Supreme Court Justice James Wilson
Photo Credit: www.americanclarion.com

October 28, 2013

Religious Freedom and the Need for Transcendently Based Law

Religious freedom and its conflict with the sexual revolution in general and homosexuality in particular increasingly occupy space at Christian events and gatherings, as our lives and the activities of Christian organizations and churches are increasingly threatened and curtailed by laws and government policies hostile to Christian faith and morals. This increasing emphasis was apparent at the Truth for a New Generation apologetics conference in Charlotte, N.C., at the end of September. Its National Briefing on Religious Freedom, summarized earlier at this site, assembled key Christian spokesmen in the conflict for an extensive discussion of the issue.

Workshops at the conference also addressed the issue, including a presentation by Jonathan Crumly of the Alliance Defending Freedom (ADF) legal service organization. He discussed America’s heritage of religious freedom and where the nation seems to be headed before a packed audience at the conference on Sept. 28. In general, it is a story of the loss of a transcendent basis for law, and its replacement with an understanding of law as a human instrument in human struggles.

Crumly began by quoting nineteenth century Supreme Court Justice James Wilson that “without liberty law loses its nature and its name and becomes oppression, without law liberty also loses its nature and its name and becomes licentiousness.” Crumbly said that with respect to religious freedom, today “we’ve got law that doesn’t revere liberty … [and] we have people in our culture that revere liberty without the constraints of valid law.” The American founders “understood that there is an overarching limitation on political power, that doesn’t seem to follow today’s political theories.”

The doctrine of “separation of church and state” is in fact Biblical and constitutional, Crumbly said, but its point is “the church being protected from the state, not the state being protected from the church.” This was part of a larger “natural law theory” which held that God’s law, either given specifically in the Bible or apparent from nature as referred to by Paul in the Epistle to the Romans, prevails against human law. While no particular church was favored in the original understanding of church-state separation, Christianity in general was encouraged, including through “tax resources.” Even Thomas Jefferson held that “it was not however to be understood that instruction in religious opinions and duties was meant to be precluded by the public authorities as indifferent to the interests of society.” Jefferson’s doctrine of “separation of church and state” was, however, seriously misinterpreted by Supreme Court Justice Hugo Black in his 1947 Everson decision, which, in a case involving state funding for transportation to Catholic parochial schools, ruled that neither federal nor state government may “aid” any particular religion or “all religion.” Crumly noted that Black, a former Alabama Klansman who had served as legal counsel to a defendant who shot a Catholic priest in Alabama, probably acted from a viewpoint hostile to the Catholic Church in particular. Similarly to the original church-state separation doctrine in the Constitution, the Northwest Ordinance of 1787, an “organic” document of the United States along with the Declaration of Independence and the Constitution, specified that religious freedom be included in the constitutions of states to be formed from the Northwest Territory.

The religious or transcendent basis of American law at the founding was established through the English common law, in which lawyers of the day were trained, and which was assumed to be the proper framework of legal culture. Laid out in Sir William Blackstone’ s legal commentaries, the common law framework postulated that the “will of the Maker is called the Law of Nature … [and is] superior in obligation to any other.” Binding at all times and places, no human law can legitimately contradict it. In line with this, Justice James Wilson held that “far from being rivals or enemies, religion and law are twin sisters.”

Today, however, “we have pretty much got a constitutionally ignorant population,” Crumly said. Also, the system of rights deriving from the constitution has been “distorted by legal positivism.” In a survey done by the First Amendment Center, 47% of Americans identified freedom of speech as the most important right, while only 10% picked freedom of religion as the most important freedom, despite it being the first freedom mentioned, and the right which addresses ultimate questions of right and wrong. Indeed, only 24% could identify freedom of religion at all as a First Amendment freedom, while 36% of Americans could identify no First Amendment freedoms. Unsurprisingly, 52% of Americans thought Christian businesses should be legally required to service same-sex ceremonies.

The transformation of America’s legal culture and consciousness has come not from any formal constitutional amendment, but from legal positivism, originally advanced in America by Christopher Columbus Langdell, dean of Harvard Law School from 1875 to 1895. It essentially says that the final law of the state evolves over time, with judges free to pick from the decisions of earlier cases to arrive at new legal principles without a comprehensive structure of legal doctrine. The resulting legal culture shows the decisive influence of both Darwinism, in its ever changing nature, and of Hegelianism, in that the state is held to be the highest expression of the absolute realizing itself in history. Crumly noted that by the standards of legal positivism, the Nazi defendants could not have been convicted at Nuremburg, since they obeyed the binding law of their day, that of Nazi Germany.

But even in contemporary western democracies, the consequence of the state as final authority without a transcendent basis is that all institutions of society, such as families, churches, businesses, or other associations, have no rights beyond what the state deems correct in its current understanding proper social relations. Thus organizations serving the public are compelled to facilitate homosexual behavior as “the price of citizenship,” while the right of parents to educate their children in Christian sexual morality is in jeopardy of being judged by the state as impermissible prejudice. In general, classic freedoms of religion, speech, and association are all in jeopardy where they conflict with the state’s current understanding of proper social development.

In response, Crumly said, Christians today need to be “Nehemiahs,” working with each other in society to defend their right to live in obedience to God, and advance an understanding of proper, transcendently based rights and duties. But part of this as well must be a far-sighted effort to develop strategy and thought to protect religious freedom in the long term, and turn society toward the need and the justice of transcendently based law and morality.


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