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Published online by Cambridge University Press: 24 April 2015
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.
1. Greenawalt, , Religious Convictions and Lawmaking, 84 Mich. L. Rev. 352, 353 (1985)CrossRefGoogle Scholar. After the Michigan article, Professor Greenawalt continued to explore the issue in Religiously Based Premises and Laws Restrictive of Liberty, 1986 B.Y.U. L. Rev. 245Google Scholar; Natural Law and Political Choice: The General Justification Defense - Criteria for Political Action and the Duty to Obey the Law, 36 Cath. U.L. Rev. 1, 27–36 (1986)Google Scholar; Church-State Relations and Religious Convictions, 35 Clev. St. L. Rev. 219 (1986–1987)Google Scholar; and The Limits of Rationality and the Place of Religious Conviction: Protecting Animals in the Environment, 27 Wm. & Mary L. Rev. 1011 (1986)Google Scholar. The most complete statement of his thinking appears in Greenawalt, K., Religious Convictions and Political Choice (1988)Google Scholar. See also Greenawalt, Religious Convictions and Political Choice: Some Further Thoughts, 39 De Paul L. Rev. 1019 (1990)Google Scholar.
2. Greenawalt, K., Religious Convictions and Political Choice 144–49 (1988)Google Scholar. Although he expresses some misgivings, by “publicly accessible reasons” Professor Greenawalt means “secular rational grounds: secular not in the sense of being antireligious but in the sense of not relying on religious assumptions, rational in the sense of resting on reasoned arguments whose force is generally understood.” Id. at 56-57.
3. Id. at 145.
4. Id. at 144-45.
5. Id. at 4.
6. Id. at 55.
7. Id. at 55-56. Professor Greenawalt does not explicitly state this conclusion. Indeed, he appears to attribute it to the theory of proper citizen conduct that his book criticizes. Nonetheless, I am convinced that Professor Greenawalt himself would view Jody's conduct as inconsistent with good liberal democratic behavior. See infra note 11.
8. Id. at 55.
9. See id. Professor Greenawalt states that in his approach to such questions he tries “hard to avoid direct claims about theological truth.” Id. at 4. His “analysis and conclusions … do not depend on the truth or falsity of particular religious positions.…” Id. at 5.
10. Professor Greenawalt does not believe that the good citizen should seek to use law to implement faith-based views “that would be senseless given any rational secular assessment of the facts.” Id. at 204. There thus is a threshold requirement of rational plausibility. Id. at 207.
11. See id. at 166-67. Professor Greenawalt believes that this choice would be appropriate for two broad categories of issues: borderline questions of status and complex factual judgments. The former category involves disputes about “how much protection, if any, particular entities are thought to warrant.” Id. at 98. Professor Greenawalt discusses animal rights, environmental ethics and abortion; he concludes that the good liberal democrat may properly ground his public policy choices in his religious convictions despite the absence of independently-compelling secular justification. See id. at 166-67. Professor Greenawalt reaches the same conclusion for his second category, wherein he discusses the tough choices to be made concerning the issues of welfare assistance, punishment and military policy. See id. at 173-76, 192.
In contrast to the foregoing two categories, Professor Greenawalt believes that there is one situation in which independently-compelling secular justification is required if the person of faith is to act like a good liberal democrat. A good liberal citizen should never seek laws to prevent “a wrong judged purely from a religious perspective.…” Id. at 94. Professor Greenawalt's example involves Sam, who must decide whether to seek a criminal prohibition of homosexual conduct among consenting adults. Id. at 90. After evaluating the arguments that rest on commonly accessible reasons, Sam concludes that “the arguments against [prohibition] … are far stronger than the arguments in favor of prohibition. …” Id. He, however, “also believes that homosexual acts are sins that God wants stopped.” Id. Professor Greenawalt believes that if Sam seeks a prohibition due to “the possible sinfulness of sexual activities,” he would not be acting as a good liberal democrat. See id. at 91. This would be true even if the secular arguments tipped “only weakly against prohibition.” Id. Only if a person were honestly convinced that the secular arguments for a prohibition outweighed those against would support of a criminal law be consistent “with the proper conception of liberal democracy.” Id. at 94.
As will become apparent, the faith-based non-imposition standard which I would impose in all situations upon the obedient Christian is essentially identical to the foregoing “good liberal democrat” standard which Professor Greenawalt would apply only when the religious person is seeking to prohibit acts solely because his faith compels him to view them as morally wrong. I am not persuaded that borderline questions of status or complex factual judgments warrant any different treatment. See infra notes 107 and 156.
12. Not every faith-based vote contrary to the weight of rational argument would be inappropriate for the Christian. In one of his preliminary articles, Professor Greenawalt uses the illustration of Joseph, who is persuaded “very weakly” by rational arguments “that human beings should not eat the flesh of higher animals, and that the law should prohibit the production and processing of meat for that purpose.” The Limits of Rationality and the Place of Religious Conviction: Protecting Animals and the Environment, 27 Wm. & Mary L. Rev. 1011, 1061 (1986)Google Scholar. Joseph, however, also believes that the Bible “clearly establishes the moral permissibility of eating meat.” Id. Professor Greenawalt concludes that it would be entirely appropriate for Joseph to follow his firm religious convictions rather than “uncompelling rational arguments.” Id. Although the sentence that accompanies this footnote would seem necessarily to imply that I would disagree with Professor Greenawalt's conclusion were Joseph a Christian, the fact is that I would agree with him on these particular facts. A faith-based vote by Joseph not to prohibit the production of meat does not compel anyone to do anything. Rather, it leaves matters in a state of freedom.
13. Isa. 40:28.
14. Ps. 145:17.
15. Ps. 145:8.
16. Exod. 15:11.
17. Ps. 147:5.
18. Id.
19. 1 Tim. 6:15-16.
20. 2 Tim. 3:16.
21. The Westminster Confession of Faith, ch. 1, ¶ II, printed in The Westminster Standards 4 (Great Commission Publications)Google Scholar.
22. Ps. 19:7, 9.
23. My thinking on this topic was sparked some years ago by the late Leff's, Arthur article, Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229CrossRefGoogle Scholar. Leff's thesis is that apart from God there is no non-arbitrary grounding for a normative proposition. Since Leff, however, assumed the absence of God, he did not explore the implications for law should God exist.
24. In 1986, 94 percent said they believed in “God or a Supreme Being.” Washington Post, Dec. 14, 1989, at A35, col.5. See K. Greenawalt, supra note 2, at 218-19.
25. Cuomo, , Religious Belief and Public Morality: A Catholic Governor's Perspective, 1 Notre Dame J.L. Ethics & Pub. Pol'y 13, 16 (1984)Google Scholar.
26. Those two subparts will reveal that I consider the scope of the non-imposition principle to be broader than its Virginia antecedents. The more narrow concept of non-imposition which prevailed in Virginia still is properly called an “antecedent” because I believe my position reflects its logical extension.
27. Miller, W., The First Liberty: Religion and the American Republic 43–44 (1986)Google Scholar; Buckley, T., Church and State in Revolutionary Virginia 6–7 (1977)Google Scholar.
28. W. Miller, supra note 27, at 7.
29. See T. Buckley, supra note 27, at 8.
30. Id. at 17-19.
31. W. Miller, supra note 27, at 7.
32. Id.
33. T. Buckley, supra note 27, at 26.
34. W. Miller, supra note 27, at 29-30. It is interesting to note that quite a battle has been waged over the years between the Presbyterians and the Baptists concerning which denomination played the more significant role in the fight for religious liberty in Virginia. See James, C., Documentary History of the Struggle for Religious Liberty in Virginia (1971)Google Scholar. As one who was raised a Baptist and is now a Presbyterian, I am glad that I can be proud of the efforts of both groups.
35. Presbyterian Memorial of October 24, 1776, reprinted in C. James, supra note 34, at 222, 224.
36. T. Buckley, supra note 27, at 34-35.
37. Id. at 35.
38. Id. at 188.
39. See W. Miller, supra note 27, at 24-29.
40. T. Buckley, supra note 27, at 92.
41. Presbyterian Memorial of October 1784, reprinted in C. James, supra note 34, at 231, 234. See W. Miller, supra note 27, at 29-30. In addition to promoting virtue through religion, an assessment was also viewed as a way to relieve the financial woes of the Presbyterian clergy. See T. Buckley, supra note 27, at 92-93.
42. T. Buckley, supra note 27, at 144-45.
43. W. Miller, supra note 27, at 39; T. Buckley, supra note 27, at 148-49.
44. See W. Miller, supra note 27, at 40; T. Buckley, supra note 27, at 175.
45. T. Buckley, supra note 27, at 136-37. This reversal reflected the victory of the views of William Graham, the leader of the anti-assessment group within the Presbytery. See id. at 93-94. Graham was the president of Liberty Hall College, a predecessor institution to my present employer, Washington and Lee University. Id. at 93. It is probable that Graham drafted the Presbytery's petition to the Assembly. See id. at 139 n.56; Crawford, E., An Endless Line of Splendor: Profiles of Six Pioneer Presbyterian Preacher-Educators 33 (1983)Google Scholar; C. James, supra note 34, at 137.
46. Presbyterian Memorial of August 1785, reprinted in C. James, supra note 34, at 236, 237.
47. Id.
48. Id. at 237-38. These arguments provide contrary evidence to one scholar's contention that the Presbyterian petition was confined “largely to rational, secular arguments and to the language of natural religion, rather than employing a rhetoric that invoked Scriptural revelation and the powers of divine grace.” Isaac, , “The Rage of Malice of the Old Serpent Devil”: The Dissenters and the Making and Remaking of the Virginia Statute for Religious Freedom, in The Virginia Statute for Religious Freedom 139, 150 (Peterson, M. & Vaughan, R., eds. 1988)Google Scholar.
49. Presbyterian Memorial of August 1785, reprinted in C. James, supra note 34, at 236, 240.
50. T. Buckley, supra note 27, at 46.
51. Id. at 163.
52. Id. at 191.
53. Not all of the evangelicals' motivations were as pure as their faith-based arguments. The Presbyterians, for example, abandoned their earlier support of assessment in part due to fears that assessment would most help the Episcopalians. W. Miller, supra note 27, at 40-41, 113; T. Buckley, supra note 27, at 137-38.
54. Economic conditions also played a part. The people, who had already complained about high taxes, were experiencing such financial difficulties that a new tax to support religion would have been very unpopular. See T. Buckley, supra note 27, at 153-55; Isaac, supra note 48, at 146-47.
55. W. Miller, supra note 27, at 34; T. Buckley, supra note 27, at 174.
56. T. Buckley, supra note 27, at 174.
57. Id.
58. W. Miller, supra note 27, at 99.
59. Id. at 101; see T. Buckley, supra note 27, at 131.
60. It would be inaccurate to portray Madison as solely influenced by the Enlightenment. His Memorial and Remonstrance, for example, included religious arguments against assessment similar to those of the evangelicals (in turn, the evangelical petitions included arguments based on natural rights). See T. Buckley, supra note 27, at 131, 179-80. Nonetheless, Professor Miller argues that Madison, who kept “a certain cool distance from all those ‘sects,’” was perhaps “as much a man of the Enlightenment” as was Jefferson. W. Miller, supra note 27, at 236. Contra Berman, , Religion and Law: The First Amendment in Historical Perspective, 35 Emory L.J. 777, 784–87 (1986)Google Scholar.
61. Mark DeWolfe Howe argues that the United States Supreme Court has committed precisely this error in its interpretation of the history of the first amendment's establishment clause. See Howe, M., The Garden and the Wilderness 1–19 (1965)Google Scholar. The error is revealed by the Court's premising a rule of constitutional law in Jefferson's metaphor that the first amendment was intended to build “a wall of separation between church and state.” See id. at 1. Howe believes that by focusing on Jefferson's phrase, the Court conveys the inaccurate idea that the establishment clause has its chief roots in “enlightened rationalism,” with a people who shared Jefferson's “deep anxiety that the liberties of individuals would be endangered if a wall of separation did not stand between [churches] and the state.” See id. at 6-9. The truth, Howe posits, is that the origin of the clause owes more to “a theological theory of disestablishment” than to “the bias of eighteenth-century rationalism.” See id. at 9, 2. According to this theology, it is the church which needs protection from the government, for “a church dependent on governmental favor cannot be true to its better self.” See id. at 7-8. The first amendment therefore primarily reflects not Jeffersonian fears, “but rather the evangelical hope that private conscience and autonomous churches, working together and in freedom, would extend the rule of truth.” Id. at 19.
Howe's conclusion concerning the critical role of religious arguments in the history of the establishment clause finds strong collateral support in the defeat of general assessment in Virginia. I must agree with Howe that religious liberty in the United States is in large part based upon the fact that people of faith, for faith-based reasons, eschewed the grasp for governmental favor which they might have made.
62. T. Buckley, supra note 27, at 175. See id. at 143, 164; W. Miller, supra note 27, at 39, 52-53, 153, 235.
63. T. Buckley, supra note 27, at 181.
64. Id.; W. Miller, supra note 27, at 49. Imposition of a fine could be thought of as a liberalization of Virginia's laws on the subject, as during earlier times failure to keep the Sabbath resulted in whipping. E. Crawford, supra note 45, at 30.
65. See supra note 47 and accompanying text.
66. The Supreme Court, in McGowan v. State of Maryland, 366 U.S. 420 (1961), disagrees. McGowan, which upheld the constitutionality of Sunday “Blue Laws,” considered very influential the history of the struggle for religious liberty in Virginia. In commenting on the relationship of the Virginia Assembly's passage of the Sunday labor prohibition to its passage of Jefferson's Statute for Establishing Religious Freedom, the Court suggested that the Assembly's passage of both statutes showed that the former must not have been thought to be inconsistent with the latter. Id. at 437-39. To think, however, that one is acting consistently does not guarantee that one is. See infra note 150 and accompanying text.
67. W. Miller, supra note 27, at 232.
68. Id. at 153-54.
69. Id. at 154.
70. See Brockumier, S., The Irrepressible Democrat 82–90 (1940)Google Scholar.
71. W. Miller, supra note 27, at 175.
72. Id.
73. Id.
74. Id. at 171-72.
75. Id. at 175.
76. Id. at 191-93.
77. Id. at 193-95.
78. Id. at 154.
79. See Butterfield, , Elder John Leland, Jeffersonian Itinerant, 62 Am. Antiquarian Soc'y Proc. 155, 167–77 (1952)Google Scholar.
80. Id. at 177-78.
81. Id. at 183-92. See C. James, supra note 34, at 154-58.
82. Butterfield, surpa note 79, at 197-201.
83. Id. at 207-10.
84. Id. at 236.
85. The Writings of John Leland 293–94 (Greene, L. ed. 1969) (hereinafter cited as Writings)Google Scholar.
86. Butterfield, supra note 79, at 236-40.
87. Morgan, E., Roger Williams: The Church and the State 137 (1967)Google Scholar.
88. Id. at 134; see W. Miller, supra note 27, at 185-86.
89. E. Morgan, supra note 87, at 134-35; W. Miller, supra note 27, at 185-86.
90. Writings, supra note 85, at 221, 488.
91. Id. at 238.
92. Id. at 276, 444.
93. Id. at 184, 443.
94. Id. at 118, 488.
95. Id. at 228.
96. Two of the most famous formulations of the dichotomy are Jefferson's. The earlier appears in his Virginia Statute for Establishing Religious Freedom: “it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.” W. Miller, supra note 27, at 358. The second is in Jefferson's Notes on the State of Virginia: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.” Jefferson, T., Notes on the State of Virginia 152 (Harper Torchbook edition, 1964)Google Scholar.
97. See, e.g., 1 Corin. 6:12-7:9; 1 Thes. 4:3-8; Hebr. 13:4.
98. The possible arguments include: (1) prevention of disease; (2) reduction in unwanted pregnancies, thereby reducing the number of abortions and/or the number of children being raised in single-parent households; and (3) promotion and protection of the institution of marriage.
99. Cf. K. Greenawalt, supra note 2, at 247 (discussed in the context of a possible establishment clause violation). As I have indicated earlier, Professor Greenawalt would conclude that such a vote also would violate the standard of good citizenship in a liberal democracy. See the Sam illustration, supra note 11.
100. I am aware that in positing a legal system which would be based solely upon secular reasons that I collide with Professor Leff's thesis that such a system—in the assumed absence of God—would inevitably be arbitrary. See supra note 23. Professor David Smolin agrees with Leff as to the effect upon a legal system of excluding God: such a system would be “inherently tyrannical.” See Smolin, , The Judeo-Christian Tradition and Self-Censorship in Legal Discourse, 13 U. Dayton L. Rev. 345, 345–47 (1988)Google Scholar. He argues that the only way to avoid tyranny is to base the system upon the objective norms of the Judeo-Christian tradition. See id. at 360-62. (Professor Smolin acknowledges, however, that not all Scriptural norms should be enforced through law. Id. at 367. Identifying those that should, a task which Professor Smolin left “for another day,” would require developing a methodology defined “in terms of what the Judeo-Christian tradition itself says about the use, nature, and function of law.…” Id. Professor Smolin later articulated such a methodology in Smolin, , The Enforcement of Natural Law by the State: A Response to Professor Calhoun, 16 U. Dayton L. Rev. 381 (1991)Google Scholar. The faith-based non-imposition principle is the result of my own thinking on this subject.
This article is not the place to evaluate the conclusions of Professors Leff and Smolin concerning the arbitrariness/tyranny of a legal system which excludes God. If they are correct, there is an obvious tension between their views and the non-imposition principle: the only way to avoid arbitrariness and tyranny is to make a legal system God-based, but to do so constitutes an imposition of faith contrary to what the faith permits. I begin to explore these matters in Calhoun, , Misreading the Judeo-Christian Tradition and the Law: A Response to Professor Smolin, 15 U. Dayton L. Rev. 383 (1990)Google Scholar.
101. The subjectivity of the non-imposition principle means that any resort to state force by a Christian conceivably could constitute an imposition of faith. Suppose, for example, that a Christian works for laws to punish murder. Because of the secular reasons for deterring murder, it might normally be assumed that the Christian's efforts would not violate the non-imposition principle, despite the fact that murder is prohibited by the Ten Commandments. Cf. McGowan, 366 U.S. at 442 (no establishment clause violation for a state for secular reasons to prohibit conduct, such as murder, which is coincidentally proscribed by the Ten Commandments). If the individual Christian, however, found the secular reasons unconvincing and sought the law solely to implement God's will, he would be imposing his faith.
Subjectivity, on the other hand, may also mean that some actions which appear to be an imposition of faith in fact are not. Roger Williams's willingness for the state to regulate male hair length is a case in point. See supra note 89 and accompanying text. One might assume that this is a clear example of imposition, since those most affected by such a law would probably have been the Quakers, with whom William had serious doctrinal differences. See W. Miller, supra note 27, at 186, 191. Williams, however, described “the monstrous haire of women” upon men's heads as an instance “wherein Civility is wronged.” 7 The Complete Writings of Roger Williams 243 (1963)Google Scholar. If Williams truly believed that long hair upon men was detrimental to civil order, a sentiment shared by many American parents in the late 1960s, his approval of state regulation would not violate the non-imposition principle. See W. Miller, supra note 27, at 192.
102. See supra note 6 and accompanying text.
103. See supra note 7 and accompanying text; see also supra note 11.
104. See K. Greenawalt, supra note 2, at 55.
105. In Jody's case, refraining from voting would be the appropriate method of following the non-imposition principle. There was presently freedom to drink and it is the prohibitory law that would have restrained freedom. In settings where an existing law already restrains freedom, following the principle would require a vote against the law. See infra notes 144-50 and accompanying text. On other occasions, the manner in which a particular issue was presented could allow a Christian, without contravening the non-imposition principle, to vote his faith even when independent secular justification did not exist. See supra note 12.
106. See supra notes 10 and 11 and accompanying text.
107. As I have stated, Professor Greenawalt does adopt this principle as the standard of good citizenship for situations where religious people seek to prohibit conduct solely because it is viewed as wrong on religious grounds. See supra note 11. For borderline questions of status and complex factual judgments, however, Professor Greenawalt's good citizenship standard would not require the person of faith to have independently-compelling secular justification for his public policy choices. Id. For the reasons to be given in Subpart C, I would apply the principle across-the-board.
108. See supra notes 20-23 and accompanying text.
109. E.g., John 3:3-8; 16:5-11; Rom. 10:9-13. I do not imply by this that rational thought plays no part in the Christian conversion experience. See K. Greenawalt, supra note 2, at 70-71. In fact, I am convinced that a dispassionate evaluation of the evidence relating to the truth or falsity of Jesus' claims, which undeniably were astonishing, will strongly indicate that His claims are true. For a classic argument to this effect, dedicated to the legal profession by a Harvard Law School Professor of Evidence, see Greenleaf, S., The Testimony of the Evangelists Examined by the Rules of Evidence Administered in Courts of Justice (1903)Google Scholar. For a more recent popular apologetic work, see McDowell, J., More Than a Carpenter (1977)Google Scholar.
110. See, e.g., John 10:22-30 (Jesus); Acts 2:22-41 (Apostle Peter); 1 Corin. 2:1-5 (Apostle Paul).
111. I am aware that in stating the issue in this way I invite a much stronger reaction than if I instead stated that my view is one of a number of permissible Christian responses to the question I pose. Scriptural authority for this kind of flexibility can be found in the New Testament discussions of what constituted proper Christian conduct in several areas that were controversial at the time. See Rom. 14 and 1 Cor. 10:23-33. The Apostle Paul did not give an explicit command from God as to what conduct was allowed and prohibited. Rather, he wrote that each believer had the freedom to seek God's will and then act in whatever way his conscience dictated, so long as one heeded the admonition not to cause believers holding contrary views to stumble.
I considered whether the appropriateness of extending the non-imposition principle to conduct should be framed according to the foregoing model of believers' freedom. This model, however, is governing only for “disputable matters,” Rom. 14:1, i.e., those for which dispositive Biblical authority is lacking. My conclusion concerning the reach of the non-imposition principle is that Scriptural authority, although in some cases indirect, is strong enough to support the assertion that my position should be accepted as a norm of Christian behavior. I of course make no claim of infallibility and fully expect that many Christians will disagree with my views.
112. E.g.. John 14:15, 21, 23-24.
113. E.g., Eph. 4:25.
114. E.g., Isa. 64:6; Rom. 3:23.
115. See, e.g., Isa. 59:1-8; Matt. 5:27-28, Mark 7:14-23. Even if the law served an educative purpose, so that a person came to obey it willingly because he believed that the proscribed conduct in fact was immoral, righteousness before God has not been advanced. Sinful attitudes undoubtedly would remain, if not in the area of the relationship between the sexes (although I cannot imagine absolute purity here), then in some other area.
116. E.g., John 14:6; Rom. 3:21-26; Gal. 2:15-16, 21.
117. E.g., 1 Pet. 1:14-21.
118. Gen. 6-7.
119. Gen. 18-19.
120. Gen. 6:5, 11-13; 13:13; 18:20-21.
121. Francis Schaeffer describes the circumstances in which God's judgment comes in this way:
I imagine myself holding a cup which has water dripping into it. The water does not come quickly, but I keep holding the cup. Gradually the water rises, and at a certain point it flows over the brim. This is the principle of the judgment of God: Man is in revolt against God, and God waits in longsuffering until every possibility of man's turning back is exhausted. When the iniquity is full, when the cup overflows, God's judgment comes.
Schaeffer, F., Joshua and the Flow of Biblical History 66–67 (1976)Google Scholar.
122. But see supra note 113 and accompanying text.
123. I rely upon my pastor, who cites Brown, F., The New Brown-Driver-Briggs-Gesenius Hebrew and English Lexicon 158 (1978)Google Scholar.
124. E. Morgan, supra note 87, at 93. For a more extended treatment of Williams's view of the significance of the Old Testament, see Miller, , Roger Williams: An Essay in Interpretation, in 7 The Complete Writings of Roger Williams 5–25 (1963)Google Scholar.
125. One particularly important manifestation of this uniqueness that is now lacking is the directness of God's guidance to those who exercise governmental authority. Num. 15:32-36 shows the significance of this difference. There, Moses and the people were unclear as to what to do with a Sabbath-breaker, despite God's earlier clear command that the penalty was death. Exod. 31:14-15; 35:2. It was only when “the Lord said to Moses, ‘The man must die,’ “ that the death sentence was carried out. We have no one like Moses today, a man to whom God spoke “face to face.” Num. 12:8. If even Moses was uncertain as to how to respond, how could we ever decide what punishment sin qua sin deserves?
126. Compare the following verses: Lev. 20:11 vs. 1 Cor. 5:1-13 (man sleeping with his father's wife); Exod. 31:14-15; 35:2 vs. Luke 6:1-10 (breaking the Sabbath); Lev. 20:9 vs. Eph. 6:1-3 (child-parent relations); Deut. 21:18-21 vs. Luke 15:11-32 (child-parent relations).
127. See 1 Cor. 5:9-13. Verse 13 of this passage is particularly instructive, as it contains the Old Testament quotation, “Expel the wicked man from among you.” The New International Version translation cites five Old Testament references for the phrase: Deut. 17:7, 19:19; 22:21, 24; and 24:7. All but one use death as the method of expelling the offender. The Apostle Paul gives the phrase the totally new meaning of expulsion from the fellowship.
128. Church discipline of course is pertinent only for church members. They are the only ones to whom the Apostle Paul commands Christians to deny fellowship. 1 Corin. 5:9-13. Christians are still to associate with non-Christians “who are immoral, or the greedy and swindlers, or idolaters.” Id. at verse 10. To forbid association would be to require Christians “to leave this world.” Id.
129. Some may argue that Romans 13:1-4 is a clear statement that God has appointed human governments as His agents to punish all ungodliness:
Everyone must submit himself to the governing authorities, for there is no authority except that which God has established …. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God's servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath to bring punishment on the wrongdoer.
The passage does not support the argument suggested. Because it refers to all governing authorities, it necessarily includes authorities which are non-Christian in outlook. A non-Christian government would have no interest whatever in punishing as a “wrong” those activities, such as blasphemy of God, which are clearly contrary to God's law but which would not sufficiently prejudice secular objectives to warrant governmental sanction. It is therefore reasonable to interpret the passage (and the similar passage in 1 Peter 2:13-14) as referring only to laws which are independently supportable on secular grounds.
130. K. Greenawalt, supra note 2, at 43-44.
131. Id. at 44.
132. Id. For Professor Greenawalt's thoughts about the extent to which a believer should publicly express the religious basis of his political positions, see id. at 215-30. For my own thoughts on the issue, see Calhoun, Are Religious Arguments Appropriate in Civil Discourse?, 9 Christian Legal Soc'y Q. 32 (Fall 1988)Google Scholar.
133. K. Greenawalt, supra note 2, at 44.
134. Id. at 155. Professor Greenawalt's conclusion is puzzling in view of his position, noted earlier, that the religious person who wants also to be a good liberal democrat must separate his secular reasoning concerning laws designed to prohibit certain conduct from his religious conviction that God views the conduct as sinful. See the Sam illustration, supra note 11. If to “pluck out” one's religious conviction in fact is “impossible,” how is this separation to occur?
135. If we assume for the moment the validity of my belief about the importance of the non-imposition principle to Christianity, I believe that Professor Greenawalt would understand my conclusion about the effort required of Christians. In discussing the implications of a principle which would label reliance upon religious convictions inappropriate for the good citizen, Professor Greenawalt rejects an exception for people who, because they have never pondered the matter, are not consciously aware of the ways in which they may be influenced by their faith:
If reliance on religious convictions is really improper, religious believers should make at least minimal efforts to identify their place and respond accordingly. Otherwise unreflective persons could blithely continue to rely on grounds barred to those who think more seriously. Political principles should not contain such incentives to un-reflectiveness ….
K. Greenawalt, supra note 2, at 162; see id. at 38.
136. Matt. 5:44.
137. Romans 5:5.
138. See K. Greenawalt, supra note 2, at 152-55.
139. As I have indicated, the limitation that there be explicit awareness is not meant to be, in Professor Greenawalt's phrase, an “incentive to unreflectiveness.” The obedient Christian must actively evaluate his stands on political issues to see if there are any for which his faith is determinative. See supra notes 135-37 and accompanying text.
140. My test for when an imposition occurs is not as inclusive as Professor Greenawalt's test for determining when one is relying on religious convictions:
a person is relying on religious convictions if their abandonment would force him seriously to reconsider the position he takes. If he is now confident of the position he takes and is uncertain what he would think absent the force of the religious convictions, he is presently relying on those convictions to a degree, even though it is possible that he would eventually arrive at the same conclusion without them.
K. Greenawalt, supra note 2, at 37. For Professor Greenawalt, being forced “seriously to reconsider” a position is the key. I look not at the mere fact of a reevaluation, but at its aftermath. If the Christian, following a reconsideration from which God's perspective temporarily is excluded, concludes in good faith that his opinion does not change, no imposition can occur.
141. See supra notes 97-99 and accompanying text.
142. I discussed earlier Professor Greenawalt's conclusion that a religious person would not be acting as a good liberal democrat if he sought to prohibit acts solely because his faith compelled him to view them as morally wrong. See supra note 11. Professor Greenawalt does suggest, however, that a belief in sinfulness might generate a secular, paternalistic justification for a prohibition if the believer were convinced on religious grounds, despite the lack of compelling factual evidence, that living in sin would produce unhappiness and psychological maladjustments. K. Greenawalt, supra note 2, at 91-92. I would not consider this a secular argument. It is not that the believer's conclusion, were he a Christian, is wrong. Living contrary to God's law will inevitably be harmful for anyone, believer and nonbeliever. Professor Norman Anderson is correct when he writes that God's “moral precepts and laws must … be regarded as our Maker's instructions for the human creatures he has brought into being, and only in so far as they obey these instructions will they be able to fulfil his beneficent purposes and enjoy the full, happy and satisfying lives which He intended them to live.” Anderson, , Public Law and Legislation, in Law, Morality and the Bible 235 (Kaye, B. & Wenham, G. eds. 1978)Google Scholar. This is true regardless of whether evidence can be produced. Without substantiating evidence, however, the believer's faith would be the only thing leading him to attribute negative worldly consequences to certain behavior. Relying solely on this faith-based view to justify a prohibitory law would be no more secular than relying upon a desire to help protect nonbelievers from God's judgment after death. (This desire, while commendable, would be misdirected to the extent it expressed itself in laws requiring righteous behavior. See supra notes 114-17 and accompanying text). Even if persuasive evidence were produced, of course, a Christian might still conclude that the benefits of the law were outweighed by its disadvantages.
143. The key point to avoid an imposition is that the Christian actually be convinced himself by the secular arguments. The mere fact that secular arguments can be made which are convincing to others is not sufficient. Cf. Zimmerman, , To Walk a Crooked Path: Separating Law and Religion in the Secular State, 27 Wm. & Mary L. Rev. 1095, 1102 (1986)Google Scholar (no violation of the establishment clause if religious individuals support laws in part for religious reasons, but also because they believe the laws are “justified convincingly on independent, objective grounds.”); Cuomo, supra note 25, at 16-17 (free exercise clause protects the right of a believer to propose the implementation of his religious beliefs through law, not for “parochial or narrowly sectarian” reasons, but because he believes the proposal benefits all citizens by fulfilling “a human desire for order, peace, justice, kindness, love or any of the values most of us agree are desirable even apart from their specific religious base or context.”). Of course, if the non-Christian is not persuaded by the secular arguments and energetically argues the other side, the discussion will help the Christian in his evaluation of the degree to which his opinion on an issue is premised in his faith. It would not be uncommon for a debate to expose as faith-based an opinion that the Christian formerly thought was secularly-based. I therefore view the debate process as an important resource for a Christian seriously interested in complying with the non-imposition principle.
144. I mentioned earlier McGowan, 366 U.S. 420, which upheld the constitutionality of Sunday “Blue Laws.” See supra note 66. It should be apparent that as the non-imposition principle has its source in the faith itself, a Christian is not released from the responsibility of applying it by a Supreme Court finding that a particular law is constitutional. The non-imposition principle operates independently of the Constitution as a constraint on the freedom of Christians to seek implementation of faith-based precepts through law.
145. E.g., Exod. 20:8-11.
146. I realize that the fact that I am not a merchant makes reaching this conclusion much easier.
147. My decision was reached only after many conversations with friends, both Christian and non-Christian, in which I openly discussed my struggle.
148. E.g., Luke 14:25-35; 2 Tim. 3:12.
149. McGowan, 366 U.S. at 450. As to secular reasons for why Sunday should be this day of rest, rather than some other day, the Court relied on “common knowledge that [Sunday] has come to have special significance as a rest day in this country …. [I]t would seem unrealistic for enforcement purposes and perhaps detrimental to the general welfare … to choose a common day of rest other than that which most persons would select of their own accord.” Id. at 451-52. See Greenawalt, , The Limits of Rationality and the Place of Religious Convictions: Protecting Animals and the Environment, 27 Wm. & Mary L. Rev. 1011, 1020 n.28 (1986)Google Scholar.
150. Thus, finally to answer the question whether the evangelicals in the 1786 Virginia Assembly who voted to enforce “Blue Laws” (see supra notes 64-66 and accompanying text) were imposing their faith, one would have to have more specific information about their motivation. My strong suspicion is that they did not support the law on independent, secular grounds. The statute's title, for example, was “A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers.” McGowan 366 U.S. at 494 n.68 (separate opinion of Justice Frankfurter). Although the Court in McGowan discounted similar statutory language in finding Maryland's “Blue Laws” to be constitutional, it relied upon other evidence which suggested that the current purpose of the laws was viewed as secular. 366 U.S. at 445-49. In Virginia in 1786 I am convinced that the “Blue Laws” essentially were viewed as a religious measure. See W. Miller, supra note 27, at 49; T. Buckley, supra note 27, at 181-82.
151. Rhoden, , The New Neonatal Dilemma: Live Births from Late Abortions, 72 Geo. L.J. 1451, 1467 (1984)Google ScholarPubMed.
152. E.g., Job 10:8-12; Psalm 139:13-16.
153. Some might not believe in God at all, some might believe in Him but reject the notion that He has spoken through the Bible, and some might accept the Bible as God's Word but disagree with my interpretation.
154. Nilsson, L., Furuhjelm, M., Ingleman-Sundberg, A., & Wirsen, C., A Child Is Born (1977)Google Scholar.
155. Professor Greenawalt would describe my nonreligious feeling about the unborn child as an example of a personal basis of decision. Such bases “cannot be justified, in the force they are given, in terms of publicly accessible reasons. These bases would include personal perceptions, intuitions, feelings, and commitments, and deferences to the judgments of others that cannot be defended by persuasive reasons of interpersonal force ….” K. Greenawalt, supra note 2, at 156. In applying his standard of the good citizen, Professor Greenawalt argues that there is no reason to allow reliance on personal bases of decision while disallowing reliance on religious convictions. Id. at 156-60.
156. As I have previously shown, since abortion involves a borderline question of status, Professor Greenawalt would not require the religious person desiring to be as well a good liberal democrat to have self-sustaining secular reasons for his stand on abortion. See supra notes 11 and 107 and accompanying text. Since I, however, view the non-imposition principle as required by the Christian faith, I cannot selectively apply it depending upon the type of issue. I must struggle to live consistently with the faith regardless of the circumstances.
157. Since this article is not primarily concerned with the merits of the abortion controversy, I will not detail those reasons here. I will, however, mention three of the most significant: (1) the fact that late second-trimester abortions sometimes result in live births [see Rhoden, supra note 151, at 1452-53 and 1458-59]; (2) the substantial evidence that as early as the end of the first trimester fetuses experience pain during abortions [see Collins, , Marzen & Zielinski, Fetal Pain and Abortion: The Medical Evidence, (Pamphlet No. 18, Law and Medicine Series, Legal Defense Fund of Americans United for Life (1984))Google Scholar]; and (3) the “experimentally demonstrated fact” that from conception the human embryo is genetically unique [see the testimony of Professor Jerome Lejeune in the “frozen human embryo” case, Davis v. Davis, 1989 WL 140495 (Tenn. Cir., Sept. 21, 1989), rev'd, 1990 WL 130807 (Tenn. App., Sept. 13, 1990), aff'd, 1992 WL 115574 (Tenn., June 1, 1992). For a complete discussion of why I believe that fetal personhood should be recognized from conception, see Calhoun, & Sexton, , Is It Possible to Take Both Fetal Life and Women Seriously? Professor Laurence Tribe and His Reviewers, 49 Wash. & Lee L. Rev. 437, 453–63 (1992)Google Scholar.
158. See supra notes 140-43 and accompanying text.
159. K. Greenawalt, supra note 2, at 155.
160. Id.
161. Greenawalt, , Religious Convictions and Lawmaking, 84 Mich. L. Rev. 352, 380 (1980)Google Scholar.
162. Id.; K. Greenawalt, supra note 2, at 155.
163. K. Greenawalt, supra note 2, at 258.
164. E.g., Luke 6:46; Galat. 2:20.
165. See supra note 98.
166. These would include the costs of enforcement both in terms of money and invasions of privacy.
167. See supra note 97 and accompanying text.
168. Men and women, as creations of God, should humbly submit to the “Maker's instructions.” See supra note 142. When the attributes of mankind are compared to those of God (see supra notes 13-19 and accompanying text), it would be startling if we could fully understand all that God has said. See Rom. 11:33-36.
169. See supra notes 109-10 and accompanying text.
170. See supra note 112 and accompanying text. For other problems arising from the attempt to coerce godliness, see supra notes 113-17 and accompanying text.
171. See, e.g., infra notes 180-83 and accompanying text.
172. K. Greenawalt, supra note 2, at 109-10. See id. at 112-13, 136-37.
173. A current example is the abortion controversy. See id. at 120-21.
174. Some, though, have expressed grave concern over nonreligious values being imposed under the rubric of “values neutrality.” E.g., Horn, , “World Views” and Public Policy, in Whose Values? 167–68 (Horn, C. ed. 1985)Google Scholar.
175. See K. Greenawalt, supra note 2, at 144, 176.
176. Professor Greenawalt believes that there are several modern theorists who take this position. Id. at 49-56, 156.
177. Professor Greenawalt's basic position is that this effort is not required by his standard of good citizenship. See id. at 109-10, 112-13, 136-37. He does, however, recognize some exceptions. For example, one should not seek to prohibit conduct merely because one views it as wrong based upon nonreligious moral values. Id. at 94-95. Cf. supra note 11 (discusses the same limitation for those with religious values).
178. Professor James Hitchcock argues that even concerted action by religious believers would not be inconsistent with American pluralism. Pluralism is not
a system in which diverse groups voluntarily refrain from pushing their own views too hard, least they tread on the toes of their neighbors.
In reality, pluralism is precisely the opposite. It is of the essence of a pluralistic society that, since there is no commonly accepted standard for what is true or false, every group must push as hard as it can for its own positions. Limits are imposed on this only by other groups pushing equally hard in the other direction.
Hitchcock, , Disentangling the Secular Humanism Debate, in Whose Values? 21, 34–35 (Horn, C. ed. 1985)Google Scholar. Professor Greenawalt would reject this as an appropriate model for a liberal democracy, which should be more than “a set of procedures for making political decisions ….” K. Greenawalt, supra note 2, at 11. Rather, the premises of liberal democracy include limitations on what political outcomes are acceptable as well as on what reasons are permissible for supporting acceptable outcomes. Id. I disagree with Professor Hitchcock's model for a different reason: to the extent that a Christian's “pushing hard” violates the non-imposition principle, it is incompatible with the faith.
179. Some may be perplexed by this conclusion in view of one of my reasons for believing that the non-imposition principle should be extended to conduct: the likelihood that forced compliance with Christian precepts would generate hostility toward Christianity. See supra text following note 113. If there is no likelihood of success in passing such a law, the argument seemingly loses its punch. I believe, though, that significant hostility may be generated against a religious faith by efforts to impose that faith's lifestyle even when those efforts have no chance of success. Imagine, for example, how Christians would react if adherents of the New Age movement worked for a law to compel people to wear crystals. Even if one could envision circumstances in which no hostility would be generated, the non-imposition principle is supported by other significant arguments. See supra notes 114-29 and accompanying text.
180. Acts 1:8.
181. If following the non-imposition principle precluded a Christian's being a witness for Christ, it would necessarily mean that in my earlier Biblical arguments in support of the principle that I had misinterpreted Scripture. The Bible, as God's infallible Word, does not subject Christians to contradictory commands.
182. The disability does not operate at all to constrain opposition to laws attempting to compel Christians to act in ways contrary to the faith. Faith-based civil disobedience clearly is a Biblical concept. See, e.g., Dan. 6 and Acts 4:18-20. If society by law attempted to compel me to act contrary to Christianity, I would not comply-even if there were absolutely no secular justification for my refusal. The non-imposition principle is not to the contrary. It does not deal with state attempts to compel Christians to act inconsistently with the faith, but with attempts by Christians to enlist state aid to compel everyone (non-Christians too) to act consistently with the faith.
183. Matt. 28:18-20.
184. The letter is in my possession and is used with my friend's permission.
185. See supra notes 156-58 and accompanying text.
186. This argument is in essence the basis of Professor Greenawalt's conclusion “that reliance on religious convictions to oppose permissive abortion laws” does not violate “the principle of liberalism that the religious convictions of one segment of society should not be imposed on the rest.” K. Greenawalt, supra note 2, at 168.
187. Since my friend's evaluation of the secular evidence during his college days, many additional secular arguments have appeared which further substantiate the position that the fetus should be viewed as a human life. If my friend could be convinced now that secular reasons alone justify this perspective, the non-imposition principle would not bar his recourse to law. It would not matter that initially his opinion rested principally on his faith. See id. at 36.
188. Prov. 24:11.
189. It might be suggested that it is indefensible for the non-imposition principle to override God's clear command to rescue the dying. That command, however, surely is subject to the implicit limitation that the methods of rescue chosen be consistent with the faith. I, for example, share the view of many Christians who believe that the faith does not countenance violence in the fight against abortion. I submit that the non-imposition principle is another constraint on the manner in which the obedient Christian responds to God's command.
190. See supra text accompanying note 183.
191. Personal example would include not just refraining from having an abortion oneself, but also one's response in situations where abortion may suggest itself as the easiest way out of a difficult situation. Christian parents, for example, must be willing to stand by their seventeen-year old daughter through her unwanted pregnancy rather than seeking a secret abortion to avoid a scandal.
By including evangelism, I do not imply that one who disagrees with my position on abortion cannot be a Christian. I do believe, however, that Christians who support permissive abortion laws either have misread Scripture or do not give Scripture the central importance in their lives that God commands.
192. One positive result of the abortion controversy has been the mobilization of many fine Christian organizations to do this very thing. If the abortion laws are ever made more restrictive, the demand on these groups could well increase dramatically.
193. See K. Greenawalt, supra note 2, at 124.