The recent battle over the removal of a 5,280-pound monument to the Ten Commandments placed in the lobby of the Alabama Supreme Court by Chief Justice Roy Moore has deep religious and civil roots stemming from the Protestant Reformation and provides an excellent historical study of religion, law, and public policy in America.

Two recent works contextualize Chief Justice Moore’s position, as well as other hot-button cultural issues such as education vouchers, charitable choice, and family law.  Religion Returns to the Public Square: Faith and Policy in America is a collection of essays that explains how religion has historically interacted with American politics in the formation of public policy; Law and Protestantism: The Legal Teaching of the Lutheran Reformation explores the effects of Martin Luther’s theory of two kingdoms, one sacred and the other secular.  Both volumes confirm the existence of a Protestant ethos in America that once called on civil officials to promote religion as part and parcel of their sharing in the common priesthood of all Christians.  This ethos survived intact at least until the middle of the 20th century.  Chief Justice Moore and his supporters represent a vestige of the original American understanding, before separation of Church and state came to be regarded as an impregnable wall.

The secularism that now seeks hegemony in American law and public policy owes nothing to the vision of Luther or to that of our Founding Fathers, who presumed that men of religion would assume responsibility for infusing God’s laws into the national culture through jurisprudence and legislation and expected these to shape civic life through the country’s public institutions and private organizations.  Luther envisioned three sources of secular authority: family, Church, and state working in consort to enforce the natural law and thereby aid their earthly charges to live a devout life.  This was to be done by instruction in the moral law as found in the Ten Commandments and in the teachings of Christ.  Clergy would instruct magistrates, teachers, and parents in God’s law; marriage laws, schools, and courts would provide the conscience and structure for a Christian society.  Although Luther believed good works play no role in the drama of salvation, he considered divine law to be useful in the earthly kingdom as a means of restraining sin and driving sinners to repentance—especially through criminal law, which corresponds to the theological use of retribution and the educational use of punishment and whose application requires the judge to rely on prayer, meditation, and the reading of Scripture.  (In fact, the obligation to maintain Christian equity, Witte tells us, required German judges to be schooled in both the law and theology.)

In Religion Returns to the Public Square, Charles Reid, Jr.’s essay, “The Religious Conscience and the State in U.S. Constitutional Law 1789-2001,” demonstrates clearly that, for at least the first 150 years of the nation’s history, public religion was taken for granted by public officials and that only in the latter part of the 20th century has the country moved rapidly toward the realization of a secular state.  Reid also examines recent case law regarding the Establishment Clause and perceived infringements on religious liberty, explaining some of the different philosophical and theological traditions in America that have competed against the evangelical Protestant model.

Chief Justice Moore was elected by the people of Alabama because he had a reputation for defending God and the Ten Commandments in his public duties as a circuit-court judge.  This idea, along with a recent USA Today poll that indicates that 77 percent of Americans believe the monument should stay, suggests that evangelical theology remains a strong influence on American culture and thus continues to be an important ingredient in American politics.  In support of this insight, Wilson Carey McWilliams, in “American Democracy and the Politics of Faith,” describes how religion has historically been deemed necessary to promoting moral values in society and regarded as essential for maintaining republican government.  Indeed, religion and religious imagery have been effectively used by American politicians both to get themselves elected and to promote their legislative agendas by framing them in moral terms.  Thus, we have had—and continue to have—defenders of prayer in the public schools, of the phrase “under God” included in the Pledge of Allegiance, and of the underlying religious concerns pertaining to family law, the most recent issue being same-sex marriage.  D.G. Hart’s essay, “Mainstream Protestantism, Conservative Religion and Civil Society,” will help the reader to see evangelical Protestantism’s stand on these contemporary issues vis-à-vis the old mainline churches’ more liberal theology and social agendas.

Witte’s book is an excellent dissertation on how law in early modern Germany coalesced with Roman law and the Code of Canon Law under the influence of Lutheran scriptural interpretation and how, in time, this aided the emergence of the secular state.  Witte shows that, by removing the hierarchical priesthood and the sacramental hegemony of the Catholic Church, Luther was able to place power in the hands of civil magistrates.  Obviously, the question never faced by the Reformers was What if the civil magistrates were not persons of faith?  This Protestant reliance on the faith of individual believers effectively began the breakdown of Christian civilization in the West, by allowing privatized disbelief to enable secularists to remove God from public discourse.  (Note how mention of Christianity is absent from the constitution of the European Union.)  

In the end, Luther’s program for a renewal of faith in society has proved to be self-defeating.  Still, many American Catholics today are as adamant as any mainline Protestant or secularist in the belief that faith should play no role in  government and politics.  For these people, Catholicism seems to be just another Protestant denomination in the United States.  So far as this is the case, perhaps we can say that Luther won his contemplated victory.

 

[Religion Returns to the Public Square: Faith and Policy in America, edited by Hugh Heclo and Wilfred M. McClay (Baltimore: Johns Hopkins University Press) 359 pp., $22.50]

[Law and Protestantism: The Legal Teaching of the Lutheran Reformation, by John Witte, Jr. (New York: Cambridge University Press) 303 pp., $23.00]