The Anniversary of the Virginia Declaration of Rights

On this date in 1776, the Virginia Declaration of Rights was adopted by the Virginia legislature, preceding the Virginia State Constitution by a few days.  The portion dealing with religious liberty was drafted by James Madison and is generally considered to be an important antecedent to the federal constitutional right of free exercise of religion (adopted in 1791).  Here is the text of Article XVI:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Supreme Court Declines to Hear Candy-Cane Case

The Supreme Court yesterday refused to hear a Fifth Circuit case involving the First Amendment rights of public elementary school students to discuss religion with other students and to distribute religious items, including religiously-themed candy-canes and pencils with messages such as “Jesus is the Reason for the Season,” and “Jesus loves me, this I know, for the Bible tells me so.”

The en banc Fifth Circuit held that students do have such rights, but that the public school administrators who had barred the students from exercising their rights had qualified immunity from suit because the rights were not clearly established.

The (rather long) en banc opinion is Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).

Ching on Bonhoeffer, Church, and State

Kenneth Ching  (Regent U. School of Law ) has posted Would Jesus Kill Hitler? Bonhoeffer, Church, and State. The abstract follows.

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus, of course, did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who, while trying to “live the life of Jesus,” conspired to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) tradition. The NL2K tradition runs through St. Augustine, William of Ockham, Martin Luther, John Calvin, and many others. Some argue that Bonhoeffer rejected this tradition. This article’s descriptive thesis is that Bonhoeffer was part of the NL2K tradition. Also, a problem in the tradition is identified. Sometimes, the church has had too much influence on the state (theocratic Geneva and Puritan Massachusetts); sometimes, it has had too little (the antebellum South and Nazi Germany).

This article describes and assesses Bonhoeffer’s developments of and deviations from the NL2K tradition both theoretically and in the context of his opposition to Hitler and the Nazis. Using Bonhoeffer, this article also offers an answer to the problematic question “how much influence should the church have on the state?” The normative thesis of this article is that the state must remain religiously neutral, but the church must oppose a state that acts illegitimately.

Calo on Faithful Presence and Theological Jurisprudence

Zachary R. Calo  (Valparaiso U. School of Law) has posted Faithful Presence and Theological Jurisprudence: A Response to James Davison Hunter. The abstract follows.

This paper considers how James Hunter’s arguments, presented both in his address and his book To Change the World, might inform the development of a constructive religious legal theory based in the particular resources of Christian theology. In speaking of religious legal theory, I mean something quite different than a theory of law and religion. For some time, the academic conversation about law and religion has centered around issues concerning church-state relations and, more broadly, the place of religion within the liberal political order. Yet, the regnant methodological concerns that have shaped this discourse reflect the boundedness of law to a modern secular imaginary. This being the case, pulling theology into deeper conversation with legal thought will require freeing law from its lingering state of captivity. Hunter’s work is particularly useful in this ground-clearing task because it offers a dense critique of the sociological assumptions that have shaped legal modernity. While his concern is not with religious legal theory as such, Hunter’s normative account of Christian being in the world, captured most fully in the idea of faithful presence, contains important resources for developing a model of Christian engagement with law.

Tomorrow at Kellogg College (Oxford)

For CLR Forum readers in the neighborhood, the Centre for Religion in Public Life at Kellogg College (Oxford) will host a lecture tomorrow, “Religious Diversity, Exclusivism, and Public Life,” by Dr. Olli Pekka Vainio of Helsinki University. The lecture is at 5:00 pm.  For details, please contact Kellogg College.

Church of England Rejects Proposal to Legalize Same-Sex Marriage

In a report today, the Church of England rejected as “flawed, conceptually and legally,” the Cameron government’s proposal to legalize same-sex marriage. Conceptually, the report argues, the proposal would “alter the intrinsic nature” of marriage as a union between one man and one woman. Notwithstanding the “genuine mutuality and fidelity” often found in same-sex relationships, the report states, the C of E felt bound to resist the proposal both for reasons of Christian faith and the Church’s “commitment, as the established church in England, to the common good of all society.”

The report argues that the government’s proposal, which purports to apply only to civil marriage, raises serious legal questions. The distinction between “civil” and “religious” marriage, an innovation in English law, is likely to be untenable in the long run, the report predicts. English law grants any resident, regardless of his or her religious affiliation, the right to marry in the local C of E parish (a great illustration, by the way, of Grace Davie’s point about religion’s public role in Europe). Once Parliament defines marriage to include same-sex marriages, could a parish church deny this right to same-sex couples? The C of E is doubtful. Even if Parliament were to allow C of E parishes to refuse to perform same-sex marriages, the ECtHR might not. Under existing ECtHR caselaw, once a state legalizes same-sex marriages, those marriages are covered by article 12 of the European Convention, which grants a right to marry, and article 14, the Convention’s anti-discrimination provision. Under these articles, a state church could justify a distinction between “civil” and “religious” same-sex marriages only by “very weighty reasons.” The report is skeptical that the ECtHR would ultimately allow the distinction to stand.

Critics immediately characterized the report as alarmist. Maybe it is. Given the recent vote of the Danish parliament requiring the Church of Denmark to perform same-sex marriages, though, it’s hard to completely dismiss the report’s concerns. It’s possible that, in time, either Parliament or the ECtHR would require the C of E to solemnize same-sex marriages, whatever the C of E’s religious objections. Of course, the problem may lie in the concept of the state church itself; the autonomy of a private church on religious questions would likely be more secure, particularly in light of the ECtHR’s recent Fernandez Martinez decision. But the Brits decided all that under the Tudors.