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Abstract:
In 1841, the American jurist Joseph Story noted that marriage is something more than a mere contract. Justice Story's writings embody an American common law refrain, namely that marriage is at once a contract and something more. This Article details the historical roots of that common law tradition. The history stems mostly from the Christian tradition, but also has antecedents and analogues in Jewish and Islamic teachings. All of these traditions have long taught that marriage is at once a contract (ketubah, pactum, and kitab) and more than a mere contract. Marriage is an institution that is both private and public, individual and social, civil and religious, temporal and transcendent. Its origin, nature, and purpose lie beyond and beneath the terms of the marriage contract itself. The idea of covenant is emerging in Western law, theology, and ethics as a common inter-religious and interdisciplinary term to capture some of the higher dimensions of marriage.

Historically, the Jewish, Christian, and Islamic traditions found ways to reconcile the contractual and covenantal dimensions of marriage, but American law today juxtaposes them and has moved much more toward a straight contractual model. In all but three states, parties who wish to marry must choose the state's contract marriage option. In Louisiana, Arkansas, and Arizona, though, parties may choose contract marriage or covenant marriage, which has tighter marital formation and dissolution rules. But even in those three states, there is not yet a robust legal appreciation and reification of some religious covenantal notions of marriage (and current conflict of laws rules do not favor the enforcement of covenant marriage laws in inter-state disputes). Ultimately, a fuller legal response may well be necessary to recapture the multi-layered dimensions of marriage. America's religious communities may need to draw upon and reformulate their own norms and resources, and American states, in turn, may need to think more seriously about granting greater deference to the marital laws and customs of legitimate religious and cultural groups that cannot accept a marriage law of the common denominator.

marriage, law of marriage, law and religion, covenant marriage, family law

Abstract:
At the time of America's constitutional origins, there was not a singular understanding of the proper relationship between the government and religion, but rather multiple understandings. Those multiple understandings are best understood through a close investigation of the experiences in each of the original states. This Article seeks to add the experience in Georgia - the thirteenth colony - to the larger discussion regarding the status of religious liberty in the various colonies and states in the eighteenth century.

From its founding in 1732 throughout the eighteenth century, Georgia was a place of both religious tolerance and religious pluralism. Georgia's Royal Charter provided for liberty of conscience for all, and for the free exercise of religion by all except Roman Catholics. The Charter did not establish the Church of England or any other church. (Although the Church of England would later be established by law in 1758, it was, in practice, a weak establishment with little real ecclesiastical presence.) Between the Revolution and 1800, the new State of Georgia had three constitutions (1777, 1789, and 1798), each of which explicitly addressed religion and provided for varying levels of free exercise (including liberty of conscience) and disestablishment.

These principles of religious liberty that were reified and realized in the governing documents stemmed from the necessity of recognizing a variety of religious beliefs, for from early times the colony contained adherents of a number of religious faiths. These included Jews, Anglicans, Lutherans, Presbyterians, and others - who formed, according to one author, "a rich generation of religious ferment in the colony." This admixture of religious adherents was welcomed - indeed, invited - to the new territory. And the various worshipers were not asked to conform to, nor required to support, the Church of England, but instead received governmental funding and support for their own endeavors (including land grants, salaries for ministers, and some control over church and civil governance).

By analyzing Georgia's law and experience, this Article seeks to unearth and illuminate those principles of religious liberty valued in early Georgia. This Article reveals that early Georgians cherished liberty of conscience, free exercise, direct (but non-preferential) governmental support for religion, respect for religious pluralism, and non-discrimination on the basis of religion. Further, while Georgians gradually moved toward recognizing the value of disestablishment, there was never an intellectual adherence to a strict Jeffersonian ideal of "separation of church and state." By adding Georgia's experience in church-state relations to the larger conversation about religious liberty in the early Republic, this Article opens the conversation to a fuller discussion of the multiple understandings of religious liberty present from the beginning.

Georgia, religion, liberty, establishment, free exercise, religious liberty, history, church-state

Abstract:
This Article arose in the context of a project at Emory University on "The Problem of Proselytism in Russia" - wherein a small gathering of scholars undertook an assessment of the impact and implementation of Russia's passage of a restrictive law on religion in 1997. The Article attempts to show that the problem of proselytism is not simply a legal issue, but also a theological issue. It is not limited to a discussion of methods of persuasion and conversion, but grows out of the differing theologies of religious groups. Thus, the Article undertakes to establish a theological framework for a discussion of the problem of proselytism by closely evaluating the authoritative documents of Christian groups.

The Article looks at four major segments of Christianity: Roman Catholicism, Evangelical Protestantism, Conciliar Ecumenical Christianity, and Eastern Orthodoxy. These various segments have differing emphases and understandings of "mission" or "evangelism," which leads to differing activities or methods of evangelism. Catholics stress that proclamation of the Gospel is a useful beginning point, but mission must also include social action, including the notion of liberation and the advocacy of political and economic freedom. All those born into the Church and baptized as infants are considered Christians, and it is the responsibility of the Church to nurture the faith of those persons as well as to spread the Gospel to other lands. Evangelical Protestants equate evangelism primarily with proclamation - in large measure because for evangelicals an individuals' relationship with God is considered primary, personal, and grounded in individual intellectual commitment to certain truths. Evangelicals take the Great Commission of Matthew 28 very literally and believe that every individual in every nation needs to be told the Gospel message, so that they will have the personal opportunity to make an individual commitment. The Conciliar Ecumenical movement (mostly typified by mainline Protestantism) focuses more on ecumenism and unity among Christian churches than proclamation. Evangelism is thought to occur through proclamation, but also through Eucharistic celebration, social action, and prayer. This movement especially decries any perceived "competition" among Christian groups for evangelistic candidates and places emphasis on working with existing and indigenous Christian groups. Eastern Orthodox churches have a well-defined theology that undergirds their stance on evangelism, stressing unity and Eucharistic celebration more than evangelistic proclamation. For Orthodox believers, membership in the church is often connected to belonging to a particular body of people, and frequently tied to ethnic or nationalistic groups. The Eucharist and social witness of the church are seen as the prime ways of sharing the Gospel, and proclamation is relegated to an equal or even subordinate role. Any interreligious competition is especially decried.

The problem of proselytism in Russia arises in part because of these contrasting theological beliefs. While Orthodoxy is dominant among much of the leadership and citizenry of Russia, Evangelical Christians undertook significant missionary efforts in Russia after the introduction of glasnost. This has led to a clash of theologies, which subsequently has been reified into more restrictive laws on evangelism, proselytism, and religious liberty - but which laws are highly reflective of the Russian Orthodox mindset. Thus, while legal dialogue must certainly occur about the effect of the new law, so too must theological dialogue, for the problem of proselytism cannot be resolved without open theological discourse between (and within) faith traditions.

Human Rights, Proselytism, Evangelism, Missions, Religion, Christianity

Abstract:
In 1997, Louisiana enacted the nation's first "Covenant Marriage" law, creating a two-tiered system of marriage. Under this two-tiered system, couples may choose a traditional marriage contract, with minimal formalities of formation and dissolution, or they may choose a covenant marriage, which imposes heightened requirements both for entrance and prospective exit from the marriage. This Article evaluates Louisiana's Covenant Marriage Law both as it encapsulates the increasing dissatisfaction with current marriage and divorce laws in America and as it presents a developing solution.

The onset of no-fault divorce beginning in the late 1960s coincided with an increasing understanding at American law that marriage is no more than a mere contract between two individuals. But while there were many salutary reasons for the passage of no-fault divorce laws, there is increasing consensus that the state of marriage in America is in disarray and the ease of divorce too often multiplies conflict rather than reducing it. Louisiana's Covenant Marriage Law was passed as a corrective to the societal ills that attend divorce and its effects (especially upon women and children), for the ramifications of divorce have repercussions for entire communities and not simply for those initial entrants into the marital "contract." The law attempts to ameliorate some of the problems by providing a voluntary alternative - under which couples receive additional counseling and notice prior to entering marriage and simultaneously subject themselves to higher divorce standards that no longer countenance a "no-fault" option.

But the Covenant Marriage Law itself has been subjected to host of criticism. Critics contend that the law will do little to improve the condition of women and children, will fail to strengthen society, and improperly injects religion into the affairs of the state. In addition, there are also concerns about the constitutionality of the law. This Article addresses such concerns at length, concluding that while opponents may disagree with the idea or potential impact of the law, the objections are only political and policy concerns that have no bearing on the ultimate legality and constitutionality of the law. (The critics, however, highlight potential shortcomings of the Covenant Marriage Law that indicate that its effects may be less than its proponents desire. Indeed, in the time shortly after the law's passage, it has had little effect within Louisiana and has sparked much more debate outside of Louisiana than it has led to the passage of similar laws.)

This Article advocates that Louisiana's Covenant Marriage Act is a step in the right direction of reform, but does not go far enough. Instead, the state should move toward acknowledging and respecting the internal norms and regulations of various faith traditions regarding marriage and divorce. This openness and respect should not simply be spoken; it should be reified in law. The kind of "robust pluralism" advocated herein would permit various faith groups to possess original jurisdiction over issues of marriage and divorce. While the state must maintain a minimum guideline to protect the health and safety of its citizens, persons who desire to conform to the strictures and structures of religious groups should be allowed to do so.

Covenant Marriage, Divorce, Religion, Religious, Marriage, Covenant, no-fault, pluralism, family, multi-tiered

Abstract:
In order for China to move forward in the international community, it needs to continue to improve its standing on human rights issues. Of particular concern to many observers is the relationship between the government and religion. While foreign religious organizations and missionaries are still heavily regulated by a 1994 law, a new law respecting religious citizens and organizations within China went into effect in 2005. This new law is salutary in some respects in that it provides a much fuller delineation of the relationship between government and religion within China, and it appears more solicitous toward religious rights than previous regulations. But the new law is very vague in places and contains several provisions that could be troublesome and problematic depending on how and whether they are implemented.

This paper is primarily built on a lecture given at Fuller Theological Seminary in 2005. Its premise is that international human rights laws are a useful but not sufficient benchmark by which to assess China's law. It is also important to understand the theological premises of some of the religious communities and believers for a broader measure of the efficacy and fairness of China's law. By focusing upon and using these dual lenses of law and religion, the paper offers both preliminary assessments of the 2005 law and also some possible ways forward that will further China's efforts to respect its heritage while simultaneously allowing it to better align itself with prevailing international norms regarding religious rights and obligations.

Human rights, theology, religion, China, international

Abstract:
This Article contends that American society needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end - both within and without the United States - which might serve as the framework for further discussions.

Within the United States, the relatively new covenant marriage statutes of Louisiana, Arizona, and Arkansas provide a form of two-tiered marriage and divorce law. But there is even an earlier, and potentially more fulsome, example in New York's get statutes. New York's laws derive from civil statutes that deal with specific problems raised by the intersection of civil law and Jewish law in marriage and divorce situations. New York's laws implicitly acknowledge that there are multiple understandings of the marital relationship already present among members of society. These examples from within the United States lay the groundwork for a heartier discussion of the proper role of the state and other groups with respect to marriage and divorce law.

As part of that discussion, the Article contends that the United States should look outward, to the practices of other countries. Several other nations - including India, Kenya, South Africa, and others - have ensconced multiple understandings of marriage in their own civil law. That is, the state has (to varying degrees) ceded control and authority of marriage to other tribunals - or it has reified more than one understanding of marriage in its civil law. Such multiple understandings are generally predicated upon religious grounds. These other nations and their comparative practices could serve as predecessors for new understandings of a more robust pluralism at American law.

Marriage, Divorce, Religion, Covenant, Get Statute, International, comparative

Abstract:
The language and ideas of "international human rights" have become seemingly ubiquitous in modern times. Indeed, within the United States, many prominent evangelical Christian churches and leaders have begun to use the language of human rights despite earlier misgivings. While there have been academic discussions about the foundational role of Christian theology in the development of the modern human rights regime, there remains relatively little investigation into the relationship between human rights norms, language, and culture within evangelical Christian theology.

This Article explores the relationship between evangelical theology and human rights - and concludes that the relationship is one of continuing ambivalence. On the one hand, there is clear evidence of increased recent involvement by evangelicals in human rights issues (especially regarding religious rights). But on the other hand, there has not at all been a wholesale adoption of human rights language among evangelicals, there has not been a clear shift toward support for legal human rights accountability regimes, nor have there been theological shifts among the larger evangelical population that seem necessary for a robust support of broader human rights goals.

In the final analysis, it ultimately appears doubtful whether modern evangelical theology is amenable to a whole-hearted and deep understanding of human rights and whether it is even desirable for evangelical theology to move in that direction. Nonetheless, the recent rise in the number of evangelical non-governmental organizations and the attendant rise in awareness of human rights within evangelical discourse (especially among younger evangelicals) may serve as signposts that the uncomfortable dance between evangelicals and the human rights movement may become slightly less awkward over the coming years.

human rights, international law, law and religion, Christian legal thought, religious rights, freedom of religion, evangelical Christians

Abstract:
John Joachim Zubly was the pastor of the Independent Presbytrian Church in Savannah, Georgia and the most influential minister in Georgia in pre-revolutionary America. As a staunch Calvinist, Zubly believed firmly in both the rule of law and the democratic process. He served as a voice of reason and moderation both to the British and to his fellow Georgians. He urged the British to uphold the constitution and afford adequate representation to the colonists, while counseling the colonists toward reconciliation rather than rebellion. When neither the British Parliament nor the colonists heeded his message, Zubly refused to alter his political and theological principles - and it ended up costing him his land, his liberty, and his reputation. This Article examines the ways in which Zubly's political views were deeply connected to his Calvinist theology, and asserts that the inseparability of his theological and political views largely explains his inability ultimately to support the Revolutionary cause.

Zubly was a Swiss Calvinist immigrant, who began preaching in Georgia by 1746 and pastored the Independent Presbyterian Church in Savannah beginning in 1760. That congregation soon became the largest and most popular in Georgia. Zubly attained a position on the Continental Congress in 1775 - but when he began to urge perpetual connection with Britain even while acknowledging the rightness of Continental Congress's cause, and then later refused to swear allegiance to the States, he was branded a Tory and banished from Georgia. He died in 1781, a bitter and broken man.

Zubly's depth cannot be appreciated without looking at the Calvinist theology that informed his political ideas. For example, John Calvin taught that ministers should be accountable to the people through an election process. This conception of accountability made its way into political thought and theories of political representation in later Calvinism. These understandings led Zubly to protest Parliament's overreaching when it denied representation to the colonists and bound them to laws to which they had not consented. Zubly resisted the idea of rebellion, however, because Calvin also taught that the sovereign was the minister and representative of God, and was to be obeyed even when evil and oppressive. An oppressive leader often was a judgment from God, and the just response was prayer and petition, not rebellion. In contrast to his contemporary John Witherspoon, Zubly never articulated a point at which rebellion would be justified in America. This led him to fall on the wrong side of an historical divide, and history has accordingly been unkind to Zubly. But when viewed through the lens of adherence to Calvinism rather than through the lenses of loyalty to England or patriotism toward the revolutionary cause, Zubly looks not so much like a traitor, nor a man of moderation, but rather a man of principle.

Democracy, Calvinism, Calvinist, Rule of law, Zubly, Democratic process