Why Calvin Rejected Religious Liberty: Scott Clark on the Servetus Case

At the Heidelblog last week, and since republished on the Aquila Report, my friend Scott Clark writes a helpful response to dismissals of Calvin as the “tyrant of Geneva,” dismissals closely related to caricatures of Calvinism as a cold, authoritarian, and fatalist religion. Clark reminds us that it was not Calvin who sentenced the heretic Servetus to death, but the civil government of Geneva. More importantly, he points out that this took place during an age in which civil authorities throughout Europe, aligned with Rome, were killing thousands upon thousands of Protestants. Clark’s post is well worth reading in its entirety.

All of the leading magisterial reformers defended putting heretics, including Anabaptists, to death. Indeed, as Clark points out, Zwingli, Luther, Melanchthon, and Bullinger and other leading reformers were just as vocal in their defense of such policies as was Calvin. The reformer gets the extra press today because he is associated with a social movement that has had an impact far beyond its numbers. Luther, of course, gets bad press for his own blemishes and their supposed legacy in history.

Clark has no interest in defending the reformers’ complicity in the suppression of religious liberty. A strong two kingdoms advocate, he writes,

Was it a confusion of the civil and ecclesiastical spheres for Calvin to demand civil penalties [against one of his severe public critics] for being identified with the sufferings of Christ? Absolutely. From the perspective of a distinction between the ecclesiastical and common spheres, Calvin might have had a case before the Consistory but not before the Civil Authorities.

The true moral of this story, however, is of the danger of the Constantinian church-state alliance wherein civil authorities have the power to punish heresy. Nowhere in the New Testament or in the moral law is theological heresy a ground for civil punishment. The only sphere authorized by God to correct theological error is the visible church (see Matthew 18) and their means are purely spiritual: Word, sacrament, and discipline (e.g., rebuke, censure, excommunication).

With all of this I agree, and I appreciate Clark’s putting Calvin’s actions in historical context. That said, I do think more needs to be said than simply that Calvin was a product of his time, that nearly everyone in Europe agreed Servetus should be put to death for denying the fundamentals of Christianity (not simply of the Reformation), and that in any case, it was not Calvin who technically condemned and burned Servetus, but the government of Geneva.

The fact is, Calvin was a vocal and dogmatic apologist for the suppression of religious heresy. He was severely criticized for his complicity in the execution of Servetus, and the theological fighter that he was, he wrote repeatedly in defense of his actions and those of his government. He considered the arguments that Clark raises above and rejected them on theological grounds. Had Clark made these arguments in Calvin’s Geneva, Calvin would have said that he simply “desire[s] to be at liberty to make disturbances with impunity.” There is no need for me to recap all of that here, as I’ve written on it before. But here is a brief sampling of Calvin’s arguments, drawn from his commentary on the Law.

But it is questioned whether the law pertains to the kingdom of Christ, which is spiritual and distinct from all earthly dominion; and there are some men, not otherwise ill-disposed, to whom it appears that our condition under the gospel is different from that of the ancient people under the law, not only because the kingdom of Christ is not of this world, but because Christ was unwilling that the beginnings of his kingdom should be aided by the sword.

Calvin is aware of these arguments, and he agrees both that the use of the sword is alien to the spiritual kingdom of Christ and that Christ does not need it for his kingdom’s success. However, he insists that God can nevertheless require that magistrates promote and defend the true religion merely because it is his will that such be part of their earthly vocation. In essence, he simply denies that capital punishment for false doctrine is a confusing of the kingdoms.

But when human judges consecrate their work to the promotion of Christ’s kingdom, I deny that on that account its nature is changed… He did not impose on himself an eternal law that he should never bring kings under his subjection, nor tame their violence, nor change them from being cruel persecutors into the patrons and guardians of his church.

He then denies that any contrary conclusions should be drawn from Jesus’ silence (and in general, that of the New Testament) on this magisterial responsibility. This is the weakest part of Calvin’s argument, it seems to me – his lack of any clear New Testament support for his position. He attempts to make up for it by appealing to three passages – the same three passages he invokes in at least half a dozen places in his writings where he discusses the issue – that he thinks prove that even in the Christian era magistrates are to enforce the true religion: Psalm 2, Isaiah 49;23; 1 Timothy 2:2. Again, I’ve addressed his appeal to such texts here.

Why does it matter? I’m sure some Reformed people will read this blog post and complain once again that we shouldn’t be criticizing our forebears on matters that aren’t even controversial anymore. Why beat a dead horse? It simply threatens the credibility of our theological tradition, doesn’t it?

I disagree. I care more about the Reformed tradition than about Calvin’s particular political opinions, and the credibility of the Reformed tradition depends far more on whether or not we take seriously the legacy and theology of the past than on whether we can manage to whitewash our history with hagiography. In this case, I firmly believe, many in the Reformed tradition, along with many Evangelicals in general, have not come to grips with why we disagree (or should disagree) with our forebears who opposed religious liberty.

We think they were simply products of their time. As if, were Calvin to appear in the 21st Century, he would suddenly agree with us. As if we were not products of our time as well. And as a result, we never come to grips with the theological mistakes the reformers made that led them to the positions we now oppose. Calvin supported the suppression of religious liberty in part because, influenced by Plato, Cicero and others, he held certain assumptions about the nature of the Mosaic Law and of Israel, and about their normativity for Christians. He believed that magistrates were called to enforce the law of God as revealed in Scripture, unto the glory of God. He failed to see why the first table of the law (i.e., worship and piety) should be excluded from that principle.

Read a smattering of Evangelical political arguments on a host of issues today – abortion, homosexuality, economics, health care, etc. – and you will find that many Evangelicals hold the same assumptions about the simple correlation between Scripture (and the example of Israel) and politics. The only difference was that Calvin was much more consistent than they are. He didn’t exclude idolatry, blasphemy, sabbath-breaking, or adultery from the political realm. That modern Evangelicals do so is usually not so much because they understand the theological problems with Calvin’s (and the other reformers’) views, but because they, even more than Calvin, are products of their time.

But is there a biblical theological foundation for a democratic society that values religious liberty? That, for me, is what is at stake here. That’s why we need to keep hashing through the counter-arguments of our theological forebears, arguments that were better and more theologically rigorous than we are usually willing to admit. We need biblical theological arguments for democratic pluralism and religious liberty that seriously come to grips with the Christian political theological tradition and come out on top. Calvin’s political theology may have been a product of its time. It’s up to us to work as hard as we can to ensure that ours is a product of Scripture.

[Note: All the Calvin quotations are from his Commentary on Deuteronomy 13:5]

Do American Christians want the USA to be more like Russia?

In the past few months I’ve heard several conservative American Christians grumble that Christians increasingly have more freedom in Russia than they do in America. Obviously such comments reflect awareness of Russia’s history of rigorously anti-Christian communism during the 20th Century. At least when it comes to religion, however, Putin’s regime has more in common with Europe’s 20th Century Fascist regimes than it does with Lenin or Stalin.

And I fear that the comments of these conservative Christians says more about their own politicized perceptions than about reality. As Jonathan Merritt writes,

American Christians have a persecution complex. Whenever a public figure criticizes the Christian movement or offers believers in other faiths an equal voice in society, you can bet Christians will start howling. Claims about American persecution of Christians are a form of low comedy in a country where two-thirds of citizens claim to be Christians, where financial gifts to Christian churches are tax deductible, where Christian pastors can opt out of social security, and where no one is restricted from worshipping however, whenever, and wherever they wish.

There is an increasing tendency among some on the right to turn every single political issue into a matter of religious liberty. The base isn’t getting fired up enough about same-sex marriage? About government tax policy? Show them that their religious freedom is at stake.

This strategy strikes me as misguided for a number of reasons, both strategic and moral. First of all, there is the old story of the boy who kept crying wolf. The religious liberty charge is being thrown around so much that by the time religious liberty is genuinely at stake in this country it may evoke little more than a collective rolling of the eyes. Just as importantly, it doesn’t say much about our political morality if Christians can only become engaged by claiming victim status for ourselves. Self-interest, not justice or concern for the common good, seems for some to be the main reason why we should be concerned about same-sex marriage. Yet bemoaning the poor state of we Christians in this country is hardly a strategy likely to win the political hearts and minds of mainstream America.

In any case, on the surface, at least, there is plausibility to the claim that Russia is more friendly to religion than is America. Let’s compare the two. The Economist reports that the Oklahoma Senate just passed, by a vote of 40-3, legislation to bar both foreign and religious law from state courts. Enactment of the law would make Oklahoma the sixth state (after Arizona, Kansas, Louisiana, South Dakota and Tennessee) to have such a law on the books. As the report humorously puts it,

If a judge sentences you to be stoned for adultery, you are probably not in Middle America. But just to make sure, the Senate of Oklahoma this week endorsed by 40 votes to three a bill that would bar the use of foreign or religious laws in state courts.

This phenomena, ironically, is largely coming from the right. But of course, most of us are aware of the secularization being pushed from the left as well: same-sex marriage, the contraceptive mandate, talk of suspending the charitable tax deduction, etc. To be sure, these are serious issues, worthy of our concern. They no doubt have some implications for religious liberty. But is religious liberty really the fundamental value at stake?

Enter Russia. According to the Globe and Mail,

Russian legislators have given initial approval to a law [by a vote of 330-7 in the Duma] that would make offences against religion punishable by up to five years in prison after the Pussy Riot protest in Moscow’s main cathedral outraged many in the mainly Orthodox country.

Three women from the punk band were jailed for hooliganism after their protest over Kremlin ties to the church, but the new law would make such stunts illegal by deeming they caused offence to religious feelings, ceremonies, sites or artifacts.

The Russian Orthodox Church, with close ties to the Putin regime, strongly supports the legislation. Putin says its necessary to protect believers. But his broader agenda regarding religion seems to be just the sort that some American Christians would love to see carried out in this country:

Putin’s relationship with the church has strengthened since Pussy Riot band members entered Christ the Saviour Church last year and sang a profanity-laced song, urging the Virgin Mary to “throw Putin out” at the height of protests against his rule.

He has called for the church to have more say over family, life education and the military, and has tried to mix spirituality with his own brand of patriotism.

Does anyone outside of Russia honestly believe that Putin has the genuine interests of Christianity at heart here? Far more likely is that this is just another instance of an authoritarian political leader using faith and the church for his own purposes. And as a theologian like John Calvin can remind us, it has always been this way, even during the best years of Christendom. We are therefore left with the odd paradox that often Christians have far more freedom – and would much prefer to live – in secular western countries than in “Christian” countries that seek to synthesize religion with authoritarian rule.

In any case, amid all the rhetoric about religious persecution in this country, it helps to get some perspective about what oppression really looks like. If you’re in doubt, take some time off and catch up on your reading about Putin’s Russia.

Calvin’s Terrible Argument Against Religious Liberty

I’ve noted before that Calvin used Plato and other philosophers to defend his claim that magistrates should suppress false religion. In addition to the last chapter of the Institutes of the Christian Religion, one of the places in which Calvin makes this argument explicitly is in his commentary on the judicial supplements to the first commandment, ‘You shall have no other gods before me.’ It is here that he addresses the Torah’s numerous stipulations that false teachers, idolaters, and witches are to be put to death. This work was published in 1563, well after Calvin’s approval of the execution of Servetus (in 1553) had swelled to a major international and theological controversy. It is obvious that he writes with that controversy in mind.

Calvin was well aware that the Torah’s call for capital punishment for false teachers is an insufficient basis for a Christian nation in the 16th Century to do the same. He affirmed that Christians are not under the law except as a guide to charity; the Torah’s political laws only bind other nations insofar as they reflect general principles of equity or of natural law. He knew therefore that if he was to defend the suppression of false religion he had to produce an argument supported by natural law and by Scriptural teaching on the nature of the kingdom of Christ (not simply about Israel).

It is quite telling, however, that Calvin’s first and most basic argument is not derived from Scripture but from Plato’s Laws. It is as if he knows that his exegetical argument against religious liberty is remarkably thin, and that he must therefore clear the air by showing that he has the consensus of philosophers – even non-Christian philosophers – on his side. He writes,

For Plato also begins from hence, when he lays down the legitimate constitution of a republic and calls the fear of God the preface of all laws; nor has any profane author ever existed who has not confessed that this is the principal part of a well-constituted state, that all with one consent should reverence and worship God. In this respect, indeed, the wisdom of men was at fault, that they deemed that any religion which they might prefer was to be sanctioned by laws and punishments; yet the principle was a just one, that the whole system of law is perverted if the cultivation of piety is ignored by it.

From this statement it is clear that Calvin saw the defense of religious liberty (he would not have called it such, of course) as arising from Christian sources rather than from pagan ones. Yet he turns this important fact not into a basis for defending religious liberty, but into a reason for opposing it.

What is particularly striking about his argument is that as a rule Calvin had very little confidence in magistrates. He declares over and over in his writings that even those kings and princes who claim to be Christian are usually guided more by their own ambition than by a zeal for God’s righteousness. Virtually none in the history of the world have had the genuine interests of the church at heart. Yet Calvin’s solution for this problem is not to call for the state to remove itself from spiritual affairs, but to insist that it get religion right. One is reminded if the claim made in the late 20th Century by some Marxists, to the effect that the problem is not with Marxism, but simply with the fact that true Marxism has never been tried.

Of course, Calvin does offer the typical qualifications. Magistrates should only suppress false religion if the truth of God’s word as revealed in Scripture has been publicly acknowledged among the people. There can be no use of coercion on doubtful matters.

It must then be remembered that the crime of impiety would not otherwise merit punishment, unless the religion had not only been received by public consent and the suffrages of the people, but, being supported also by sure and indisputable proofs, should place its truth above the reach of doubt.

On this basis it would be difficult for Calvin to insist on the state’s suppression of religious liberty in 21st Century America (though this is small comfort for those who are concerned about the ultimate intentions of the Christian right).

Calvin also agrees with the later Enlightenment argument that the truth is strong enough to stand on its own feet and does not need the protection of the sword. But his appeal is not for the sake of the preservation of the truth, but to the will and glory of God.

God might indeed do without the assistance of the sword in defending religion, but such is not his will… Pardon shall never be extended to poisoners, by whom the body alone is injured, and shall it be sport to deliver souls to eternal destruction? Finally, the magistracy, if its own authority be assailed, shall take severe vengeance upon that contempt; and shall it suffer the profanation of God’s holy name to be unavenged?

Here Calvin returns to a comment he often makes in these sorts of contexts. Though our reason and sentiment may object to a particular command, God has pronounced his will and we must abide by it.

But what about the objection, derived from the two kingdoms doctrine, that in the spiritual kingdom of Christ the Torah’s stipulation about God’s will for the punishment of false teachers has no place? Calvin is well aware of this theological argument, the argument that most Christians (including myself) would use today to defend religious liberty. Yes, he was a product of his time; but that doesn’t mean he didn’t think through the issues clearly. He writes,

But it is questioned whether the law pertains to the kingdom of Christ, which is spiritual and distinct from all earthly dominion. And there are some men, not otherwise ill-disposed, to whom it appears that our condition under the gospel is different from that of the ancient people under the law, not only because the kingdom of Christ is not of this world, but because Christ was unwilling that the beginnings of his kingdom should be aided by the sword. But, when human judges consecrate their work to the promotion of Christ’s kingdom, I deny that on that account its nature is changed. For although it was Christ’s will that his gospel should be proclaimed by his disciples in opposition to the power of the whole world … he did not impose on himself an eternal law that he should never bring kings under his subjection.

In short, Calvin views the obligation of magistrates to use the sword to suppress false religion not as a function of their role in the kingdom of Christ (whether Israel or the church) but as a function of their secular vocation. He now turns to the passages in Scripture that he thinks decisively establish his case, two from the Old Testament and (only one!) from the New. He invokes Psalm 2, which calls kings to “kiss the Son,” and Isaiah 49:23, which declares that at the coming of Christ kings will become “nursing fathers of the church.” Despite his oft-repeated reminder that such prophecies should be interpreted analogically, as describing the spiritual kingdom of Christ in language that would have made sense to people familiar with the temporal and earthly kingdom of Israel, in these cases he jettisons all such exegetical principles.

Yet his argument from the New Testament is the most tenuous of all. He cites Paul’s instruction to Timothy that Christians are to pray for all people, including kings and those in authority over them, in order that “we may lead a quiet and peaceable life in all godliness and honesty” (1 Timothy 2:2). He insists that this passage calls magistrates to protect godliness by using the sword to suppress open ungodliness. In hindsight it is obvious that 1 Timothy 2:2 teaches no such thing. At best it might be said that Paul’s instructions imply that the magistrate should protect the religious liberty of Christians. The text says nothing at all about what the magistrate should do about other religious groups. Calvin was reading his own political convictions into the text. He surely acted sincerely, but his interpretation bears the mark of theological desperation rather than of the careful exegetical work for which Calvin was rightly so famous. He knew that the apparent teaching of the New Testament weighed heavily against his argument. He had to find something to show that his interpretation of the implications of natural law and of prophecy was affirmed in its pages.

Reformed folks sometimes want to defend Calvin for his views on religious liberty, pointing out that his position was no different from that of the other great theologians of Christendom. That is fair up to a point, particularly relative to those who want to judge Calvin as somehow uniquely tyrannical. He was a product of his time, as we are of ours. But in the interest of honesty and our Christian witness, it is necessary to affirm openly that Calvin was wrong, and that he was wrong not because he was not modern, but because he abandoned his own theological and exegetical principles. The biggest problem with the soft hagiography that defends Calvin is not the way it handles the execution of Servetus, but the way it ignores just how flawed was Calvin’s theological reasoning on religious liberty and politics. It is with this theological issue that we must come to grips if we are to clarify our own confession regarding religion and politics.

Conservative special pleading on taxes: charitable giving

I don’t know whether or not we’ll be diving over the fiscal “cliff” in the next few days, but one of the discussions that has intrigued me in recent weeks has been the debate over whether or not Congress should preserve the tax deduction for charitable giving. This deduction will expire should Congress do nothing during the next four days, and it could also expire or, more likely, be modified, if Congress does take action.

Conservatives and Republicans love to claim that their policies are more fiscally responsible than are those of the liberals and the Democrats. Conservatives want to reign in spending to reflect tax revenue, they point out, while the Democrats are committed to the unsustainable welfare state. Liberals, on the other hand, note that the Republicans talk the talk but never actually make the hard decisions to cut spending. What recent Republican administration ever maintained a balanced budget?

Part of the problem, of course, is that while virtually everyone agrees that the federal deficit has to be reduced, no one wants to see their own pet projects abandoned. We can all outline a series of programs and initiatives that we think should be jettisoned, but there is no shortage of organizations and lobby groups to explain to us why such reductions in spending would be detrimental to the country. Similarly, when others outline their lists, we are ready with our defense of our own favorite policies.

Thus we have the phenomena of staunch conservatives attacking President Obama and the Democrats for refusing to make hard decisions when it comes to spending cuts, while at the same time adamantly insisting that the deduction for charitable giving has to be maintained. So for instance, Richard Land, outgoing president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, claims that the expiration of the deduction is a “draconian threat to the religious and non-religious charities they [Americans] cherish.”

Land’s concern is about a measure not aimed at charitable deductions per se, but simply attempting to limit the amount of deductions claimable by high earners. In fact, he insists, “By all means we should reduce tax loop holes and extravagant personal deductions.”

But not this loop hole and not this deduction.

At a time of a seemingly ever-expanding, but financially strapped, federal government, why would that government seek to weaken and eviscerate the civil society nonprofits so necessary to act as a gentle buffer between government and individual citizens in need?

The proposal to further cap charitable deductions in the federal tax code is a threat aimed like a dagger at the heart of America’s charitable nonprofit entities, secular and religious. It will weaken most, kill many, and harm all.

Land tends to give in to temptations to escalate his rhetoric in situations like these (he claimed a few months ago that the 2012 election was the most significant in his lifetime). The Christian Examiner reports,

The idea of capping the charitable deduction “is as serious a threat to religious organizations as anything the federal government has done in recent decades,” said Richard Land, president of the Ethics & Religious Liberty Commission (ERLC).

As serious as anything? Even the contraception mandate? Even the attempt by the Equal Employment Opportunity Commission to curtail the “ministerial exception”?

I agree with Land that government needs to foster and protect a strong civil society. I’m not convinced that the survival of such civil society depends on selective treatment from a federal government reeling from its inability to say no to special interests. It is simply not enough to make a good argument that federal support for a particular program or tax break benefits the country and is financially beneficial in the long run. Such arguments can be made about virtually every program or policy. If we have any hope of establishing a just, simple tax code, however, such arguments need to be resisted. Conservatives need to be as ruthless with their own favorite policies as they are with those of the left. They certainly don’t need to be playing the religion card.

In the Washington Post Ken Stern questions the degree to which the tax deduction is an incentive to charitable giving,

People with income in the lowest quintile give a higher percentage of their earnings to charity than do more wealthy Americans. This pattern persists despite the fact that low earners have less disposable income and rarely take advantage of itemized tax deductions for charitable donations. Sure, some contributions are tax-driven: Almost a quarter of online giving occurs in the last two days of the year as taxpayers rush to qualify for deductions. But Americans’ generosity may be more resistant to changes in the tax laws than most people think.

Of course, Stern may be being unduly optimistic here. But in my view it is somewhat irrelevant. Even assuming giving should drop off somewhat, are charitable and religious organizations really as threatened as Land claims? I doubt it. If they have really become so dependent on favorable federal tax policies then the fault is their own for ignoring Rule #1 when it comes to maintaining liberty from government interference: He who controls the purse strings makes the rules …

Conflicting California Cases on Sexual Orientation Therapy Ban

At Presbyterian Blues Michael Mann is following the story in California:

The U.S. District Court for the Eastern District of California has recently issued two decisions testing a California law that prohibits mental health providers from providing “sexual orientation change efforts with a patient under 18 years of age.” Such efforts include

• any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

In Welch v. Brown there were three plaintiff-counselors, two of whose beliefs are described as follows:

Duk is a Catholic and, with patients that share his faith, he discusses tenants of the Catholic faith, including that homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.”… Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

The court analyzed whether the statute in question abridged the plaintiffs’ First Amendment rights to freedom of speech.  Because the regulation targets a particular kind of speech, the regulation would have to pass the rigorous test of “strict scrutiny” to be constitutional.  The government rarely wins when strict scrutiny is applied, and this case would be no exception.

The First Amendment, the court explained, is a protection for unpopular opinions:

 That public perception in favor of this law may be heightened because “it appears that homosexuality has gained greater societal acceptance . . . is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not.”

The other ruling is contrary, of course, and Mann perceptively explains why here.

This is an important story relative to both religious liberty and the the legal implications of ideas about sexual orientation. I appreciate Mann’s keeping tabs on the story and letting me know about it.

Sympathy for Anti-Shari’a Laws: why we have to get it right

What the law says on paper does not always reflect what goes on in practice. A government can recognize rights in theory that it does not genuinely respect in reality – or that it does not have the power to protect. An ethnic or religious community can claim legal deference to its internal courts, on the basis that all of its members yield voluntary allegiance to those courts, without the allegiance of such members being genuinely free.

Take the fictional example of a Muslim woman who has immigrated to the United States with her family from Bangladesh. The woman speaks virtually no English and all of her best friends and closest family (aside from her husband) remained in the mother country. In the United States only a few years, the woman’s husband begins to abuse her her in various ways, physically, emotionally, sexually. He manipulates her by reminding her that if she seeks to divorce him he will win custody over their children based on the Shari’a derived prenuptial marriage contract they established and that American law has agreed to recognize as valid. The woman, a devout Muslim, recognizes that if she abandons the Muslim community she will lose everything that is dear to her, everything that she knows, including possibly her salvation.

Hard-nosed critics will point out that everything is fine. This woman has all the same rights and freedoms as do any other Americans. She can flee the Muslim community and find refuge in the hands of secular courts whenever she wants. We should not lose any sleep over her plight, or the plight of potentially thousands of women and children like her.

At the First Thoughts blog Matthew Schmitz cordially responds to my worry that the situation in Islamic communities is still too complex, and the commitment of most Muslims to fundamental rights and freedoms still too weak, to merit the sort of deference to Shari’a courts that would make the above scenario possible. I’m grateful to Schmitz for his engagement of my post. As he puts it:

My response to this is simple: Laws often fall short of their aims, and if we’re worried they’re being ignored or going unenforced the trick is to actually enforce them, not impose new burdens.

Fair enough. One would think, then, that it makes sense to take the time to establish a mode of interaction between secular courts and Shari’a courts that is compatible with the enforcement of basic rights and freedoms and appropriate to the circumstances in most Islamic communities, right? As John Witte writes (in the paper Schmitz is worried about),

First, it takes time and practice for a secular legal system to adjust to the realities and needs of new religious groups and to make the necessary legal accommodations… Concessions and accommodations will come, but only with time, persistence, and patience.

Second, it takes flexibility and innovation on the part of the religious community to win accommodations from secular laws and cultures….

Third, religious communities, in turn, have to accommodate, or at least tolerate, the core values of their secular host nations if they expect to win concessions for their religious courts and other religious practices. No Western nation will long accommodate, perhaps not even tolerate, a religious community that cannot accept its core values of liberty, equality, and fraternity, or of human rights, democracy, and rule of law….

Finally, Muslim tribunals must become legally sophisticated and procedurally equitable to be both attractive to voluntary Muslim disputants and acceptable to secular state courts.

In other words, it takes time and care to get it right. Religious liberties do not trump other rights and freedoms that government is bound to protect, and if religious groups demand religious prerogatives, without credibly demonstrating that they will exercise those prerogatives consistent with a modicum of justice for the weak and vulnerable, the government should not readily yield to that demand.

Schmitz agrees that the law needs to be enforced, but is he open to the steps necessary to ensure that this will actually happen? He is focused on one objective, that of securing religious liberty. He understandably argues that religious liberty is so threatened in this country that we should take its side regardless of the group or practices in view, or of the dangers that might come with it. And I want to make it clear that I wholeheartedly agree with Schmitz in his skepticism about the anti-Shari’a laws passed in places like Oklahoma (and rejected by federal courts). I am not defending anti-Shari’a laws in this post. I do not think they are the way to go.

At the same time, I wonder of Schmitz is taking the dangers of accommodation to Shari’a law seriously enough. Just as importantly, I wonder if he is underestimating the threat that is posed to religious liberty itself if that liberty is widely used as a cloak for oppression and injustice. In short, if we don’t do the hard work of making sure Muslims use their religious liberty consistent with basic inalienable rights and freedoms, it is the cause of religious liberty itself that will suffer, not simply the persons who suffer because the law was not properly enforced.

To be clear, the point is not that Muslims are more guilty of certain crimes – such as spousal abuse -  than are other religious groups. The point is not that Muslims are morally inferior at all. The point is rather that Islamic communities have to go through a process, a process through which Jewish, Catholic, and other communities have already passed, to ensure that accommodations can be granted and yet the laws protecting people’s basic rights and freedoms still be enforced. Many Islamic communities have not yet demonstrated the commitment to fundamental liberties, or to the procedures necessary to secure those liberties, to merit the sort of deference that is ideal.

Schmitz is right that religious freedom has special priority in this country. But that doesn’t mean it justifies irresponsible deference, deference that is blind to the necessity of preserving fundamental procedures of justice. I know Schmitz would not accept religious liberty as a justification for crimes like child sacrifice or the freedom of conscience when it comes to abortion. In that sense it is not a trump card that can be played against other rights like the right to life or to due process of law. And those rights need to be protected in reality, not just on paper.

Religious liberty is indeed “too fundamental and fragile an American principle to trifle with.” That’s why we need to get it right.

Should American courts recognize the legitimacy of Shari’a law?

In a thought-provoking article at Christianity Today my professor and dissertation adviser John Witte, Jr., defends the intent of the Oklahoma legislation that prohibited the use of Shari’a law in state courts, legislation that has thus far been rejected on religious liberty grounds by federal courts. Witte describes three arguments generally used to defend the limited legitimacy of Shari’a law in the United States, rejecting each in turn.

The first reason has to do with religious liberty:

Both Western constitutional laws and international human rights norms give robust protection to the religious freedom of individuals and groups. Why deny peaceful Muslim citizens the freedom to opt out of state laws on sex, marriage, and family that run afoul of central faith commandments?

Witte responds,

This argument, however, falsely assumes that claims of conscience and religious free exercise must always trump. But this is hardly the case in modern democracies, even though religious freedom is cherished… Even the most devout religious believer enjoys no immunity from criminal laws against activities like polygamy, child marriage, female genital mutilation, or corporal discipline of wives. Religious freedom is not a license to engage in crime…. Most Western democracies readily allow religious officials to officiate at weddings, testify in divorce cases, assist in the adoption of a child, facilitate the rescue of a distressed family member, and the like. Some democracies also will uphold religious arbitration awards and mediation settlements over domestic issues. But that is a long way from delegating full legal power to religious bodies for governing the domestic affairs of their voluntary faithful

The second argument is essentially libertarian. It follows John Locke in asserting that marriage and the family are pre-political institutions that the state is bound to recognize but not meddle with. Why not, as some conservatives have suggested in response to the spreading phenomena of same-sex marriage, simply privatize the whole institution?

Witte’s response to this argument is an excellent explanation of why the state must be involved in the institution of marriage, both in terms of protection and regulation:

A comprehensive system of marriage and family law—let alone the many related legal systems of inheritance, trusts, family property, children’s rights, education, social welfare, and more—cannot long operate without coercive power. It needs police, prosecutors, and prisons; subpoenas, fines, and contempt orders; material, physical, and corporal sanctions. Moral suasion and example, coupled with communal approbation and censure, can certainly do part of the work. But a properly functioning marriage and family law system requires all these coercive instruments of government. And no religious authority can wield coercive power.

The third argument is based on the value of religious equality. As Witte affirms, federal and state courts permit deference to religious rules and tribunals on various points when it comes to Judaism and Christianity. Why should Islam be any different? Witte acknowledges that this argument is the most difficult to overcome. His basic response is to appeal to history. The exceptions granted to Jews and Christians have come about over a long process and for valid, particular reasons. Islam has not yet worked through that process. What’s more, by virtue of their embrace of democratic rights and freedoms Christians and Jews have earned a certain degree of deference that is not yet clearly due to Muslim communities:

[R]eligious communities, in turn, have to accommodate—or at least tolerate—the core constitutional and cultural values of their secular host nations. No Western nation will readily grant concessions to a religious community that rejects liberty, equality, and fraternity, or human rights, democracy, and rule of law.

Witte’s argument is spot-on in many respects, but Matthew Schmitz is not convinced. In a post at First Thoughts entitled “Christianity Today’s Dead-Wrong Defence of Anti-Sharia Laws” he argues that the Oklahoma law was less a rejection of special accommodation to Shari’a law than it was a restriction of religious freedom currently enjoyed by all religious groups.

If a marriage contract doesn’t run afoul of our laws or our Constitution, what does it matter whether or not it references Sharia? Should it be ruled out? If so, what about an otherwise identical contract that doesn’t reference reference Sharia? Witte’s argument is, at its best, an argument for inaction—not for the measures passed by states like Oklahoma and Kansas.

In a fuller statement of his argument in National Review, back in June, Schmitz made a persuasive case that laws targeted at Muslims accomplish nothing in the way of preserving the sovereignty of American law, and that, in fact, they do much to weaken religious liberty, alienate Muslims, and even threaten national security. His most important point is that there is no need for the sort of law Oklahoma wants, or that Witte defends.

Sharia, of course, does not grant all the rights that the U.S. Constitution does; neither does Christian canon law or Jewish Halakhic law (or English or French law, for that matter). But why should this fact prevent a court from honoring a contract made under the provisions of one of these “foreign” legal systems if the contract does not itself violate any U.S. or state regulations, laws, or constitutional provisions? Under one reading of the Kansas law, a contract that makes reference to canon law or sharia — but is otherwise perfectly legal — would be thrown out, while an identical one that makes no such reference would be upheld. The other possible reading of the law is that it only bars rulings based on foreign legal systems when the rulings themselves would violate constitutional rights. But in that case, as Professor Douglas Laycock of the University of Virginia Law School has argued, the law is meaningless, for courts will not tolerate or enforce violations of constitutional rights in any case.

In short, even if courts were to recognize the limited relevance of Shari’a law for members of Muslim communities, that would not prevent any particular individual from claiming and receiving the full protection of the rights and freedoms all Americans are afforded under the Constitution and the law of the land.

Of course, Witte knows this. As he writes in his article, the current accommodations made to Jewish courts do not offer the latter any form of coercion. Constitutional rights and freedoms always trump religious authority full stop. Thus Jewish courts “do not claim authority over all of Jewish sex, marriage, and family life. Having abandoned physical coercion and sanctions, they claim no authority beyond persuasion to stop a disputant from walking out of court and out of the Jewish community altogether.”

But the issue is complex. In theory an individual may be able to walk out of her religious community at any time, but in reality the threat of social and religious ostracism is far too great, especially for ethnic and religious communities not well integrated into American society. This seems to be the assumption underlying Witte’s reference to history. So while Schmitz thinks the fears of “creeping Shari’a” are overblown and worries about the more fundamental cause of religious liberty, a valid fear given the events of the last few years, Witte fears that the Islamic community has not yet clearly embraced American values with sufficient enthusiasm to warrant the sort of deference given to other communities, a seemingly equally valid fear given the reality on the ground.

It’s a difficult tension, and it’s by no means clear to me that there is an easy answer. I’ll be paying close attention to how it all plays out.

President Carter’s Mixed Feelings on Religion and Health

Yesterday I had the privilege to attend a lecture by President Jimmy Carter on religion, ethics and public health at Emory University. President Carter is a very devout man and his rise to the White House in 1976 has generally been interpreted as the moment when Evangelicalism emerged as a force in American politics. Of course, Evangelicals quickly became disillusioned with the one they thought was their man. In 1980 they turned out in droves for his opponent Ronald Reagan. From Carter’s lecture yesterday you can get a pretty good sense why they did so. Here is my report, published by the Institute on Religion and Democracy:

There is no denying that President Jimmy Carter has spent the years following his presidency admirably. A vocal advocate for human rights who is not afraid to criticize the foreign policy or military efforts of his heirs in the White House – whether Republican or Democrat – Carter has put his time and money where his mouth is, seeking justice and relief for the poor and the sick around the globe. Thanks in large part to his work through the Carter Center the world is on the verge of eradicating Guinea Worm Disease (it would be only the second disease to be completely eradicated, the first being small pox).

In a lecture sponsored by United Methodist affiliated Emory University’s Center for Ethics, Religion, and Public Health President Carter spoke about his service in the cause of health care and disease prevention. From his boyhood in Plains, Georgia, when Carter’s mother was a nurse who worked so hard her son hardly saw her, to the initiatives he pursued as the Governor of Georgia and in the White House, Carter has acted on the premise that a modicum of health care is a basic human right.

That effort did not stop with Carter’s defeat by Ronald Reagan in the 1980 presidential election. In 1982 the former president founded the Carter Center, an institution devoted to promoting peace and conflict resolution around the globe. The Carter Center has spent enormous resources seeking to help solve problems that are not being addressed by other institutions, such as the lack of basic health awareness in poor parts of the world. Efforts to eradicate Guinea Worm Disease are a case in point. Carter said his team has been to every single village in Africa where people are suffering from the disease, teaching and instructing tribes that are largely illiterate and for whom the necessary preventative steps often clash with religious values.

Read the rest here.

Merkel steps in it, invoking Europe’s Christian heritage

From Walter Russell Mead, quoting the Times of Israel on the German Chancellor Angela Merkel:

Opposition MPs have criticised the Chancellor, Angela Merkel, for claiming that Christianity is “the most persecuted religion worldwide”.

Merkel’s comments came at a meeting of the German Protestant Church late Monday in which she emphasized Germany’s needed to protect Christian minorities as part of its foreign policy.

Merkel, the daughter of a pastor, also spoke out against strict separation of church and state and said Europe was built on Christian foundations.

Question: why are Merkel’s comments so controversial?

Paternalism or Freedom: How being an American shapes your politics and your Christianity

Calvin’s Geneva had one of the most participatory political systems in 16th Century Europe. A substantive portion of the city’s population was able to vote in civic elections or on substantive policy changes. Elections were meaningful and could bring real change. For instance, it was through victory at the polls in 1555 that Calvin and his followers consolidated their hold over the city in a way that ensured the longstanding legacy of Calvin’s version of the Reformation.

But Geneva was no democracy. The magistrates of the city were responsible to enact and enforce policies that were for the good of the city but not necessarily reflective of anything like a popular will. One of their primary tasks was to guide the city in matters of religion, virtue, education, and health, to ensure that Geneva would be godly and that God would bless it. Within this mindset unconstrained public debate was not considered to be a good thing. Myriads of people were hauled before the Geneva council over the years to be rebuked or punished for their abuse of speech, whether against the city government or against the theology of its famous reformer. Heresy, blasphemy, false worship, and slander were all crimes regularly punished by the state.

From the perspective of virtually all early Reformed thinkers this made plenty of sense. Calvin and his contemporaries did indeed speak in terms of rights, and they had ideas of religious liberty and Christian freedom. But they had no concept of a right to do wrong. Freedom of religion meant the freedom to practice the true religion, while freedom of speech meant at best the freedom to speak in a way that promoted the welfare of the city or of the true religion.

Over the years the Reformed and the Puritans steadily moved closer towards the rights and freedoms we so value today. Puritan New England gradually loosened the ties between church and state, and it was there in Boston that the American Revolution began. But the Puritans and their heirs nevertheless maintained many of the assumptions about politics and freedom that once guided 16th Century Geneva. New England was the bastion of the Federalist Party that conceived of the future of America in terms of the rule of enlightened and virtuous elites chosen freely by a deferential public. This was the party of John Adams, under whom a Federalist Congress sought to curb the freedom of the press through the infamous legislation known as the Alien and Sedition Acts.

But post-Revolutionary America was no longer following the ideals of Puritan New England. In 1800 Thomas Jefferson’s election heralded a Republican revolution after the Revolution, a revolution that carried public opinion to its truly eminent place in American society and politics, insisting on political equality carried to its fullest logical extent. Jeffersonian democracy came to define America, sweeping the Federalist party and its outmoded understanding of politics into the dustbin of history.

In his magisterial history of the early American republic, Empire of Liberty, Gordon S Wood describes the way in which the debates about the Sedition Act and the freedom of the press changed America forever.

The Sedition Act of 1793 marked a crucial point in the development of the American idea of public opinion. Its passage provoked a debate that went far beyond the issue of freedom of speech or freedom of the press; it eventually involved the very nature of America’s intellectual life … and in the process it undermined the foundations of the elitist eighteenth century classical world on which the Founders had stood….

In the debate over the sedition law the Republican libertarian theorists … rejected both the old common law restrictions on the liberty of the press and the new legal recognition of the distinction between truth and falsity of opinion that the Federalists had incorporated into the Sedition Act. While the Federalists clung to the eighteenth century’s conception that ‘truths’ were constant and universal and capable of being discovered by enlightened and reasonable men, the Republican libertarians argued that opinions about government and governors were many and diverse and their truth could not be determined simply by individual judges and juries, no matter how reasonable such men were….

The Federalists were dumfounded. ‘How … could the rights of the people require a liberty to utter falsehood?’ they asked. ‘How could it be right to do wrong… People needed to know the ‘criterion by which we may determine with certainty, who are right, and who are wrong.’”

The Republicans, Wood points out, rejected the old assumption that the truth was the monopoly of the “educated and aristocratic few.” The elites used knowledge just as easily to manipulate and oppress as to guide and promote, Republicans reasoned, and freedom of speech and opinion was ultimately a far better means of promoting the truth than the restrictions of the past.

In making this argument Republicans frequently pointed to the relatively novel yet highly successful experiment in freedom of religion and religious diversity in the United States. If the Puritans and their Calvinist forbears had emphasized the truths of human depravity and the necessity of magisterial or clerical control over matters of education and opinion, Republican minded Christians were more likely to highlight the importance of freedom for religious liberty and genuine Christianity. If the dignity of human beings as made in the image of God was once seen as something the state should use all of its powers to promote in its subjects, now the dignity of human beings as made in the image of God was seen as the basis for a free citizenry to give guidance to the state.

Although the Republican vision for America was so successful that virtually no American would question its basic premises today, the old debates endure in more subtle form. Today, ironically, the conservatives are those often thought of as liberals, those who bemoan the decline of the old authoritative media embodied in the Big Three of NBC, ABC, and CBS nightly news, and those who insist on the promotion and maintenance of a centralized system of public education. The true liberals are those who are conservative on so many other issues, those who applaud the democratization of American media and promote charter schools and vouchers as a way of bringing liberty to public education. At the root of these public debates are continuing conflicts over the appropriate relation between educated, enlightened elites and the broader public.

A similar debate plays out in the church. On the one hand are those who want pastors and clergy to tell their parishioners exactly how to live, what to think, and how to vote. They want pastors to do much  more than simply teach Scripture and allow Christians individually and collectively to work out its implications for all of life. They want a church that carefully molds and enforces Christian public opinion and practice, and Christians who are obedient and mindful of the myriad of agreed-upon rules and commandments. On the other hand are those who wish their pastors would make sure that when they say “Thus sayeth the Lord” they are actually communicating the teaching of Scripture rather than their own “enlightened” opinion. The point of Christian discipleship, these people point out, is to form people who develop and practice wisdom and virtue by putting on the mind of Christ and conforming to the image of their Lord.

Of course, most thoughtful Americans and most thoughtful Christians realize that both ideas, carried to an extreme, are dangerous. Democratic equality and libertarian freedom are full of pitfalls, and it remains unclear whether or not American democracy can survive the people’s tendency to call government to do more for them than it can possibly do. Radical libertarian freedom in the area of sexual morality has spawned a social revolution whose costs are obvious but whose full tragedy remains to be determined.

On the other hand, virtually none of us would tolerate the sort of authoritarianism that was common fare in the churches and states of the past. We recognize that life is truly blessed when we have the freedom and equality to walk in the wisdom and virtue that God has given us, regardless of what our ‘betters’ may think. We are not eager to turn back the clock and abandon American democracy even as we continue to appreciate the decisive importance of solid education and the clear preaching and teaching of the word of Christ.

We are very much American Christians. That has its pitfalls, but in this respect at least, I think, it is a good thing.