The Journal of Christian Legal Thought

Journal of Christian Legal Thought

Vol. 2, No. 3WiNter 2012

St. Albert the GreatMiChAeL P. SChu TT, ediTor

Christian Perspectives on Legal ThoughtPATriCk MCkinLey BrennAn

What is Christian legal thought?WiLLiAM S. BreWBAker iii

Aliens, Pilgrims, and Solidarity: reflections in the MirrorMiChAeL A . SCAPerL AndA

is a Worship Service religious Speech or religious exercise?kiMBerLee Wood CoLBy

Book Review: America’s Spiritual CapitalALLen MendenhALL

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PuBLiShed By The Institute for Christian Legal Studies (ICLS), a Cooperative Ministry of The Christian legal Society and regent University School of law

The Mission of ICLS is to train and encourage Christian law students, law professors, pre-law advisors, and practicing lawyers to seek and study Biblical truth, including the natural law tradition, as it relates to law and legal institutions, and to encourage them in their spiritual formation and growth, their compassionate outreach to the poor and needy, and the inte-gration of Christian faith and practice with their study, teach-ing, and practice of law.

ediToriAL AdviSory BoArdWilliam S. Brewbaker, iiiAssociate Dean andWilliam Alfred rose Professor of lawUniversity of Alabama School of law

Zachary r. CaloAssociate Professor of lawValparaiso University School of law

Kevin P. leeProfessor, Campbell University School of law

C. Scott PryorProfessor, regent University School of law

Michael A. ScaperlandaGene and elaine edwards Chair of Family law,University of oklahoma College of law

robert K. VischerProfessor, University of St. Thomas School of law

Editor in Chief:Michael P. SchuttAssociate Professor, regent University School of lawDirector, institute for Christian legal Studies

Editorial Assistant:Greta Pilgrim

STATeMenT of PurPoSeThe mission of the Journal of Christian legal Thought is to equip and encourage legal professionals to seek and study biblical truth as it relates to law, the practice of law, and legal institutions.

Theological reflection on the law, a lawyer’s work, and legal institutions is central to a lawyer’s calling; therefore, all Chris-tian lawyers and law students have an obligation to consider the nature and purpose of human law, its sources and develop-ment, and its relationship to the revealed will of God, as well as the practical implications of the Christian faith for their daily work. The Journal exists to help practicing lawyers, law students, judges, and legal scholars engage in this theological and practical reflection, both as a professional community and as individuals.

The Journal seeks, first, to provide practitioners and stu-dents a vehicle through which to engage Christian legal schol-arship that will enhance this reflection as it relates to their daily work, and, second, to provide legal scholars a peer-reviewed medium through which to explore the law in light of Scripture, under the broad influence of the doctrines and creeds of the Christian faith, and on the shoulders of the communion of saints across the ages.

Given the depth and sophistication of so much of the best Christian legal scholarship today, the Journal recognizes that sometimes these two purposes will be at odds. While the Journal of Christian legal Thought will maintain a relatively consistent point of contact with the concerns of practitioners, it will also seek to engage intra-scholarly debates, welcome inter-disciplinary scholarship, and encourage innovative schol-arly theological debate. The Journal seeks to be a forum where complex issues may be discussed and debated.

ediToriAL PoLiCyThe Journal seeks original scholarly articles addressing the

integration of the Christian faith and legal study or practice, broadly understood, including the influence of Christianity on law, the relationship between law and Christianity, and the role of faith in the lawyer’s work. Articles should reflect a Christian perspective and consider Scripture an authoritative source of revealed truth. Protestant, roman Catholic, and orthodox perspectives are welcome as within the broad stream of Chris-tianity.

However, articles and essays do not necessarily reflect the views of the institute for Christian legal Studies, the Christian legal Society, regent University School of law, or other spon-soring institutions or individuals.

to submit articles or suggestions for the Journal, send a query or suggestion to Mike Schutt at [email protected].

Journal of Christian Legal ThoughtVol. 2, No. 3 | WiNter 2012

Winter 2012 Journal of Christian Legal Thought

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About ten years ago, i visited the law school at the University of Houston for the first time. At the entrance of the law Center sat a large bronze

statue of a philosopher, much larger than life, himself sitting, poring over texts in the classic philosopher’s pose, hand toward chin, contemplating. i had come to speak to the Christian legal Society chapter at the law school, and i asked the gathered law students about the statue. The philosopher guarding the entrance to their school, it turns out, is St. Albertus Magnus, about whom the students knew as little as i did. it was our pleasure that day to discuss the significance of Albert the Great to contemporary legal study—over and above the statue’s smooth big toe, worn down over the years by students’ rubbing it for good luck on exam days—and it was my determination to learn more about him.

it was with great enthusiasm and anticipation, then, that this year i accepted an invitation to return to the University of Houston law Center to address the ClS group on the topic “The Christian law Student.” The invitation, it happened, was for November 15, the anni-versary of St. Albert’s death in 1280 and his feast day in the Church.

While the current crop of students knew the name and rubbed the toe, they knew little about why he might grace their entrance courtyard. But this time i was ready, and i challenged the students to embrace three virtues of Albert that i think lawyers and law students need in order to live faithful lives in the law.

i think these will serve as an apt introduction to this issue of the Journal.

IntegrItyA true renaissance man well before the renaissance,

Albert was an intellectual giant across many disciplines. He wrote on virtually every thinker of his age, and ac-cording to the Stanford encyclopedia of Philosophy, he made meaningful contributions to logic, psychology, metaphysics, meteorology, mineralogy, and zoology! Chesterton calls him the “founder of modern science.” And he was a theologian of great stature, a professor, and pastor—he was Bishop of what is now regensburg in the 1260s.

Albert’s life and work were characterized by a schol-arly curiosity about and a cheerful embrace of God’s entire creation, and these led him to all sorts of strange places, from eagles’ nests on mountaintops to the depths of libraries where he might find works of islamic com-mentary on Aristotle, who had been lost to Western scholars. He was not afraid of crossing some imaginary boundary that a pastor-theologian should not cross into the “secular” world. He was, in other words, a man of integrity—a man fully absorbed in God’s world, rather than two worlds, artificially split between God’s domain and man’s domain. For Albert there was one world that belonged to the Creator and one truth that was His. There was no false split between the sacred and the secular, the scientific and religious, the intellectual and the pious.

This is a good challenge to lawyers. As people of in-tegrity, we are not split apart—dis-integrated, if you will—one part Christ-follower, one part lawyer. We need not ask the question, “Can a good person be a good law-yer?” for our personhood and our lawyer-hood are not sealed identities with different standards of faithfulness in each. At a minimum, we cannot and should not hide our

ST. ALBerT The GreATBy Michael P. Schutt, editor

St. Albert the Great, University of Houston

Journal of Christian Legal Thought Winter 2012

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everyday work from the light of God and his counsel. But Saint Albert encourages us to go one step more and com-mit all that we do to his service, bringing His Word to bear on all that we touch and serving him joyfully in every facet of our lives, even in the life of the law.

LeIsureDespite Albert’s massive output as a theologian, sci-

entist, and philosopher, he was also a model of leisure. Not the leisure we pursue as 21st Century American con-sumers, exemplified by remote controls, expensive toys, and romantic comedies. rather, the life of Saint Albert was characterized by true leisure—perhaps completely lost to us moderns—which Josef Pieper defines as “the disposition of receptive understanding, of contempla-tive beholding, and immersion—in the real.”1 leisure, the condition of the receptive and contemplative intel-lectual life, is what makes us—and keeps us—human and prevents us from being reduced to mere functionary cogs in a work-obsessed world.2

to work hard and long and yet also to think, to con-template, to actually receive from God and consider one’s work and one’s ways—that is a condition to which we should all aspire. Perhaps those laboring in the law are in need of true leisure in a way that many others are not. regardless, those of us immersed in the story of modernity, who live out its consumerism, its work ethic, its economic realities, would do well to follow Albert, who produced as much as any man of his century, and yet practiced and taught a life of “receptive understand-ing,” listening, and contemplation that kept him from becoming lost in “work,” and which in fact brought meaning to his work.

engagementThe greatest legacy of Albertus Magnus is the life

and work of his student, Thomas Aquinas. Thomas was able to succeed where others had failed in “interpreting the thought of Aristotle to his age without either forcing it into the mould of an alien mentality or disregarding the autonomy and transcendence of the Christian faith.”

Unlike the many medieval thinkers, both Christian and oriental, who evolved a kind of theosophical syncretism that was irreconcil-able alike with the ideal of religious faith and with that of purely rational philosophy, St. Thomas was able to combine the Peripatetic tradition in philosophy and the patristic tra-dition in theology without falsifying either of them.3

While Thomas was the “true creator” of this impor-tant synthesis, Albert “was the inaugurator of this work of reconciliation.”4 While space won’t permit full elabo-ration here in this short essay, the importance of Albert’s engagement with both Aristotle and his Arab commen-tators would be hard to overstate.

in sum, Albert the Great attempted to order and un-derstand Aristotle, even with the assistance of islamic scholarly works, in order to put the great philosopher into the service of the Church. And it wasn’t simply a matter of philosophy—Aristotle in the hands of the Arab world proclaimed a new kind of science, a new way to God, and a new rationality: “Allied with islam [the philosophical story of Aristotle] was a radically differ-ent story of knowledge that presented rather disturbing characterizations of God and humanity.”5

By engaging the world around him, Albert brought fresh insight into an area that had been abandoned to the pagans and shed the light of Scripture on these new epistemological and scientific theories. By reading and understanding the surrounding culture, he served the Church well and provided broad shoulders on which St. Thomas and others might stand.

it is a good lesson. We are often tempted to aban-don our culture-making task—even as ministers of jus-tice!—because we do not want to make the effort to en-gage current ideas on their own terms and subject them to the light of Scripture.

The mission of this Journal is to equip and encourage legal professionals to seek and study biblical truth as it relates to law, the practice of law, and legal institutions. The life of Albertus Magnus should provide just such encouragement. We are called to be lawyers of integrity, pursuing true leisure, engaging our contemporaries in the service of true justice and true law.

i am grateful for the work of professors Scaperlanda, Brewbaker, and Brennan, who here in these pages and in their scholarly ministries embody this task of engage-ment, leisure, and integrity. i believe that their faithful example spurs us all to seek and study biblical truth as it relates to our own work, whether in practice, study, or scholarship.

endnotes1 Josef Pieper, leisure, the Basis of Culture 31

(1948) (St. Augustine’s 1998).2 See, id. at 35. 3 Christopher Dawson, The Scientific Development

of Medieval Culture, in Medieval essays 134 (1954).

4 Id. at 133.5 Id.

Winter 2012 Journal of Christian Legal Thought

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We have all heard the story of the law professor who puts down the indignant law student: “if you want justice, then leave law school and

go across the street to the divinity school!” This story resonates because we know that in some respects law is in fact an autonomous system—it is not simply a trans-parency for animate justice. law, in other words, has its own integrity. But part of the Christian legal thought project that is the subject of this paper is an attempt to identify those places of porosity where the truths that should animate and structure and guide and lead law, which is its own body with its own integrity, should enter and be disciplined.

it is a very complex balance. on one hand, law should be a noble, predictable, manageable body that may be implemented fairly and consistently. on the other, law must never be so closed that the cry for justice, and of the poor, and of change and new insight and proph-ecy—even of the sometimes dubious sort—cannot operate.

The paper begins by discussing the insights of Joseph Vining’s 1996 From Newton’s Sleep, which this author be-lieves is the best book written in english in recent his-tory on the phenomenology of law.

Vining begins with the phenomena of administra-tive agencies and intermediate appellate courts and the Supreme Court and legislatures—and the whole ensemble of interactions among all those agencies of law and their artifacts—and then compares those per-formances, their tensions, and their modes of resolu-tion with how we create and judge poetry and music and history. Vining demonstrates that law at its best—not when it is exceptional, but law as it is so frequently practiced by its devoted servants or ministers today—is

not simply rule-following, is not simply power politics, is not one of those other reductions that are so easy to identify and become cynical about. rather, law as it is practiced by its faithful servants is the funnel by which we introduce justice—and sometimes even mercy and equity—into the particulars of our living.

The paper takes as its theme Vining’s suggestion that that law is evidence of belief far deeper and more

profound than introspection or theory by themselves could ever provide. When one reads the legal theorists such as Hart, Kelsen, and Dworkin, the usual run of meat and potatoes of jurisprudence survey course, something has gone missing. This paper—and the forthcom-ing textbook that it outlines in summary form—is an attempt to bring a Christian perspective to bear in order to show “what is missing.” in the author’s view, law, even in the hands of people who are not self-consciously Christian, functions, at least for the most part, on deeply Christian and religious expecta-

tions. our expectations for law, and in and through law, remain evidence (as Vining says) of hope for humanity and of hopeful humans. This hope helps us to avoid the cynicism of the professor who suggests that we lawyers “go across the street to the Divinity School.”

The paper sketches the genesis of the Christian legal Thought textbook project, then outlines the structure of the book. Chapter one, “What is Christian legal Thought?” is elaborated by Professor Brewbaker’s paper. The burden of the book in its first chapter is to tell people why this is something worth doing. it’s not just proselytiz-ing; it’s bringing an intellectual, spiritual tradition to bear in a disciplined way. The second chapter is a necessarily schematic but serious survey of fundamental Christian

Abstract

ChriSTiAn PerSPeCTiveS on LeGAL ThouGhTBy Patrick Mckinley Brennan

On one hand, law should be a noble, predictable, manageable body that may be implemented fairly and consistently. On the

other, law must never be so closed that the cry for justice, and of

the poor, and of change and new insight and prophecy—even of the sometimes dubious sort—

cannot operate.

The article abstracted here is available in full at www.clsnet.org/Journal/Winter2012/Brennan.

Journal of Christian Legal Thought Winter 2012

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doctrines about the world in which, whether people recognize it or not, law is made, obeyed, disobeyed, and enforced. These include Creation, the created order’s con-tingency, dominion, the Fall, culture, and the Kingdom and earthy rule. The chapter also attends to what the Bible teaches about the poor. The third chapter is historical, and explores how the Christian, how the Bible, how the Christian tradition, and all the work that goes on mediat-ing scripture and tradition might interlock with and de-velop and discipline history. We need to study history’s lessons and successes and failures and then assess where we are today. The topics of this chapter include the two Kingdoms and Christendom.

The balance of the paper develops the ideas of the fourth chapter. in chapter four, the book begins with some of the familiar, basic concepts of legal practice, dis-course, and doctrine and asks whether what is usually said about them is ultimately, historically, or conceptu-ally Christian, and then what (in what is usually said) can be amplified, modified, or corrected by Protestant, evangelical, or Catholic theology.

This section of the paper begins by exploring how we have mis-ordered the concepts of justice and rights in modernity and then offers a general survey of the con-cept of justice as it relates to human law. As MaryAnn Glendon, among others, has pointed out, “rights” in our culture does much—indeed, too much—of the work that used to be done by religion, kinship, and other types of social bonding. Beginning with Scripture, the paper explores the ideas of Aristotle and St. Thomas, and then suggests ways in which we have to swim against the cul-tural undertow of the pernicious ideas of Hobbes and locke and other radical enlightenment thinkers. The discussion includes the contemporary work of rawls, Waldron, Wolterstorrf, and others. A special focus of the paper is the fact that the modern state, more or less, gave up its role to do distributive justice and instead sup-planted distributive justice with commutative justice so the modern state is just about enforcing contracts and limiting extremes.

realizing the misshapen nature of the legal debate surrounding the concept of justice, how are we, as reli-gious beings and Christian lawyers, to approach the is-sue of justice? How can lawyers mediate this complex field of concepts?

The paper explores in its conclusion the role of the Christian lawyer in this secularized profession. Hobbes, rawls and others have shown us the way to secularize the law into a dry, closed system with mis-shapen ideas of justice. How might a robustly religious conception of justice be infused into law? How can Vining’s insights into law’s better angels be used to transform the contemporary practice of law in light of the Gospel? The paper concludes by asking how Christians should think about law in terms of the fa-miliar dichotomy between the sacred and the profane. it would seem that the practice of law is not an expres-sion of secular, irreligious belief, but a means of living the divine law out in the particulars of life.

Patrick McKinley Brennan joined the Villanova University School of Law faculty in 2004 as the inaugural holder of the John F. Scarpa Chair in Catholic Legal Studies, and later also served as the Associate Dean for Academic Affairs and Director of the Joint J.D.-M.B.A. Program. Professor Bren-nan works in the tradition of reflection on natural law and natural rights to examine a wide range of questions in juris-prudence and public law. Before joining Villanova’s faculty, he was for eight years a faculty member in the Sandra Day O’Connor College of Law at Arizona State University; he was also associated with major law firms in Washington, D.C. and San Francisco and served as a law clerk for the Hon. John T. Noonan, Jr. on the U.S. Court of Appeals for the Ninth Circuit. Professor Brennan earned his J.D. from Berkeley Law (Boalt Hall), U.C. Berkeley, and his B.A. from Yale College. He has published three books and over 50 articles.

The article abstracted here is available in full at www.clsnet.org/Journal/Winter2012/Brennan

Winter 2012 Journal of Christian Legal Thought

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Discussions about Christian legal thought often proceed from the twin premises that approach-ing law and legal scholarship from a Christian

perspective is both self-evidently a good thing and that it is obvious what “Christian” legal thought is. Neither of these premises is correct. This paper offers a start-ing point for addressing those premises by posing three questions:

• is specifically Christian legal thought a good idea?• What is Christian legal thought?• What payoff, if any, might we expect from

thinking about law from a specifically Christian perspective?

Is specIfIcaLLy chrIstIan LegaL thought a good Ide a?

There are three main objec-tions to thinking about law and politics from an explicitly theo-logical perspective: (1) A “sec-tarian” approach to public mat-ters like law and politics makes dialogue about political matters difficult, if not impossible. (2) it is disrespectful to appeal to prin-ciples which your fellow citizens do not share. (3) religion generally and Christianity in particular have been the source of significant oppression historically, and the introduction of Christian thought threatens a repetition of those negative experiences.

The paper offers abbreviated versions of the best re-sponses to these objections. The first objection depends on the questionable idea that there is some sort of ge-nerically human (tradition-independent) reason that we can always appeal to in discussions with our fellow citizens. The response to the “disrespect” argument is similar. is it any more “disrespectful” to bring a religious

perspective to bear in public than it is disrespectful to bring a secular perspective that is not universally shared? As to the final objection, Christians must concede that people acting in the name of Christ have a lot to answer for. Whether Christian politics has been more violent than others is an empirical question; Christians, how-ever, would do well to be on their guard on this front.

While not directly relevant to the objections above, one might also defend Christian legal thought on grounds of necessity. Christian legal thought is inevi-table. if a person accepts the premise that the Christian faith is true, in the ordinary sense of the word, then such a person is inevitably going to ask how his or her most

fundamental beliefs connect to these matters.

What Is chrIstIan LegaL thought?

rather than offer a defi-nition, the paper offers sev-eral possible ways of thinking about law from a Christian perspective. The first is a “the-ology and law” approach. on this view, Christian doctrine occupies some of the same conceptual space as economics

or feminism or psychology does in other familiar “law and X” schools of legal thought. in Christian terms this means asking how, for example, the doctrine of God, the doctrine of creation, the doctrine of the human person, the idea of the fall, the concept of redemption, our idea of what scripture is, or the doctrine of the kingdom of God shape our understanding of the world, and thus our understanding of law and its operations.

A second approach might be called a bottom-up ap-proach. it would start with jurisprudential concepts like justice or rights, or equality, and seek to retrieve and

Abstract

WhAT iS ChriSTiAn LeGAL ThouGhT?By William S. Brewbaker iii

Christian legal thought is inevitable. If a person accepts the premise that the Christian faith is true, in the ordinary sense of the word, then such a person is inevitably going to ask how his or her most fundamental beliefs

connect to these matters.

The article abstracted here is available in full at www.clsnet.org/Journal/Winter2012/Brewbaker

Journal of Christian Legal Thought Winter 2012

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learn from what Christian thinkers have had to say about these topics, which are themselves fundamental to con-temporary legal thought.

A third approach is historical in that it notices in par-ticular that the church has found itself in many differ-ent historical and cultural contexts, sensitizing the jurist to the importance of context as he or she seeks to ap-ply theological truth and practical wisdom to particular situations.

A fourth approach—or, better yet, a fourth empha-sis—takes as its starting point the subject matter of law as we find it in contemporary practice. it investigates the relationship between Christianity and Property law, or Contract law, or Constitutional law, or torts, or Family law, asking whether there could be an intersection be-tween those topics specifically and our understanding of the Christian faith.

A final approach is to focus on the Bible itself in re-lation to law. We might begin with the Bible itself—or individual parts of the Bible such as the Pentateuch, israel’s history, the Psalms, the wisdom literature, the prophets, and the New testament letters and the gos-pels—and ask what these specific portions of Scripture have to tell us about the questions about law in which we might be interested. Most Christian scholarship is a mixture of these approaches.

Why Bother WIth chrIstIan LegaL thought?

A pressing question to ask regarding Christian legal thought is whether, at the end of the day, approaching law in these ways is likely to yield anything of signifi-cance. The paper argues that the answer to that question may depend on our expectations and that the default mode of much Christian legal thinking is too hastily

oriented toward offering a prophetic word to society. instead, Christian thinking about law often has a stron-ger contribution to make in explaining ourselves (our legal practices and the point of those practices) to our-selves, and perhaps even to other humans who would not claim to be Christians.

The balance of the paper illustrates this point by un-dertaking a short explication of the doctrine of creation as it relates to law, focusing in particular on creation ex nihilo, creation’s goodness, dominion and eschatology.

Bill Brewbaker is Associate Dean and William Alfred Rose Professor of Law at the University of Alabama School of Law. He received his undergraduate training at Vanderbilt University and his legal training at the University of Vir-ginia (JD) and Duke University (LLM). Before joining the University of Alabama School of Law faculty in 1993, Professor Brewbaker practiced law in Birmingham with Bradley, Arant, Rose and White (1986-1988) and Wal-lace, Jordan, Ratliff, Byers and Brandt (1989-1992), and did graduate work in health care law at Duke University. He is co-editor (with Mark Hall) of two books in Aspen’s Health Care Corporate Law series and has written law re-view articles dealing with health care antitrust, price regu-lation, physician unionization and managed care liability. During the 2001-2002 academic year, he was a Visitor of the Faculty of Law at the University of Cambridge, a Visit-ing Fellow of St. Edmund’s College and a Member of Tyn-dale House. Professor Brewbaker regularly teaches courses in Health Care Law, Health Care Liability, Property and Jurisprudence. His research interests include health care and legal philosophy, including theological perspectives on law.

The article abstracted here is available in full at www.clsnet.org/Journal/Winter2012/Brewbaker

Winter 2012 Journal of Christian Legal Thought

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imagine a husband and father waking in the middle of the night, clearing the cobwebs from his mind and the sleep from his eyes, as he darts up from his

mat laid out on a dirt floor. Danger is near, and he must protect his family. He gently wakes his young wife, she grabs the baby, and they disappear into a crisp moon-less night. As they travel a desert path, the father’s mind is racing. Will they have enough water to stay hydrated? Will they have enough food to maintain their strength? Will bandits rob them, or worse, beat them, leaving them for dead? or worse yet, will the father be killed and the mother and baby sold into slavery? After several har-rowing days, they arrive at their destination in a foreign land. relieved to have survived the desert, the father’s mind races once again. What does the fu-ture hold?

Although this story, or ones like it, occur daily around the globe, i have in mind a par-ticular husband, José, his wife, María, and her child, Jesus, as they fled across the desert into egypt to escape Herod’s jeal-ous wrath.1 For Christians, the Holy Family serves as an exemplar of the refugee, alien, and pilgrim. i agree with Pius Xii who said:

The émigré Holy Family of Nazareth, fleeing into egypt, is the archetype of every refugee family. Jesus, Mary, and Joseph, living in exile in egypt to escape the fury of an evil king, are, for all times and places, the models and pro-tectors of every migrant, alien and refugee of whatever kind who, whether compelled by fear of persecution or by want, is forced to leave his native land, his beloved parents and relatives, his close friends to seek a foreign soil.2

Growing out of their understanding of God and His purposes and situated within their own migrant experi-ences, the people of israel came to understand that the alien should be treated no differently than the citizen. in leviticus, we find an express command: “When an alien resides with you in your land, do not molest him. You shall treat the alien who resides with you no differently than the natives born among you; have the same love for him as for yourself; for you too were once aliens in the land of egypt. i, the lord, am your God.”3 This is a re-minder to us of our duty to the alien in our midst.

As the point of departure, however, we need to remember the source of the alien’s dignity and, where appropriate, pro-pose that source to the broader society. The alien possesses inherent dignity on an equal basis with the citizen because she was created by God and in God’s image. We get a glimpse of that in our nation’s birth certificate, the Declaration of independence: “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their

Creator with certain unalienable rights, that among these are life, liberty and the Pursuit of Happiness.” Christian revelation gives us further light to see some of the implications of this reality. in one of Pope John Paul ii’s most oft cited passages from Vatican ii, the Council Fathers said: “The truth is that only in the mystery of the incarnate Word does the mystery of man take on light … Christ … by the revelation of the mystery of the Father and His love, fully reveals man to man himself and makes his supreme calling clear.”4

in addition to the inherent dignity of the immigrant, i want to tease out two other implications from this reality. First, the immigrant will arrive with a unique brokenness

Abstract

ALienS, PiLGriMS, And SoLidAriTy: refLeCTionS in The MirrorBy Michael A. Scaperlanda

We need to remember the source of the alien’s dignity and, where appropriate, propose that source to the broader society. The alien

possesses inherent dignity on an equal basis with the citizen

because she was created by God and in God’s image.

The article abstracted here is available in full at www.clsnet.org/Journal/Winter2012/Scaperlanda

Journal of Christian Legal Thought Winter 2012

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that may be overlooked by our culture’s elites who blindly view the individual as a sovereign self-creator, an autono-mous chooser of her own destiny, unconnected (if she so chooses) to place, people, history, or culture. Second, Christ’s profound gift of himself to the human race teach-es us something about our response: We are called to re-spond in love to all we encounter, spending ourselves for our neighbor including the immigrant whether the immi-grant has the proper documentation or not.

The Pontifical Council for the Pastoral Care of Migrants and itinerant People addressed the question of solidarity in some detail in the Erga Migrantes Caritas Christi (The love of Christ toward immigrants) saying:

it is important that communities do not think that they have completed their duty to mi-grants simply by performing acts of fraternal assistance or even by supporting legislation aimed at giving them their due place in society while respecting their identity as foreigners. Christians must in fact promote an authentic culture of welcome capable of accepting the tru-ly human values of the immigrants over and above any difficulties caused by living with persons who are different.

The pontifical council proposes three stages of wel-come: assistance, welcome, and integration as the means of accomplishing this end. 5

The Bishops of Mexico and the United States have written that “[t]he Church in our two countries is con-stantly challenged to see the face of Christ, crucified and risen, in the stranger. The whole Church is challenged to live the experience of the disciples on the road to emmaus as they are converted to be witnesses of the risen lord after they welcome him as a stranger. Faith in the presence of Christ in the migrant leads to conver-sion of mind and heart, which leads to a renewed spirit of communion and to the building of structures of soli-darity.”6 This leads us to the question: Do we have the ears to hear and the eyes to see Christ in our midst in the form of the alien?

Bearing this in mind, this paper two major questions before us regarding the practical practice of immigra-tion: First, is there a middle ground between amnesty and mass deportation of immigrants illegally in the United States? Second, what would responsible immi-gration reform look like? This paper’s response to the second question begins by dealing with two prevalent misconceptions in today’s immigration debate that keep many from seeing that immigration law and policy must begin and end with seeing the face of Christ in our im-migrant brothers and sisters.

The author’s solution to illegal immigration is laid out in four pillars. First, immigration reform must ef-fectively end illegal immigration, which undermines the rule of law. Second, immigration needs a healthy guest worker program that can breathe with the economy. Third, justice requires a path to legalization for many of the people already illegally in the United States today. Fourth, the United States government should use for-eign policy tools to decrease the push factors that com-pel people to leave their homes in search of a better life.

The paper concludes with some skepticism that we will have meaningful immigration reform at the federal level. even if we could arrive at a political solution, the author doubts that we have the will to enforce the solu-tion, and expresses a fear that we will continue the politi-cally damaging cycle of illegal immigration followed by some sort of amnesty.

Michael A. Scaperlanda is the Associate Dean for Aca-demic Affairs and the Associate Director of the Law Center at Oklahoma University College of Law. After graduating from the University of Texas School of Law with High Hon-ors in 1984, Professor Scaperlanda spent one year clerk-ing for the Chief Justice of the Texas Supreme Court and four years practicing law in Washington, D.C. and Austin, Texas. Since joining the OU faculty in 1989, he has served as Special Assistant to University President, Faculty Fellow in the Norman Campus Provost’s office, Associate Dean for Research, and as Chair of numerous committees. In recog-nition of his scholarly accomplishments, he was named the Gene and Elaine Edwards Family Chair in Law in 2000.

endnotes1 Matthew 2:13-18.2 Pope Pius Xii, Apostolic Constitution Exsul Familia

(1952), available at http://www.papalencyclicals.net/Pius12/p12exsul.htm .

3 leviticus 19:33-34.4 Pastoral Constitution on the Church in the

Modern World, Gaudium et Spes ¶ 22, avail-able at http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_cons_19651207_gaudium-et-spes_en.html.

5 Id. at ¶ 42.6 Catholic Bishops of Mexico and the United States,

Strangers No Longer: Together on the Journey of Hope ¶ 40 (2003), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/immigration/strangers-no-longer-together-on-the-journey-of-hope.cfm.

The article abstracted here is available in full at www.clsnet.org/Journal/Winter2012/Scaperlanda

Winter 2012 Journal of Christian Legal Thought

9

For three decades, the Free Speech Clause has done the heavy lifting to protect citizens’ reli-gious speech. But the Free exercise Clause, and

even the establishment Clause, may again be drafted to pull their weight to protect religious speech from gov-ernmental censorship. The vehicle for this realignment may be the Bronx Household of Faith v. Board of Education of the City of New York, currently on its fifth appeal to the Second Circuit.1

Seventeen years ago, the Bronx Household saga—the closest thing religious liberty aficionados have to their own soap opera-- began when the New York City Board of education denied a small congregation’s re-quest to rent a neighborhood middle school for its Sunday morning meetings. The request presented the City with a win-win situation. if the request were granted, the congregation gained a place to meet while it acquired its own space, and the school district gained modest additional income. Unfortunately, the NYC Board of education quickly developed “establishmen-titis,” a frequent affliction, common to government of-ficials, of seeing establishment Clause problems where none exist.

1997 — round one to the dIstrIct

Granting equal access to a religious community group is not an establishment Clause violation. two years before the Bronx Household case began, in Lamb’s Chapel,2 the Supreme Court had unanimously ruled against a different New York school district when it re-fused to rent a school auditorium to a church for eve-ning showings of a Dr. Dobson film series. The school district claimed the establishment Clause would be vio-lated if it rented to a religious community group, even though it rented space to other community groups. in a particularly virulent case of “establishmentitis,” the district claimed that it “denied use of its property to a ‘radical’ church for the purpose of proselytizing, since to do so would lead to threats of public unrest and even violence.”3 But the Supreme Court instead accurately

diagnosed the district’s fears as “viewpoint discrimina-tion” against religious speech because the district denied a community group’s discussion of family issues from a religious perspective while simultaneously permitting other community groups to discuss family issues from nonreligious perspectives. By recognizing the district’s hypochondria, the Court easily dismissed the district’s establishment Clause fears as “unfounded.”4

Lamb’s Chapel relied heavily on the 1981 Widmar5 holding that a public university violated the free speech rights of a religious student group when it excluded them from meeting on campus because their speech included religious worship and discussion. The Court found no reasonable establishment Clause justification for the university’s discriminatory treatment of religious speech.

For purposes of Bronx Household, Widmar carries additional importance because the Supreme Court re-fused to distinguish among types of religious speech and instead held that religious worship is protected by the First Amendment like other religious speech.6 The lone dissenter, Justice White, insisted that the issue was whether the university could “prohibit regular religious worship services in university buildings.”7 But the major-ity rejected any “attempt [at] a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious ‘speech acts,’ consti-tuting ‘worship.’” Such a distinction lacked “intelligible content.” When did “singing hymns, reading scripture, and teaching biblical principles cease to be singing, teaching, and reading—all apparently forms of ‘speech,’ despite their religious subject matter—and become unprotected ‘worship[?]’”8 The judiciary simply is not competent to administer such a distinction: government officials would have to “inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith.” Such govern-mental inquiries would create excessive entanglement.9 The Court hearkened back to a 1953 decision10 in which a city allowed religious “services” but not religious “ad-dresses,” a policy the Court held unconstitutional be-cause it was not “in the competence of courts under our

Speaking of Religious Freedom

iS A WorShiP ServiCe reLiGiouS SPeeCh or reLiGiouS exerCiSe?By kimberlee Wood Colby Senior Counsel, Center for Law and religious freedom

Journal of Christian Legal Thought Winter 2012

10

constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings.”11

ignoring such powerful precedent, in 1997, the Second Circuit upheld the school district’s policy. At the time, its policy allowed community groups broad access to school facilities for most uses, but prohibited “religious services or religious instruction,” although “religious material or material which contains a religious viewpoint” could be discussed.12 The Second Circuit claimed that Widmar’s establishment Clause analysis was limited to the university context.13

2003 — round t Wo to the church

Four years later, the Supreme Court dropped “anvil-like hints”14 that the Second Circuit’s 1997 decision was wrong. in Good News Club,15 the Court trod familiar ground in ruling that a New York school district violated the free speech rights of a religious community group when it denied access to elementary school facilities im-mediately after school for the group’s religious meetings with children whose parents had given written permis-sion for them to attend the Good News Clubs. The meet-ings included Bible stories, prayer, and singing. The Court noted a circuit split “on the question whether speech can be excluded from a limited public forum on the basis of the religious nature of the speech.”16 Citing the 1997 Bronx Household opinion, the Supreme Court identified the Second Circuit as on the wrong side of the split.

encouraged by the Supreme Court’s dicta, Bronx Household decided to reapply for access, but was again denied. The Second Circuit agreed in 2003 that the Good News decision meant that the board’s ban likely was unconstitutional.17

As a result, for a decade, churches and other reli-gious groups have rented school facilities for weekend and evening use throughout New York City. religious groups account for approximately 5% of the granted permits for all community groups’ use of NYC public school facilities.18 Some congregations rent because they are new, while others rent because they have outgrown their own property. Many congregations rent because they have been displaced temporarily by fire or flood. in the crowded and expensive New York City real estate market, the ability to rent school facilities is a godsend for many congregations.

2005 and 2011 — rounds three and four to the dIstrIct

Undeterred, the district announced that it would modify its policy to read: “No permit shall be granted

for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”19 Bronx Household was told that the new policy prohibited its use because it was holding “religious worship services.”

Because of the 2003 injunction, the new policy was not enforced while the parties moved for summary judgment. The district court twice enjoined the policy as viewpoint discriminatory, but the Second Circuit re-versed both times.20 over Judge Walker’s strong dissent, the Second Circuit applied rational basis scrutiny to find that the policy did not violate the church’s free speech right. Validating the district’s extreme “establishmenti-tis,” the Court accepted its fear of possibly being perceived to violate the establishment Clause to justify its denial of access.

Waxing metaphysically, the court explained that “[w]hen worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school” but “has, at least for a time, become the church.”21 Thus, “religious worship services” could be excluded, although the panel suggested that perhaps “worship” itself might be protected,22 because “[t]here is an important difference between excluding the con-duct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.”23 religious groups could “express religious de-votion through prayer, singing of hymns, preaching, and teaching of scripture or doctrine,” because “only the per-formance of a worship service . . . is excluded.”24

Such distinctions, of course, are meaningless as a practical matter—and completely contrary to the Supreme Court’s Widmar holding. Nor did the Second Circuit explain how government officials could distin-guish “religious worship services” from “religious devo-tion through prayer, singing of hymns, preaching, and teaching of scripture or doctrine.”

Unfortunately, the Supreme Court does not ex-ist to correct rogue courts’ errors in applying its deci-sions. When the Court denied the church’s petition in December 2012, the case seemed finally over.

2012—round fIve to the church (so far)

But like a litigious cat, Bronx Household began its fifth “life” in January 2012, when the Supreme Court issued its ruling in Hosanna-Tabor,25 which prohibited the federal government’s interference with churches’ employment decisions regarding leadership, even when the interference takes the form of enforcing neutral, gen-erally applicable nondiscrimination laws. Unanimously, the Court held that the Free exercise and establishment Clauses protect a church’s internal governing decisions from governmental interference.

Winter 2012 Journal of Christian Legal Thought

11

in June 2012, in response to the church’s motion, the district court determined that the church’s free exercise and establishment claims survived the Second Circuit’s denial of the free speech arguments.26 The district court found that the policy banning “religious worship servic-es” violated the church’s free exercise rights because the policy was not facially neutral toward religion. Nor was the policy applied in a generally applicable manner, as required by the Free exercise Clause. The establishment Clause was violated in two distinct ways. First, the poli-cy would inevitably favor denominations with less struc-tured worship services over those denominations with highly formal services. Second, government officials would inevitably become entangled in church doctrine by trying to determine what is, and is not, a “religious worship service” —a highly theological determina-tion and a role the establishment Clause forbids to the government.

on November 19, the Second Circuit heard oral argument. The Supreme Court’s decision in Hosanna-Tabor and the district court’s thoughtful and thorough opinion give the court of appeals another chance to get it right by simply ruling that a policy that singles out “religious worship services” is a plain violation of the establishment Clauses’ requirement that the govern-ment behave neutrally toward religion, and the Free exercise Clause’s requirement that government not tar-get a religious practice for discriminatory exclusion.

is a worship service religious speech or religious ex-ercise? Yes.

Kim Colby has worked for the Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. She has represented religious groups in numerous ap-pellate cases, including two cases heard by the United States Supreme Court, as well as on dozens of amicus briefs in federal and state courts. She was involved in congressional passage of the Equal Access Act in 1984.

endnotes1 Bronx Household of Faith v. Board of Education of

the City of New York, 2012 Wl 2509918 (S.D.N.Y. 2012), appeal filed No. 12-2730 (2d Cir. 2012).

2 Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).

3 Id. at 395-96, citing the Brief for respondent Center

Moriches Union Free School District, et al., at 4–5, 11–12, 24.

4 Id. at 395.5 Widmar v. Vincent, 454 U.S. 263 (1981).6 Id. at 269.7 Id. at 283 n.1 (White, J., dissenting) (emphasis

added).8 Id. at 269, note 6. 9 Id. See also, id. at 272 n.11.10 Fowler v. Rhode Island, 345 U.S. 67 (1953).11 Id. at 70.12 Bronx Household of Faith v. Community School District

No. 10, 127 F.3d 207 (2d Cir. 1997).13 By 1997, the Supreme Court had added two ad-

ditional cases to its “religious speech” repertoire, both holding that the establishment Clause was not violated by the Free Speech Clause’s equal access requirement. Rosenberger v. University of Virginia, 515 U.S. 819 (1995); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995).

14 The term is that of Jordan lorence, who has repre-sented Bronx Household of Faith throughout the litigation.

15 Good News Club v. Milford Central School, 533 U.S. 98 (2001).

16 Id. at 105.17 Bronx Household of Faith v. Board of education of the

City of New York, 331 F.3d 342 (2d Cir. 2003) (grant-ing preliminary injunction). The history of the litiga-tion is most recently recounted in Bronx Household, 855 F. Supp.2d 44, 47-49 (S.D.N.Y. 2012).

18 2012 Wl 2509918, *11 (S.D.N.Y., June 29, 2012).19 855 F. Supp.2d at 48 (emphasis added).20 Bronx Household of Faith v. Board of Education,

492 F.3d 89 (2d Cir. 2007) (per curiam) (vacating injunction on ripeness grounds); Bronx Household of Faith v. Board of Education, 650 F.3d 30 (2d Cir. 2011) (vacating injunction).

21 Id. at 41.22 Id. at 36 n.6.23 Id. at 37 (original emphasis).24 Id. at 38. 25 Hosanna-Tabor Evangelical Lutheran Church and

School v. EEOC, --- U.S. ---, 132 S. Ct. 694 (2012).26 2012 Wl 2509918, *11 (S.D.N.Y., June 29, 2012).

Journal of Christian Legal Thought Winter 2012

12

if you’re ever tasked with teaching a weeklong course on America’s religious heritage and its relation to economic prosperity, you will find an indispens-

able guide in Nicholas Capaldi and Theodore roosevelt Malloch’s America’s Spiritual Capital. in only 138 pag-es, made up of six short chapters, each of which could serve as the subject of extensive discussion, Capaldi and Malloch systematically outline the ways and reasons that American prosperity issues from Judeo-Christian principles and heritage, or what the authors call, contra scientism and secular humanism, spiritual capital. A four page introduction tells you everything the book will ad-dress and even charts the thesis and supporting points for each chapter. The purpose of this, i think, is to pres-ent information to readers in mnemonic form; the au-thors seem to want to instruct, not to entertain.

The authors define “spiritual capital” as “our most fundamental beliefs concerning who we are and the meaning of our lives, with special regard to how those beliefs relate to our professional careers and the econ-omy.” They contend that spiritual capital grounded America during her rapid and chaotic transition into modernity. in a globalized world, this spiritual capital helped (and helps) America not only to flour-ish, but also to serve as a symbol of freedom to other nations. The more pointed argument seems to be that spiritual capital and economic capi-tal are fundamentally linked so that the former gives rise to the latter. to this end, the authors argue that “there is a symbiotic relation be-tween America’s spiritual capital and our political institutions and free-doms.” That is another way of saying that not just any spiritual capital will bring about wealth and happiness. America has benefited because her spiritual capital is uniquely enabling

in its underlying doctrines and practices. The points here are not new; probably every reader

who will pick up this book will have heard them before. That is also part of the charm of the book—its ability to recycle old themes in ways that seem fresh. it is as if the authors know that a tired defense of American spiri-tual values will not help to ward off organized, enthused counter-forces, such as rousseau/Marx-derived meta-narratives, militant secularism, and militant islam, to name a few of the authors’ examples.. Nor will a tired de-fense do much to edify sympathetic readers predisposed to complacency in the face of opinions with which they already agree. These are the readers most likely to come across this book.

readers will find here an interesting synthesis of an array of different thinkers: Plato, Aristotle, David Hume, rené Descartes, St. Augustine, Francis Bacon, Adam Smith, Max Weber, John locke, immanuel Kant, lord Acton, Christopher Dawson, Wilhelm röpke, eric Voegelin, Michael oakeshott, Friedrich Hayek, ludwig

von Mises, and others. even the latest giants of the intelligentsia make an appearance: Samuel P. Huntington, Francis Fukuyama, Gary Becker, Charles Murray, israel Kirzner, Deidre McCloskey, and Forrest McDonald, to mention just a few. Seeing these names alongside several Biblical passages—some-times to show mutual illumination, sometimes to draw contrasts—adds an element of academic highbrow that is lacking in more popular and perhaps less-nuanced books that address similar topics. Be that as it may, America’s Spiritual Capital never—not even once—degener-ates into esoterica. its prose remains clear, concise, and straightforward.

What is not clear is the tar-get audience. The information

Book Review

niChoLAS CAPALdi & Theodore rooSeveLT MALLoCh AmeRicA’S SpiRituAl cApitAl (St. Augustine’s press, 2012)

By Allen Mendenhall

Winter 2012 Journal of Christian Legal Thought

13

presented is at times too basic for an academic audi-ence (the authors are themselves academics used to writing for academics), and even those who grew up in or lately have entered into what is broadly conceived of as the Judeo-Christian heritage can probably go with-out one-line footnotes about how Jews and Muslims reject the idea that the historical Jesus was the Messiah foretold in the Old Testament. Such a fact goes with-out saying. Juxtaposed against these plain essentials are more complex and controversial treatments of dif-ficult philosophical questions—for instance, the con-flicts within Christianity regarding the relation of the individual to institutions, or the critical distinction be-tween patriotism and nationalism. There is, then, a dis-juncture of sorts between the simple and the complex. Maybe it’s better to suggest that there are gradations of difficulty that jump too high or too low from one suc-cessive section of the book to another. This is not bad so much as it is curious, and a reasonable explanation might be that the authors had in mind a vast audience with disparate levels of education or familiarity.

During the recent presidential campaigns, the reli-gious beliefs of both candidates were called into ques-tion. it remains to be seen what effect Christian votes had on the outcome of the race. it seems appropriate to wonder whether the civil institutions of the United States have not drifted from the religious principles and foundations that sustained the polity for so long, and whether such a drift, if it has in fact occurred, is related to the steady growth of the federal government over the last four decades.

There is a hint of urgency underlying Capaldi and Malloch’s arguments, as though the two have blurred the line between the prescriptive and the merely de-scriptive; beneath their ordered reports and analyses is the suggestion that America’s spiritual capital should be

more than remembered—it should be recovered. in light of the end-of-chapter summaries and the

Afterward that seem aimed at generating conversation and debate, i reiterate that this book would be a valuable teaching tool—one that, despite its stated thesis, is care-ful to separate Christianity the religion from Christian-influenced political and economic theory. Capaldi and Malloch acknowledge that Christians themselves do not speak with one voice. That there is an effort at all to emphasize the multiplicities within Christianity suggests how slippery a signifier “Judeo-Christian” can be. Although the authors take pains to qualify and in-terrogate that term, they do not avoid the tendency to conflate it with “Christianity,” which is a distinct though obviously related thing.

All in all, what the authors have accomplished is impressive. A thin book that can raise and address tre-mendous issues with caution and precision is a feat. to read a text with drawbacks that are also its strengths can give one pause: should we who embrace our Judeo-Christian heritage not be concerned more often with retelling what has already been told, with adding new and trenchant expression to ancient canons and doc-trines? There is, after all, as the author of Qoheleth tells us, “nothing new under the sun,” and that is refreshing to contemplate. Capaldi and Malloch have brightened old truths with a method and order that could equip us to give new articulation to what we have heard and read many times before. The result of their efforts deserves thoughtful consideration.

Allen Mendenhall is a writer, attorney, and doctoral can-didate in English who lives in Atlanta. He has taught at Auburn University and Faulkner University Jones School of Law. Visit his website at AllenMendenhall.com.

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