Religious freedom in America is guaranteed by the first sixteen words of the Bill of Rights:

This simple declaration is pivotal. Its adoption in 1791 was the culmination of an era just as surely as it opened another. The first amendment has inspired almost 200 years of judicial history in which the United States Supreme and lower courts have attempted to fill these plain words with specific content. Its passage climaxed nearly as long a period of significant colonial history. An understanding of that history is indispensable to the interpretation of the first amendment since, as the Supreme Court has said:

The court's opinion arrives in the morning mail. The judgement against your client is affirmed. Well, you win some and you lose some. You call your client on the phone and give him the bad news. “What's the next step?” he says. There is no next step, you tell him, and he must comply with the court's judgment. He says, “What if I don't?” You say, “You must.” He says he won't.

If one works at it, one should be able to give pretty good legal advice. The difficulty, it has always seemed to me, is how to give the legal advice, especially if unpalatable, in such a way that the client does not lose his enthusiasm for your valued services. So—you gingerly explain to your client about a sheriffs levy of execution, about penalties and interest, garnishment and foreclosure; and—when the client remains obstinate, you explain about contempt of court and incarceration.

In addressing this subject I shall be concerning myself with certain aspects of the vocation of the lawyer and of the theologian. I say certain aspects advisedly. Undoubtedly, a thorough study of the various relationships and comparisons between religion and law could not be satisfactorily dealt with in anything short of a multi-volume treatise. What follows is a hodge-podge of some law-and-religion features and issues which I have selected primarily for what I hope to be their interest to members of the clergy. I shall be dealing with: (1) some general aspects of the relationship between law and religion; (2) the law's definition of religion; (3) fundamental law and the Canadian Charter of Rights and Freedoms; and (4) legal and scriptural interpretation.

Before embarking on this course, I should mention that the resort to scripture in the various vicissitudes of life is, of course, commonplace and that the resourceful mind is capable of finding useful precedents in the most unlikely parts of the Bible. Sometimes precedents drawn from the Bible may have cogent negative effect. It appears that the famous 18th century English judge, Lord Mansfield, paid little attention to religious holidays. During one sittings of his court at the end of Lent he proposed that the court would sit on Good Friday. An account of what happened is as follows: “Sergeant Davy [one of the counsel in the case] … bowed in acceptance of the proposition. ‘If your lordship pleases; but your lordship will be the first judge that has done so since Pontius Pilate.’ The court adjourned until Saturday.”

American culture bears a lasting imprint from its Puritan founders. Their ideal of a social and political community based on a religious covenant has provided a sense of mutual obligation and commitment to public purposes in American life that cannot be fully explained by the contractarian notion of “mutually disinterested” persons who join forces to further their individual aims more effectively. Covenant theology, at the beginnings of modern liberal individualism, sustained an older notion of the self fulfilled in community. At the same time, however, the covenantal emphasis on consent, the voluntary creation of new communities of identity, introduced new elements of historicity, initiative, and equality into old political theories. The distinctive covenantal form of some basic democratic norms thus continues to exert an influence on public choice and political ideals, even in a public philosophy which is today dominated by contractarian and utilitarian theories.

In this paper, I seek to draw out the meanings of both law and religion and to reflect on their relationship to each other. Both law and religion belong to the humanities, and an examination of a few of the ways in which they cut across each other might conceivably contribute to a better understanding of the human predicament in general.

I shall begin by inquiring into the historical roots and development of law and religion. I shall then examine analytically some important issues involving their intersections—questions which cut across history and seem perennial. Obviously, given space limitations, much of the discussion can only suggest.

In November 1963, John F. Kennedy, the first Roman Catholic President of the United States of America, was assassinated while travelling in a motorcade through the streets of Dallas, Texas.

The election of Kennedy was a significant moment in relations between religion and public life in this nation for, although Catholics were physically present on the continent over a century before Protestant's, the Protestant spirit clearly dominated the newly formed nation in positions of political and economic power well into the twentieth century.

But the death of Kennedy was also a significant moment, a moment in which religious sentiments and public concerns were fused. The grief that was felt nationwide betrayed depths of religious emotion usually reserved for the intimate spaces of family life. But this was the grief of a body politic for one in whose office the entire community, however otherwise divided, was symbolized. Moreover, the funeral, stately and elegant, came as close as any other event in the history of America to being a national religious ritual, even if conducted for many only through the conveyance of electronic media.

Two thousand years ago a Jewish lawyer demanded a definition of the term “neighbor.” … Whether the tale of the Samaritan answered his perplexities we cannot say. But he would surely have been astonished had he been informed that there were two answers to his question, one if he was asking as a lawyer, another if he was asking as a layman. To him, neighbor was neighbor and duty, duty. Perhaps this ancient lawyer's tale has a moral for law and lawyers today.

Whatever has been achieved in the recent debate regarding religion and politics in America, we have not yet clarified the proper place of religion in our public life. All parties endorse the terse formulation of the first amendment, “congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof,” but there is persisting disagreement about the public philosophy which is there implied. Some fear a secularized state, that is, a state which is independent of all religious convictions, and insist that disestablishment does not preclude a foundation of religious values in the Republic. Others fear a state that is religiously partial and insist that the “wall of separation” prescribes civil neutrality toward religion as such. Each side asserts that the other misrepresents its position. The “religionists,” as I will call them, deny that they seek to impose any particular religious conviction; the “separationists,” as I will call them, deny that they are hostile to religion.

Ethical discussions of divorce have usually taken up the question of whether or when two spouses may divorce and remarry. They have focussed on the dissolution of the marital bond. Almost no attention has been given to the ethical issues involved in negotiating a divorce or maintaining the parental bond in divorce.

Emerging efforts to maintain parental bonds in divorce rest on many diverse considerations. Let us begin with the social changes demanding this concern and then move to some religious, ethical, and legal responses to this challenge.

My own beliefs about human rights have always been grounded on very concrete icons and images. Around my neck, for example, I wear a pendant made by a political prisoner in Chile. I have been privileged to meet, through Amnesty International or church connections, prisoners of conscience such as Mr. Babu, the former vice-president of Tanzania, who testify to the efficacy of human rights advocacy from a center in the first world. In Zambia and Peru, I have seen little children, whose subsistence rights have been denied, being treated for malnutrition by staff from missionary clinics. These human images and icons have led me to concrete commitments which include active membership in two international human rights organizations: Amnesty International and the Roman Catholic church as a transnational human rights network of advocacy (I am referring not only to the Vatican's participation in the United Nations and its world-wide orchestration of refugee services through Catholic Relief Services but also to more local human rights networks such as, for example, the Vicariate of Solidarity in Santiago, Chile, or, in our country, the church-sponsored sanctuary movement for refugees from El Salvador and Guatamala).

The ABA Model Rules clearly recognize a professional and moral dilemma. While indicating that a “lawyer's responsibilities as an officer of the legal system, a representative of clients and a public citizen are usually harmonious,” the Model Rules also recognize that

While the professional and moral dilemma of the practicing lawyer is one aspect of the problem, the other aspect is the response of legal educators to this dilemma. The Model Rules note that the resolution of conflict calls for the “sensitive exercise of professional and moral judgment ….” For the most part legal educators attempt to instill professional judgment in their students but ignore the equally important goal of enhancing the moral judgment of their students.

In 1982 DePaul University announced the establishment of its Center for Church/State Studies. Situated in the College of Law, the Center has an executive board of eighteen distinguished legal scholars and practicing attorneys from a wide variety of religious traditions.

Early in 1983, well before the presidential campaign began to develop largely around the issue of religion and politics, the Center's executive board had decided to look carefully at the issue by sponsoring a symposium on the role of the religious leader in the development of public policy. While there was a great deal of political rhetoric on the pages of the nation's daily newspapers and weekly news magazines, very little reflective and responsible research on the proper relationship of religion and politics was available for public consumption. The American Bar Association offered its annual meeting as an appropriate setting for the symposium, which was held on August 4, 1984.

The Center invited Joseph Cardinal Bernardin, Catholic Archbishop of Chicago, to present the major paper, “The Role of the Religious Leader in the Development of Public Policy.” Cardinal Bernardin, had chaired the American Catholic Bishops' Committee that prepared the landmark document on nuclear war, “The Challenge of Peace: God's Promise and Our Response.” His work in that role provided him a particularly appropriate perspective from which to address the more theoretical question at issue in our symposium, namely, the proper involvement of religious leaders in the national public policy discussion.

Professor Harold Berman has described the relationship between law and religion as an interaction, stating: “The principal affirmation is that law and religion are two different but interrelated aspects of social experience—in all societies, but especially in Western society, and still more especially in American society today. Despite the tensions between them, one cannot flourish without the other.” Berman illustrates his thesis largely by demonstrating that much of Western legal thought and many institutions find their source and origin in medieval European Christian civilization.

In another essay I have suggested that biblical religion has influenced many of the legal concepts and human values protected in the American constitution. In this essay I wish to suggest that the secular phenomena of ancient Near Eastern law played a significant role in the shaping of biblical religion. This is done principally by a review of the literature on the central biblical category of covenant. I also wish to suggest that American constitutional law continues to influence religious concepts and institutions today.

Biblical translation is partly science and partly the ex parte efforts of translators subtly to support their various theologies. Genesis 3:15 is a case in point. The Revised Standard Version (Protestant) translates it as:

I will put enmity between you and the woman,
and between your seed and her seed;
he shall bruise your head,
and you shall bruise his heel.

Protestant tradition sees Jesus as the ultimate “he” in 3:15c. The Catholic tradition elevates Mary to equal status here and, indeed, visitors to Catholic churches can often find statuary depicting Mary treading upon a serpent.

Understandably, Jewish tradition has no use for either of these ideas. The new Jewish Publication Society translation (1962) has “they” and “their” for “he” and “his.” Because the three parties to this polite dispute have a heavy theological stake in their own interpretation, none of them has paid much attention to the rare and curious term 'eyvah that characterizes the relationship between Jesus or Mary, humanity and serpentkind.

First let me express my gratitude to the American Bar Asociation for its kind invitation to address you this afternoon and to the DePaul University Center for Church/State Studies for organizing this showcase presentation. I would like to commend the American Bar Association for bringing important issues of public concern to the attention of the nation at large. I would also like to pay tribute to the DePaul Center for Church/State Studies because of its impressive initial efforts at sustained legal research into the complex relationship between religion and government in American Society.

I have been asked to address a topic to which I have devoted considerable time and reflection during the past year: the role of the religious leader in the development of public policy. I want you to understand clearly at the outset that I do not come before you as a politician or a policy expert; I am a believer and a pastor in the Catholic Church. What I say to you this afternoon is a reflection and an extension of the concern of the teaching and practice of the Church throughout the world.

This article focuses on the historical struggle for the realization of human rights in Poland. A focus on historical struggle indicates some congruence with a Marxist concern for “praxis,” although some of the struggle described opposes given forms of Marxist practices. I shall use philosophical and theological categories in the analysis of the struggle, while seeking to avoid an abstract understanding of human rights. An abstract approach to human rights in terms of natural law or an unmediated ontological relation between God and persons may ground their “inalienable” character, but contribute little insight into their social actualization.

The social reality of Poland is as rich a context for seeking to understand the role of the church in the struggle for human rights as one could hope to find. The role of the Roman Catholic Church in sustaining Polish identity and dignity during its partitions by Austria, Germany, and Russia from 1773 to 1917 provides the foundation for the struggle we shall analyze during the post-World War II period from 1945 to the present. The church's participation in its Communist-governed society during the last four decades, however, shall require our full attention. We shall allude to the earlier history only to help understand the contemporary social power of the Polish church.