[1] In my experience as a scholar and teacher of American constitutional law, I have frequently resorted to our Lutheran tradition as a guide for understanding why we place emphasis on, and how we distinctively understand, concepts such as the rule of law and the separation of church and state. In American constitutional classes, we separate doctrine into “powers”—the ways in which the three federal branches and the state governments are checks and balances for each other—and “rights,” the relationship between the individual person and the state. So too, any Lutheran proposal about “church and state” must take into consideration the ways in which government and religious institutions interact with each other, as well as what religious liberties should be afforded individual citizens and religious communities.
[2] As I have learned, the Lutheran tradition on church and state is one of many Christian understandings of this relationship, one that stands somewhere between two ends of a spectrum on the relationship between the church and secular government. [i] On one end of this spectrum, some American Christian traditions propose what might be called a theocratic relationship between church and state. While most American Christians do not argue for the strict theocratic state, in which the church’s bishops or other governing authorities serve as supreme legal authority as in Iran, many Christians have argued for returning the Bible and its interpretations to its place as a meta-Constitution, with its commands superseding secular law in directly governing secular society. In recent years, it seems to me, this more theocratic understanding of the relationship between Biblical norms and secular law has been especially prominent in public debates about the secular law of the family, such as the definition of marriage; the law governing gender, sexuality and procreation; and the role of human autonomy and ethical decision-making in all of these issues.
[3] On the other end of the spectrum, there remain some American Christian traditions that believe that the church should completely separate itself from secular politics and that church members should not be involved in secular government at all. Taking their pedigree from early Protestant movements like those led by Roger Williams, they believe that the state and secular society, which are corrupted by human sin and error, will taint the church and its members as they strive for perfect souls and perfect Christian community. Thus, in their view, Christians should stand apart from society, critiquing it from afar but not becoming immersed in its sin-tainted processes which have only to draw Christians into sin.
[4] It seems to me that there are many good reasons why Lutherans have consistently rejected both ends of this spectrum on church-state relationships. First, we recognize that the secular law is a part of God’s ongoing co-creative activity with human beings in this world. Like other ongoing creative work of the Father in our world, secular law evolves in response to changes in our better understanding of the secular world, as well as changes in human capability to adapt to that world and human needs within it. To reject participation in the secular law is to reject God’s good gift to human beings and God’s ongoing participation in the work of creating a just and peaceful earthly society where human beings, made in God’s image, can flourish.
[5] At the same time, we Lutherans recognize that to glorify human beings’ understanding of Scripture and what God requires of us in this secular age by uncritically vesting the significant and potentially oppressive power of the state into that necessarily flawed and limited understanding of God’s will result in a form of idolatry. The Creator has designed us as limited creatures, limited physically and limited in our understanding of God’s will. Even with the Bible in our hands, to set human beings and human governments up as ultimate authorities of the will of God for this secular age is to fail to come with the necessary humility to the task of understanding how God works in our time to ensure our flourishing.
[6] Just as importantly, our Lutheran tradition is an important voice in reminding the world that the secular law, like every human institution, bears the marks of human sin, both in how that institution is structured and in how it is managed by human beings. We are called to remonstrate when that law turns away from God’s good work in the world. To turn away from engagement with the secular law, as some Christian denominations do, is to permit sin to proliferate in oppressive and destructive commands from the state and those who carry out the work of the state.
[7] If we remain silent in the face of growing evil, turning our backs to violence, oppression, and indifference to human suffering and closing into our circle of family, friends, and church community to avoid engaging with this evil, we deny one of the most important teachings of the Lutheran faith: that in this secular world, we are called to give our lives for the neighbor. Participating in the creation, critique, revision, and enforcement of the secular law is one way in which we can carry out our vocation as citizens to ensure that our neighbor’s needs are met, whether they are needs for the material necessities of life such as food and shelter or non-material needs such as for dignity, good work, and respectful relationships that let us flourish. We Lutherans have a calling to remind our fellow citizens about what we have called the orders of creation–the scaffolding for successful human existence that God creates anew in every age and places for the protection of human beings against human sin and every other evil. Because living in our time and place in a society founded on democratic participation is a gift of that order of creation, refusing to build out and build on that scaffolding through the creation, critique, revision and enforcement of law is refusing the vocation that goes along with that gift.
[8] Even while we might be tempted to consider ourselves as Christians to be closer to God’s call to our world, the idea that the church, as the institutional expression of the body of believers, can remain untainted by the secular world if we only close ourselves off to it obscures the reality that the church, too, is peopled with sinful human beings. No religious authority is free from the temptations that infect secular governance—the temptation to replace the divine work of God with the work of flawed human beings, to arrogate to themselves the power to speak the truth or to decide how others’ lives should be governed. We can also be tempted to ignore the demands of justice for the sake of the preserving the human institutions that have shored up great inequities or placed the personal comfort or riches or power of those who govern (and all of us who have profited by that governance) ahead those who are vulnerable, destitute and powerless. Thus, the problem with theocratic forms of government.
[9] At the same time, the church can be a wellspring of wisdom about how secular law and institutions can help or hurt human beings. Martin Luther reminded us that all human beings, whether they are Christian or of some other faith or no faith at all, are made in the image of God. As such, they are endowed with reason that makes it possible for them to understand and to shape what the demands of justice and of human need are in this secular world, this contemporary creation. We are among those Christians who acknowledge that the natural law “written on our hearts” calls all human beings to both understand and acknowledge what harms and helps our neighbors, demanding through our consciences that we live out that calling to their needs. Thus, we Christians, like all human beings created in the image of God, stand as equal partners with individuals from other faith traditions in discerning and designing a secular law that will respond to these needs, and we debate those requirements on an equal footing with non-Christians, though each speaks the language and values of their own tradition.
[10] In what Luther termed the political use of the law, the Bible and Christian teachings at the center serve as a guide to discernment of justice rather than a mandatory set of legal principles to be imposed. The Christian tradition, like Jewish, Muslim and other traditions, has accumulated centuries of experience about how law can serve to preserve the world. This centuries-old community of believers has experience in identifying harmful behaviors and punishing or rectifying them effectively, in rehabilitating human error, in restoring sinners to community. As a community, the Christian church has experimented with legal rules, such as how to ensure that people keep their promises through contract law or how to respond to violence in family life. It has refined dispute resolution processes such as mediation and arbitration to ensure that people are fairly treated and fairly heard in case of disputes. Just like other traditions, the church has secular wisdom to contribute to secular life.
[11] Thus, living in a religiously diverse world, our obligation as Lutherans is to witness to our understanding of what God requires of us in carrying out our vocation, and to listen for the wisdom and the work of God as individuals from other traditions—whether they are faith, cultural, historical, social or political traditions—carry out their own God-given vocations in the creation and enforcement of secular law. We owe our Lord and our neighbor the humility of being open to insights about what justice and need require that may come from others who have had different experiences than ours.
[12] As American Christians in this place and age, we should also have a stance on “rights,” how we should understand the protections for the individual or religious community confronted by the demands of the state. Part of the importance of religious liberty is in its recognition of the right of others to disagree with our assessment—or the assessment of the rulers or of the majority– of what secular law must be to allow human flourishing. Just as we may be impelled by God’s creative work through them to change our own views about what justice and mercy require, we may find ourselves conscience-bound to disagree with them about the circumstances in which our neighbors find themselves. We may diverge from common secular expectations as we discern and act upon what is needed to alleviate suffering and prevent oppression, physical, mental and spiritual.
[13] Indeed, in extreme circumstances, we may find ourselves conscience-bound to reject the demands of civil authority. As George Forell notes, the legitimacy of civil authority is practical, not ideological; it “is not to be found in an analysis of its historical origin or the intention of its constitution or the moral demands of the individuals who happen to occupy positions of power. The justification of civil authority is in the fulfillment of its divinely ordered function on behalf of man. . . . The criterion by which it is to be judged is the service it renders to the earthly welfare of human persons in their life together and as individuals.”[ii]
[14] Just so, we recognize the liberty of others as they are conscience-bound to disagree with our assessment of what justice and mercy require for humans to meaningfully flourish in this age and place. Forell reminds us, “[f]or the Christian, all civil liberties are rooted in the fact that man is created by God for fellowship with Him. [The Christian] must defend these liberties because of his understanding of the human situation and his vision of the ultimate destiny of man.” [iii]
[15] At the same time, our Lutheran tradition has recognized that there are some ideologies, institutions and individuals so powerful and oppressive, whose work is so inimical to the spread of the Gospel and human flourishing that we must strongly oppose them, even when they are clothed with the trappings of secular government instituted by God as one of the estates co-created by God for humanity. There has been, as there should be, ongoing debate about when Lutherans should recognize the right and duty to disobey government authorities, how robust that duty should be. Among other things, “Luther affirmed the duty of a Christian to disobey and passively resist in good conscience, whether faced with some condemnation of Gospel (such as at the Diet of Worms), the confiscation of books advancing the Gospel (such as Luther’s translation of the New Testament), or being ordered to partake in an unjust war.”[iv] But, while we may follow the tradition in being conservative about when resistance or disobedience to secular government is called for, it seems to me that this is a matter which must be debated in every age, demanding a nuanced stance with our understanding of the human condition at this time and place.
[16] We Lutherans thus recognize that, even in an ostensibly democratic government which is built upon commitment to the rule of law and equality of persons, the sin of making idols in place of God may require passive, and even active resistance by Christians, even those who recognize that government is a scaffolding of our lives together, an institution in which God’s hand may be discerned. These idols may be powerful individual authorities who command popular allegiance to themselves in the place of God. They may be ideologies that reject the basic teachings of the Christian faith or to reject the good creation of God, such as racism and environmental destruction. They may be institutional structures so dysfunctional that they block opportunities for citizens to serve the creation and the neighbor. They may even be the same movements resisting the secular authority in the name of conscience, which are betrayed by human self-justification or misunderstanding.
[17] All of these forms of evil stand in judgment, and must be called out for what they are, with appropriate humility about the limits of our own vision, and the recognition that our own self-justification may be infecting our judgments. The persistence of this kind of idolatry in all forms of secular society gives impetus to the contemporary understanding that the authority which Luther called us to respect is the rule of law, the structure of that scaffolding, rather than the rule of individual rulers who may be abusing the trust placed on them.
[18] As we Lutherans prepare to issue a statement for our own time about the relationship of church and state, in both the institutional relationships between secular government and the church, as well as just relations between government and the individual, I hope we may be bold in our witness to what Lutherans distinctively have to contribute to this discussion, while forthrightly observing human limitations that our witness carries. Indeed, we may want to think in much more depth about institutional and religious liberty problems beyond our own national borders, which can serve as an excuse for neglecting our neighbors. We may want to consider and affirm secular norms for the whole of the international community, such as in the area of human rights, even while we preserve the variety and distinctiveness of forms of secular authority coming from the left hand of God that have enabled different societies to flourish. And, we may want to commit ourselves more earnestly to specific practical work in common cause with our neighbors throughout the world, striving to ensure that our minds and our hands can ensure that God’s justice can “roll down like waters” for the entire human community.
[i] Law professor Carl Esbeck’s typology of American Christian views about church and state has most influenced my thinking on this matter, Carl H. Esbeck, “Five Views of Church-State Relations in Contemporary American Thought” in Brigham Young Univ. Law Review, Volume 1986, Pg. 371, available for download at https://scholarship.law.missouri.edu/facpubs/171/
[ii] Forell, George W., “Christian Freedom and Religious Liberty” in Religious Liberty, Pg. 16-17 Board of Social Ministry, Lutheran Church in America, 1968. (ed. Cedric W. Tilberg)
[iii] Ibid. at 5.
[iv] Matthew Philips, “Widerstand: Luther and the Freedom to Resist Unjust Authority,” in Issues in Christian Education, available at https://issues.cune.edu/enlightenment-liberty-vis-a-vis-christian-liberty/widerstand-luther-and-the-freedom-to-resist-unjust-authority/ (visited October 4, 2022)
Marie Failinger is a Professor of Law at Mitchell Hamline School of Law, St. Paul, MN. She is a lifelong Lutheran, and earned her B.A. and J.D. at Valparaiso University and her LL.M. at Yale Law School. She was the long-time editor of the Journal of Law and Religion, and has co-edited Lutheran Theology and Secular Law: The Work of the Modern State and On Secular Governance: Lutheran Perspectives on Contemporary Legal Issues with Rev. Ronald Duty, along with other articles on Lutheran theology and secular law.