The law is all around us, in many different forms: constitutions and statutes, rules and regulations, executive orders and court decisions. Together, these different parts of the law – what lawyers and legal theorists call "positive law" – determine our daily lives by balancing the rights we have as individuals with the responsibilities we have to ourselves.
Positive law, as the lawyer theologian David Opderbeck explains in Law and Theology, is a multifaceted human creation that rules a specific place at a specific time. And how does it rule? Power. Someone who breaks positive laws – for example by breaking a contract, driving drunk, or killing someone – faces a variety of government-sanctioned consequences: loss of money, loss of freedom, and even loss of life.
Our place in the midst of the positive law changes frequently, and most of the time we barely notice when these changes occur. But sometimes positive changes in the law require a major reorganization of our lives.
As I write this during the COVID-19 pandemic, emergency and local executive orders are preventing my home church in New York City from praying together in person. Unimaginable just a few months ago, these assignments show the constantly changing balance between law and responsibility.
All too imaginable were the murders of George Floyd in Minneapolis, Breonna Taylor in Louisville, and Rayshard Brooks in Atlanta, violence in the name of law enforcement. Her death sparked a long overdue reckoning that calls on white Americans to break generations of systemic racism.
The end of the US Supreme Court term each year brings important positive law statements as well, and this year was no exception. The court recently ruled several cases involving hot button issues, including abortion, birth control, and LGBTQ rights.
Opderbeck's book describes the theological foundations of positive law and helps Christians locate our current circumstances when dealing with positive law – both headlines and secular. Opderbeck examines how the narrative arc of Scripture and Christian intellectual tradition imply "the law," and he formulates a constructive theology of law in which "the essence of the law is almost never a question of absolute absoluteness," but still one Tool that "can help create the conditions for freedom, equality and human prosperity".
Contingency is a key feature of Opderbeck's study. He understands creation as an accidental act of divine love and explains the allegory of Eden as “God entrusts humanity with the purpose of engaging in fruitful, creative activities that will make the earth even more beautiful than it was at the beginning. "God's commandments serve the law of nature, that is," principles of right relationship built into creation "because" life that contradicts these principles is prone to disorder, chaos and violence ".
Because “God relates to humanity in history. . . Divine commandments to mankind also show a considerable degree of contingency. "God's commandments are given to" certain men or forces acting in time and in history "and they" facilitate his mission, but the commandment is not the mission ". Rather, the commands are aimed at "structuring relationships between humans, between humans and other parts of creation, and between humans and God until all purposes of creation are fulfilled and the union of these relationships is restored".
Consider the hundreds of divine commandments contained in the Torah, including the commandment that "a persistent and rebellious son who disobeys his father and mother" should be stoned to death by the men of the city (Deut 21: 18-21)). Commands like these are literally a stumbling block to our understanding of divine love. But the context is important. Talmudic scholars have interpreted this order to mean that they want to curtail the otherwise one-sided power of the head of the family by demanding some kind of trial before the city elders. Understanding the contingency of this command and others as it is is essential to understanding our proper relationships with others as well as with the divine.
Almost three millennia later, what does this theological narrative have to do with positive law? It shows the contingency. If God's commandments to the people of Israel are dependent, the positive law – the commandments of civil authorities – must also be dependent. Opderbeck explains: “Positive law is a human cultural product. . . expressed in human language ”, and it“ deals with specific human circumstances that involve competing end values. "As a result," no dispute about a particular rule of law is in itself ever a dispute about "absolute truth". "
This is a bold claim, and Opderbeck is quick to qualify it. While disputes over certain legal rules often ultimately imply questions of absolute truth, "including very important moral truths embedded in natural law", the specific legal rules "always relate to a very specific context". To understand this context, it is often the case that "a set of legal rules refer to competing, apparently contradicting higher principles" that "require some kind of compromise, not just with other people who have different ideas" in order to balancing these principles "but also with the reality of our circumstances."
How should we balance different values? Although Opderbeck does not quote Micah 6: 8, the words of the prophet are difficult to improve: "What does the Lord ask of you as righteousness, to love goodness and to live humbly with your God?" Each of these values is embedded in Opderbeck's legal practice.
Positive law as a human creation can never be perfect, but Opderbeck draws on liberation theology to understand that “when resources and opportunities are distributed within a society in a way that fundamentally limits the ability of some people to function as human beings 'There could be a failure' – one that can be tempered through political action by moving positive law towards justice. Opderbeck relies on goodness or mercy shared by God's covenant love, "not just a superficial recognition of the law" to love one another, "but the internalization of its principles". The contingency of positive law also requires that we view it with humility and identify the possibility that we can maintain or exacerbate the oppression.
Where are we today? Most of our interactions with positive law are what Opderbeck calls “legal practice in ordinary times” – the nondescript material that preoccupies most lawyers and judges. Because the Church is not a temporal nation and does not seek temporal power,
The Church's primary interest in positive law in a historical context is merely to support the structures and institutions of a functioning legal system in which at least some reluctance to grave violence, a principle of consent of the governed, and some commitment to prosperity consists of creation, including created humanity, and some space for the institutional life of the church.
At the present moment, however, these minimum requirements for positive law contradict what Opderbeck calls the first “big question” of American law: institutionalized racism. It initially took the form of slavery, and Opderbeck focuses not only on the legal structures embedded in the United States Constitution and the slave codes of the southern states, but also on the theological arguments that have been put forward to justify and prolong this system of oppression. These theological arguments – what historian Mark Noll calls the "theological crisis" of the Civil War – are appallingly deserted for black Americans. They were engineered precisely to converge with the interests of the slave owners in order to establish and maintain systems of oppression. One lesson here, Opderbeck said, is humility, "a cautionary story about how social, political, theological, and biblical views can grow together into a system that justifies oppression."
After the Civil War, many white Americans undermined the dismantling of slavery and the newly amended constitution's guarantees of racial equality by translating Jim Crow's discrimination into positive law. While Opderbeck acknowledges this by describing the Supreme Court's "separate but equal" doctrine that upheld racial segregation, he does not link these legal structures to the systematic disenfranchisement of black Americans in the South in the form of electoral taxes, grandfather clauses, literacy tests and intimidation of voters. It was naturally prevented from consenting to those subject to the law.
Such a connection would have made Opderbeck's close reading of Martin Luther King Jr.'s "Letter from Birmingham Prison" even more powerful. King wrote the public letter to "moderate" whites, including other ministers, after engaging in peaceful civil disobedience: public protest against an order given by a compliant local court to segregationist Sheriff Bull Connor. King disapproved of moderates' demands for patience as "committed more to order than justice". He noted that "for those who have never felt the stabbing arrows of segregation, it is easy to say," Wait … There comes a time when the cup of perseverance will overflow and people will no longer be ready to plunge into the abyss of despair. ”In Opderbeck's words, liberation struggles can“ only be understood through the experience of the oppressed ”.
That experience is reflected to this day due to the end of formal legal separation: not racial equality, but legal scholar Michelle Alexander, who New Jim Crow calls, the continuation of a caste-like system that unequal black and brown Americans from law enforcement, social control, violence and death. The experience of the oppressed continues to show where positive laws require change. And in Opderbeck's words: "The church cannot stand on the verge of changing the law if it really loves the oppressed."
Opderbeck closes his section on race not with an example of the Church loving the oppressed, but with Bob Jones University's longstanding policy of prohibiting the practice or promotion of interracial dating or marriages under threat of expulsion. A Nixon-era Internal Revenue Service ordinance resulted in the university's tax-exempt status being revoked under the guidelines, and the university challenged the IRS ruling in the Supreme Court.
While Bob Jones University wasn't banned from enacting the policy (and actually didn't reverse it until 2000), the federal government wasn't forced to subsidize donations to a racist institution either. Opderbeck uses this case to illustrate the tension between church and state that can allow the two to coexist: the church's right to be countercultural on fundamental moral issues – and yes, wrong.
However, the Church's involvement in grave errors immortalized in Christ's name on the first “great question” of American law should also humbly point us to the testimony of the oppressed when referring to the second and third laws, abortion and LGBTQ, reply. Opderbeck calls on Christians to “reflect on the historically enormously disproportionate burdens women have borne during pregnancy and bringing up children” and “to sit at the table with their LGBTQ neighbors and try to hear their stories”.
Many churches not only listen to this testimony but also work to dismantle structures of misogyny, homophobia and transphobia. But not all do, and much of this section is a challenge in convincing Christians not to re-affirm their Christian identities with their opposition to abortion and LGBTQ rights.
Several of this year's Supreme Court cases, ruled after the publication of Opderbeck's book, point to a common theme in Opderbeck's legal practice: the uncomfortable balance between the individual rights recognized by positive law and the rights of religious institutions and believers to exercise those rights to oppose.
The landmark decision on LGBTQ rights that year was made in Bostock v. Clayton County, Georgia and its accompanying cases filed by individuals (or their estates) dismissed for their sexual orientation or gender identity. The applicants argued that Title VII of the Civil Rights Act of 1964 prohibited discrimination "because of. . . Sex “includes sexual orientation and gender identity. As Judge Neil Gorsuch stated on behalf of Court Decision 6–3, an employer who discriminates against workers on the grounds of homosexuality or transgender status "deliberately discriminates against individual men and women on the basis of gender," which is prohibited in Title VII, "simple terms."
Many religious institutions and religious leaders welcomed the results of the decision as promoting human dignity and enabling people to thrive by being fully in the workplace. Other faith leaders weren't that positive.
Archbishop José Gómez of Los Angeles, President of the Conference of Catholic Bishops of the United States, described the decision as "redefining human nature" and "eliminating the beautiful differences and complementary relationships between men and women". RR Reno, editor of First Things, wrote that Bostock "put our law on a collision course with human nature," suggesting that the case "was the twenty-first century analog of Dred Scott, the Supreme Court decision making the The US's southern slave regimes imposed across the country and contributed to the intolerable contradictions that led to the civil war. "
Opderbeck's legal practice would suggest otherwise. Opderbeck compares the rhetoric in our nation's history and describes "a grim story in which conservative Christians in America stood on the side of an oppressive, dominant culture in the name of religious freedom". He explains:
At every step in the history of civil rights in America – from slavery to the reconstruction-era black codes to desegregation and the modern civil rights movement – conservative Christians argued that their religious views about the right place for blacks should be preserved against interference with laws promoting racial equality. Conservative Christians today respond that sexual orientation is different from race. Whether that is so or to what extent it is, this story should chastise us painfully.
Even Justice Brett Kavanaugh's dissenting opinion recognized "the strong political arguments" put forward by LGBTQ Americans as they "fought for actual and legal equality for decades" and during that time showed "exceptional vision, tenacity and determination". While he used a different method of interpreting the text of the Civil Rights Act, his rhetoric did not hint at the parade of the terrible that some critics of the opinions had made.
In addition, religious freedom was arguably stronger than ever in the past tenure, even in the area of discrimination in the workplace. Another pair of cases, the School of Our Lady of Guadalupe versus Morrissey-Berru and the St. James School versus Biel, concerned teachers at Catholic schools who were dismissed for age discrimination or medical disability. In a 7-2 ruling, the court applied a broad "ministerial exception" to laws on discrimination in the workplace when the duties of workers included teaching religious doctrine.
When Opderbeck describes an earlier case involving the ministerial exception, Hosanna-Tabor Evangelical Lutheran Church and School Against Equal Opportunities Commission, he writes that he “at least found a working balance between the rights of religious organizations and the convictions of society in relation to it on a broader society establishes LGBTQ rights, "and this means that churches and ecclesiastical organizations are free to express moral views that the broader society may consider wrong."
These decisions suggest that in the near future this will indeed be the path of adjustment between the competing values anchored in these issues. A pluralistic society is chaotic. Within such a society, Opderbeck advocates a theology and practice of “patient presence and commitment” that, like Jesus, listens to the voices of the marginalized in our society and joins them at the “great banquet” both on earth and on earth as it does is in heaven.
The final word would go to Aimee Stephens, who was fired from her job in suburban Detroit because she joined her boss as a transgender. In her coming-out letter to her boss, she wrote about feeling "trapped in a body that doesn't fit my mind, causing me great despair and loneliness," and promised "as my true self to work." to return". Stephens, who was the applicant in a companion case to Bostock, died five weeks before her justification in the Supreme Court. The epitaph on her headstone, chosen by her wife and boyfriend from childhood, reads: "Civil Rights Leader".
A version of this article appears in the print edition under the title "The Law in Our Lives".