necessary. We also We affirm together that human close to a millennium, if not agree that these requirements law must aspire to the qualities longer, and in many different of justice will be satisfied in idioms. These reflections different ways in different specified in the traditional have mined deep questions circumstances. Frequently, in theology and philosophy, though not always, they will definition: it should be an act of and often involved deep demand implementation reason in conformity with God’s disagreement. Today, human through law. rights are the lingua franca of moral law, as written on the international moral discourse LAW human heart and revealed in the that is at bottom a debate about Law, our principal concern the demands of justice. Shorn Bible (Romans 2:14-16). in this statement, is the primary of theoretical complexity and medium through which nuance, declarations of human, political authorities exercise and sometimes of group, rights have resounded around their God-given and God-directed jurisdiction, the aim the globe since the promulgation of the International of which is justice. The most influential single Christian Declaration of Human Rights in 1948 and its many account of law remains that classical Christian account successor declarations. These important declarations relating human law to natural law, as articulated by St and the ensuing deliberations about their significance Thomas Aquinas and others. This account continues have not ushered in a world of justice. Indeed, great evils to enjoy wide and growing, though not unqualified, have been done in the name of human rights. There is support across adherents of a number of Christian reason to believe, however, that increased dedication to traditions. It recognizes the role of the political authority the cause of human rights has contributed to securing, as legislator and respects, as well, the place of customary frequently through law, the conditions of justice for law, the ius gentium, and the laws of particular religious more of the world’s people. communities, such as the Canon Law. While Evangelicals and Catholics are dedicated St. Thomas famously defined law as an ordinance of to doing justice to and for all peoples and individuals, reason, for the common good, made by those who have they divide, in various ways, on the question whether it authoritative care for the community, and promulgated. is useful or even accurate to raise and answer questions In defiance, then, of modern positivist theories of law, of justice in terms of rights. The Catholic Church has the traditional natural law account teaches that law is tended more and more to teach in the terms of human not a mere command but is — again — an ordinance and group rights, and most Catholic theorists and of reason, shaped by the requirements of the common activists are in accord with this teaching, though with good, not just the ruler’s pleasure or preference. These some dissent. The Evangelical embrace of rights remains requirements are requirements of justice. Also in 8

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defiance of the positivist account, Aquinas’s definition does not make coercion an essential part of law, though it certainly anticipates that it will sometimes be necessary and justified. The traditional account thus understands law to be essentially an appeal to reason and goodness, with coercion, like punishment, coming into play only when that appeal has failed to succeed. Finally, it is also most common to understand the project of human lawmaking as one of specifying or giving determinate content to higher law, usually known as the natural law. The natural law, in turn, is traditionally understood to be a divine law instilled in the human mind, by God, ordering the human person to do and pursue the good and to avoid evil. On the traditional understanding, therefore, the project of making human law is understood to be made possible by, and in turn measured by, a higher law that is truly divine though naturally held and known. In this light, it is especially appropriate to refer to the dignity of human law and, thus, of judgments reached in conformity with it. The tradition emphasizes the indispensability of the lawmakers’ and judges’ possessing and exercising the prudence appropriate to their role. Especially during the twentieth century, many Protestants have resisted natural law theory on the ground that human corruption in the wake of the Fall affects both the human capacity and inclination to discern and apply moral truth. However, many of the early leaders of the Lutheran and Calvinist branches of the Reformation affirmed natural law, holding that, although diminished, human moral capacities remain sufficiently intact that the basic precepts of right and wrong continued to be known, at least with respect to the limited judgments that are the province of civil authorities. Even so, it is fair to say that the Reformation tradition has been more reticent about natural law than Catholics have. Some of the reasons for this hesitancy include the frequent historical failures of real-world rulers to recognize and/or implement natural law precepts, the danger of cloaking the cultural norms through which natural law is inevitably mediated with divine authority, and the challenge that some of Jesus’ teachings appear to pose to conventional understandings of morality. With this background in mind, we affirm together that human law must aspire to the qualities specified in the traditional definition: it should be an act of reason in conformity with God’s moral law, as written on the human heart and revealed in the Bible (Romans 2:14-16). Its contents should be shaped by and serve the common good. We affirm, further, that the vast bulk of human law is the result of human determination or specification, not a direct implementation of the natural or revealed

law. Law’s essential connection to reason requires that officials make legal and legislative judgments that are lawful from the perspective of God’s law, in service of the community and not for selfish gain, and that they employ prudence informed by understanding of the operations of laws and legal processes and the factual context in which their judgments will operate and due diligence. While law unavoidably has a role in helping men and women to live morally worthy lives, it would exceed law’s competence to try to require every virtue or prohibit every vice. Human law’s effectiveness depends on its being suited to the particular community for whom it is promulgated. We acknowledge with regret that laws and legal judgments regularly fail to meet these expectations, and never meet them completely. As lawyers, law teachers, and legal scholars, we aspire to teach and write and serve to the end that such judgments may be improved and the cause of justice served and God glorified.


We offer this statement, in hopes that it will encourage discourse within and among our communities, and that it will generate discussion within the broader Christian world and beyond. Ultimately, we hope that this document might influence law for good and make ours a more just world.



Barbara Armacost Professor of Law University of Virginia School of Law Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas Law School (Minnesota) William S. Brewbaker, III (Primary Drafter) William Alfred Rose Professor of Law University of Alabama School of Law Robert F. Cochran, Jr. (Convener) Louis D. Brandeis Professor of Law and Director, Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics Pepperdine University School of Law Zachery R. Calo Professor of Law Valparaiso University School of Law 9

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Oswald Guinness Author and Founder, Trinity Forum

Margaret F. Brinig Fritz Duda Family Chair in Law Notre Dame Law School

Timothy Hall President Austin Peay State University

Richard W. Garnett (Convener) Associate Dean and Professor of Law Notre Dame Law School

Sarah Howard Jenkens-Hobbs Charles Baum Distinguished Professor of Law University of Arkansas at Little Rock

Robert P. George McCormick Professor of Jurisprudence Princeton University

Dayna Matthew Professor of Law University of Colorado School of Law

F. Russell Hittinger William K. Warren Professor of Catholic Studies Research Professor of Law University of Tulsa

John Copeland Nagle John N. Matthews Professor of Law University of Notre Dame School of Law

Kevin P. Lee Professor of Law Campbell University

Mark Osler Professor of Law University of St. Thomas Law School (Minnesota)

Michael P. Moreland Vice Dean and Professor of Law Villanova University School of Law

Michael P. Schutt Associate Professor Regent University School of Law

Robert J. Pushaw James Wilson Endowed Professor of Law Pepperdine University School of Law

David A. Skeel S. Samuel Arsht Professor of Corporate Law University of Pennsylvania Law School

Michael A. Scaperlanda Associate Dean for Academic Affairs & Associate Director of the Law Center Gene and Elaine Edwards Family Chair University of Oklahoma College of Law

David Smolin Harwell G. Davis Professor of Constitutional Law and Director, Center for Children, Law, and Ethics Cumberland Law School, Samford University

Elizabeth R. Schiltz Professor of Law Co-Director, Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law


Helen M. Alvare Associate Professor of Law George Mason University School of Law

O. Carter Snead Professor of Law William P. And Hazel B. White Director of the Center for Ethics and Culture Notre Dame Law School.

John M. Breen Professor of Law Loyola University Chicago School of Law

Robert K. Vischer Dean and Professor of Law University of St. Thomas School of Law

Patrick M. Brennan (Primary Drafter) Professor of Law John F. Scarpa Chair in Catholic Studies Villanova University School of Law

*Institutional affiliation is listed for identification only.


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Journal of Christian Legal Thought

Speaking of Religious Freedom

A critical time to build a stronger free speech infrastructure By Kimberlee Wood Colby Senior Counsel, Center for Law and Religious Freedom


eligious liberty depends on a healthy freedom of speech just as much as it requires healthy freedom of religion. For decades, freedom of speech has protected religious persons. During World War II, Jehovah’s Witness students were protected when they refused to pledge allegiance to the flag, which they equated with bowing to a graven image, not by the Religion Clauses but by the Free Speech Clause. Time and again over the past sixty years, free speech has secured access to the public square for religious speakers, usually despite the government’s Establishment Clause defense. The weakening of free exercise over the past two decades, particularly since Employment Division v. Smith,1 is well documented. The simultaneous weakening of free speech has been perhaps less obvious despite the weakening of free speech in several contexts. Scholarship is needed to document the current deterioration of free speech jurisprudence and to provide the intellectual framework for doctrinal changes needed to recover a healthy free speech jurisprudence. While the sky is not falling on free speech, it has darkened substantially. Despite several strong free speech decisions in recent years, the Supreme Court has also issued decisions that diminished freedom of speech. In his recent article, The Death of Free Speech,2 Professor Jonathan Turley identified four current threats to free speech: nondiscrimination policies, as well as laws prohibiting speech that is hateful, blasphemous, or deceitful. As this article briefly discusses, not only is there a sustained threat from misapplication of nondiscrimination policies, but there is a growing threat from an overly expansive doctrine allowing the government to condition funding on private speakers’ willingness to embrace specific viewpoints, even beyond the program being funded.

when the government may condition its funding upon private speakers’ willingness to adopt specific governmental viewpoints as their own. The case is Agency for International Development, et al., v. Alliance for Open Society International, Inc., et al., No. 12-10 (oral arg. Apr. 23, 2013). The case threatens to significantly expand the government’s ability to shape the speech of private grantees beyond the programs the government is specifically funding as permitted in Rust v. Sullivan.3 The case involves a highly successful international funding program. At the prompting of many faith-based groups, in 2003, President Bush asked Congress to fund a massive program to fight the AIDS epidemic decimating Africa’s population. Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7601 et seq., which appropriated approximately $63 billion over a decade to fight the pandemic. By all accounts, the programs set up by the Act have been extremely successful in fighting the spread of AIDS and decreasing the number of AIDSrelated deaths in Africa. Several relief organizations that carried out the programs challenged one component of the Act, Section 7631(f), which prohibits making funds available “to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” Several international or United Nations organizations, however, are explicitly exempt from the prohibition. HHS regulations implementing the provision, as modified in response to the litigation, allow organizations to establish fully independent affiliates in order to carry a different message, although such an effort is expensive. A second provision of the Act, Section 7631(e), was not challenged. It provides that no funds made available under the Act “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.” This provision, of course, would almost certainly withstand challenge under Rust, in which the Supreme Court upheld the constitutionality of challenged regulations that prohibited “counseling, referral, and the provision of information regarding abortion as a method of family planning.”4 The Court in Rust observed that “when the Government appropriates public funds to establish a

The Supreme Court Weighs the Constitutional Parameters for Government Conditions on Funding

This Term the Supreme Court heard oral argument in a challenging case that will set parameters for 11

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program it is entitled to define the limits of that program.”5 Section 7631(f) represents a significant expansion of Rust. The government is requiring that a non-profit group adopt an organization-wide policy as the price of participating in a particular federal program. The restriction is not limited to the actual program that is being funded, in which the government is certainly free to “buy” its desired message. Instead, as the price of participating in government programs, the organization as a whole must adopt whatever policies the government dictates. If upheld, the government’s rationale could be used to require a religious nonprofit that administers social programs, largely through its own funds but supplemented by government funds, to agree to advocate the government’s position on any particular issue, not just in the specific program but on an organization-wide basis. Although the nonprofit would not be required to take the funding, it would face a difficult choice: hold to its principles or help more people. At oral argument, the government maintained that its ability to choose which organizations it would “partner with” to administer its programs should include the ability to condition “partnership” on the requirement that the organization be like-minded and share the government’s viewpoint as to the best way to achieve the government’s goals. Many members of the Court seemed troubled by the government’s heavy-handed approach.6 But everyone, including the advocates and the justices, seemed to have difficulty articulating the line between permissible and impermissible governmental conditions on organizations’ speech. The breadth of the government’s argument that private relief organizations “have been given a voluntary choice: whether to assist in carrying out a comprehensive governmental HIV/AIDS strategy”7 or forego funding, plus its corollary argument that “the government may . . . ensure that its message is effectively communicated, and not undermined, by the recipient,”8 clearly disquieted the Court. That discomfort was not eased by the government’s seeming inability to give administrable limits to the scope of this asserted power to influence private speech. Unblushingly, the government declared that “[i]t is for Congress to decide when a condition on the receipt of federal funds is integral to a funding program, and it has done so here.”9 The government conceded only that a funding condition could not be “aimed at suppressing dangerous ideas or disfavored viewpoints.”10 It further took refuge in the distinction between a funding condition that demands that a private speaker mouth certain speech, and a direct regulation of a private speaker’s expression. Professor Eugene Volokh filed an amicus curiae brief

on behalf of Christian Legal Society and the Becket Fund for Religious Liberty that argued it is “inconsistent with the First Amendment for the government to condition the receipt of a grant on the recipient’s agreement to make an affirmative policy statement that may be antithetical to the recipient’s beliefs.”11 The brief warned that giving the government such “startling power over religious and educational institutions” would skew the marketplace of ideas and penalize organizations for refusing to endorse the government’s ideology.12 The brief reminded the Court that tax exemptions13 and student loans14 have been deemed government subsidies, although the brief questioned the correctness of that determination.15 The specter of government using its various “subsidies” to pressure a religious organization to adopt the government’s policies on a wide range of issues is chilling. The principle, of course, would be valid for every level of government, from city council to Congress. The case points to the need for legal scholarship that revisits the 1980s decisions that equated tax exemptions and student loans with government subsidies.16 Such an expansive understanding of “government subsidy” is a recurrent threat to freedom of speech, as is an unlimited ability of government to condition funds on a private speaker’s willingness to adopt the government’s various policies. The United States Commission on Civil Rights Holds a Briefing on Reconciling Nondiscrimination Policies with the Freedoms of Speech and Religion Relatedly, the flawed premise underlying Justice Ginsburg’s majority opinion in Christian Legal Society v. Martinez17 is the mistaken, oft-rejected notion that the government subsidizes religious speech when it allows a religious group to meet on public property like other private speakers. Martinez’s mischaracterization of meeting space as a government subsidy flies in the face of forty years of precedent to the contrary. In Healy v. James,18 the Court rejected precisely the idea that a college subsidized the radical political speech of the Students for a Democratic Society by recognizing them as an official student group. In Widmar v. Vincent,19 in rebuffing a public university’s Establishment Clause defense, the Court again rejected the idea that a university subsidized a student group’s religious speech when it recognized the group and granted it meeting space. The same has been held to be true for religious groups that meet at high schools as recognized student groups,20 use a high school auditorium in the evenings,21 publish an evangelical Christian campus magazine,22 and lead after-school meetings for elementary students on school grounds.23 The Martinez decision was the subject of a briefing held by the U.S. Commission on Civil Rights on March 22, 2013, on the broader topic of the compatibility of 12

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nondiscrimination policies with religious liberty and freedom of speech.24 The briefing also covered the Court’s unanimous recent ruling in Hosanna-Tabor v. EEOC25 that protected religious organizations’ constitutional right to choose their leaders despite employees’ federal civil rights claims. Essentially, counsel for Christian Legal Society and the Becket Fund for Religious Liberty squared off against counsel for the ACLU and the Americans United for Separation of Church and State (AU). Countering the ACLU’s and AU’s arguments against free speech and religious liberty, we urged the Commission to protect students’ religious speech on college campuses. In my statement, I explained that nondiscrimination policies are perfectly compatible with freedom of speech and religious liberty if such policies are properly interpreted and applied.26 Nondiscrimination policies are good and essential, but they are intended to protect religious students, not prohibit them from campus. The problem is that nondiscrimination policies are being misinterpreted and misused to exclude religious student groups. This “application of the nondiscrimination policy against faith-based groups undermines the very purpose of the nondiscrimination policy: protecting religious freedom.” 27 Of course, it is common sense and basic religious liberty—not discrimination—for religious groups to expect their leaders to share their religious beliefs. Indeed many colleges have recognized that nondiscrimination policies and religious liberty are entirely compatible. As a commendable best practice, leading universities have embedded robust protection for religious liberty within their nondiscrimination policies.28 The ACLU and AU argued against religious exemptions from nondiscrimination laws on the grounds that nondiscrimination laws would become unenforceable if robust religious exemptions are granted. To bring the discussion back to reality, I reminded the Commission that the nation has a longstanding tradition of providing religious exemptions to nondiscrimination laws, which has given us substantial, successful practice at protecting citizens’ civil rights while simultaneously protecting citizens’ religious liberty. Rather than a novel claim, religious exemptions are actually the norm in the nondiscrimination context. Again, scholarship is needed on this vital issue—and needed quickly—to reinforce the idea that protecting religious liberty and freedom of speech are compatible with legitimate nondiscrimination norms. Groundwork has been laid. Professor Richard Garnett has explored the critical distinction between invidious discrimination and permissible “discrimination” with a thoughtful analysis of how to reconcile nondiscrimination policies

and religious liberty.29 Professor John Inazu’s work also provides insights on this issue.30 Enforcement of nondiscrimination policies that are misinterpreted to prohibit free speech and religious liberty and expansion of government’s ability to influence private speech through funding conditions represent two genuine threats to the freedoms of speech and religion. Scholarship that builds the intellectual infrastructure needed to meet these and other free speech challenges is required. 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. Endnotes

494 U.S. 872 (1990). (last visited May 15, 2013). 3 500 U.S. 173 (1991). 4 Id. at 193. 5 Id. at 194. 6 The oral argument transcript is available at http:// Justice Kagan recused herself. 7 Brief for the Petitioners at 11, available at http:// 8 Id. at 12. 9 Id. 10 Id. at 13. 11 Brief Amicus Curiae in Support of Respondents at i, available at doc?id=497. 12 Id. at ii. 13 Regan v. Taxation With Representation of Wash., 461 U.S. 540 (1983). 14 Grove City College v. Bell, 465 U.S. 555 (1984). 15 Brief Amicus Curiae, supra n. 11, at 7. 16 One commentator has suggested that “the framework outlined in Rust v. Sullivan articulated a distinction between permissible restrictions on ‘programs’ and impermissible conditions on ‘grantee[s].’” Note, Constitutional Law – First Amendment – Second Circuit Finds Affirmative Speech Condition on Leadership Act Funds Unconstitutional, 125 Harv. L. Rev. 1506, 1511 (2012). 17 130 S. Ct. 2971 (2010). 18 408 U.S. 169 (1972). 19 454 U.S. 263 (1981). 1 2


Journal of Christian Legal Thought

Board of Educ. v. Mergens, 496 U.S. 226 (1990). Lamb’s Chapel v. Center Moriches Union Sch. Dist., 508 U.S. 393 (1993). 22 Rosenberger v. University of Virginia, 515 U.S. 819 (1995). 23 Good News Club v. Milford Central School, 533 U.S. 98 (2000). 24 U.S. Commission on Civil Rights Briefing, Peaceful Coexistence? Reconciling Non-discrimination Principles with Civil Liberties, March 22, 2013. The briefing transcript is not yet publicly available. 25 132 S. Ct. 694 (2012). 26 The Christina Legal Society’s written statement to the USCCR is available at document.doc?id=466; CLS’s expanded written statement is available at; CLS’s oral statement is available at 27 Joan W. Howarth, Teaching Freedom: Exclusionary Rights of Student Groups, 42 U.C. Davis L. Rev. 889, 914 (2009). 28 See University of Florida “Student Organization Registration Policy Update,” at 12, available at Portals/1/Documents/Organizations/Handbooks/ 20 21

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Student%20Org%20Handbook%202011-2012.pdf (last visited March 8, 2013). See also, University of Texas, “New Student Organization Application,” available at downloads/New_Org_App.pdf (last visited March 8, 2013); University of Houston, “Organizations Policies,” § 2.4 (a) (3), available at http://www. pdf (last visited March 8, 2013); University of Minnesota “Constitution and By-Laws Instructions” in Student Groups Official Handbook, available at (last visited March 8, 2013). 29 Richard W. Garnett, Religious Freedom and the Nondiscrimination Norm, in Austin Surat, ed., Legal Responses to Religious Practices in the United States 197 (2012). A summary can be found at Richard W. Garnett, Confusion about Discrimination, The Public Discourse, Apr. 5, 2012, available at http://www.thepublicdiscourse. com/2012/04/5151/ (last visited March 8, 2013). 30 See John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 5-6, 145-149 (2012); John D. Inazu, Justice Ginsburg and Religious Liberty, 63 Hastings L.J. 1213, 1231-1242 (2012).

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Journal of Christian Thought - Summer 2013