Legal Rights and Christians in the Public Square

Darrell Bock:

Welcome to The Table Podcast where we discuss issues of God and culture, to show the relevance of theology to everyday life. I'm Darrell Bock, executive director for cultural engagement at the Hendrick Center at Dallas Theological Seminary. And my guest today is Johnny Buckles, I'll be introducing him in a minute, and our topic is the Christian, the law and the public square. Put those three together and see what happens. So, Johnny, it's a real pleasure to have you with us, let me introduce you. Johnny Buckles joined the University of Houston Law Center faculty in 2000, so he doesn't play basketball, okay? But he is very connected to the University of Houston. He's taught many courses including the Law and Theology, and courses in tax law, that's an interesting combination. So, if you don't have your debts to God in order, at least you'll have your debts to the country in order.

Most of his scholarship is accessible on his SSRN author home page, Papersssrn.com, and then there's a whole lot of stuff afterwards, we'll just post that rather than my trying to go through it all. You hold a JD from Harvard Law School, an MABS from Dallas Theological Seminary, and a bachelor of science degree from Oklahoma State University. You're married to Tammy, and they are blessed parents of Annie and Rex. Your home church is Woodridge Baptist Church, where he teaches an adult Sunday school class. Thanks for being with us, Johnny.

Johnny Buckles:

Thank you for having me, it's my pleasure.

Darrell Bock:

Well, we always ask our guests this question first, how did a nice guy like you get into a gig like this? Explain how... Well, I guess the way to explain it is, explain how law, theology, and Johnny Buckles got together so that we can talk about Christians in the public square.

Johnny Buckles:

Okay. Well, that's fair enough. It could probably take an entire podcast just to tell you that part of the story, Professor Bock, but it really starts out in the Oklahoma farming and ranching community of Woods County, Northwestern Oklahoma, I grew up a farmer and rancher, and figured out by the time I was in sixth grade that I wanted to be a lawyer. Yeah. Now, my idea wasn't exactly what it came to be for me, I sort of had the image of Perry Mason or the local hometown lawyers, I suppose. But I wound up majoring in accounting because people told me that it would go well with a law degree, then when I was in law school, after doing some research at a law firm over the summer, I realized that tax law really was what interested me.

So, once I graduated from law school, I went to Dallas, I worked at a large firm, it was then called Thompson and Knight, it has since merged, and then after a couple years of full-time practice in law school, I approached my firm with the unusual request of reducing my hours a bit so I could go to seminary part-time. So, I went to Dallas Seminary, your home institution, part-time, for four years, it was a two-year program, took me four years because I continued to practice law. I did that because I wanted to be better grounded in evangelism. Well, when I was studying theology, I realized how many conceptual parallels there were with my legal studies. And I wasn't exactly sure what it would look like when I graduated from seminary, I felt I wanted to be better grounded in evangelistic ministry, not knowing what that would be, and after knocking on a few doors after graduating from seminary, and continuing to practice law, it looked like that the academic route might be the option for me.

And I received the job offer from University of Houston a little after a year having finished seminary. And so, beginning in 2000, the fall of 2000, I started work at the University of Houston Law Center, I've been a full-time faculty member since then. So, my background in practice was tax law, with special expertise in the law of tax-exempt organizations. So, I worked with a lot of nonprofits, and that would include of course that body of law that's relevant to religious organizations, as well as other charitable organizations, and so when I took the job at Houston, they needed not only tax law classes but also trusts and wills, which in a way is pre-estate planning, which is very tax intensive, and then I told them, as the course I got to choose, that someday I'd like to teach law and theology.

Well, I had only been here two or three years when the then associate dean said, "You remember how you said you want to teach law and theology? We don't have anybody teaching law and religion, I'd like to encourage you to do that sooner than later." So I just made up the course, and I've taught law and theology a great deal since then. So, I teach the basic tax class, the taxation of exempt organizations class, estate planning, sometimes trusts and wills, sometimes contracts, and then I teach the law and theology class a lot as well.

Darrell Bock:

Well, that has me fascinated. So, if I were to sign up for the law and theology class, what would be likely to discuss, or maybe let me ask this question first, this is a terrible thing to do as an interviewer is to switch on you midstream, but talk about, you said there was an overlap between law and theology, talk about that a little bit, what do you see as the overlap between law and theology?

Johnny Buckles:

Well, that's a great question, there are so many overlaps, but I'll talk about some of those overlaps that we address in the course. Probably the most basic overlap is at the very fundamental level of interpretation.

Darrell Bock:

Yeah, hermeneutics.

Johnny Buckles:

Yes, hermeneutics, that's right. Well, in seminary I learned about how to interpret the Bible, I took the class with Professors Bailey and Hendricks, and I realized that there were a lot of principles that we were talking about that had parallels in the study of law. So, principles for interpreting a biblical text have parallels when you study principles for interpreting a legal text, whether that's a constitutional text or a statutory text. And some of the debates that exist in the biblical field of hermeneutics have similar kinds of debates in legal interpretation. Sometimes the way that you come out on hermeneutical principles in approaching the Bible are similar to the way you may come out when interpreting a legal text, but sometimes they may be different, because there are some similar assumptions, but there are also different assumptions that you bring to the table. So, that in and of itself is one area, and that happens to be an area that we look at in the law and theology class.

Then other concepts that I saw were similar in seminary would include these, concepts of causation. So, we talk about causation when we talk about biblical doctrines, when we think through election, and predestination, and the exercise of free will, these involve concepts of causation. There are concepts of causation in the law as well, in the criminal law, in the law of torts. There are concepts of justification, excuse and pardon that are pretty obvious in the study of theology, but there are also concepts of justification, excuse and pardon in the law. And then, another overlap is the concept of culpability. So, what does it mean to be a sinner? What is the nature of sin and guilt in theology? And similarly, what are concepts of blameworthiness in the law? These are some of the examples of the conceptual parallels that I saw, so in the law and theology class, we address these conceptual parallels, and then I've found other areas of commonality, and we talk about them as well in the law and theology class.

So, what about the doctrine of the Trinity? Can you imagine any relevance of the doctrine of the Trinity to law? Well, it turns out that there is a jurisprudence piece that examines the question of whether Dorothy Sayers, Mind the Maker has any relevance to the process of, arriving at the law judicially. And we expand that inquiry a little bit and we have a day called Analogical Trinitarianism. We also look at some doctrines of creation, the doctrine of creation, and see what kind of relevance that might have to the law. So, there's another jurisprudence piece that looks at the doctrine of creation, and what that implies about the limits of human judging, and then we also have a day that looks at some of the ways the doctrine of creation has surfaced in disputes, constitutional disputes in the courts, going back to the old debates over evolution, up through the more contemporary discussions of intelligent design in the public classroom.

Of course, we couldn't do a class, a whole course, without at least touching on the constitutional issues. So, Dr. Bock, we both look at what the constitution has to say about the establishment of religion, and about the free exercise of religion, and then also look at church and state from a historical theological perspective, and then we have a day discussing more philosophical ideas of public morality that relates to religious-based morality, and what's appropriate for religious-based morality in the public square. And then, we just do a few isolated topics that people might think of when they think about a course on law and theology, so we look a little bit at marriage in law and theology, we look a little bit at questions of human life and dignity in law and theology, and then usually we have as the last day a discussion of evangelicalism and other religious views as they might come under attack in the process of confirming people to public office.

Darrell Bock:

So, let me pick out a few of these topics and just get you to elaborate on what you tend to highlight. I want to come back to hermeneutics in the way in which we interpret texts and discuss that, and then I want come to separation, what's often called separation of church and state issues, that kind of thing. And then, we'll talk about out discrimination in religion, and also how the law treats religion in general, not just Christianity. So, I think those are the three buckets I want to explore with you as we think about the Christian and public space. Let's talk first about interpretation and hermeneutics, and I'm not quite sure how to ask this question, so I'll just give it a shot and see what happens.

In theology, we have a discussion that rotates around authorial intent on the one hand, or might be interpreted in a legal context, original meaning might be another way of saying the same kind of thing, versus the idea of the law being designed in such a way that it responds to new contexts and is able to have, and I'm going to use a metaphor, is able to have some breadth, and breathing, and how it relates to new circumstances and that kind of thing. Standard tension in hermeneutics, even in the context of theology, because we have texts that are to some degree open-ended, and I think of the Psalter, for example, in which we're not just replicating the experience of the psalmist, but the psalmist is having a kind of experience that the reader is supposed to connect to and identify with. So, talk about hermeneutics and the challenges of hermeneutics from a legal point of view with an eye to how theology does what it does.

Johnny Buckles:

Yeah, great question. So, when you are trying to interpret a legal text, you really have to look at what kind of text you're talking about. Are you talking about a judicial opinion, which always resolves a particular dispute but is accompanied by a rationale that likely has much broader implications than simply resolving the specific legal dispute in question, so that's one area of the law that has a way of approaching it when you're trying to interpret what the case means. Then, there is the matter of interpreting statutory text, so that's the result of the legislative process. So, you think about when you were a kid and watched the TV commercial about how a bill becomes the law, that's the idea of a bill originating in Congress and going through the amendment or the modification process, getting to a result that gets to the desk of the president, then if the president signs it becomes a law.

And then, a distinct type of legal text, of course, would be a constitutional text. So, in the case of the federal government of the United States Constitution. And really I think that you will find over history that there are different approaches that have been used in interpreting these three bodies of law, and they're not always consistent, as among each one. I'll focus on the current court. So, let's talk about the current court as it is constituted, and let's talk about the Constitution, let's begin there. So, a majority of the current United States Supreme Court is influenced by a methodology of interpretation called originalism. And the idea is to try to expound the meaning of constitutional text in accordance with what the words meant when the Constitution was ratified, and there will be an effort to try to determine the original public meaning of that text.

So, it's not so much a matter of counting up the heads of people that were involved in the drafting process, it's not so much a matter of trying to take a poll of whoever it is that voted to ratify the Constitution, it's a bit more of an abstraction as to what was the original public meaning of the text at that time. And then, as to current applications, well, the idea of an originalist methodology would be the words themselves don't change in meaning over time as the world changes. Now, the application of those words will have to be questioned in the face of a changing world, but the meaning of those words won't be what changes. So, that's the originalist way of approaching a constitutional text. Now, originalism has not dominated the entirety of the Supreme Court over the course of its history, you will read opinions where the court was more influenced by changing norms, more willing to see development and adaptability in the way the Constitution should be interpreted over time, in an effort to try to update the Constitution without formally amending the Constitution.

Now, of course, originalists object to this way of approaching a constitutional text, for an originalist, if you think the constitution needs to be changed in order to fit changing times, there is an amendment process. It's hard to get through, but there's an amendment process, and that's what you should do if you think the Constitution needs to be changed. I suppose that one of the reasons that different courts and different periods of our history have been willing to see more adaptability in the meaning of the Constitution is partly because of the nature of a constitution versus the nature of a statute, and partly just because of the Anglo legal tradition from which we come, that has employed a different kind of approach of lawmaking when we're talking about cases.

So, as to the first, those who prefer a more evolving way of interpreting the Constitution would point out that a constitution must by design be a governing document that lasts across time, legislature after legislature after legislature, and it doesn't make sense in their view to see the Constitution as absolutely fixed in all particulars, insofar as it's not a statute that if Congress wants to change it, fairly readily, can at least in theory do. So, they would argue that the very nature of a constitution is different from the nature of a statute that's passed by a legislature with greater ease than a constitution is amendment, to make the argument that there needs to be more flexibility for evolving interpretation of constitutional text.

Then the second point I made about how another justification sometimes offered for that more evolving notion of constitutional interpretation draws upon the Anglo legal tradition. So, the common law was judge-made law, and in the United States we piggybacked off a lot of the English common law. Now, we didn't accept everything, but we accepted a fair amount of the English common law, and the way that worked was just through the resolution of cases as they came before judges, and decisions decided by later judges would draw upon the holdings and inside of prior cases. And so, over time you had this entire body of the common law that was judge-made law. Well, there are some who think that the judicial function that's referred to in our United States Constitution imagines this kind of case-by-case evolving jurisprudence that draws upon the common law tradition.

So, what we have then is different notions about how the constitution should be interpreted, more of an originalist methodology that looks to the original meaning, or more of an evolving notion that borrows on just the distinction between the constitution and a statute, and then the legal tradition of the common law. I would say one more word about statutory interpretation, so different judges have also approached statutory interpretation in different ways. The current court is heavily influenced by textualism, but I don't think all textualists agree on how to resolve a particular dispute, and just because the current court is influenced by textualism doesn't mean everybody's the same kind of textualist.

And so, I would say that those that are associated with the tradition of the late Justice Scalia find meaning primarily in the text and are loathe to look at authorial intent in certain locations, like committee reports. The late Justice Scalia was famous for rejecting the need to try to probe for authorial intent in legislative histories. Now, that doesn't mean they will look only at the text, many will also look at not just dictionaries, but also at the way language is used at the time a statute is enacted, they will look to what appears to be the overall statutory design, the historical occasion for the statute, and so forth, but they do look most closely at the text, and some are less willing to find ambiguity in the text when it is suggested by historical context than our other judges.

So, I imagine that when you hear me give this overview of differences of opinion on legal text, you see immediate parallels in the biblical field of hermeneutics, and the degree to which historical background should be invoked to try to even find ambiguities in the first place, let alone to resolve ambiguities, and also just very fundamental questions about whether the inquiry is really about, well, what did the text mean when it was first written as opposed to, well, are we going to really bind ourselves to the meaning at the time? You see obvious parallels.

Darrell Bock:

Yeah, and the fascinating part of this, of course, is that text come from a mind or from a corporate mind, they don't come, the words don't inherently have a meaning, they have a context that they operate in, and they are the expression of concepts that you're applying. So, I sometimes pause at the hesitation not to look into the background, as if the words are magic, if I can say it that way, because it seems to me you need some sense of context in order to understand what you're going to deal with. And then, of course, in some cases you have laws or principles that are written, that don't envisage the situation as it now is. I tell people, so when the constitution was written, what kind of laws dealt with television?

Johnny Buckles:

Yes. Well, you put your finger on I think a couple of very good issues to consider. So, you mentioned context, one way of conceptualizing differences of opinion in interpreting the constitutional text, or a statutory text, one way of interpreting those differences of opinion is to say that, well, those who differ really have a very different idea about how much context is relevant, and how much weight to put on various contextual elements. I think that's-

Darrell Bock:

And theology is exactly the same way in terms of background.

Johnny Buckles:

Yes. So, see, you can see why you would want a course like this, why this would be a topic to talk about in a course called Law and Theology, because you have those same issues. And then you also have those same kinds of issues you mentioned in the second part of your response, and that is, well, what about when you've got a biblical principle that applied in one context and the context is just radically different, that the biblical author didn't even have a situation like this in mind. And you have the same kinds of problems in law, you absolutely do. Now, one thing that is worth noting is that you can't go back and rewrite a constitution, just as you can't go back and rewrite a biblical text. We do have a process for amending a constitution, at least you and I think the Bible should not be amended, although I'm not sure everybody does.

Darrell Bock:

Fair enough.

Johnny Buckles:

But for a statute, see, it's at least theoretically easier to amend a statute.

Darrell Bock:

Sure.

Johnny Buckles:

So-

Darrell Bock:

Because you can write a new law, right?

Johnny Buckles:

Right.

Darrell Bock:

Yeah.

Johnny Buckles:

It's much harder to amend the Constitution. So, you could argue that the principles for interpreting each should not necessarily be exactly the same because of the different nature of those documents.

Darrell Bock:

And I really appreciated the way you started this out by saying, well, there's the Constitution, they're the laws, which are in one sense governed by a constitutional oversight, but the laws are a separate category, and then there's, for lack of a better description, judicial opinion. And when I get to judicial opinion, I just smile, because I watch judges who are all legally trained, and have developed the skill of being articulate lawyers, look at the same set of facts and come up with very different opinions about what to do with that same set of facts.

Johnny Buckles:

Yes. And Professor Bock, do theologians do the same thing?

Darrell Bock:

Yeah, theologians very much do the same thing for many of the same kinds of reasons. And we see that. And then there's, of course you have something in law that I don't think you have in quite the same way in theology, and that is the theoretical value of precedent. In other words, judgments that have gone before in a different area that set the parameters for how you should think about the particular case that you are on. The closest thing that we have to that in theology is however people view what we might call theological tradition.

Johnny Buckles:

That's exactly right, that's what I was going to say.

Darrell Bock:

And so, I have a brother who's a lawyer, and I have a son who's a lawyer, so I'm surrounded by lawyers, and we actually have these conversations ourselves, between theology and law and the similarities and the challenges of interpretation. And there are some issues that are sufficiently complex or sufficiently novel, depending on what you're dealing with, that thinking through the reasoning of how you put the whole package of everything that's available together for you to look at might produce some difference of opinion, that has to be worked through and thought through.

Johnny Buckles:

That's right. That's exactly right. Just as in theology, there is room for reasoned judgment in reaching conclusions, the same is true in law. There's not always a clear answer. That's one of the first thing that law students are taught, is that you have to be able to look at issues from multiple perspectives, and sometimes we're not comfortable with this point, but there are plausible alternatives often. It doesn't mean that one alternative approach is not superior once you work your way through all of the factors in your mind, but it still will often be the case that multiple positions are at least plausible, and of course, you try to reach the one that you think is the most reasonable position.

Darrell Bock:

And this gets at something that we talk about a lot in our podcasts and at the center when we're thinking about public space and public dispute, and that is when I'm in a conversation with someone who I know I don't agree with, it's really important first to be a good listener, to actually understand the nature of the conversation that you're having, and the nature of that disagreement before you move in and try and assess that disagreement. And many people leap to assessment is what I like to say.

Johnny Buckles:

Yes, that is true in law as well. In this very area that we're talking about, the interpretive methodologies, I see how an advocate for one side will sometimes do a caricature of the other side. They will set up, if they're not straw men, then they're at least stick men. They're not really the best representation of the other side. Now, sometimes one side through cavalier flippant remarks will set themselves up for that type of attack, but sometimes it's not that at all. Sometimes it's more of one side just reducing another side to absurdity, and then destroying that. That's not a good way to advance a position, and it really doesn't help you get to what is the best answer on a particular problem. It's better to do what you are saying, this is always true, and it's equally true in law, make sure you understand the exact argument of someone that you think has a different perspective, not only so that you will be able to adequately address them, but also, and I shutter to think, but that you might learn something.

Darrell Bock:

Exactly right. Yeah.

Johnny Buckles:

And even adjust your own position.

Darrell Bock:

Exactly. The tweaks, I don't have to switch sides in order to be open to the possibility that the view that I have may need some tweaks here and there.

Johnny Buckles:

That's correct.

Darrell Bock:

Well, okay, we'll have exhausted people on hermeneutics if we keep going down this road, let me shift to another one, the separation of church and state. And when I come to this one, I step back because I am aware of really what I would say are at least three different models in the West about how to deal with separation in church and state. So, I like to distinguish between the way... Well, actually there are four, although the fourth one is kind of muddled today. But I like to distinguish between the way the US handles the issue, the way Britain handles the issue, the way France handles the issue, and the way Germany handles the issue. And let me walk through this and then you can comment.

So, in the US we have a form of separation of church and state in which religion can be expressed, it can be expressed in the public square, but the question becomes the establishment of religion, that's the line. In France, go to the other end of the spectrum, in France, religion has no rights in the public square, it is prohibited. So, when the burqa was outlawed, for example in France, the rationale was that, well, we don't endorse any religious expression in public space, and the public school is public space, so you can't wear a burqa at a school. And it was that simple. In England, you had, at least for a long time, you had a state church that was supported by the state, and that controlled your legislation for a while. That's now broken down to a certain degree, but that certainly was another model. And then in Germany, what you had is what I called a free-for-all, where you had religion and religion was allowed in the public space, but everything was allowed in the public space that could put the label religion on itself.

And so, for example, when my kids went to their school and there was a religion class, there was a religion class that allowed not only the teaching of Christianity, or Judaism, or Islam, or Jehovah's Witness, or whatever, they also allowed the discussion of demon worship, and that kind of thing. So, it was a wide-open public space, if I can say it that way. Those are the four models that I see in various governmental structures where religion and the government are working out the relationship between one another. First of all, I guess the question is, have I characterized the American position correctly in saying that what the American position is that religion is not allowed to be established, we have no state religion, and we have no protection for state religion, everyone is allowed to be who they are, including the atheist. You can be non-religious, and yet be the beneficiary of the separation of church and state. Fair characterization? Have I missed anything?

Johnny Buckles:

It's basically correct, Darrell, I will offer some supplementation.

Darrell Bock:

Okay.

Johnny Buckles:

All right. So, first of all, the key constitutional concepts are non-establishment of religion and free exercise of religion.

Darrell Bock:

Okay, free exercise, I didn't mention. Fair enough.

Johnny Buckles:

Yeah. You have to get those, you have get them both. So, it is both true that according to the First Amendment, Congress shall make no law respecting an establishment of religion, it has been extended beyond just congressional action, and the Supreme Court has applied that not just to the federal government but to limit state government as well. So, through the Supreme Court's interpretation of incorporating that to the states, both at the federal level and the state level, government cannot establish religion. So, that is correct. But the same clause says, "Neither establish religion or prohibit the free exercise thereof." So, we have free exercise of religion that is a federal right, and that too has been interpreted as incorporated to the states by reference, so that under any state law, an individual must also have the free exercise of religion... I would say it's not just an individual, it's also a religious body.

So, those are two key concepts, and you are correct that the anti-establishment norm is constitutionalized. But now, another qualification I would offer is that the idea of separation of church and state, that means very different things to different people. It's not in any constitutional text, it appears in a Supreme Court case, borrowing from a letter that Thomas Jefferson wrote to the Danbury Baptists.

Darrell Bock:

Oh yeah. Yeah.

Johnny Buckles:

Yes. The phrase starts with TJ, in that letter to the Danbury Baptist. Now, I happen to worship at a Baptist church, I like the idea of the government staying out of my business, but at the same time, I don't have the same concept of separation of church and state that is constitutionalized as, let's say, a very aggressive anti-religious secularist might have, as a notion of separation of church and state. So, what I'm going to suggest is that whatever the concept of separation of church and state that you have, make sure that it is grounded in those two constitutional clauses, the non-establishment of religion clause and the free exercise of religion clause. And one reason I emphasize that free exercise clause is this, if you took only the anti-establishment clause or non-establishment clause and then you held this extremely secularized robust idea of separation of church and state, then you might think as a philosophical constitutional matter that the state should not protect religion in any form-

Darrell Bock:

That's the French model actually.

Johnny Buckles:

Yeah. See, and that's not what we mean by it.

Darrell Bock:

Right, and that's actually why I brought the others into view because the way in which that's been interpreted is very, very important, and can be variously construed as to what it entails.

Johnny Buckles:

Absolutely correct. There are many notions of what separationism means. You could think of it as institutional separationism, the church shouldn't do what the state does, and the state shouldn't try to do what the church does, that's one way. You could think about it as financial separation, the church activities shouldn't be subsidized by the state. You could think of it in other ways, like accommodation and general support, that's not how we think of it. For example, is it constitutional for a local congregation with a church house to receive fire protection when their church building starts burning? Well, most of us would say, yeah, it's constitution, it's a publicly available service, religion is not being singled out for benefit. But if you had some kind of radical notion of separation of church and state, then public protections shouldn't be extended.

So, we don't have that kind of radical separationism that's ever been followed in this country. An interesting question that involves another of my areas of legal concentration is taxation. So, to what degree does it make sense for churches not to be paying taxes, whether they're property taxes or whether they're income taxes? I still think there are good constitutional justifications for exempting churches from taxation, but a particular view of separation and church of state would hold to the contrary, would hold to the view that, well, churches shouldn't be treated specially because of this separation.

Darrell Bock:

And a form of special treatment is a form of establishment, is what would be the argument. Right?

Johnny Buckles:

Yeah, that's one argument. It hasn't succeeded at the level of the Supreme Court, as long as churches are beneficiaries among a broad class of beneficiaries. So, there's an older case called Walls, Walls v. Commissioner, and the Supreme Court held that it was constitutional to exempt the property of a religious organization, among other nonprofits, that received exemption from-

Darrell Bock:

Interesting.

Johnny Buckles:

Yes. Now, one reason that this is important, Darrell, is that it causes us to reflect on norms behind these clauses, the establishment clause and the free exercise clause. Separationism is not the only norm, also, neutrality is a very important norm. The government should be neutral as between religion and non-religion and among religions. In fact, I would say that the neutrality norm has become one of the most prominent norms for interpreting the clauses. Religious liberty norm, religious autonomy norm, there are other norms that inform the scope of the religon laws.

Darrell Bock:

Yeah, that's going to take us to our third topic, but let me stay here for just a second and raise what I think is another question. So, you talked about free exercise, and of course the issue of free exercise is coming, I think, under some pressure when it collides with other laws of people who have other perspectives on how to live. In other words, the free exercise is a free exercise, but it's only so free, because the moment I come against the rights of someone else in another area, then I've got to adjudicate between the free exercise and the other right, that might be in play, that has to be dealt with, and the law has, in these areas, particularly as culture shifts. As culture shifts and everyone doesn't share the same cultural background and same cultural assumptions, all of a sudden these collisions become more common rather than less, and you get more legal disputes rather than less. Fair?

Johnny Buckles:

Yes, it's fair, and it requires an examination of what rights are in conflict. So, remember that the free exercise of religion is a constitutional right. And that means that legislatures, whether they are federal, or whether they are state, cannot enact laws that violate that constitutional right because the constitution is supreme over other forms of laws, that either Congress or that state legislatures would enact. And so, what we often have in what you're talking about is a conflict between some law, statutory law, that has been enacted by a legislature, and then a religious individual or group's claim that it burdens the free exercise of their religion. And you see this in the culture wars, you see it, actually, you see it in ways that you don't always expect as well.

I would say it's important to watch this in the coming months and years, because I think you're going to see some conflicts involving free exercise that many people would not have anticipated. Now, what are some of the ways that they have anticipated it? Well, healthcare laws, you think about some of the regulations requiring federally supported hospitals to provide abortifacients and that running contrary to Catholic hospitals, that would be an example. Or you think about the prospect of a religious organization wanting to fire someone, but it runs afoul of some federal or state law saying you can't fire someone on the basis of, say, a physical disability, or sexual orientation, but you're a religious organization that holds a view of, say, marriage and sexuality that differs from the majority view-

Darrell Bock:

So, you just went into the space that I was going to ask about. So, let me ask the specific question. Because you juxtapose constitution versus statutes, but there can be conflicts that are constitution against constitution, or constitution against constitutional amendment, or constitutional amendment as interpreted, if I might say it that way. So, that we get into the discrimination space and the free exercise space, we've set up the conflict that you've just raised.

Johnny Buckles:

Yes. Yeah, that's right. Now, I would say that it is important to distinguish between rights that would be abridged if the action burdening them is from the state, versus actions by a private party. Okay? So, what am I talking about there? Well, let's talk about something that's fairly obvious I would say to most people. Can a church hire only ministers that adhere to the church's statement of beliefs? Let's go to that case. All right/ that's a pretty pure case.

Darrell Bock:

Yep.

Johnny Buckles:

All right. Now, if at the University of Houston someone were to say, oh, we can't keep Buckles as a faculty member because he went to Dallas Seminary, and he must hold to some views that we find repugnant. Well, that would abridge my right, and the University of Houston is a public actor, and the University of Houston cannot constitutionally do that, right? I have a right, and the public entity cannot fire me because of my own religious convictions. But that doesn't mean that a private actor, a church, cannot make its hiring decisions on the basis of adherence to a religious doctrine. So, let's say a Dallas Seminary style church, its statement of faith adheres to historic orthodox Christianity. And let's say that, oh, I don't know, a Jain wants to be on the staff of that church.

Well, now the university could not refuse to hire a Jain as a law professor on the basis of that person's religious views, it would violate the religious rights. But the church, because it is a church, has the right to pick its own ministers. The fact that the Jain has the right not to be discriminated against by the state, or even by a non-religious employer, under federal employment law, doesn't mean that the church has to defer to those religious rights. There's an ordering there, and the church is not preventing the Jain from being a Jain, right?

Darrell Bock:

Right.

Johnny Buckles:

It could go to another religious organization that fits his or her own religious belief system. So, this is why I want you to distinguish those two contexts. A context in which someone's religious rights do not align with another person's religious rights, it doesn't mean that there's no ordering there. Just as a monastery could refuse to put me on the payroll, so a church can refuse to put someone who's not a member of their faith on the payroll. And I think that what you're going to find is that in many contexts where it would be unlawful for either a secular private entity to engage in a particular behavior, or for a governmental entity to engage in a particular behavior, because it abridges someone's rights, it would not be the case that those same rights would be abridged when a religious entity is just trying to carry out its own mission.

Darrell Bock:

And so, what you're suggesting in here is there is a way to prioritize the relative strength of the rights that are in conflict.

Johnny Buckles:

Yes, there often is. Now, sometimes it won't be as clear.

Darrell Bock:

Yeah.

Johnny Buckles:

But oftentimes it is.

Darrell Bock:

Yeah. And I've read stuff written by lawyers on the religious liberty front, and where some of these discussions come up, that says that one of the things that's going on is, is that we used to be interpreted in a pretty consistent and giving kind of way, has come under pressure more recently, and that's led to some give and take in this area that probably 50 to 70 years ago wouldn't have taken place.

Johnny Buckles:

Yes.

Darrell Bock:

Okay. So, that's that area. We're running out of time. I do want to get to the third area, and that is the area of the protection of religion in general. And this is something that's controversial, but I think it's worth bringing up in the context of this topic. And that is the protections that extend to Christianity from a American legal perspective extend to all religions. Correct?

Johnny Buckles:

Correct. Correct. Absolutely correct. And I fear that there are many Christians in 21st century America that are losing sight of that truth. See, because the free exercise rights guaranteed by the First Amendment extend to everyone, that means that it is unconstitutional for the United States government to try to act like it's the church. So, this gets back to the anti-establishment constitutional question, but it's also important from a theological perspective too, I think. What's the role of government, right? There's a very deep and rich diversity in the Christian tradition about what really is the theology of government here.

Darrell Bock:

Right.

Johnny Buckles:

What's the purpose of government? And having gone to Dallas Seminary, and having been exposed in study afterwards, I have come to very much appreciate a progressive dispensationalist perspective, and a distinction between the current kingdoms of this world and the kingdom of God, the kingdom of Christ. Of course, he's sovereign overall, but that doesn't mean that a correct theological understanding of the current dispensation is that the United States should try to make everybody Christians. And we need to understand the Christian liberties we enjoy also have their counterpart in the Jewish liberties that a Jew enjoys, or the Muslim liberties that a Muslim enjoys. It's very important both constitutionally and I think theologically to make these points.

Darrell Bock:

I often use this illustration when I talk about public space, and I usually preface it by saying what I'm going to say initially is going to sound harsh, but please hear me out. And it is that your religion in public space in America in one sense means nothing, in that I can be an atheist, an agnostic, a Jew, a Christian, a Muslim, a Jehovah's Witness, a Presbyterian, a Baptist, take your pick. We all have, as citizens, the right to be at the table, and we all have the same rights at the table. And we need to understand that that's the nature of public space. Whereas, the space that I have in the church is a space that I have chosen to be a participant in with a heart change and a theology and an enablement that come with that, that makes that entity different than the entity of the government and public space.

Johnny Buckles:

Yes, absolutely. I agree with that perspective, Darrel, and I believe that there is a good deal of confusion. I've studied some of the work of former professors actually, at Dallas Seminary. So, you taught me New Testament Greek my third semester, and the late Bob Leitner taught me soteriology, but he has a series of articles where he examines theonomy and post-millennialism. And really one's millennial expectation has an uncanny bearing in one's view of God and government, as it turns out-

Darrell Bock:

Because a post-millennialist believes that the church is here to produce the millennium for the world.

Johnny Buckles:

Yes. And it also brings to mind the different models of the relationship between the church and the state in that old classic word, Christ and culture, where you see different perspectives on this. But if I would have a word of caution to the current church, it's that don't confuse the mission of government with the mission of the church. It's not to say that there aren't deep values biblically that should govern the way the state acts, there are values that should govern the way the state acts, but it is not the job of the government to do the job of the church. And history proves that we get into a lot of trouble when people are confused on that distinction.

Darrell Bock:

In fact, my reminder is, if you look at the Old Testament where you had God's presence in God's law, but you didn't have changed hearts necessarily, you have a fits and starts history.

Johnny Buckles:

True.

Darrell Bock:

And at the end of that story, God says, I'm going to bring a new covenant, the new covenant, I'm going to change people's hearts, and this is going to operate, at least theoretically, differently than the way our history has operated up to this point, because I'm going to give you an enablement that previously you didn't possess. And so, that is the church, and the church exists to exist in the midst of the world, and all the passages that I know in the New Testament don't say the church is supposed to take new ground, but the church is supposed to be what the church is called to be. They're supposed to maintain the ground they've been given by God in that spiritual transformation, and that's where the witness comes, and you invite people into space from the world because the only one who's going to fix the world in the end is going to be God.

Johnny Buckles:

Yes. So, I love the way that you said, you used the verb, maintain that space. I would say maintain and actively occupy that space, right? Church, be the church in that space of religious liberty. See, it is a great gift to have religious liberty where Jews, Muslims, Hindus, Buddhists, and Christians can all speak and be in dialogue and interrelate. But if it is true that our faith is founded on the resurrection of the Lord Jesus Christ, if the resurrection is true, and of course we believe it is, everything changes. We change, our message is different, the world can be transformed, but it's not by the powers of the world, it is by the power of the spirit of him who raised Christ from the dead. So, church, be the church.

Darrell Bock:

That sounds great. Well, we've done a thing on law and theology and we've ended up on theology, which is where we should end up. So, Johnny, I want to express my appreciation to you for giving us this time. And I hope that as the listeners have thought about where they fit in public space and some of these conversations that they have, that we've helped them with some concepts to think about. One, how our law is designed to operate, some of the things that end up being discussed and why, as well as thinking through what it means to be a part of a kingdom that is actually transnational, and that is actually involved people from many tribes and many who one day will be gathered together with all singing the praises of what it is that God has done in Jesus Christ. So, thank you for helping us with this.

Johnny Buckles:

Well, you are most welcome, and thank you so much for the invitation, it has been a real privilege and blessing to share some thoughts with you.

Darrell Bock:

Well, and I want to thank you the listener for being with us. If you like our show, we'd love for you to leave a rating or some type of review to let people know about others who can discover what the table is all about, we hope you'll join us next time when we discuss issues of God and culture to show the relevance of theology to everyday life. Thank you for being a listener at The Table, and we look forward to seeing you again soon.