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Law, Religion, and Liberty: A Conversation with John Witte, Jr.

Members of the Scholars Council are appointed by the Librarian of Congress to advise on matters related to scholarship at the Library, with special attention to the Kluge Center and the Kluge Prize. The Council includes distinguished scholars, writers, researchers, and scientists. “Insights” is featuring some of the work of this highly-accomplished group of thinkers. Dan Turello continues the series interviewing John Witte, Jr.

John Witte, Jr. is Robert W. Woodruff University Professor, McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion at Emory University. A specialist in legal history, marriage law, and religious liberty, he has published 250 articles, 16 journal symposia, and 29 books. His full bio is on our website.

John, last fall, you spent four months at the Library of Congress researching the legal dimensions of the Protestant Reformation. What drew you to this period, and what did you find?  

John Witte, Jr.

John Witte, Jr., delivers a lecture at the Kluge Center, November 1, 2012. Photo by Abby Brack / Library of Congress.

The sixteenth-century Protestant Reformation was a transformative moment in the history of the West, and Protestant ideas and institutions had a shaping influence on Western law, politics, and society until the twentieth century. My focus at the Library was on the German Lutheran Reformation, whose 500th anniversary is coming up in 2017. The Library of Congress has vast resources on this period – including legal and theological materials that are very hard to find anywhere else, including in Germany. As I tried to document in my Kluge Chair Lecture last November, the Lutheran Reformation brought fundamental changes to German legal life, sometimes in direct expression of the new Lutheran theology. Lutheran reformers pressed to radical conclusions the theological concept of the magistrate as the father of the community, called by God to enforce both tables of the Decalogue for his political children. This idea helped trigger a massive shift in power and property from the church to the state, and ultimately introduced enduring systems of state established churches, schools, and social welfare institutions.

Lutheran reformers replaced the traditional idea of marriage as a sacrament with a new idea of the marital household as a social estate to which all persons are called–clerical and lay alike. They also replaced the traditional understanding of education as a teaching office of the church with a new understanding of the public school as a “civic seminary” for all persons to prepare for their distinctive vocations. And they developed innovative new theories of practical legal reasoning and pious judicial activism, advocating the merger of church courts and state courts, of legal procedures and equitable remedies.

To be sure, these and many other legal changes had antecedents in late medieval legal life and analogues in contemporaneous Catholic movements. But it was the Lutheran Reformation that cast this legal inheritance into a unique new legal ensemble in Germany, and eventually mainstreamed it into the broader Protestant world, including America.

In our current moment, the discourse between secular and religious cultures seems to be as polarized as ever. Could you help us peel back a few layers to look beneath the surface? As a legal scholar and a historian, how would you explain the deeper issues at stake?

One thing that’s clearly changed over the past decades is that Protestants have rapidly lost their dominant hold on American law and culture and are having to learn to play as religious and cultural minorities. Until World War II and even until the election of John F. Kennedy, mainline Protestants and Evangelicals could largely bend the state to do their will. They dominated all three branches of government at the federal and state levels, and commanded the media and economy. No longer. Protestants are now often in minority positions and in competition with new religious and post-religious groups.

Second, highly publicized religious pathologies have made it more difficult for the culture to sympathize with the cause of religion and religious freedom. The rise of Islamicism, and the horrors of 9/11, and most recently Paris, San Bernadino, Brussels, and Orlando have renewed traditional fears about the dangers of religion. The Catholic Church has been rocked by an avalanche of news reports and lawsuits concerning sexually delinquent priests and cover-ups by complicit bishops—all committed under the thick constitutional veil of religious autonomy. Evangelical megachurches have faced withering attacks for their massive embezzlement of funds, and the lush and luxurious lifestyles of their pastors–all the while enjoying tax exemptions for their incomes, properties, and parsonages. These and other exposures have given organized religion a very bad reputation. It’s easy for critics and outsiders to view all persons and communities of faith with suspicion, if not derision.

This has contributed to a third new development, the sharp new attacks on the protection of religious freedom. Long viewed as America’s “first freedom,” religious freedom is now in danger of becoming a second class right, especially when it competes with sexual liberty and LGBTQ identity.

The legal questions for religious freedom are mounting. Must a religious official with conscientious scruples marry a same-sex or interreligious couple? How about a justice of the peace or a military chaplain? Or a county clerk asked to give them a marriage license? Must devout medical doctors or religiously chartered hospitals perform abortions, or give assisted-reproduction procedures for unwed mothers, contrary to their deeply held religious beliefs about marriage and family life? How about if they are receiving government funding? Or if they are the only medical service available to the patient for miles around?

These and many other similar questions are challenges that all American people of faith and good will are now grappling with. Having a strong and diverse Supreme Court, with a judicious Chief Justice, has helped a lot. The Court of late has insisted on strong protections for both sexual and religious freedom, and has been careful to issue narrow decisions when those two fundamental freedoms collide. Having a stronger appetite for federalism has also helped. It gives states more room to experiment with alternative ways of balancing these competing values and gives those with very strong commitments the choice of living in congenial places.

Having a large cadre of serious legal scholars and public policy experts at work today, with widely divergent perspectives, has also helped expose some of the false dialectics and easy solutions we see especially in the social and news media.

In the midst of our culture wars against religion and religious freedom, it is easy to forget and appreciate how dearly fought religious freedom has been in the history of humankind; how imperiled religious freedom has become in many parts of the world today; and how indispensable religious freedom has proved to be for the protection of all other human rights in modern democracies.

In the midst of our culture wars against religion and religious freedom, it is easy to forget and appreciate how dearly fought religious freedom has been in the history of humankind; how imperiled religious freedom has become in many parts of the world today; and how indispensable religious freedom has proved to be for the protection of all other human rights in modern democracies.

You have written about human rights law in the context of various religious traditions. How have these two values been articulated in the American historical experience?

Three founding and enduring teachings stand out.

First, the American founders believed that religion is special and needs special constitutional protection. Although America’s religious landscape has changed, religion remains today a unique source of individual and personal identity for many, involving “duties that we owe to our Creator, and the manner of discharging them,” in James Madison’s words. The founders’ vision was that religion is more than simply another form of speech and assembly, privacy and autonomy; it deserves its own separate constitutional treatment. The founders thus placed freedom of religion alongside freedom of speech, press, and assembly in the First Amendment, giving religious claimants special protection and restricting government in its interaction with religion.

Second, the founders believed that the constitutional process must seek to involve all voices and values in the community—religious, non-religious, and anti-religious alike. Healthy constitutionalism ultimately demands robust pluralism to be effective and enduring. Thus in creating the new American constitutions, the framers drew upon all manner of representatives and voters to create and ratify these new organic laws. Believers and skeptics, churchmen and statesmen, Protestants and Catholics, Quakers and Jews—many of whom had slandered if not slaughtered each other with a vengeance in years past—now came together in a rare moment of constitutional solidarity. The founders understood that a proper law of religious liberty required that all peaceable religions and believers participate in both its creation and its unfolding.

Third, the founders believed that robust constitutional protection of religious freedom involves a balance of multiple principles. We often hear today that the United States Constitution guarantees the “separation of church and state.” But the Constitutional guarantee is actually more complicated. It provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The free exercise guarantee outlaws government proscriptions of religion—actions that unduly burden the conscience, restrict religious expression and activity, discriminate against religion, or invade the autonomy of churches and other religious bodies. The no establishment guarantee outlaws government prescriptions of religion—actions that unduly coerce the conscience, mandate forms of religious expression and activity, discriminate in favor of religion, or improperly ally the state with churches or other religious bodies.

All three of these insights were not only part of the original vision of the eighteenth-century founders; they have been part of the modern Supreme Court’s protection on religious freedom, and are reflected in some of the recent controversial federal and state religious freedom statutes as well.

A number of scholars now argue that providing strong protections for religious beliefs, practices, and institutions enhances, rather than diminishes, human rights for all.

Does all this have implications for other countries around the world?

If we look more generally to the place of religion, even in post-modern liberal societies, it is clear that religions ultimately are fundamental allies in the modern struggle for human rights. Religions help to define the meanings and measures of shame and regret, restraint and respect, responsibility and restitution that a human rights regime presupposes. They help to lay out the fundamentals of human dignity and human community, and the essentials of human nature and human flourishing upon which human rights are built. And they help implement and protect the rights of a person and community— especially at times when the state is weak, distracted, divided, cash-strapped, transitioning, or corrupt.

A number of scholars now argue that providing strong protections for religious beliefs, practices, and institutions enhances, rather than diminishes, human rights for all. Using sophisticated social science methods and comparative politics models, they have demonstrated and documented that in those nations when religious freedom is well protected, communities generally also have more freedom of speech, press, and association, more participatory and stable governments, and better crime control and procedural justice. They also fare better on multiple measures of well-being – less warfare and violence, better health care, higher levels of income, and better educational and social opportunities, especially for women, children, the disabled, and the poor. By contrast, where religious freedom is low, communities tend to suffer and struggle, and human rights protections decline dramatically.

John Witte, Jr. is a member of the Library of Congress Scholars Council. Check back for future interviews with Scholars Council members.

Past interviews in this series:

Michael Sandel at the Library of Congress

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