By Kevin Leininger
Jay Sekulow of the American Center for Law and Justice — perhaps the best-known opponent of the ACLU’s crusade to strip manger scenes and other religious expressions from the public square — calls Supreme Court nominee Samuel Alito a “grand slam” for conservative Christians.
Barry Lynn of Americans United for Separation of Church and State, meanwhile, fears President Bush’s choice to succeed Justice Sandra Day O’Connor will “kowtow to the demands of the religious right. The country deserves a justice who will protect the rights of all Americans.”
So as Lutherans, should we support — maybe even pray for — Alito’s confirmation?
Tim Goeglein, an LCMS member and special adviser to President Bush, has no doubt. “I’m very comfortable with his views, and his votes [in the past] have been consistent with the Founders,” he said. “Judge Alito is a stellar candidate.”
Before cheering Alito’s reputed fidelity to the Founders’ “original intent,” however, we should ask that most Lutheran of questions: What does this mean?
Despite the left’s insistence that Alito and other federal judges strictly enforce “the constitutional wall of separation between church and state,” that phrase is not in the Constitution at all. The language comes from a letter written by Thomas Jefferson to the Danbury Baptist Association in 1802, and was included in the Supreme Court’s 1947 decision in the Danbury case, which ruled in favor of state subsidies for transportation of parochial-school students.
But if the Constitution doesn’t explicitly outlaw the singing of Christmas carols at public schools, what does it say about religion?
Actually, the First Amendment devotes just 16 words to the subject: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first 10 words — the so-called “Establishment Clause” — prevent Congress from forming a Church of England-style national religion. The last six — the “Free Exercise Clause” — guarantee Americans the right to worship in their own way. (When the Constitution was ratified, of course, some states had their own “official” churches. The Bill of Rights applied only to the federal government — “Congress” — until the Supreme Court extended its reach to the states in 1925.)
In his 15 years on the 3rd U.S. Circuit Court of Appeals, Alito has had several opportunities to reconcile the two clauses. In 1999, he upheld the constitutionality of a Jersey City “holiday” display that included a variety of religious symbols. And just last year he upheld a ruling that allowed a child-evangelism group to participate in “back to school” night. “School authorities,” he wrote in a 2000 case, “are not permitted to discriminate against student expression simply because of its religious character.”
Alito’s church-state philosophy seems clear and consistent: Government should not promote one religion over another, nor should it find a loophole in free-speech guarantees when God enters the discussion.
The good news for Americans is that Alito’s philosophy appears to be consistent with the Constitution. The good news for Lutherans is that it’s also consistent with our understanding of Scripture.
Martin Luther, in fact, could be called one of history’s first advocates for the separation of church and state — and for good reason. Luther was concerned about far more than acknowledging a “god” in the Pledge of Allegiance. To Luther, it was literally a matter of life and death. To challenge the pope and his church, as Luther did, was also to challenge the state, with possibly fatal results.
“There has been great controversy about the power of bishops, in which some have terribly confused the power of the church with the power of the state,” the Augsburg Confession states. “This confusion has produced great war and riot. … Therefore, our teachers, in order to comfort people’s consciences, were constrained to show the differences between the authority of the church and the authority of the state. They taught that both of them are to be held in reverence and honor, as God’s chief blessings on Earth because they have God’s command.”
As Luther himself said in 1539: “The difference between ecclesiastical and political power is to be well observed. For the power of the church consists in preaching the word of God, consoling afflicted consciences by absolution and excommunicating the impenitent, without inflicting corporal punishment. But the political power bears the sword, because it is an administration which handles the guilty by laws and honest judgments.”
This Bible-based rationale is the foundation of Luther’s “two kingdoms”: the kingdom of the left hand (the secular world ruled by government) and the kingdom of the right (ruled by God and His church). As outlined in the “table of duties” in the Small Catechism, Christians should obey both unless man’s laws conflict with God’s, rendering “to Caesar the things that are Caesar’s, and to God the things that are God’s” (Matt. 22:21).
In other words, Lutherans should neither expect nor want government to impose Christianity on Americans. The Constitution says such a thing would be unlawful, and Scripture says it would be impossible. Faith cannot be imposed; it is a gift of the Holy Spirit.
To be sure, there is nothing wrong with America’s “civic” piety. We pledge allegiance (until the ACLU tells us otherwise) to “one nation under God,” and use currency boldly proclaiming “In God We Trust.” But the generic deity acknowledged by our religiously diverse government should never be confused with the real thing.
The faculty of Concordia Theological Seminary in Fort Wayne explained it well in its 2003 statement on “Religious Pluralism and Knowledge of the True God”:
“Recognizing the differences between Christianity and other religions is sometimes seen as intolerance. Quite to the contrary, tolerance supports the freedom of religion that allows us to confess the truth of Christianity against all other religions. We both respect the right of other citizens to believe and worship differently, and reject attempts by any religion to impose itself on other citizens with the help of the government. … Freedom of religion in the civic realm allows the missionary proclamation of the Gospel.”
Precisely. If the Roman Catholic Alito is faithful to the Constitution, he also will be faithful to Scripture and, ironically, to Luther. Only people who want theocracy — or consider