Render Unto Caesar That Which Is Caesar's, and Unto God That Which Is God's

It is a great pleasure to contribute to this Symposium with such distinguished scholars as Professors Robert George and Ilya Somin, and to comment on Judge Bork's thought-provoking book, Slouching Towards Gomorrah. (1) Many of the contributors to this Symposium disagree sharply on the issue of governmental efforts to enforce morality. This Essay explores that topic by seeking to shed additional light on two fundamental questions raised by Judge Bork's book. First, what is the proper relationship between law, religion, and morality? Second, is it appropriate for the government to punish adult consensual conduct that does not directly harm other individuals, such as drug dealing and possession, prostitution, suicide, and for that matter professional boxing or dueling? I will address these two topics in turn. I. THE RELATIONSHIP BETWEEN LAW, RELIGION, AND MORALITY There is a 2000 year old rule of law tradition in the West that dates back to ancient Roman times. Under that tradition, the Civil Law and Common Law Western Legal Traditions differ from other nonWestern Legal Traditions such as the Islamic Legal Tradition in a key way. One of the Western Legal Tradition's most prominent and distinguishing characteristics is its commitment to the idea that there is and there ought to be a sharp separation between law and religion. (2) We in the West think that the law is influenced by--but is distinguishable and autonomous from--religion. We think that religious bodies ought to be free of governmental control and that the government ought to be free of control by ecclesiastical authorities. Our judges are not priests and our courts are not ecclesiastical bodies. The heads of our churches are not monarchs or heads of state. And our heads of state are not religious officials or Ayatollahs. Our lawyers study and train separately from priests. Our priests in turn study and train separately from our lawyers. We think that the law is independent, not only of the church, but also of the government. This independence is key to the supremacy of the law over the government and the church. We think of the law as being a body of rules with a history of its own that grows and changes over time. It is not simply a set of rules that was divinely revealed for all time two thousand years ago. Precisely because the law is not divinely inspired, we believe, it can change over time, rather than remaining frozen in, say, the third or the ninth century A.D. as is the Islamic Sharia. For this reason, even our constitutions and bills of rights can be amended and, of course, all of our statutes can be changed. Change and belief in progress is an essential part of Western law. Even in the Middle Ages, continental Europe had a multitude of political jurisdictions, and each of those jurisdictions was governed by private Roman law rather than by Canon law. The Pope during this period was the spiritual leader of Europe, but governmental power rested with the Holy Roman Emperor, or in various kings and dukes, rather than the church. We in the West think and have always thought that the historical continuity of the law going back to Justinian's Corpus Juris Civilis is linked to its supremacy over religious and governmental institutions. (3) Ancient Roman law applied to government and to ecclesiastical officials in their private law transactions. Neither the government nor the church was in this sense above the law. These familiar points about Western legal history are important because other legal traditions around the world, both historically and in contemporary times, deny the idea that there is and ought to be a separation between law and religion. For example, many fundamentalist Muslims disagree with the Western idea that law and religion ought to be separate. (4) Some ultra-orthodox Jews in Israel disagree as well. Historically, we know that ancient Mesopotamia and Egypt combined religious and legal power in one supreme autocratic ruler. …