[1] Is the constitution to be read narrowly, focusing on the intent of the framers, or is to be read more liberally, and if more liberally, why? Is religious freedom still worthy of special constitutional protection? When is it proper for an individual to disobey a law? If water flows through your property, do you have the right to do with it whatever you wish, or are there greater community concerns that you must abide by? What is the role of Lutherans and the Lutheran church regarding issues like human trafficking? What can Lutherans and the Lutheran church do with respect to governments that are corrupt? How should modern Lutherans try to reshape secular law? These are just a few of the issues addressed in this new book from Eerdmans Publishing: On Secular Governance.
[2] As someone who has graduated from both a law school and a Lutheran Seminary, I found this book to be a fascinating collection of modern legal issues looked at from a Lutheran perspective. Many of the 15 articles focused on legal issues through the lens of Luther’s explanations of the purpose of the law and upon his doctrine of two kingdoms. The book is a collection of articles by 15 different authors, and is divided into four sections.
[3] Section one deals with framing problems of law and theology. The first chapter by W. Bradley Wendell looks at the different legal theories that Supreme Court justices use in reaching decisions. More conservative justices, most notably the recently deceased Antonin Scalia, are believers in trying to find the original intent of the framers of the constitution. They see the constitution as being very limited in scope, and will only strike down a law or statute if it is clear that the statute violates a right that is specifically protected in the constitution. For example, the cases that established a right to privacy would be rejected by such justices, since a right to privacy is not specifically mentioned in the constitution. Other more liberal justices see the constitution as a living document that changes as society changes. A recent example would be the 2015 case that made same sex marriage a fundamental right. No doubt an original constructionist would never sign on to such a ruling, arguing that the framers would never have intended such a result. The liberal position however is to argue that as our understanding of homosexuality grows, and our understanding of equality and justice expands to include those previously excluded, then our laws should reflect an understanding that sexual orientation should be included among the characteristics that deserve equal protection under the law, even if the constitution does not specifically state it. But a liberal perspective does not mean that a decision can be reached merely upon the private opinions and beliefs of the justices; for the decision still must be grounded in the constitution. Parallels to these kinds of arguments can be seen with respect to biblical interpretation. Women’s ordination, for example, is not specifically permitted in scripture, so a conservative view, such as the Catholic Church has, does not recognize a right to have women ordained, yet a more liberal interpretation would involve deeper exegesis: looking at how Christ always was including people who were previously excluded; realizing that the first person to whom a resurrected Jesus told to go and proclaim that he is risen was a woman. Again, a more liberal policy cannot be simply based on society’s views or on the opinions of those who are voting on the measure, but must be solidly grounded in scripture.
[4] Chapter Two, by John R Stumme, asks a very controversial question: Is religious freedom still a freedom that is worthy of special protection? Or is it more appropriate to talk about freedom of conscience? It seems rather obvious to say that religious freedom should continue to be a special freedom worthy of protection, because the constitution specifically says so! Looked at through the scope of Luther’s two kingdoms, we recognize that things are not simply secular or religious, but that both the civil government and religious institutions are ordained by God, with different roles for this world. Stumme writes:
How can Lutherans rest content with an account of religious freedom that denies God’s dual jurisdictions? How can we acquiesce or even baptize an understanding of the law that presupposes that the secular is the only reality? How can we pretend that God’s word has nothing to do with matters of this age?
His call to Lutherans is three-fold. Lutherans need to:
- Support personal and corporate religious freedom for all
- Exercise our own religious freedom with respect to the proper role of government and by adhering to legitimate civil law, and
- Deepen and teach the theology of dual jurisdictions to our churches in our churches, and advocate its importance in the public square.
I would add that it is extremely important to not let “religious freedom” become an excuse for bigotry and prejudice. In these days of cases like bakers refusing to bake cakes for same sex couples, this three-fold platform is a delicate balance to walk.
[5] In Section two of the book, titled Reflections on Property and Larger Creation, the chapters concerned a topic that I ironically found dryly dull in law school: the issue of riparian water rights. Especially in the American Southwest, where water is scarce, and droughts in California states are already being felt, the issues are a literal matter of life and death. In Chapter 5, Ronald Duty does an excellent job tying in Luther’s large catechism on the seventh commandment–Thou shall not steal–to discuss issues of how water is property, how we all have obligations to serve one another, and how that means that the good of the community as a whole must trump the rights of a land owner whose water runs through the owners’ property. He also does an excellent job in explaining for people without a legal background, the issues involved in interstate river compacts and water transfers, and how Luther’s theologies on grace, daily bread, and property can form a cohesive policy that requires that water not be polluted, over-allocated, or wasted.
[6] Section Three is titled Lutheran Reflections on the Law of Human Dignity and Human Need, chapters 6 and 7 deal quite poignantly with issues of child protection and human trafficking. Kirsti Sterjna and Wanda Deifelt discuss Luther’s explanation of the fifth commandment (Thou shall not kill) as meaning that not only are we obligated to not cause harm, but also obligated to protect our neighbor any way we can. The scourge of human trafficking worldwide has become more and more visible, and one of the main changes in the way of thinking about these issues involves no longer calling people who traffic their bodies “prostitutes,” but instead calling them victims; for most of the time that is precisely what they are. Deifelt in particular does a nice job of discussing Luther’s two kingdoms as showing how both the church and the state can work to end the evil of human trafficking.
[7] Chapter 8, dealing with a Lutheran theology and comprehensive immigration reform also applies Luther’s two kingdoms theory on an issue that is at the forefront of today’s presidential campaign. Noting how it would be irresponsible to say “Oh, just let everybody come in” as well as “let’s build a wall and keep everybody out”, Leopold Sanchez negotiates the trickier but necessary path of immigration reform that keeps families together, humanely enforces the law, protects vulnerable immigrants, protects workers, and provides a pathway to citizenship.
[8] Finally, part four focuses on Lutherans and their role as citizens. Perhaps the two most fascinating chapters here were the last two. In Chapter 14, Ibrahim Bitrus discusses the issues in Nigeria, where corruption is rampant throughout all levels of government, including the police and the judiciary. And where a few people are well-off but most people live in poverty. There is peace in Nigeria, but it is peace at gunpoint, not a true peace that God desires for God’s people. How do people respond to injustice and oppression without resorting to violence? Bitrus is highly critical of the church here, as he argues that the church is far too passive, and is far more interested in saving souls than in effecting social changes that benefit God’s people. The church should not only expose corruption, but refuse to accept money from corrupt sources. Thankfully in America our institutions are not so corrupt, but there is still much we can learn here about what the role of the church should be in affecting social change, and how the church should be more concerned with being eschatological than with being a church whose primary focus is to save souls. This current presidential campaign has seen politicians bemoan the erosion of the middle class, and the growing gap between rich and poor, but economic policies alone are not the solution. The church also has a significant role to play in standing for those who are the victims of corrupt policies.
[9] The final chapter was one that challenged me the most directly, as author Robert Benne appears to have an issue with what he views as the increasingly left wing policies of the ELCA, especially with regard to issues of marriage and abortion. He criticizes the ELCA Washington Office for their stand on issues like cuts in SNAP (formerly food stamps) pressures on Israel, and rights for LGBT people, arguing that the ELCA has in effect become a tool of the political left, and that the issues the ELCA is supporting are more a result of the political bias of church bureaucrats rather than careful Christian argument. Although I disagree with that assessment, it does make one stop to realize why there have been such deep divisions within the ELCA and forces us to carefully consider our proposals and the issues we fight for to make sure that they are solidly grounded in scripture, and that our actions are done as a church and not as an arm of any political party. For example, on the issue of abortion, it is important for the ELCA not to just be another voice for NARAL or NOW, but to propose plans to help eliminate poverty in the world, because the main reason women choose to terminate a pregnancy is because they do not have the financial resources to raise another child. So proposals that would reduce poverty, as well as proposals that make conception more available, would lead to a pro-life society without draconian restrictions upon women’s rights.
In conclusion, I found the articles in this volume to be challenging and engaging, and the book would be valuable and comprehensible for any Lutheran, even if one does not have a background in the law. For any class at the Lutheran university or seminary on the law and ethics, this would be a valuable resource.