Journal of Christian Legal Thought - Fall 2013

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Journal of Christian Legal Thought 1

An Ongoing Conversation


The Lord of Heaven and Earth


The Ecumenical Challenge of Catholicity


Evangelicals and Catholics Together on Law: Some Personal and Jewish Reflections






Evangelicals and Catholics Together on Law: Jewish Theological and Practical Concerns DAVID R . BLUMENTHAL


Evangelicals and Catholics Together on Law


The Lord Jesus and Natural Law


Religious Liberty in the Supreme Court’s New Term




Journal of Christian Legal Thought VOL. 3, NO.2 | FALL 2013 PUBLISHED BY The Institute for Christian Legal Studies (ICLS), a Cooperative Ministry of Trinity Law School and The Christian Legal Society, founded as a project of 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 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

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By Michael P. Schutt, Editor


lthough I cannot speak for every signatory, those of us involved in the drafting and publication of the joint statement, Evangelicals and Catholics Together on Law: The Lord of Heaven and Earth published in these pages last quarter,1 had hoped that it would generate a discussion about law and government that contributed to the mission and unity of the church of Jesus Christ. This issue is a contribution to that continuing discussion. In the pages that follow, we are pleased to offer a variety of reflections, interactions, and responses to ECT on Law. While the statement was a project designed to speak “from and to” Evangelical and Roman Catholic communities, respectively, I asked Professor Michael Broyde of the Center for the Study of Law and Religion and his Emory colleague, David Blumenthal, both Jews, to provide their personal reflections and reaction to the statement. I was surprised particularly by Professor Broyde’s frank reaction of “heart fluttering” and “queasiness” at the statement, and I am deeply grateful for his honest and very personal reflection. There is of course no reason I should have been surprised that a Jewish scholar would react strongly and emotionally to the opening heading, which proclaims, “Jesus Christ is Lord.” And yet it is helpful to hear these thoughtful reflections from Jewish colleagues, if for no other reason than to remind us of the radical and offensive nature of the claim that the Lordship of Jesus has far-reaching consequences in this world. Yet we are also reminded of the challenges attendant upon seeking just and universal application of theological truths to law. In addition, I was pleased to see identified various areas for further work, such as Dean Myron Steeves’ observation that, contrary to the statement’s claims, the doctrines of subsidiarity and sphere sovereignty bear only a superficial resemblance. On the other hand, Jordan Ballor suggests that a more careful and historical examination of both these doctrines might show us a “deeper coherence” among both the Roman Catholic and Protestant applications.

Professor Scott Pryor points us back to the Lordship of Christ, noting that its emphasis in the early sections are notably absent toward the end. He also reminds us that the document says little of the work of the Holy Spirit’s role in these matters. Dean Eric Enlow develops both of these concerns more fully, suggesting where the document could have been more Christocentric and why the work of the Spirit is more important than the natural law for Christian lawyers. His discussion on Aquinas and the limits of natural law also does much to accentuate agreement among Christians on these topics. I am grateful to these scholars for their good insights and constructive criticism and praise of the statement. It is my hope that this dialogue will continue on these pages, and that we will have a chance to see in writing responses from more women law professors (all but six of the signatories and all the respondents here are men), those writing from within the Orthodox tradition, Anabaptist scholars, and international lawyers and law professors. I pray this is the beginning of a helpful dialogue on these issues, and I welcome further submissions to the Journal on these matters. Mike Schutt is director of the Institute for Christian Legal Studies and the Christian Legal Society’s Law Student Ministries. He is a visiting professor at Trinity Law School in Santa Ana, California and serves InterVarsity Christian Fellowship as National Coordinator of its Law School Ministry. He taught on the faculty of Regent University School of Law for twenty years and is the author of Redeeming Law: Christian Calling and the Legal Profession (IVP 1997). ENDNOTES 1


Evangelicals and Catholics Together on Law: The Lord of Heaven and Earth, A Joint Statement by Evangelical and Catholic Legal Scholars, 3 J. Christian Leg. Thought 2 (Summer 2013); also available online in PDF at ECT. The statement is also published in the Journal of Catholic Social Thought (forthcoming Winter 2013).

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By C. Scott Pryor


ith the passing of Chuck Colson in 2012, following the death of Richard John Neuhaus in 2009, a new generation has taken up the mantle of the project of Evangelicals and Catholics Together. Neuhaus and Colson were instrumental in the original 1994 “Evangelicals and Catholics Together: The Christian Mission in the Third Millennium.” Now in the second decade of the new millennium fourteen scholars, primarily from the American legal academy, spent eight years drafting Evangelicals and Catholics Together on Law. The structure and depth of analysis–exegetical and historical–marks this work as an excellent resource for anyone who wishes to take seriously the scriptural witness on political authority, justice, and law. The importance of these topics in the Western-influenced world subject as it has become to the “tyranny of relativism” is obvious. Their relevance in relation to nonwestern totalizing worldviews is implicit. The substantive text of Together on Law begins with identification of the person of the work’s subtitle: Jesus Christ is the Lord of heaven and earth. From this initial confession Section 1 draws three primary conclusions. First, that only the crucified and risen Christ, and thus no human authority, is Lord. Next, that his lordship knows no earthly limits. Yet, thirdly, that his lordship is not to be imposed by anyone other than Christ himself. In particular, the Church is not divinely authorized to impose the reign of Christ. Left unstated but clearly implied is a similar limitation with respect to Christians individually or collectively through the political process. God alone is Lord of the conscience. Deploying the biblical-historical arc of creation, fall, redemption, and consummation, the next two sections of Together on Law attempt to provide the bridge between Christ’s lordship and the following sections addressing the law. The Section 2 on Creation does a fine job of balancing the original human task–to develop the potentiality latent in God’s creation–with what can be characterized as exercising subordinate dominion. Humanity was given dominion over creation, but that dominion is not autonomous; that is, it is not to be used apart from divine wisdom. The failure of Together on Law to mention God’s seventh-day rest in this section is

regrettable. Utilizing God’s rest would have provided a context for the ultimate rest achieved through the work of Christ as well as more substance for the notion of the common good that features later in the work. Significant differences among the traditions represented by the authors first come to expression in the discussion in Section 3 of the effects of humanity’s fall into sin. This section does a credible job of articulating the range of views between (and among) Evangelicals and Catholics over the “differing accounts of the appropriate aspirations of human rule in a fallen world.” The final sentence of the second section is finely crafted but lacks a temporal qualifier: “Even among those who are more hopeful about the abilities of government, 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.” One hopes that only a few expect that deliverance to take place before the return of Christ in glory and judgment, and indeed this point was made earlier in Section 3. Yet making the timing clear at the conclusion of this section would have been helpful and would reinforce rejection of some popular conceptions that decouple the condition of perfect justice and rest from the person of Christ himself. Section 4 on Authority begins with an incontrovertible statement: “There is no uniform Christian account of the appropriate aspirations of political authority.” It is perhaps not surprising that the many biblical references that had characterized the first two sections are here replaced with descriptions of contemporary conservative Catholic and neo-Kuyperian political theory. The descriptions are satisfactory but a bit prolix and omit any other formulations. One wonders if the work would have benefited from a broader range of Evangelicals. The absence of the perspective common among historically black Protestant churches is noteworthy. Similarly, the presence of only AngloAmerican contributors leaves Together on Law without valuable insights from other parts of the world. Moreover, the Christocentric underpinnings of the first three sections are absent from the treatment of Authority, and indeed merit little discussion in the following sections. One might hope that a commitment 2

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to the fundamental reality of the lordship of Christ challenge that some of Jesus’ teachings appear to pose would continue to play a significant role even as the to conventional understanding of morality.” The final analysis moves from the abstract to the concrete. To admission returns us to the concern noted above: What be sure, the work correctly observes that “the biblical is the relationship between the lordship of Christ and the message is less revealing on the question of the specific law? Or, precisely, what is the nature of Christ’s lordship? forms the sociopolitical order is to take.” Perhaps the The first section of Together on Law focuses on Christ’s drafters believe that Christ’s lordship can be divided lordship as it comes to expression in his life of sacrificial between his work as creator service (the atonement features and his work as mediator but, if in Section 3), but thereafter so, that distinction should have there is little that is distinctively Significant differences among been made in an earlier section Christocentric, apart from the traditions represented by the of the work. qualifying the serving nature of Analysis in the section titled authors first come to expression in human rulership and limiting Justice returns to scriptural the scope of state authority, as the discussion in Section 3 of the texts. Indeed, how could it opposed to broadly biblical. not, given that justice is a Finally, as one who teaches at effects of humanity’s fall into sin. theme pervasive in the biblical an institution established in the account? Three aspects of Renewal tradition, the silence the discussion of justice are noteworthy. First is the of Together on Law on the place of the Holy Spirit in this orientation of justice to the transcendent: “we affirm that enterprise cannot go unmentioned. A pneumatological justice is not merely a human construct.” Second, and of perspective would have raised more issues but equal importance, is the framing of justice in terms of nonetheless should have been addressed. relationship. Justice is not, in the first instance, a system. Together on Law is a valuable contribution to the “Well-functioning institutions are thus necessary but ongoing work of Evangelicals and Catholics in the public not sufficient conditions for justice, which remains, square. Its limitations notwithstanding, Together on Law at its core, a matter of human action and not merely a can and certainly should catalyze further discussion on function of impersonal institutional design.” Finally, this the important topics it addresses. section does a good job of relating the biblical account Scott Pryor is a professor of law at Regent University School of justice to the contemporary human rights movement of Law. He received his BA in Philosophy from Dordt and the ambivalence of many Evangelicals and some College, a J.D. from the University of Wisconsin, and an Catholics toward the extraordinary valorization of rights M.A. from Reformed Theological Seminary. Combining talk in political discourse. his undergraduate studies in philosophy, graduate work The final section Law begins with a succinct if in theology, and fifteen years of commercial law practice, compound definition: “Law … is the primary medium Professor Pryor teaches first-year Contracts and upper-level through which political authorities exercise their Godcourses on the Uniform Commercial Code and Bankruptcy. given and God-directed jurisdiction [Evangelical], His published scholarship focuses on the details, history, and the aim of which is justice [Catholic].” This section moral-political justification for the laws of the courses he then turns to a discussion of natural law elaborated teaches. His articles at in the traditional Thomistic manner. Addressing the challenges to any notion of natural law in a post-Kantian, Professor Pryor has been a visiting professor at other neo-Darwinian world was obviously beyond the scope universities in the United States and overseas and brings of this work, but it was gratifying to read the admission his comparative perspective on law to the classroom. He has of the dangers of natural-law thinking: “The frequent also served as Resident Scholar of the American Bankruptcy historical failures of real-world rulers to recognize Institute where he worked closely with judges and leading and/or implement natural law precepts, the danger of members of the practicing bankruptcy bar. He blogs at Pryor cloaking the cultural norms through which natural law Thoughts ( is inevitably mediated with divine authority, and the


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By Jordan J. Ballor


of the Evangelicals and Catholics Together on Law statement is that it labors fruitfully to move beyond reductive caricatures of respective traditions. And yet given the limitations of such a statement, both in terms of length as well as scope, key issues relating to the Reformation’s relationship to “law, politics, and government” demand greater explication. Consider the case of natural law, for instance. Even while John T. McNeill observed rightly in 1946, “There is no real discontinuity between the teaching of the Reformers and that of their predecessors with respect to natural law,” the implications of this have been slow to inform the thinking of evangelicals.2 This is despite significant and noteworthy efforts recently to revive and rediscover the various Protestant natural law traditions.3 One of the as yet under-explored implications of this is the extent to which the diversity of late-medieval natural-law traditions were received, refined, and reconceived by Protestant reformers. Narratives which are more or less nuanced (quite often the latter) in identifying Protestantism with nominalism or Scotism, and Roman Catholicism with Thomism, threaten to obliterate the diverse complexity of intellectual heritage of each tradition. Protestantism and Roman Catholicism, particularly on economic, legal, political questions, overlap and diverge in ways that are surprising and often counterintuitive relative to the received scholarly wisdom. Scholars in historical theology have not yet adequately dealt with the implications of these realities, and this is still yet more so true of scholarship in other disciplines. Likewise the doctrine of subsidiarity, which receives extended treatment in Evangelicals and Catholics Together on Law, is often conceived of as primarily, if not exclusively, a distinctive principle of Roman Catholic social thought. The statement even takes a substantive position on the content of this principle, in contradistinction to a policy of “devolution” and rather as a principle “that social functions should be performed at their proper levels.” It is not advisable or appropriate to attempt to settle the question of the accuracy of this characterization here, but we should at least observe this as an example of the kind of refining of definitions that can obscure the complexity of historical development. “Sphere sovereignty,” as a neoCalvinist doctrine arising out of the nineteenth-century, is

here is much to affirm and celebrate in the joint statement Evangelicals and Catholics Together on Law. At the risk of presenting an unbalanced response to the statement, however, this essay will largely focus on the challenges that arise from the substantial contribution made by the effort rather than rehearsing its positive aspects. I trust that this is in keeping with the statement’s explicit goal to “encourage discourse within and among” evangelical and Roman Catholic communities and beyond. As the statement also acknowledges, each of us speaks “from and to our respective communities,” and thus I write this response as a Reformed theologian with attending historical and confessional sensibilities.


One of the key challenges arising from Evangelicals and Catholics Together on Law is for evangelicals to get to know their own tradition better. The best kind of ecumenism is principled rather than reductive, in which each particular tradition speaks not only out of conviction but also out of knowledge and care for its own history. It is thus absolutely and centrally important for evangelicals of various stripes to become better informed about the phenomenon of the Reformation, what it represented and what it did not. Part and parcel of this is coming to terms with the claims to catholicity on the part of the magisterial reformers, their selfunderstanding of the relationship between their reform efforts and the central truths of the Christian faith. There are narratives of radical discontinuity that arise for diverse reasons from perspectives sympathetic to one, another, or none of the factions involved in the reformational movements of the sixteenth and seventeenth centuries.1 Many evangelicals are happy to embrace and propagate such characterizations out of a desire to define themselves in terms of what they are against: the papacy, the Mass, veneration of saints, and so on. Likewise many Roman Catholics are eager to characterize the substance and the style of the Protestant reformers in such a way that implicitly or explicitly marginalizes their claims to catholicity. One of the merits 4

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to reject. This leaves open, however, the nature of the relationship between the church as an institution and the larger society, particularly political authority. Without defaulting to an attitude of cultural or political hegemony, how are Christians, both corporately and individually, to witness to the truths of Christian doctrine and practice? It is precisely at this point that the Anabaptist witness, as a tradition providing an alternative answer to both the magisterial Protestant and Roman Catholic approaches, presents its most salient challenge. Certainly the respective traditions, Anabaptist, magisterial Protestant, and Roman Catholic alike, have articulated responses to the multifaceted challenges of modernity. But the togetherness of a statement like Evangelicals and Catholics Together on Law will become increasingly important as strife over the role of religious faith in society, and in particular the Christian faith, is worked out in the public square. The Evangelicals and Catholics Together on Law statement has rendered a significant service in providing a helpful starting point for ecumenical discussion, and it stands as a praiseworthy attempt to “generate discussion within the broader Christian world and beyond.”

a neologism whose origins ought to be read in the context of the codification and development of Roman Catholic social teaching, including the doctrine of subsidiarity, occurring at the same time. As I have argued elsewhere, in addition to the medieval and patristic foundations of subsidiarity, there are early modern roots of the doctrine to be found in the Reformed tradition.4 One consequence of this recognition is that the “more than a superficial resemblance” of sphere sovereignty to subsidiarity might be indicative of a deeper coherence between various conceptions, expressions, and emphases of subsidiarity in Roman Catholic as well as Protestant traditions. A good deal of time is spent in Evangelicals and Catholics Together on Law attending to the diversity of Protestant approaches and traditions (e.g. Lutheran, Reformed, Anabaptist), while little recognition of the true diversity (within an institutional unity) of Roman Catholic doctrines is provided. This, while characteristic of many Protestant and Roman Catholic dialogues, can obscure where true divergence and hope for convergence may actually reside.


Jordan J. Ballor (Dr. theol., University of Zurich) is a research fellow at the Acton Institute for the Study of Religion and Liberty and serves as executive editor of the Journal of Markets & Morality. He is author of Get Your Hands Dirty: Essays on Christian Social Thought (and Action) (Wipf & Stock, 2013), Covenant, Causality, and Law: A Study in the Theology of Wolfgang Musculus (Vandenhoeck & Ruprecht, 2012), and Ecumenical Babel: Confusing Economic Ideology and the Church’s Social Witness (Christian’s Library Press, 2010). He also serves as associate director of the Junius Institute for Digital Reformation Research and is a doctoral candidate in historical and moral theology at Calvin Theological Seminary.

All of this is important for laying the foundation for what the presentation of an authentically united and ecumenical Christian social witness might look like today, particularly in the context of the liberal orders characteristic of Western society. The ambivalence of the Anabaptist legacy in the Reformation and postReformation eras is asserted but not adequately dealt with in the Evangelicals and Catholics Together on Law statement. This is in part an artifact of the more obvious connections between the views of political authority of magisterial Reformers and the Roman Catholic Church. But it is also due to the ongoing ambivalence of these traditions with respect to political authority in a liberal order, that is, to what extent the relationship between church and state has undergone an Archimedean shift from the early modern to the postmodern world. Perhaps the most pressing area in which the complexity of the relationship between Christianity and the liberal order comes to expression currently is the question of religious liberty. Evangelicals and Catholics Together on Law affirms that “the lordship of Jesus does not mean that the church is divinely authorized to impose, should desire to impose, or is capable of imposing the reign of Christ through force, arms, law, politics, or government.” The positive assessment of such impositions is usually associated with a form of Christendom, which the current statement is at pains






Consider, for instance, the narrative contained in Brad S. Gregory, The Unintended Reformation: How a Religious Revolution Secularized Society (2012). John T. McNeill, Natural Law in the Teaching of the Reformers, 26 J. Religion 168 ( July 1946). For a survey of some recent literature, see Jordan J. Ballor, Natural Law and Protestantism—A Review Essay, 41 Christian Scholar’s Rev. 193 (Winter 2012). See, for instance, Jordan J. Ballor, State, Church, and the Reformational Roots of Subsidiarity, in Peter Opitz, ed., The Myth of the Reformation, 148-49 (2013).

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EVANGELICALS AND CATHOLICS TOGETHER ON LAW Some Personal and Jewish Reflections By Michael J. Broyde


was asked to write some personal Jewish perspectives and reflections on the important and interesting statement “Evangelicals and Catholics Together on Law” published in the Journal of Christian Legal Thought, and it is my pleasure and honor to do so. Let me begin by saying that I understand the position of the statement on the role of law in a just society to be a positive one that both seeks justice and tempers it with compassion, all the while recognizing the structural limitations of law in many situations. Furthermore, this statement is quite open and honest in its advocacy of religious beliefs in a secular state; this position entails certain practical problems which I will deal with below. Independent of the practical complexities of the paper on the role of religious beliefs in law, I feel it necessary to share a deeply felt first response, one that I suspect many fellow Jews may feel upon reading the Statement: this statement excluded me by opening with a deep theological claim that I and my ancestors have long ago rejected. In large bold ALL CAPS the first principle found in the statement is JESUS CHRIST IS LORD and of course no one in the Jewish tradition can accept such. Jews have martyred themselves for centuries resisting such a statement, and, in truth, I had an emotionally hard time reading much further. My long deceased ancestors whispered to me, put the statement down immediately—no good can come from a statement that begins with such a claim. Furthermore, I do not feel qualified to enter into the kind of deep theological dialogue that is needed either to explain my feelings or to understand the mindset of those that wrote this statement. I do feel, in the interest of mutual understanding, a need to share these feelings and explain them. My heart fluttered, even as my mind instructed me to continue reading. Let me explain the flutter to you.

on questioning the commitment to monotheism—any faith that would assign such to the Almighty.1 The Jewish tradition expects that all people—Jews and Gentiles— will accept this one sole and indivisible God as THE GOD and worship God appropriately; Jews according to the Jewish tradition, and all else according to universalistic (Noahide) traditions, practices, and laws.2 But yet, notwithstanding my fluttering heart, I read on and put aside more theology that I did not religiously agree with entitled “Creation” and “Fall, Redemption, and Consummation.” I continued to read, knowing that I would encounter political and legal theory that could stand independent of the theology of Christianity. I finally found it in the section “Authority: Social and Political” and in the two sections that follow it pithily entitled “Justice” and “Law” which make claims about what our society ought to be seeking in its basic organs of law and justice. This is enough Jewish theology to explain the emotionally Jewish queasiness with this statement. Now onto the practical problems I worry about in this Evangelical and Catholic dialogue on law. I do not think that these sections reflect what the Jewish tradition seeks from a secular society, since we are a minority religion with a history of being oppressed. As my musings will show, it might well be that Jewish history impacts its theological sense of what secular government ought to be doing, but this connection between history, theology and law ought to be quite logical to any reader of “Evangelicals and Catholics Together on Law.”


An interesting truth can be found in modern American culture. Once freedom of religion was genuinely granted to all Americans (about 50 years ago),3 pagan and polytheistic religions began to multiply, and they asked to be a part of the public religious dialogue in American culture. It is almost as if the talmudic observation that the hunger for paganism was dead had been proven wrong in America.4 No less a public


The Jewish tradition and Jewish law presupposes that there is just one God, and that such a Deity is the sole God in the heavens and the earth, unmatched and omniscient. God has no son and views with some suspicion—verging 6

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religious figure than the Rev. Pat Robertson, founder of the Christian Coalition, decried this phenomenon, and had even indicated that he will oppose faith-based government funding unless something can be done to eliminate the “deviant” religions from the right to receive government funding. Rev. Robertson states:

of the suppressed religious faith sued, alleging a violation of their First Amendment right to freedom of religion. This case is more complex as a matter of American law than it might appear, as the Supreme Court had recently ruled in Employment Division v. Smith6 that neutral governmental rules can be applied against religious activity—thus, for example, a law that prohibits medically unnecessary surgical procedures for children could ban ritual circumcision.7 Should a Jewish institute for public affairs support Hialeah’s law because it does, in fact, suppress paganism (as Jewish law wants) or should it support the right of the pagans to worship freely, as freedom of worship is a valuable principle that we ought to defend even if the people who are now using this principle conduct their lives in violation of God’s law, since they are polytheists worshiping many gods? The point I wish to make is that these decisions are, in the eyes of Jewish law, broadly speaking, political decisions, and not strictly Jewish law ones. They are not governed by a tight calculus that always requires that one seek from the secular government a policy that maximizes observance of Biblical principles. If one can persuasively argue this approach with regard to paganism, then I believe that this argument extends mutatis mutandis, to every other violation of Biblical rules, each of which is less serious than the utter rejection of monotheism. Indeed, as I have elsewhere noted,8 those who seek to advocate tolerance and pluralism as a political agenda for the Jewish community will not find it in the classical rabbinic sources themselves when they deal with flagrant violators of the Biblical mandate. Where then does this approach of tolerance come from? The answer, I suspect, is in the logic of practical calculus captured well by the rabbinic phrase yatza secharo behefsado9— the gain accrued through any given political action can sometimes be lost through the price paid. Whenever the Jewish community sets out to advance a political agenda in secular society, it must ask whether this is a proper use of government, or will the bullets that we shoot here kill us on the rebound.10 Historically, the Jewish tradition has understood this to be a very real concern, and has thus always advocated in the secular public square principles of tolerance, pluralism, accommodation and freedom, rather than a public square full of Biblical values. The opening theological claim of this paper reminds me why: those who would join us in shared Biblical values do so since they are of the view that “Jesus Christ is Lord,” and as much as we share biblical values with them, we worry that the Jewish community cannot live well in a society whose biblical values include this one. If the proper Jewish response to a request for civil rights for pagan rites is to engage in a political calculus of reciprocity—rather than to automatically support

Our laws do not let government engage in content discrimination of speech. The same government grants given to Catholics, Protestants and Jews must also be given to the Hare Krishnas, the Church of Scientology or Sun Myung Moon’s Unification Church—no matter that some may use brainwashing techniques or that the founder of one claims to be the messiah and another that he was Buddha reincarnated. Under the proposed faith‑based initiative, all must receive taxpayer funds if they provide “effective” service to the poor. In my mind, this creates an intolerable situation.5 Although Rev. Robertson does not explicitly tell us why this is “an intolerable situation,” what he means seems clear: any religion whose founder claims to be the messiah or Buddha reincarnated, ought not be allowed to be part of any government program. It is better to have no government programs than to have a program that supports any and all religions. I do not think that the Jewish tradition agrees with this approach and I actually do not even genuinely understand why Jews are listed with Catholics and Protestants rather than with the other faiths. I have no practical confidence that a religion that denies “JESUS CHRIST IS LORD” will—in the long term—be treated much differently that one who claims that its founder is the messiah. At its core this is both my religious and practical problem with the Evangelicals and Catholics Together on Law statement. I sense that according to the Jewish tradition, the theology and practice of secular law and justice ought to not be a religious one at all. In the eyes of the Jewish tradition, one should not seek from the secular government a law that maximizes Godliness, never mind observance of God’s law. We do not look to secular law to reflect our religious morals—we look to secular law to provide us with life, liberty and the freedom to pursue our religious happiness outside the framework of secular society. Consider for example, a stark case of conflicting values. In 1989, the city of Hialeah, Florida passed an ordinance that suppresses the rights of a group of pagans to engage in animal sacrifice, a rite which is central to their religious belief and ritual conduct. The members 7

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restrictions that diminish paganism—the same political calculus is needed for every component of basic morality. The decision by the Jewish community to support the expansion or contraction of civil or political rights in secular law is not a Jewish law decision and it never has been. We do not look to secular law to reflect our religious morals—we look to secular law to provide us with life, liberty and the pursuit of our religious happiness, rather than as the place where we embody our religious values. In an earlier article of mine, presented at an Orthodox Forum of Yeshiva University, entitled “Jewish Law and the Obligation to Enforce Secular Law,” 11 I review the relevant technical Jewish law and conclude that classical Jewish law does not compel a Jew to persuade or entice a people generally to observe the law and that Jewish law sees no technical obligation in most situations—even as it is morally laudatory—to insure that people generally and society specifically obey God’s laws. Why is there no obligation to monitor secular law and values to insure that they are consistent with the Biblical mandate? The answer (as explained in the above quoted article) is that most classical Jewish authorities rule that—other than in situations where one is the “but for” causation of a person sinning—Jews are not responsible, in a formal, technical, Jewish law sense, for the content of secular law or for its enforcement. (This is even more true for the general tone of secular society.) Of course, as I note in that same article, even though there is no technical Jewish obligation to inform society generally of the Biblical mandate, there are many good reasons, both theological and practical, to do so. Five readily come to mind. •

(tikun olam). There is a Jewish ideal to make the world a better place and helping to create a moral community is certainly such. The Prophets’ direct us to be a light unto the nations of the world and sharing our vision of proper conduct cannot be done through silence.

In summation, there is a wealth of rabbinic sources that encourage one to be an active participant in the secular society in which one resides. However, this participation was never deemed, neither formally nor informally, to be a duty or an obligation and was never formulated as any sort of a Jewish religious imperative. So maybe I should be overjoyed and certainly not fearful of this statement—after all, it pushes me to do as the tradition encourages me to?


Of course, it would be ideal if we could always adopt a policy that increases fidelity to God’s law for both Jews and Gentiles, and was consistent with the Constitution of the United States and in the long-term best interest of the Jewish community. But we cannot and the Jewish community never has sought such. The possibility that there might be circumstances where the unfettered teaching of God’s law for Jews or Gentiles alike in the United States (where distinctions based on religious affiliation, content, or practice cannot be governmentally defended) could be deleterious to the observance of Jewish law by Jews is not to be dismissed.13 The possibility that a clearly Jewish attempt to seek enforcement of such laws could result in vast antagonism and backlash toward Jews and Judaism from those groups whose conduct is categorically prohibited cannot and should not be ignored. This view of the mandates of Jewish law is supported by the Orthodox Jewish response to the Church of Lukumi Babalu Aye decision dealing with pagan animal sacrifice we discussed. Many different Orthodox Jewish organizations briefed in the Supreme Court in support of pagans’ right to worship.14 Not a single Orthodox group briefed in favor of the City of Hialeah and the suppression of paganism. Why? Certainly not because the conduct in this matter is permitted by the biblical tradition. One can claim that the conduct of this group is a central breach of everything the Jewish tradition stands for—monotheism. Nevertheless, the institutional advocacy groups within the Orthodox community realize that freedom to worship ought to be protected as a matter of secular law, even when the way worship occurs is a fundamental violation of our most basic Jewish rules

There is a heightened ethical duty to all people created in God’s image. Jewish law recognizes that it is morally laudatory to inspire people to behave properly. As the classical rabbinic aphorism states “He [Rabbi Akiva] used to say, Humanity is precious since people were created in God’s image”12 Corruption in society affects us all. Jews are part of the general society, and what ails a general society will come to ail Jews also. We are part of the general society, and it is foolish for us to think that we are immune to its temptations. The disintegration of society affects everyone. God’s name and presence in the world is desecrated by flagrant misconduct. By standing by silently when others sin, Jews sometimes appear to be supporting or condoning violations, which are a desecration of God’s name. As Jews we have a mandate to help fix the world 8

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and values. Were pagans to spread their religious values, one could readily see an anthropological change in how religion would be viewed, just as Judaism was viewed dramatically differently two thousand years ago when surrounded by polytheistic pagans. Nonetheless, the Orthodox Jewish community and its various institutions have all been diligent in supporting freedom of worship for all, because, in the totality of the picture, it is of benefit to Orthodox Judaism.15 Legislative goals which do not necessarily seek to enforce Jewish law can be well supported from the positions taken by authorities of Jewish law on political questions. For example, in 1977 Rabbi Moses Feinstein— the dean of the Orthodox rabbinate in America—was asked what statutory changes Orthodoxy should seek from the New York State government on the issue of time of death. He replied that Orthodoxy should seek a legislative mandate that allows each person (or family) to determine the time of death in accordance with his own religious or personal beliefs. He did not suggest that the proper governmental policy to seek is that New York State should be urged to adopt Jewish law in this area. The public policy advocated by Rabbi Feinstein in the context of time of death—one of Orthodoxy seeking to allow Jews to follow Jewish tradition, without forcing our standards on non-believers—was the preferred one. This was so notwithstanding the certainty that some people, given this new freedom, will adopt a standard for time of death which violates Jewish law and would be then murder—the only violation on par with polytheism. Rabbi Feinstein did not feel compelled to seek the enforcement of Jewish law by the secular state or any law.16 As Rabbi Chaim David Zweibel of Agudath Israel of America puts it:

one assumes, includes pagan religious leaders as well, and would include abortions that are murder in the eyes of the biblical tradition. So, my practical objections are as difficult for me to overcome as my theological objections; what the Jewish tradition seeks from secular law and justice is an ordered and free society in which each member is encouraged to fulfill God’s will as they see fit. We are not seeking a society that looks to the biblical mandate for ideals of justice or law.


This essay started by noting how disquieting the opening theological reflections were to me as a Jew, and it concluded by noting how profoundly uncomfortable I am with the vision of secular law found in the document itself. These reflections make me unhappy, as the general Jewish vision of private and even political moral life in almost all practical matters—sexual and reproductive ethics, financial ethics, support of Israel, and many other matters—is much closer to the Evangelical and Catholic Christian view than any other religious community in America. Day in and day out the goals seem to be the same and the vision of society similar. Maybe the theory and theology of law and life do not always meet. ENDNOTES

For more on this, see J. David Bleich, Divine Unity in Maimonides, the Tosafists and Meiri, in Lenn E. Goodmann, ed., Neoplatonism and Jewish Thought 237-254 (1992). 2 The universalistic law code governing those who are not Jewish (called the Noahide code) requires the observance of many commandments that are basic to the moral existence of people. The Talmud (Sanhedrin 56a) recounts seven categories of prohibition: idol worship, taking God’s name in vain, murder, prohibited sexual activity, theft, eating flesh from a living animal, and the obligation to have a justice system or enforce laws. These seven commandments are generalities which contain within them many specifications—thus, for example, the single categorical prohibition of sexual impropriety includes both adultery and the various forms of incest; See Aaron Lichtenstein, The Seven Laws of Noah 90-91 (1986). The majority of the commandments found in Jewish law that are unrelated to ritual activity are also found in the Noahide code. The Noahide code was intended to be a practical legal code, and form a system that satisfied the social, legal and religious needs of peoples outside the framework of Judaism. For more on this, see my “Jewish Law and the Obligation to Enforce Secular Law,” in D. Shatz 1

The principle of religious accommodation is one that has stood the American Orthodox Jewish community in good stead in a wide variety of secular legal contexts . . . For what is really at issue here is . . . whether it is in the interest of the Torah observant community to combat secular laws that preclude individuals from following the guidance of their individual [ Jewish law] decisors.17 Indeed, in the famous amicus brief filed by Agudath Israel of America in Webster v. Reproductive Health Serv., 429 U.S. 490 (1989), Agudath Israel of America argued that secular abortion law ought never be allowed to become law if such a law precludes individuals from following the guidance of their individual religious leaders and have an abortion when mandated (as Jewish law sometimes does) by their own religious beliefs. This, 9

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& C. Waxman, eds., The Orthodox Forum Proceedings VI: Jewish Responsibilities to Society 103-143 (1997) and my Proselytizing and Jewish Law in John Witte Jr. & Richard C. Martin, eds., Sharing the Book: Religious Perspectives on the Rights and Wrongs of Proselytism 45-60 (1999). 3 Profound freedom of religion—by which I mean a person suffers no legal or economic consequences of his religious beliefs or conduct—did not really exist until after World War II. To explain why this happened in America when it did is beyond the scope of this essay. For more on this, see John Witte, Jr., Religion and the American Constitutional Experiment 117-149 (2000). 4 Sanhedrin 63a-b. 5 Pat Robertson, Bush Faith‑based Plan Requires an Overhaul, USA Today, March 5, 2001, at 15a. 6 Employment Division v. Smith, 494 U.S. 872 (1990). 7 For exactly such an article, see Ross Povenmire, Do Parents have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue from their Infant Children?: The Practice of Circumcision in the United States, 7 Am. U.J. Gender Soc. Pol’y & L. 87 (1999). See also 139 Cong. Rec. H2356, H2363 (daily ed. May 11, 1993) (statement of Rep. Maloney) (“The Jewish practices of kosher slaughter and circumcision, for example, might be threatened [by Smith]”). 8 See Michael J. Broyde, Jewish Law and American Public Policy: A Principled Jewish Law View and Some Practical Jewish Observations, in Alan Mittleman ed., Religion as a Public Good: Jews and

Other Americans on Religion in the Public Square 161-84 (2003). 9 Avot 5:11-12. 10 See Michael J. Broyde, Bullets that Kill on the Rebound: Discrimination against Homosexuals and Orthodox Public Policy, 54 Jewish Action 1, 53, 7478 (Summer 5763 [=1993]). 11 D. Shatz and C. Waxman, eds., The Orthodox Forum Proceedings VI: Jewish Responsibilities to Society, 103-143 (1997). 12 Ethics of the Fathers 3:14. 13 For example, the promulgation of an abortion law in the United States that regulates abortions is almost impossible, as the normative Jewish law has some situations where abortions to save the life of the mother is mandatory, some situations where it distinguishes between the abortion rights of Jews and gentiles, and some situations that are left to the judgment of the one pregnant. 14 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 580 U.S. 520 (1993). 15 See amicus curiae brief of COLPA in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (which states in note 1 that both the Orthodox Union and the Rabbinical Council agree with the legal position taken in this brief). 16 See Letter of Rabbi Feinstein dated 8 Shevat 5737 provided to this author by Chaim Dovid Zweibel of Agudath Israel. 17 See Rabbi Chaim Dovid Zweibel, Determining The Time of Death: Legal Considerations, J. Halacha & Contemp. Soc’y, 17, 49 (1989).


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sense. Within Jewish tradition, this trust in human common sense and justice is manifest in ritual as well as commercial law, thus allowing local ritual and commercial custom to prevail, unless it clearly violates a basic principle of Jewish law. Thus, in ritual law, within the rules of keeping kosher, there is great variety according to learned local tradition and custom. And in commercial law there is the clear idea that many matters defer to common commercial custom or secular law. Jewish law is happy to accept a broad range of “legal transplants” (as they are called in academia). The essence of Jewish legal thinking, then, is not in imposing theological premises upon situations, but in determining what the text-with-tradition says and then deciding what is relevant to the case at hand. The latter, perforce, requires the application of human reason and moral sense. Further, since there is no central authority to determine the correct judgment, Jewish law evolves by a slow process of the ‘consensus of the learned’; it is not a democratic process. Jewish legal thinking, then, is not an exercise in theology. As to the proper relationship between religion and the state, Jewish tradition has, as a matter of practical principle, limited the question to the nature of a ‘Torah state’ to messianic, or quasi messianic, times only. Maimonides, the great Jewish theologian and legal authority, devoted some space in his magisterial Code of Law to this subject, but his views have never been tested—nor will they be tested until the appearance of the Messiah King of whom he writes.

The joint statement by Evangelical and Catholic legal scholars in the recent issue of The Journal of Christian Legal Thought is a carefully crafted work, created by a group that sets forth the main Christian positions on the matter of the proper relationship between theology and social and political authority. As Christian thinkers, the group starts with theological premises pertaining to Christ, creation, the fall, redemption, and justice, and proceeds to Christian attitudes toward social and political authority, and law. While Evangelicals and Catholics differ on how theology relates to social and political authority, the basic assumption is that that authority is subject to, subsumed under, the divine will and wisdom. The state, thus, ought to embody the divine will and wisdom, either in its Scriptural and/or in its natural law form. Theologically, Jewish tradition shares with Christian tradition, especially with the Catholic stream, the belief that we, humans, participate in the divine will and wisdom. When we decide a case in law, we are partners with God, the supreme Judge, and we are ultimately responsible to God for the truth and justice of our work. Jewish legal tradition differs from Evangelical tradition and seems closer to Catholic tradition, however, in that, for Jews, the doctrine of revelation plays a very central part. God did reveal God’s will in the Torah, and that includes the authorization for properly qualified human beings to interpret the law in an authoritative and binding way. It is not sola Scriptura; it is Scripture with the accumulated tradition of interpretation that is the starting point. Humans are, perforce, central to this process. An example, in ritual law: The Torah provides that one may not work on the Sabbath. But what is work? This question must be answered in thousands of individual cases: Is sewing work? Is carrying work? Is flicking an electric switch work? Another example, in criminal law: The Torah provides that one must not murder. But, what is murder? Must there be an intent to kill? Premeditation? What constitutes evidence? How many witnesses does one need? And so on. Another example: Jewish legal tradition assumes that learned humans will act justly and with common


In practical terms, the issue of the proper relationship between religion and the state, however, also invokes the principle of trust in common sense and justice. Thus, Jewish thinking limits the question of the proper relationship between religion and the state to urging Jews to lobby for a society—Christian, Muslim, Hindu, secular, or even Jewish secular—in which every individual and group is free to practice its legal and religious traditions. The proper goal of the state, from a Jewish point of view, is to create an environment stable enough to allow for all groups to ‘live and let live.’ It is not to enforce divine law, 11

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of any tradition, upon the public. As noted, this would be true even in a Christian or Muslim or Jewish state. My learned colleague, Professor Michael Broyde, has listed three examples in his response:

from following the guidance of their individual religious leaders and have an abortion when mandated (as Jewish law sometimes does) by their own religious beliefs.”

1. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 580 U.S. 520 (1993), the church sought permission to worship a pagan god through animal sacrifice. Broyde notes: “Not a single Orthodox group briefed in favor of the City of Hialeah and the suppression of paganism. Why? Certainly not because the conduct in this matter is permitted by the biblical tradition. One can claim that the conduct of this group is a central breach of everything the Jewish tradition stands for—monotheism. Nevertheless, the institutional advocacy groups within the Orthodox community realize that freedom to worship ought to be protected as a matter of secular law, even when the way worship occurs is a fundamental violation of our most basic Jewish rules and values.” 2. In the case of creating a law that would determine the time of death, Broyde notes: “Moses Feinstein—the dean of the Orthodox rabbinate in America—was asked what statutory changes Orthodoxy should seek from the New York State government on the issue of time of death. He replied that Orthodoxy should seek a legislative mandate that allows each person (or family) to determine the time of death in accordance with their own religious or personal beliefs. He did not suggest that the proper governmental policy to seek is that New York State should be urged to adopt Jewish law in this area. The public policy advocated by Rabbi Feinstein in the context of time of death—one of Orthodoxy seeking to allow Jews to follow Jewish tradition, without forcing our standards on non-believers—was the preferred one. This was so notwithstanding the certainty that some people, given this new freedom, will adopt a standard for time of death which violates Jewish law and would be then murder—the only violation on par with polytheism.” 3. Broyde notes that with regard to Webster v. Reproductive Health Services, 490 U.S. 492 (1989) the Orthodox community “argued that secular abortion law ought never be allowed to become law if such a law precludes individuals

Agreeing with Broyde, I would summarize the Jewish position on the proper practical relationship of religion and the state as follows: “We do not look to secular [or other state] law to reflect our religious morals—we look to secular [or other state] law to provide us with life, liberty and the pursuit of our religious happiness, rather than as the place where we embody our religious values.”


The Statement avoids what one might call “Christian colonialism” by not insisting that the state enforce specifically Christian ideas on non-Christians. However, the article also speaks about “divine wisdom” and “natural law” as if the content of these concepts were somehow universally acknowledged. I think that, in our pluralistic world, it is important to point out that, even if such concepts are intellectually true, they still do represent the accumulated thought of particular Christian traditions. The goal of having the state embody these principles is, thus, very Christo-centric, even if it is not coercive. This is to be expected in a Christian document; however, in the global context in which we live, some indication of self-consciousness on this matter seems to me to be in order even in an ecumenical Christian document. David R. Blumenthal is the Jay and Leslie Cohen Professor of Judaic Studies at Emory University. Professor Blumenthal took his B.A. at the University of Pennsylvania and his Ph.D. at Columbia University. He teaches and writes on constructive Jewish theology, medieval Judaism, Jewish mysticism, and holocaust studies. His published works include numerous scholarly articles, reviews, and eleven books, including the two volume Understanding Jewish Mysticism (1978, 1982), God at the Center (Harper and Row, 1988; reprinted Jason Aronson, 1994; translated as Dieu au coeur, 2002), Facing the Abusing God: A Theology of Protest (Westminster / John Knox, 1993), and The Banality of Good and Evil: Moral Lessons from the Shoah and Jewish Tradition (Georgetown University Press: 1999). His most recent book is Philosophic Mysticism: Essays in Rational Religion, 2007. He is a member of the European Academy of Sciences and the American Academy of Religion.


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By Myron Steeves


hen I first became aware of the effort to creinsightful document was produced by this current efate a joint statement between Catholics and fort. Evangelicals and Catholics Together on Law: The Evangelicals on the law that followed in the Lord of Heaven and Earth is a wise and carefully rendered spirit of the work of Evangelicals and Catholics Together statement that advances the Christian understanding of in 1994, I had doubts that such a statement could be law in a unique and valuable way. To my mind, the bigas significant as the earlier document. The 1994 work gest import of the document is not the revelation that was a remarkable project in that the primary feature Catholics and Evangelicals share so much in common. of Catholic and Evangelical dialogue over the decades Rather, it is the remarkable way in which both traditions has been the pointing out the distinctions between the have enriched each other to develop a deeper undertwo traditions. Since Protestantism rose from a reacstanding of how Christians should view the law. The vartion to Catholic doctrine, comious streams of thought within parative studies have tended each tradition are very subtly to emphasize the boundaries, alluded to throughout the docAs a Protestant, my reaction not the commonality. Further, ument in a way that deepens to my initial reading of the even though Protestantism understanding. has developed a wide variety As an example of this, refer1994 document was surprise of denominational differences ences to the Lordship of Christ at how far down the Protestant over the centuries, there reare not very common in much mains a great degree of unity of Catholic literature since theological pathway Catholics in Protestant thought on those Vatican II. No doubt this is due were willing to go. issues that divide Catholic from to the fact that the term tends Protestant doctrine. This fact to be divisive among those made the study of just how who have varying degrees of much unity could be found even within the dividing enthusiasm for the changes wrought by that Council. In doctrines a really interesting subject. As a Protestant, evidence of this, the Compendium of the Social Doctrine my reaction to my initial reading of the 1994 document of the Church, produced by the Pontifical Council for was surprise at how far down the Protestant theologiJustice and Peace in 2005, is a comprehensive summary cal pathway Catholics were willing to go. Similarly, my of Catholic social thought that does not seek to ground Catholic friends were just as surprised at how far down social doctrine in the Lordship of Christ. the Catholic pathway Protestants were willing to go. In contrast, Evangelical Protestants have a great I had doubts that a study of Evangelical and Catholic comfort in addressing Christ’s Lordship. This is due to perspectives on law would yield the same reaction. the fact that classical Pietism encouraged a soteriology While I could comfortably define a Catholic view of that places the moment of salvation at the point the inlaw, I could not, even as an Evangelical, define a clearly dividual accepts Jesus Christ as Lord of his or her life. Protestant view of law. The lack of a Magisterium makes With the Lordship of Christ viewed primarily as an init harder to determine the contours of Protestant viewdividual matter rather than a social matter, Evangelicals points. Considering that large Protestant denominations have an easy comfort in discussing Christ’s Lordship, a with a long history and sizeable literature conflict with comfort that makes it easier for them to extend that disother similarly large and historic Protestant denominacussion to Christ’s Lordship to its implications for the tions on the social doctrine of the Church, it is a chalChurch, stewardship of creation, and even, if pressed, lenge to identify a Protestant position on which there is secular government. I suspect that most Evangelicals not a sizeable, coherent counter example. would draw similar conclusions to each other regarding With that skepticism in mind, I was pleasantthe significance of the Lordship of Christ to the secular ly surprised at what a masterfully considered and state—and those conclusions would be precisely those 13

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conclusions described in Evangelicals and Catholics suggesting that Protestants have contributed an element Together on Law. of critical analysis that cautions against confusing The development of thought on the Lordship of cultural norms with divine authority. Christ separately within Catholic and Protestant tradiThere is only one part of the document Evangelicals tions has led to distinct insights thoughtfully rendered and Catholics Together on Law that falls short, and that in this new statement on the law. The Catholic influence is due, I suspect, to an effort to find more common on Evangelical thought about law is at least as great in ground in an area where there is really little to be found. the more obvious example of natural law thinking. The The document claims some commonality between the Reformation led to a perception among Protestants Catholic concept of subsidiarity and the Protestant conthat Catholics did not fully appreciate the extent to cept of sphere sovereignty. While the document states which the Fall impacted human that subsidiarity and sphere sovreason. As a result, a strain of ereignty bear a more than superFundamentalism that became ficial resemblance to each other, Notwithstanding that minor dominant in the 20th century I think the resemblance truly is issue, Evangelicals and was suspicious of natural law superficial. teaching because of a fear that Sphere sovereignty seeks to Catholics Together on Law fallen human reason can lead the assign the appropriate sphere to is a great contribution to a Church away from truth derived social activity consistent with more narrowly from Scripture. God’s order. In that sense, sphere Christian understanding of A desire to find a clearly stated sovereignty is a comparatively Biblical framework for thinking less flexible approach by which law in the manner in which it about law led many Evangelicals abstract spheres for activity weaves different ecclesiological should be identified for social acto look to the Mosaic law of the Torah for guidance in a manner traditions into a single rich and tivity. Implicit in this is that the generally not viewed as necesappropriate sphere is somewhat perceptive document. sary by Catholic political or static, and not determined by social theorists. The result is a comparison with other spheres. strain of voluntarist thinking in It is a horizontal ordering of soEvangelicalism that avoided heavy reliance on reason in cial activity, not a hierarchical one, finding merit in soconsidering public policy issues. cial activity that advances good order within its sphere One of the negative outcomes of Evangelical under the concept of coram Deo. In contrast, subsidiarity skepticism towards human reason was that much of the is a dynamic vertical ordering through a comparatively Evangelical world did not have a vocabulary to address fluid process that seeks to find the most local level at contemporary social issues throughout the 20th century. which a social activity can take place. Perhaps the clearThat led to unfortunate results such as the inability of est superficial resemblance between subsidiarity and Evangelicals to speak comprehensively about the moral sphere sovereignty is in how discipline of children is error of the Roe v. Wade Supreme Court decision in handled under each theory. Under subsidiarity thought, 1973. While the Catholic Church responded to Roe v. parents have primary authority over the discipline of Wade promptly with a critique grounded in a Christian their own children because the family is the most basic anthropology that rooted the sanctity of life in man being local unit of society and is the unit most up to the task of made in the image of God, Evangelicals did not have a guiding children towards flourishing. Under sphere sovbasic framework to address the case in a manner that ereignty thought, discipline is placed in the family bewas distinctly Evangelical. However, Roe v. Wade was cause the family is the divinely ordained sphere in which ultimately a galvanizing force for Evangelicalism, and in that activity was placed. While these two approaches apthe quarter century following that decision Evangelicals pear to coincide, an extension of the discussion to edurediscovered natural law. The natural law views currently cation makes it clear just how divergent the approaches developing in the Evangelical world are overwhelmingly are in a very basic social question. based on historic Catholic teaching. That is, there is no Further, I believe the document somewhat significantly distinct Evangelical stream of natural law inaccurately dismisses the quest for finding the most local teaching that departs in a meaningful way from Catholic level at which a social activity can be performed as merely teaching. Evangelicals and Catholics Together on Law a part of “some theories� of subsidiarity. According to the graciously acknowledges the Catholic development of document, subsidiarity in practice means a quest for the natural law doctrine, while perhaps over-generously proper level at which a social function should be performed 14

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some on the margins of Evangelicalism and Catholicism that may not support this endeavor on theological grounds, the majority of both traditions who are passionate about viewing the law from the lens of their faith will recognize this document as setting forth a truly Christian perspective on law that is broadly supported, consistent with Scripture and historic Church teaching, and deeply influenced by our common and diverse heritage. The individuals who collaborated on this significant project are to be commended for their welcome contribution to Christian social thought.

rather than the most local level. Thus, a commonality between sphere sovereignty and subsidiarity is found in the document by confusingly defining subsidiarity as essentially the same as sphere sovereignty. In contrast, the Papal encyclical Quadragesimo Anno, which surely bears a higher level of regard in the Catholic Church than being merely “some theory,” states that assigning a greater association to what a lesser association could do is a “grave evil.” This leads to subsidiarity recognizing that social clubs and sports associations may have an important role in Christian social doctrine. This is alien to the sphere sovereignty approach grounded in the best reading of Abraham Kuyper’s paradigm. Ultimately, what the two approaches have in common is that they are two approaches to social ordering that recognize that communal life has multiple social relationships. Notwithstanding that minor issue, Evangelicals and Catholics Together on Law is a great contribution to a Christian understanding of law in the manner in which it weaves different ecclesiological traditions into a single rich and perceptive document. While there are certainly

Myron Steeves is the Dean of Trinity Law School in Santa Ana, California where he has served as a law professor since 1997. A graduate of Georgetown University Law Center, Dean Steeves has practiced in areas of general business, real estate and insurance coverage litigation, and currently advises non-profits, particularly churches. Dean Steeves frequently speaks on issues including the integration of faith and law, legal careers as tools for Christian ministry, law and public policy, and law and theology.


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ontemporary U.S. law is sunk in the consequences of idolatry. (Rom. 1: 25-6) It has removed the recognition of God from public life, tyrannically abetted violence against the unborn, desecrated marriage, and curtailed religious liberty. Most recently, it has set up an idol of human autonomous freedom as a fundamental principle of its jurisprudence, and slandered dissenting Christian lawmakers as malicious, motivated by “a desire to harm.”1 Rebelliously choosing to be ruled by man not God, U.S. jurists have ensured national slavery. (1 Sam 8:7, 17) A united Christian jurisprudence is needed today to prepare Christians lawyers either to restore liberty to the nation or to witness to Jesus before U.S. rulers. In fact, such a united and uniting Christian jurisprudence is always needed. The Christian has always struggled against “the rulers, against the authorities, against the powers of this dark world” (Eph 6:12). The nations have always encouraged Christians to join them in the “futility of their thinking … darkened in their understanding and separated from the life of God.” (Eph 4:17-8) But “in [their] hearts,” Christians are “to set apart Christ as Lord.” (1Pe 3:15) Thankfully, Jesus has given grace to Christian teachers, among them the signatories of “Evangelicals and Catholics Together on Law: The Lord of Heaven and Earth” (ECTL), to “prepare God’s people for works of service … until all reach unity in the faith and in the knowledge of the Son of God.” (Eph 4:7-13) By Jesus’ grace, they have begun to prepare Christian lawyers to unite together and to unite their own hearts in the Lord Jesus by detailing the comprehensive ways that Christians can act in reliance on Jesus in law. But this work is not done. For the Christian preparing his heart for legal action, ECTL is split into two parts, two separate accounts of law, which are not equally focused on the knowledge of the Son of God. The differences between these parts send the Christian lawyer in different directions. The first, longest and best part details how Christians can depend on Jesus in legal action and follow Him in both official and private capacities. It is a clear, significant proclamation of Jesus’ Lordship over law, pure “foolishness” in the best sense.

(1 Cor. 1:18-21) But its clarity is confused by the last part, which endorses a natural-law theory focused on human reasoning; it is also clear but, depending on one’s perspective, perhaps too “wise.” In method and subject, the parts are inevitably divided because Jesus’ Lordship is a matter of faith taught by Scripture, and natural law a matter of reason taught by Western Christendom’s Greco-Roman legal tradition. But in the heart of the believer trying to discern how to orient himself to the law—how he will faithfully represent clients, write laws, judge cases, obey the law for Jesus Christ—these merely conceptual differences appear even greater. Trusting in Jesus as the Lord who has shown us how to comport ourselves toward law requires a total attitude of reliance, filled with prayer for Jesus’ grace; this appeal to the heart leads in a different direction than the last section’s call to rely on one’s own practical reasoning about natural law. The less important difference in formal method between the parts is related to the ecclesial differences among the signatories. The relation between Scripture and tradition divides Roman Catholicism and the Reformation, as does the relation between faith and reason. Like the cultural differences between Jerusalem and Athens, or Geneva and Rome, the conceptual and practical divisions between approaches to law based on Biblical faith in Jesus alone and accounts based on the scholastic tradition of Hellenic-Christian syncretism are wide. ECTL does not really attempt to overcome these basic divides. This is no criticism of the signatories, though it confuses ECTL; to overcome them fully would require resolving the contending principles of Roman Catholicism and the Reformation. Setting aside issues that would threaten to divide its signatories, ECTL makes no effort to connect its Scriptural account of what Jesus’ Lordship means for the Christian lawyer with its traditional account of natural law. It simply discusses what Jesus means for the law in the first parts, citing regularly to Scripture, and then it discusses what natural law means in the last, referring regularly to tradition. Natural law does not appear in the first part and Jesus does not appear in the last. The individual Christian, however, cannot approach 16

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the law without either choosing between these two different accounts or bringing them into active unity. Scripture teaches the Christian to obey the ruler’s laws “for the Lord’s sake.” (1 Pe 2:13) The natural-law tradition teaches him to obey the ruler’s laws for the sake of the rationality of the ruler’s promulgated ordinance in promoting the common good.2 But, in the movement of a man’s heart, there is no superficial similarity between the act of obeying for Jesus’ sake and obeying for the sake of the ruler’s rationality. So a man in preparing for action must decide between them. He must dispose himself to obey either for the Lord’s sake or for the sake of the ruler’s rationality. He must choose, that is, unless he can really be made to see and feel how these things are one and the same. Unless the act of reasoning about the common good and the act of following Jesus can be united into one act, then he cannot act toward law with both together as his aim. By leaving its account of what Jesus entails for law conceptually separated from its account of natural law, ECTL may have gained ecumenical unity, but it leaves the Christian conflicted in heart and without any unified appeal as to how he should dispose himself for legal action: by faith in Jesus or by the process of his reason? A few examples illustrate the depth of the Christian lawyer’s dilemma. In affirming Scripture, ECTL states that Jesus is to be personally imitated by lawmakers as the “model and standard of all earthly rulers.” ¶ 5 Also, “the Great Commandment [ Jesus] left us is that we should love one another as He has loved us. He exempted no one—certainly not rulers—from this commandment.”3 This calls the Christian to act in response to what Jesus has commanded, as revealed in Scripture, trusting in faith that Jesus’ example of love has triumphed over all. On the other hand, in affirming the natural-law tradition, ECTL states that “on the traditional understanding, the project of making 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.” ¶ 37 Also, “the tradition emphasizes the indispensability of the lawmakers’ and judges’ possessing and exercising the prudence appropriate to their role.” This calls the Christian to act in reliance on his own prudential reasoning, relying on the weight of traditional judgment that reason can be a successful measure of law. As the Christian moves from the first part to the second, gone is the primacy of imitating Jesus. Replaced is the emphasis on Jesus’ paradigmatic and the Christian’s imitative love. Because the Christian does not naturally know the life of Jesus, how can he measure his acts simultaneously by imitating the Scriptural revelation of Jesus’ life and prudentially reasoning about what he naturally knows in common with all men?

Is reasoning about men then what we mean by loving men? ECTL does not tell the Christian. Also, what is really indispensable for a Christian jurist, to know and imitate Jesus or to possess prudence? ECTL tells the Christian both are critical but tells him nothing about how both can be united in heart into Christ for legal action. If prudential reasoning about man’s universal natural knowledge of the moral law for the common good is the same as loving like Christ, then the Christian must be given effective assistance to understand how these apparently disparate things are united. Otherwise, the two accounts pull him in different directions. More examples: ECTL states that believing in Jesus’ Lordship involves an awareness “that any human ruler remains a mortal and sinful human being who is subject to divine rule and accountable to God.” ¶ 7 Does reasoning teach rulers about the Fall? Does prudence teach that rulers will rise in the resurrection and be held accountable before Jesus’ throne? That Jesus will condemn rulers who failed to care for their brothers as if they were caring for Him? Are these things part of the universal moral law that is naturally known? Does anticipation of personal judgment by Jesus make no difference in legal action? Again, ECTL teaches that “Jesus’ response to our spiritual poverty is to guide our response to the poverty of others.” ¶ 31 Does universal reason teach about Jesus’ response to our spiritual poverty? How much he suffered for the Christian’s sake? Does prudence prepare us to sacrifice ourselves for others as Jesus did for us? ECTL does not attempt to answer these questions. It leaves its account of what Christ means for the law sitting irenically separated from its account of natural law. A last example: ECTL states that “Christians who administer justice must do so in awareness of the mercy they have received in Christ,” and that this requires “exercising one’s vocation in a spirit of humility and mercy.” ¶ 31 Is exercising one’s vocation in the humble and merciful spirit of one who has received a mercy that lifts him into eternal life despite his desert of eternal death really the same as reasoning about the common good from what is universally known to all men? Can all men really know the Christian’s gratitude? Can natural-law reasoning cause the same feeling of love and understanding of others that arises from the transformative gratitude of being restored to God’s favor through the mercy of Jesus Christ? One might say that at a conceptual level that there is no logical conflict between natural-law reasoning and responding to Jesus in respect to law. One might say that natural law tells some truth in part and then is silent on the rest. In a book, this may be true. But in the heart of the Christian agent, as he is moved by the Spirit to choose how and for what purpose 17

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according to 1 Peter 2:13.”5 This is certainly not a sufficient integration by itself to guide the actions of a Christian lawyer. But Aquinas does the minimum; he clearly indicates that the Christian’s attribution of authority to law must be a matter of relation to Jesus through the Holy Spirit, not simply of relating law to universally-known natural law through reason. Aquinas thereby avoids any suggestion that human reasoning or knowledge of moral law has sufficiency for Christians; it is to be given authority, as the Scripture he cites states, only “for the Lord’s sake.” (1 Pt 2:13) Aquinas’ comments about the insufficiency of natural-law reasoning for Christian legal action prompt another concern over ECTL’s discussion of natural law. Given its ecumenical purposes, ECTL should have avoided framing controversy over natural law as simply Protestant versus Catholic. In fact, there is a common intramural concern among Protestants and Catholics about neutral natural-law accounts whose invocations of reason or nature do not direct the Christian to Jesus. The controversy is different in the churches because Catholics are dogmatically committed to the natural-law tradition; orthodox Catholics necessarily consider what form a natural-law theory should take rather than whether to support one at all. But there is widespread agreement among Catholics, who support natural law, and Evangelicals, who both support and oppose it, that a rationalistic, non-theological naturallaw jurisprudence is objectionable. (The “New Natural Law” camp is perhaps the prominent recusant on this issue.) In other words, Evangelicals and Catholics are united in concern over the “etsi Deus non daretur [even if God did not exist],” or better “etsi Iesus non daretur,” of the non-theological natural-law advocates. If a wider ecumenical agreement were sought, ECTL might have emphasized the common caution among Catholics and Evangelicals over any natural-law jurisprudence that proceeds without reference to Jesus. In fact, the intramural controversy among Catholics about the proper principles of natural-law reasoning— Christological vs. theologically neutral—closely parallels the controversy between Evangelicals and Catholics about whether it is properly Christian at all. Many prominent Catholics, like the former Pope, reject rationalistic natural-law theories, as harmful to the church in the past and detrimental to an “encounter with Christ.”6 Though committed to natural-law reasoning in some form, the former Pope pressed Christians to adopt theological principles of reason and nature informed by the revealed “unity of God’s salvific plan in Christ.”7 Many Evangelicals reject natural law in toto as inherently rationalistic and Christ-excluding, but just as many Catholics reject that subset of natural law theories,

he will act, there appears to be a startling and conflicting difference, a necessary election to be made. How can the Christian rely on Jesus as a model, act for the sake of his gratitude to Jesus, and also act based on the dictates of his reason concerning the common good? ECTL does not attempt an answer. These observations are not to meant to criticize natural-law jurisprudence per se, only versions of natural-law jurisprudence that fail explicitly to explain the identity of legal action “for the Lord’s sake” with action based on prudential reasoning about the common good. How could this unity be brought about? At a minimum, if the Christian is to prepare for legal action based on faith in Jesus, the Christian natural-law account must indicate the insufficiency of human reasoning alone without Jesus. To be any practical assistance to the Christian, reasoning must establish its own insufficiency and that insufficiency can only be resolved by relying on Jesus. In other words, only reasoning undertaken in the hope that relying on Jesus will remedy reason’s self-acknowledged inadequacy can be Christian. The better the Christian natural-law account is, the more a Christian will discern in reason itself essential deficiencies that can only be filled by relying on Jesus. The better the natural-law account of justice, the more the Christian (and perhaps the world) will see that one cannot act justly without Christ. But, if a theory leaves this Christ-shaped insufficiency out of sight, then it cannot be united with the Christian’s primary and fundamental focus on Jesus. If an account is silent about the need for Jesus’ grace but loud in urging reasoning, then it becomes at best a dangerous distraction. These ideas are not alien to the natural-law tradition. Aquinas’ natural-law account, which (pace Grotius, Hobbes and Locke) ECTL describes as the “most influential” ¶ 35, explicitly recognizes that the Christian’s knowledge of the natural law is inadequate to explain Christian obedience to the law and that obedience depends on Jesus. For example, considering why Christians must obey secular rulers despite being declared free by Christ as sons of the King (Mt. 17:26), Aquinas explained: Faith in Christ is the origin and cause of justice, according to Romans 3:22, “The justice of God by faith of Jesus Christ:” wherefore faith in Christ does not void the order of justice, but strengthens it.4 Likewise, when considering why Christians are subject to human law despite being ruled by the Holy Spirit, he replies “the very fact that spiritual men are subject to law is due to the leading of the Holy Ghost 18

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which are explicitly rationalistic or merely theistic, for the same reason. The agreement among Catholics and Evangelicals that Christian jurisprudence must be grounded in a theory that directs Christians to Jesus is larger and more significant than the disagreement about whether a natural-law theory can integrate Jesus and Scripture sufficiently to do so. One position is fundamental to Christian faith and the other is just an argument about the properties of a particular jurisprudential theory. ECTL not only fails to emphasize the more significant ecumenical unity of those Evangelicals and Catholics who reject merely theistic, rationalistic natural-law, it wrongly suggests that concerns over the sufficiency of natural law to frame a Christian’s action is a Protestant issue arising “especially during the twentieth century…” ¶ 38 ECTL notes Protestant objections arising from the limited human capacity to know and follow the natural law given fallen man’s sinfulness. Id. It would be more ecumenical to observe that these concerns arise from the heart of the Catholic natural-law tradition itself. It was Aquinas, not Karl Barth, who in his last remarks on natural law, described it as “destroyed by concupiscence.”8 Aquinas, not Paul Ramsey, taught that natural law was insufficient to guide human action because of the “uncertainty of human judgment.”9 Aquinas, not Jacques Ellul, observed that natural law, even if perfectly known and acted upon, is not sufficient for a Christian’s action because the Christian’s goal of salvific unity with Christ is “not proportionate to man’s natural faculty.”10 Aquinas, not Stanley Hauerwas, acknowledged that natural law would be sufficient only if a man were to act toward law for worldly ends.11 Aquinas would have agreed that following ECTL’s teachings on the significance of Jesus for law—to act “for the Lord’s sake,” to obey as a response to our salvation through Jesus’ death, resurrection and ascension as Lord– requires more than our natural faculties can provide; it requires grace. The absence of grace in a natural-law jurisprudence that does not establish the need for Christ is the most problematic aspect for Christians. The Christian cannot guide his legal actions “for the Lord’s sake” without relying on Jesus’ grace, without trusting in His Blood. This is not at all a question about the Fall or lost capacities. It is a basic desideratum of any Christian jurisprudence that it explain to the Christian how to rely on Jesus in his legal actions. It is not enough to affirm, even if it were true, that man has sufficient universal knowledge of the moral law. It is necessary for a Christian account of law to establish that no man can act as he should unless he acts, through grace, for the love of Jesus. Again, this is not a Protestant concern. As Aquinas taught, with respect to

the inward justice sought by Christians, “neither in the state of perfect nature, nor in the state of corrupt nature can man fulfill the commandments of the law without grace … not only do they know by its light what to do, but by its help they do lovingly what they know.”12 It is essential for a Christian to guide his legal action that he consider the insufficiency of his nature, reason and will, and rely instead on the grace flowing from Jesus that allows him to know what to do and to do it from love. Aquinas’ concern above was to protect the fundamental doctrine of justification against the “Pelagian heresy.”13 Thus, he is sure to explain that the sole Scripture cited by ECTL in favor of natural law, Romans 2:14-16, does not speak of Gentiles fulfilling the law by their natural powers: As Augustine says, ‘Do not be disturbed at [Paul’s] saying that they do by nature those things that are of the Law; for the Spirit of grace works this, in order to restore in us the image of God, after which we were naturally made.14 Wariness of the Pelagian heresy also leads Aquinas to question whether the law written on the hearts of the Gentiles of Romans 2 refers to the natural law, as ECTL suggests. As an alternative to natural law, Aquinas proposes that Paul meant “nature reformed by grace … for [Paul] is speaking of Gentiles converted to the faith, who began to obey the moral precepts of the law by the help of Christ’s grace.”15 In support of Aquinas’ proposal, one might further observe that God promised through the prophets that He would one day write His Law on Christians’ minds and hearts ( Jer. 31:33); it would be incongruous if the prophecy had always already been fulfilled without grace in the universal capacity of the nations for natural-law reasoning. Laying aside the controversies about what God has written on the hearts of all men, Christians know more surely that by the work of the Holy Spirit, their hearts are inscribed with Christ’s letter. (2 Cor. 3:3) Christians should rely first on this and not allow other theories to distract them unless necessary. Whatever the putative advantages of natural-law reasoning for public advocacy—and, these advantages may be doubted16— Christian lawyers need to prepare themselves for action by focusing on Jesus. In preparing themselves for legal action, if what Jesus means for law were very limited, then there might be some grounds to direct Christians to natural-law accounts. But as the first part of ECTL admirably shows, Jesus’ significance for law is a comprehensive and an adequate to guide Christian legal action. Accordingly, Christians should gratefully 19

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of Appeals. He subsequently joined the firm of Blackwell Sanders Peper Martin, LLP practicing intellectual-property, international, and appellate law.

applaud the general witness to the significance of Jesus for law in ECTL. But they should focus on developing its account of how faith in Jesus matters for law, not its concluding direction to natural-law reasoning. And there is much more to develop about what Jesus means for law, especially in directing the Christian response to current legal injustices in the U.S. One example: Jesus’ Lordship is not only manifested through man’s rational and intentional obedience to God. Christians need to know that Christ still rules even when unjust rulers hold sway. As Calvin taught, unjust rulers should be seen by Christians as a judgment of God upon the earth.17 Although ECTL left this aspect undeveloped, Jesus’ Lordship is also experienced in the providential history of nations, the lifting up and throwing down of infanticidal Pharaohs and selfidolizing Nebuchadnezzars until all know that “the Most High rules the kingdom of men.”18 If Christians trust in Jesus’ Lordship, they not only are empowered to witness and do justice. But they are given patience and anticipation in times of discipline. The Lordship of Jesus also means that a Christians’ first response to a ruler’s injustice is to “be mindful of our own misdeeds, which without doubt are chastised by such whips of the Lord.”19 Their second is to pray for the “Lord’s help, in whose hand are the hearts of kings and the changing of Kingdom…for before His face all kings shall fall and be crushed, and all the judges of the earth, that have not kissed the Anointed”20 Christians lawyers can begin to develop ECTL’s powerful general witness to the Lordship of Jesus over law by recognizing the urgent need for Christian repentance and prayer for the United States.

Dean Enlow teaches Christianity and Law, International Intellectual Property, Patents, Private International Law, and Torts. ENDNOTES

United States v. Windsor, 133 S.Ct. 2675, 2681 (2013). 2 ECTL ¶ 36 (referring to Thomas Aquinas, Summa Theologiae, I-II, Q. 90, a. 4) 3 Id. 4 Summa Theologiae, II-II, Q. 104, a. 6, co. 5 Id. I-II, Q. 96, a. 5, ad. 2. 6 See, e.g., Ratzinger, The Renewal of Moral Theology, Communio (Summer 2005). 7 J. Budziszewski, The Line Through the Heart 1 (2009). 8 Collationes in Decem Praeceptis, I, line 27, cited in J. Brian Church, State, and Society: An Introduction to Catholic Social Doctrine 68 (2011). 9 Summa Theologiae I-II, Q. 91, a. 4, c. 10 Id. 11 Id. 12 Id. Q. 109, a. 4, co. 13 Id., s.c. 14 Id. ad. 2. 15 Aquinas, Lectures on the Letter to the Romans §215-216. 16 See, e.g., Kevin Lee, Contemporary Challenges to Natural Law Theories, Catholic Social Science Review 12 (2007). 17 John Calvin, Institutes of the Christian Religion 4.20.25 (citing Isa. 3:4, 10:5; Deut. 28:29). 18 Id. (citing Ex 9:16; Dan. 4:32). 19 Id. 4.20.29. 20 Id. (Prov. 21:1; Ps. 2:10-11). 1

Eric Enlow is the Dean of Handong International Law School in Pohang, Korea. He graduated from Yale University and Washington University School of Law. During law school, Dean Enlow served on the editorial boards of the Harvard Journal of Law and Public Policy and the Washington University Law Quarterly. He then clerked for the Hon. Richard S. Arnold, United States Eighth Circuit Court


Fall 2013

Journal of Christian Legal Thought

Speaking of Religious Freedom


By Kimberlee Wood Colby Senior Counsel, Center for Law and Religious Freedom


s its new Term begins, the Supreme Court has on its docket two particularly notable cases. In one, the Court will review a Massachusetts law that criminalizes consensual speech near abortion clinics. In the other, the Court will determine whether a New York town’s policy of opening council meetings with prayer violates the Establishment Clause.

public safety and clinic access. According to the pro-life speakers, the law is unconstitutional because it transforms a traditional public forum – sidewalks and streets -- “into a speechfree zone – or, more precisely, a zone open to clinic speakers, but closed to speech offering alternatives” to abortion, even when that speech is “wholly peaceful, non-obstructive speech with willing listeners.”6 The case is an ideal vehicle for overruling the highly criticized Hill decision.7 There the Court upheld a Colorado law that prohibited speakers from approaching within eight feet of another person without that person’s consent. The Colorado law applied to all healthcare facilities, not only to abortion clinics, and to all persons, not just select speakers. In upholding the Colorado law, the Court emphasized that the law prohibited only close approaches to unwilling listeners, while allowing communication with willing listeners and permitting speakers to stand and offer leaflets to passersby.8 As damaging as the Colorado law was to the freedoms of speech and assembly, the Massachusetts law’s extreme provisions are even more troubling. The Court could use the case to begin rebuilding an authentic jurisprudence for the freedom of assembly. To that end, the Christian Legal Society filed an amicus brief prepared by Professor John Inazu and Professor Michael McConnell.9 Drawing upon Professor Inazu’s book Liberty’s Refuge: The Forgotten Freedom of Assembly, the brief argues that both the Massachusetts and Colorado laws violated the essence of the public forum doctrine, which is rooted in the freedom of assembly. The brief explains why it is important that public forum doctrine once again be understood as protecting not only freedom of speech but also freedom of assembly. The brief also remarks upon the close historical connection between religious liberty and freedom of assembly, beginning with William Penn’s acquittal of charges of “unlawful assembly” after he preached a sermon to Quakers on a London public street. Attacking the Hill’s premise, the brief explains that free speech cannot survive if it confers on citizens the right to avoid unpopular speech in a public forum by suppressing the speech outright.


In McCullen v. Coakley,1 the Court agreed to hear prolife speakers’ challenge to a pernicious Massachusetts law that prohibits persons from “knowingly enter[ing] or remain[ing] on a public way or sidewalk adjacent to a reproductive health care facility” within a “clearly marked and posted” 35 foot radius of the facility’s “entrance, exit or driveway.” The fine for violators is capped at $500 for a first offense and $5000 for each subsequent offense. A first offender may also be sentenced to three months imprisonment with each subsequent offense punishable by two and one-half years imprisonment. Various persons are not subject to the prior restraint, specifically: 1) “persons entering or leaving” the abortion clinic; 2) its “employees or agents;” 3) government employees “acting within the scope of their employment;” and 4) “persons using the public sidewalk or street . . . solely for the purpose of reaching a destination other than such facility.”2 Within the prohibited zone, individuals are subject to fines or jail for entirely peaceful speech and conduct, including distributing pamphlets, holding a sign, or praying. As the peaceful sidewalk counselors who are challenging the law have observed, Massachusetts has made it “a crime to enter the zone even to continue a quiet conversation with a willing listener.”3 Relying on Hill v. Colorado,4 the First Circuit accepted Massachusetts’ assertion that the law is a content neutral “time, place, and manner” restriction that is narrowly tailored to serve important state interests while leaving open ample alternative speech channels.5 The Commonwealth claims the law is needed to ensure 21

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Instead, the First Amendment protects unpopular speech, “even hurtful speech on public issues to ensure that we do not stifle public debate.”10

While the Court could strike down local governments’ invocation policies without overruling Marsh, the case has been briefed on the supposition that Marsh’s continued vitality is the main issue. The actual opinion in Marsh has sometimes been considered underdeveloped. The end result in Town of Greece may be a more firmly anchored ruling that legislative prayer does not violate the Establishment Clause. The case drew 25 amicus briefs in support of the town, including briefs filed on behalf of 34 senators16 and 85 House members.17 But one amicus brief offered assistance from an unexpected quarter. An executive branch that has been conspicuously insensitive to religious liberty concerns filed an exemplary brief in support of the constitutionality of the town’s policy.18 The Solicitor General’s Office that in Hosanna-Tabor19 failed to find protection for a church’s hiring decisions in the Free Exercise Clause20 found sanctuary for a town council’s prayer policy in the Establishment Clause. The Solicitor General’s argument is straightforward: Marsh remains good law and permits legislative prayer with sectarian content as long as the prayer neither proselytizes nor advances any one, nor disparages any other, faith. The government steadfastly insists that “Marsh neither requires nor permits a court to parse the sectarian content of prayers.”21 For that reason, the Second Circuit “erred by assessing the constitutionality of the town’s prayer policy” by considering “the prevalence of Christians among the prayer-givers.”22 Oral argument is set for November 6 in Town of Greece but has yet to be set in McCullen.


As in McCullen, the continued vitality of an earlier Supreme Court decision is at issue. In 1983, in Marsh v. Chambers,11 the Supreme Court held that state legislatures did not violate the Establishment Clause when they opened with prayer. A Presbyterian minister had opened the Nebraska Legislature with prayer for approximately 16 years. The Court upheld the practice so long as the government did not act with “impermissible motive” in selecting the person who gave the prayer and did not use the prayer “to proselytize or advance anyone, or to disparage any other, faith or belief.”12 In upholding the practice in Marsh, a fact that understandably weighed heavily with the Court was that the First Congress contemporaneously adopted the First Amendment and authorized hiring a chaplain to begin its sessions with prayer. For 224 years, Congress has continued this practice, as does the Supreme Court when it begins each public session with a Court official asking God to save the United States and the Court. In the past decade, despite Marsh, local governments have been under sustained pressure to abandon longstanding traditions of opening their meetings with prayer. The lower federal courts have arrived at varying results. Some have ruled that the practice violates the Establishment Clause; others have upheld the practice; and others have allowed prayer but prohibited the use of Jesus’ name in the prayers.13 The Supreme Court agreed to review Town of Greece v. Galloway, et al.,14 in which the Second Circuit gave lip service to the Marsh analysis but then substituted an “endorsement” analysis that purported to determine whether a reasonable observer would believe that the town favored or disfavored certain religious beliefs.15 For approximately fifteen years, the monthly board meetings of the Town of Greece, New York, have begun with prayer offered by citizens, including clergy from congregations within the town. The town does not provide guidelines for the prayers’ content, nor does it review the prayers’ wording in advance. In response to two residents’ challenge, the Second Circuit found that the Town of Greece’s policy violated the Establishment Clause due to the proportion of prayers with Christian content, even though the record showed that nonChristian prayers had been offered on occasion, including prayers by individuals who represented Buddhist, Native American, Baha’i, and Wiccan belief systems.


The Court likely will decide whether the Religious Freedom Restoration Act23 (“RFRA”) prevents the federal government from forcing religious business owners to provide insurance coverage for drugs they believe destroy human life in order to comply with the “HHS Mandate.” A split in the circuits developed over the summer on the issue. The Tenth Circuit ruled that RFRA protected two family-owned businesses from the Mandate’s onerous penalties (millions of dollars in fines) for noncompliance,24 but the Third Circuit held that religious individuals forfeit their religious liberty once they incorporate as a for-profit, “secular” corporation.25 Other cert petitions awaiting the Court’s return include a Hutterite colony’s challenge to Montana’s removal of their longstanding exemption from workmen’s compensation laws to which they have religious objections.26 Christian Legal Society filed a brief on behalf of numerous religious organizations urging the Court to take the case in part to clarify the free exercise test set forth in Employment Division v. Smith.27 22

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Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011). 463 U.S. 783 (1983). 12 793-795. 13 Pet. at pp. 25-28 (collecting cases), Town of Greece v. Galloway, et al., No. 12-696 (cert. granted May 20, 2013) available at 14 Town of Greece v. Galloway, et al., No. 12-696 (cert. granted May 20, 2013). 15 681 F.3d 20, 30-32 (2d Cir. 2012). 16 Br. Amicus Curiae of Members of Congress, Town of Greece v. Galloway, No. 12-696 (filed August 2, 2013), available at 17 Br. Amicus Curiae of Senators, Town of Greece v. Galloway, No. 12-696 (filed August 2, 2013), available at doc?id=527. 18 Br. Amicus Curiae for the United States, Town of Greece v. Galloway, No. 12-696 (filed August 2, 2013), available at doc?id=529. 19 132 S. Ct. 694 (2012). 20 Br. of Federal Respondent, Hosanna-Tabor v. EEOC, No. 10-553 (filed August 2011), available at http:// 21 21 Br. Amicus Curiae for the United States at p. 10. 22 Id. at 27. 23 42 U.S.C. § 2000bb et al. (2013). 24 Hobby Lobby Stores, Inc., et al., v. Sebelius, 2013 WL 3216103 (10th Cir. June 27, 2013) (en banc). 25 Conestoga Wood Specialties Corp., et al., v. Secretary of HHS, 2013 WL 3845365 (3d Cir. July 26, 2013). 26 Big Sky Colony, et al., v. Montana Labor and Industry Dep’t., No. 12-1191 (pet. filed Apr. 1, 2013), available at 27 Br. of The National Hispanic Christian Leadership Conference, et al., Big Sky Colony, et al., v. Montana Labor and Industry Dep’t., No. 12-1191 (filed May 2, 2013), available at 28 Doe v. Elmbrook Sch. Dist., No. 12- 755 (pet. filed Dec. 20, 2012). 29 Pet., Cline, et al., v. Oklahoma Coalition for Reproductive Justice, et al., No. 12-1094 (cert. granted June 27, 2013), available at document.doc?id=532. 30 505 U.S. 833 (1992).

The Court is holding, possibly awaiting its review of Town of Greece, a cert petition that would review a Seventh Circuit en banc decision that prohibited a school district from renting a church auditorium for graduation in order to accommodate the number of attendees.28 Finally, the Court granted the State of Oklahoma’s petition29 for review of its state supreme court’s ruling that an Oklahoma law which regulates use of abortioninducing drugs was facially unconstitutional under Planned Parenthood v. Casey.30 That case is on hold while the Oklahoma Supreme Court responds to questions certified to it by the Supreme Court about the interpretation of the law. Overall, the 2013 Term promises answers to some important religious liberty questions and provides hopeful signs that strategic ground may be recovered for the freedoms of speech and assembly in the context of pro-life speech.

10 11


McCullen, et al., v. Coakley, et al., No. 12-1168 (cert. granted June 24, 2013). 2 Mass. Gen. Laws, ch. 266, § 120E1/2. 3 Pet. Br. at 9, available at document.doc?id=521. 4 530 U.S. 703 (2000). 5 708 F.3d 1 (1st Cir. 2013). 6 Pet. Br. at 22, available at document.doc?id=521. 7 Professor Laurence Tribe and Professor Michael McConnell criticized the Court’s rationale not long after the Hill decision. See Michael W. McConnell’s Response, 28 Pepp. L. Rev. 747 (2001). Professors Michael Paulsen, Rick Garnett, and Eugene Volokh filed an amicus brief urging the Court to grant cert in McCullen in order to limit the Hill decision. See uploads/2013/05/MCCullen-No.-12-1168GarnettPaulsenVolokh-Amicus.pdf. See LeBlanc, Clark & Jamin B. Raskin, Disfavored Speech About Favored Rights: Hill v. Colorado, The Vanishing Public Forum and the Need for an Objective Speech Discrimination Test, 51 Am. U. L. Rev. 179 (2001). 8 530 U.S. at 707 n.1, 715-16, 718, 725-727. 9 Br. Amicus Curiae of National Hispanic Christian Leadership Conference, et al., No. 12-1168 (filed Sept. 16, 2013), available at document.doc?id=523. 1



n 2001, Regent University School of Law and the Christian Legal Society created the Institute for Christian Legal Studies to help train and encourage Christian law students and lawyers as they study and seek biblical truth as it relates to law and legal institutions. Through this cooperative ministry, Regent and CLS have created resources for law students and lawyers, forged partnerships with other ministries, and founded this Journal, among other good works. God has abundantly blessed the relationship and provided resources for it. For nearly 13 years, Regent University School of Law has contributed generously to the life and growth of the Christian Legal Society through ICLS. As of July 1, Regent will scale back its role in the Institute for Christian Legal Studies, though it will continue as an important ministry partner with CLS and through ICLS. ICLS is pleased to announce that as of August 1, 2013, Trinity Law School has come alongside CLS in the Institute for Christian Legal Studies and will play a major role in carrying out its mission going forward. Trinity Law School was founded in 1980, when a trio of Christian leaders – Dr. John Warwick Montgomery, Dr. Harold Lindsell, and Dr. Walter Martin – had a vision for an institution called the Simon Greenleaf School of Law. Their goal was the academic integration of law, human rights, and defense of the Christian faith. Eventually this school was renamed Simon Greenleaf University to reflect broader educational goals. In 1997, Simon Greanleaf joined Trinity International University and was renamed Trinity Law School. Trinity’s broadly evangelical ethos includes many of the same emphases that accompanied the Law School’s original founding in 1980, including the integration of the Christian faith and other disciplines such as law and the humanities. It is through the respective missions and vision of Trinity Law School and Regent University of School of Law that the Journal of Christian Legal Thought was founded and will continue to thrive, as the Lord wills.

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The Journal of Christian Legal Thought is a publication of the Institute for Christian Legal Studies, a cooperative ministry of the Christian Legal Society and Trinity Law School, founded as a project of Regent University School of Law.

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