Today, freedom and equality often seem in conflict. The planned Nazi March through Skokie and laws banning books which sexually exploit women are but two examples. This conflict is all the more troubling when equality and religious freedom collide, given their mutual and long-standing support. That dilemma is plainly raised by the Civil Rights Restoration Act of 1988.

Congress passed the Act to overturn Grove City College v. Bell. The Supreme Court in that case had narrowed Title IX of the Education Amendments of 1972, forbidding sex discrimination in education programs receiving Federal funds, to cover only that part of a recipient's program which actually received the assistance. Fearing this construction would limit other civil rights statutes as well, Congress adopted the Act which, in defining “program” broadly, placed most fund recipients in their entirety within the commands of Title IX and of the Age Discrimination Act of 1975, § 504 of the Rehabilitation Act of 1973, which prohibit age and disability discrimination respectively, and Title VI of the Civil Rights Act of 1964, which forbids discrimination by reason of race, color, or national origin.

Hence, Congress passed the Act to promote equality, but at the expense of religious freedom, since, aware that the Act would apply also to churches, Congress refused, nonetheless, to exclude them from its recipient-wide coverage. Whether the balance thus struck is constitutional frames the issue this essay will attempt to address.

Through a number of profound studies the Honorable John T. Noonan Jr. (on Scholastic Analysis of Usury, on Contraception. A History of Its Treatment by the Catholic Theologians and the Canonists, on Abortion and marriage tribunals) has made visible how relevant the study of the historical context is for any scientific approach to burning issues of “natural law.” What was said by Christian churches on ethical questions makes sense for us only if we give full attention to the historical context. This is also a principle for the study of ethical questions in the Bible. While the biblical scholars concentrate mainly on what a teaching meant in illo tempore hermeneutics turns its main attention to the present contest of reflexions.

The role of sharing experience and reflexion so central in natural law questions, as Noonan sees it, is also central for the worldwide ecumenical learning community of all Christian churches. And this is for the Christian churches an absolute condition for their dialogue with all people of our time; for Christians a prerequisite for their becoming light for the world, salt for the earth.

The dynamic relation between natural law, the theory of an objective moral order (or unwritten norms for human actions), and positive law, the legislation or statutes of a political community has become more prominent again. This article will explore the theory of Aquinas on the relationship between natural and positive law, which is still of great importance in the discussion. In particular, I will show how Aquinas' distinction between derivation and determination of positive from natural law resolves some of the conflicts between positive and natural law created by later scholastic distortions.

A systematic exposition of Thomistic natural law is particularly daunting, given the current controversies in interpretation, distortions which have arisen since the Middle Ages, and the many good theological critiques of the natural law tradition. Although I do not think that Aquinas' approach contains any fundamental flaw which renders the project inherently incoherent, I want to approach the topic from the side of positive law and thereby indirectly contribute to the rehabilitation of natural law theory. As I explain the purpose and scope of positive law as Aquinas describes it, some of the lines of a correct account may emerge. Beyond the historical and exegetical scholarship, this article will propose a framework which may be applied to some contemporary issues to test the implications of the Thomistic view of law.

I was struck by a problem that I think applies to some extent to my own presentation as opposed to yours, Dr. Neuhaus. It has to do with this. You welcome the challenge to the, as you put it, intellectual nihilism of elite culture that comes from resurgent religion. I wonder, is the commitment to resurgent religion that you welcome and the kind of response that has to be given to it? Or, is it the concept to which resurgents are committed that you welcome? Because, if it is the latter, I would have a great deal of difficulty with the proposition.

Well, I would say it is primarily the former, that they are playing this role of forcing certain kinds of questions which, if they continue to be neglected, are going to lead us into even deeper trouble than we are in. I would quickly add that there are certain aspects in the content agenda of resurgency religion in American life, which I am very sympathetic to, most obviously the pro-life question, questions of educational diversity, and the empowering of parents regarding the transmission of values and education through choice, and I could go on and on. These are things that I think are probably very good and that will, in an ironic sort of way, end up revitalizing the liberal democracy which many of these people at least formerly rail against, especially the liberal part of it, and which their opponents in the world think that they are defending—for shorthand purposes one can say these opponents are the world of the ACLU-Planned Parenthood-Norman Lear's People for the American Way.

You don't have to be a postmodernist—and I am not—to take the view that the reading of ancient texts by legal historians cannot be “innocent.” All meaning is constructed: texts do not “make sense;” we attribute sense to them. And the sense we attribute is in part a function of the resources we bring to that process. Necessarily, we bring culturally contingent assumptions. We may not be able to rid ourselves of such assumptions, and restore ourselves to that state of innocence which traditionally has been identified with “objectivity.” But we can seek to lay bare those assumptions to the maximum possible degree, so that we can subject them to some process of evaluation (a process, no doubt, whose own assumptions should be subjected, equally, to critical examination).

If we ask what kind of assumptions the legal historian brings to ancient texts, the most ready answer would, no doubt, be assumptions regarding typical models of legal development. We can certainly identify the operation of assumptions of this kind in the modern literature relating to biblical law. The argument of this paper, however, will be that it is not sufficient to confine ourselves, for this purpose, to “models of legal development.” That very notion encompasses more general issues—what is law? what is development?—which themselves fall for examination.

Tom Porter, talking to me about the substance of what you might want to hear, mentioned a series of articles in The Christian Century, by prominent theologians, called “How I Changed My Mind.” I remember especially Karl Barth's three contributions to the series, over a period of thirty years.

Ed Gaffney, years ago, introduced me to Barth—and did it with a perfect reference: to the prison sermons Barth gave when he turned, at least a little bit, from being a theologian and returned to being a pastor. Barth said the jail was his favorite pulpit. “There are but few theology professors,” he said, “whose sermon listener one can become only after having committed a serious violation of the civil order.”

My own changes of mind are not unique. I am one of a small group of law teachers who have, over the last thirty years, become clearer in formulating an Hebraic legal ethic. We are a minority who have become bolder. We owe such courage as we have located for that to modern pioneers, most notably Harold Berman, and, more lately, Emily Hartigan. What has changed most for us has been the clarity of our public witness; the substance all along has been old-time religion. When I say “clarity” I mean that we have come to see this substance in our work, more than we did in, say, 1970.

It is hard to have a casual discussion on the issue of “religious liberty” because discourse on the subject is often highly charged, and rightly so. The stakes involved are weighty, and they include such fundamentally important matters as the individual's personal and immediate accountability to God, the Church's mission to preach the gospel, and responsibility to maintain purity of conscience and conduct at all levels. One's views on religious liberty also affect the way one understands relations of morality and law, of ethics and human government, and tensions that arise between the moral purposes of government and moral limitations that should restrain the state's use of coercive power.

Upon examination, the term “religious liberty” includes several different foci that can, and very often do, result in contrary views regarding the concept itself. Thus, while they are debating or defending “religious liberty, ” it is easy for parties to talk past one another so completely they may find themselves agreeing or disagreeing, and supporting or opposing one another, for reasons unrelated to the actual circumstances with which they think themselves engaged. Lack of clarity at critical moments of negotiation can be embarrassing, but may even become dangerous, if mis-understanding by one party is used to manipulate acceptance of measures that should be opposed, or if blind assumptions obscure opportunities by which opposing factions might otherwise reach agreement. It is precisely because religious liberty concerns are so charged that the subject must be approached with a careful understanding of how the term is intended in a given circumstance.