For some time Professor Kent Greenawalt has been struggling with the tough issue of when those with religious convictions may “properly rely on [them] in deciding what public laws and policies to support.” Professor Greenawalt's thesis is that individuals must resolve many public policy questions for which “publicly accessible reasons” provide an insufficient solution. Each person is therefore forced to resort to “personal experiences and commitments of value ….” Since “everyone must inevitably use ‘nonpublic’ reasons … people whose experience leads them to religious convictions should not have to disregard what they consider the critical insights about value that their convictions provide.”

I admire Professor Greenawalt's work greatly and find in it much with which I agree. In two important respects, however, I differ. The first is a matter of perspective. Professor Greenawalt's goal is to determine when a good member of our liberal democracy would rely on his or her religious convictions. My goal is to determine when an obedient Christian would do so. Our difference in approach is best shown by Professor Greenawalt's comments concerning one of his illustrations, Jody. Jody believes that God both “considers the drinking of alcohol to be sinful” and “wishes that organized societies stamp out this practice ….” Professor Greenawalt believes that Jody, in seeking laws against the drinking of alcohol, would not be acting like a good, liberal democratic citizen.

What sort of relation between religion and government does the Constitution of the United States affirm? As anyone even remotely familiar with the subject will know, this question is large as well as enormously complex and invites reflection on a host of subsidiary problems: What are the precise meanings of the religion clauses of the Constitution's first amendment, clauses which proscribe congressional legislation “respecting an establishment of religion, or prohibiting the free exercise, thereof”? How broadly is the notion of “religion” to be construed here? Does the implied right of free exercise attach to any commitment or action conscientiously embraced (e.g., conscientious objection to participation in warfare)? Or are we to interpret the guaranteed religious freedom in narrower terms? What precisely is the relationship between the “no establishment” and “free exercise” provisions? Might there not be circumstances in which conditions necessary to ensure genuinely free exercise require the sort of “excessive entanglement” that suggests governmental establishment of religion (e.g., state support for parochial schools)? Or is such a worry founded on mistaken understandings of the “free exercise” and “no establishment” provisions? Are the amendment's anti-establishment restrictions limited to federal legislation or do the restrictions apply also to state governments via “incorporation” provisions of the fourteenth amendment? Is the primary purpose of the religion clauses to protect government from religion or religion from government, and if the latter, does the Constitution then permit governmental support of religion so long as no particular religions are preferred? Would such support destroy a “wall of separation” erected by the first amendment? Or is the idea of a “wall of separation,” in this understanding at least, foreign to the sense of the constitutional text? In what respect is knowing the original intentions of the first amendment's framers or ratifiers relevant to interpreting the meaning of the amendment's provisions? How are these intentions to be discovered? And so forth.

The last generation of Lockean scholarship has witnessed a radical reappraisal of the traditional interpretation of Locke as a secular political thinker, a defender of individualism, and a champion of the natural right of private property. The new picture of Locke which has emerged through these more recent studies is the result of an attempt to interpret his various writings in their historical context. The appearance of John Dunn's The Political Thought of John Locke in 1969 marked a critical turning-point in the evolution of the historical approach to Lockean studies. Building upon the work of Von Leyden, Laslett, and Abrams, Dunn sought to interpret Locke in terms of the latter's own intentions and self-understanding. The single most important key to a recovery of Locke's own intentionality, Dunn argued, was a recognition of the “centrality” of his underlying religious commitments to his thought as a whole.

Since the appearance of Dunn's essay, the fundamental significance of Locke's religious beliefs for his moral and political thought has been generally acknowledged. Assuming the validity of this hypothesis, Locke's rationalism must now be seen within the framework of his religious convictions. Locke attempted to resolve the tension between the two in terms of the law of nature; but, for him, moral obligation remained ultimately dependent upon religious faith in God as Creator and upon an understanding of humanity as God's workmanship.

The contemporary turmoil in Eastern Europe and the former Soviet Union reflects acceptance by their populations that collectivism has failed them and that they have more to hope for from the property rights systems of the West. In economic terms, indeed, Western culture has depended fundamentally on these rights, and in recent years economic historians have been paying increasing attention to them. In doing so, however, they have encountered a problem which they are unable to solve within the terms of their own discipline: economics relies on the concept of agents who act only according to rational self-interest, but property rights as they can actually be found in history have often reflected forces that can only be described as altruism. Economics is now therefore having to take account of cultural factors in the formation of property rights, and the deeper these are studied the clearer the religious influence on them appears to be.

The earliest type of property must have been in the form of “exclusive communal” rights which, by establishing some form of defence against “outsiders,” prevented the latter from sharing in a resource which a tribe considered to belong to it. It is plausible that the historical shift from hunting and gathering to settled agriculture depended on the development of such rights. However, the extent to which they can lead to prosperity on their own is quite limited.

Recently academic inquiry has taken up the challenging question of whether or not the “ancients” had any concept of human rights, or even possibly a functional equivalent. This question piqued the interest of the scholarly community in the summer of 1989 when former Prime Minister Thatcher, on a visit commemorating the bicentennial of the French Declaration of the Rights of Man, declared that Human Rights were to be credited to the Greeks in the first instance (and then, of course, to the British).

Apart from the interest raised by such provocative comments, there is further political interest (at least as far reaching in its implications) such a question has. This is for the simple reason that it is difficult for the modern mind to grasp the notion of a democracy without a concomitant idea of human rights—or at least the rights of citizens. Since we model our polis on the Greeks' and the Romans', the question of whether or not they had the equivalent of our rights is the natural follow on for any inquiring mind with a political bent.

As we all know James Luther Adams is a very hopeful person. This was most clearly seen in Jim's suggestion that I give the James Luther Adams lecture this year. My guess is that he heard that the overall theme of this year's annual meeting was justice and he hoped that, as a lawyer and a person who allegedly was doing theology from the vantage point of a lawyer, I should have something to say about the subject.

Several problems come to mind immediately with this expectation. The first is the problem of saying anything that JLA has not already said with greater depth and humor. The second problem is best expressed by the story of the young law school student who naively asked one of his law school professors to tell him what was meant by justice. The professor responded that, if he wanted to find out about justice, he should go across the street to the divinity school. He crossed the street only to be told to reverse directions and ask someone at the law school. We might explain this by saying that both schools are limited by narrow perspectives—perhaps a positivistic perspective at the law school and a pietistic perspective at the seminary. Another answer might be that each has trouble trying to figure out what justice is all about. In reading the latest discussions of justice, I gained a new appreciation for the slipperiness of the subject. Is Clarence Darrow right when he said about justice, “no one knows what it means.”

Theology and law share much in common, including a long history of justifying violence against women. Critics of legal and religious institutions need not look far to find texts offering evidence that both kinds of institutions are hopelessly mired in a patriarchal history that renders them obsolete, and apparently unable to offer anything significant concerning justice for young women victims of abuse. These ancient texts unapologetically proclaim that young women were to be treated as property of their fathers or husbands:

Though freedom of religion remains one of our most cherished values, it is still among the most controversial of constitutional rights. This is especially true in the context of military service. Even those who purposefully enlist in the armed forces, implicitly giving up certain liberties they freely enjoyed as civilians, would not relinquish their freedom of conscience. Yet the right to practice their religious beliefs, unfettered by arbitrary governmental restrictions, is regularly challenged.

Fortunately, however, most western cultures regard religious liberty as so fundamental that their military establishments routinely develop regulations to accommodate specific religious practices.

This principle was of particular import in the recent conflict in the Persian Gulf, during which the American government sought to limit the conduct of its military personnel so as not to offend the religious sensibilities of fundamentalist Arabs, specifically the host nation of Saudi Arabia. To what extent such political and strategic restrictions impinge upon basic constitutional principles is a question that has not yet been fully explored.

It is a thousand miles from the coast of the land of Israel to the city of Rome, over the sea that is called in both Hebrew and Latin, “the Sea In-Between.” The closing chapters of the book of Acts tell of the Apostle Paul's journey over that sea, from Caesarea to Rome, around the year 60 C.E. By this time, of course, Paul had made many journeys in his life: from Tarsus to Jerusalem, Jerusalem to Damascus, to Ephesus, Athens, Corinth and numerous other cities east of Rome. At the conclusion of his Epistle to the Romans, Paul mentions that he planned to visit Rome as well, on his way to Spain. But as best we can tell, when Paul did finally come to Rome, his wanderings ended, for he came as a prisoner, and it was in Rome, according to Church tradition, that he was eventually put to death.

In the book of Acts, the portrayal of the events leading up to Paul's journey to Rome—its description of his arrest and subsequent appearances before various courts and authorities—is clearly reminiscent of the Gospel descriptions of Jesus' arrest and execution approximately thirty years earlier. In both accounts, we read of disturbances in the Temple, crowds of angry Jews calling for an innocent victim's death, his arrest and confrontations with both Jewish and Roman authorities, and acknowledgement by representatives of Rome of the victim's innocence. However, the conditions surrounding the two series of events suggest two very different historical moments. And Paul's response to those who would sit in judgment of him, and to the jurisdictions they represented, at least as recorded in Acts, suggests a sea of difference between Paul's outlook and that of his Lord.

In our western judicial system, inherited from Roman Law, it is consent, and consent alone, which creates marriage. It is only a small step from the idea that it is the exchange of consent which creates marriage to the idea of marriage as a contract. In the canonical doctrine of the Code of 1917, the contractual nature of marriage was simply taken for granted. Yet, this contract was sui generis because there can be no mutual recision once the parties contractually agree by their consent. In addition, the marriage contract has special characteristics: it is necessary for the human race, it is of itself sacred, it deeply concerns the public order, it is restricted to members of the opposite sex and to the number (two) of contractants, and it is bilateral and reciprocal. These conditions specify the contract.

In the 1917 Code of Canon Law, it was consent which gave rise to the marriage contract. This consent had to be manifested by persons who are capable of consent: jure habiles. This code did not speak of a specific capability relative to marriage. The reality of capability, however, was known because it arose from natural law. For Cardinal Gasparri, author of the 1917 Code, someone born blind, deaf, and dumb is an idiot who is assimilated to a child and therefore is incapable of contracting marriage.