Family separation at the border: What is religion’s place in civil law?

President Donald Trump on Wednesday announced plans to end the policy of separating immigrant children from parents who cross illegally into the United States. But the fact that policy was ever enforced and backed — in some cases using religion as justification — is unsettling to at least a couple of religious ethicists and historians.

ASU Now spoke to John Carlson, interim director of the Center for the Study of Religion and Conflict, and Catherine O’Donnell, associate professor of history in the School of Historical, Philosophical and Religious Studies at Arizona State University, to get their take on religion’s place in civil law and whether certain government officials’ invoking of scripture and religious moral groundings is acceptable.

Carlson, also an associate professor of religious studies, writes frequently on the topic of American civil religion and its erosion during the Trump presidency. He explains civil religion as “an abiding confidence in democracy and democratic principles such as human freedom, equality and governmental representation.”

“The rule of law and institutions of our government exist to preserve and enforce these principles,” which often are reinforced by religious ideas, Carlson said.

“They have been championed by American leaders (including presidents, who often serve as the ‘high priests’ of civil religion). And they can be found in the wellsprings of many religious traditions that Americans have tapped to understand, reinforce or even challenge their government’s laws and failures to live up to its ideals.”

Carlson points to a long list of diverse Americans who have contributed to the heritage of American civil religion, including Thomas Jefferson, Abraham Lincoln, Walt Whitman, Jane Addams and Martin Luther King, and notes that religious ideas have helped ignite government transformation at pivotal moments throughout the United States’ history, including the Revolution, the Civil War and the civil rights movement.

But he expressed concern regarding the state of civil religion today.

“Besides Donald Trump, nearly every president, whether Republican or Democrat, has spoken the moral language of American civil religion,” Carlson said. “You might say that it is part of the ‘establishment’ that this president is overturning.”

Question: Recently, Attorney General Jeff Sessions cited a Bible passage from Romans 13 in his justification of separating children from their parents at the border, saying the passage instructs us to “obey the laws of the government because God has ordained them for the purpose of order.” Given the U.S. stance on separation of church and state, is it lawful to use religious scripture as justification for policies?

O’Donnell: There is nothing unlawful about the attorney general’s reference to that passage from Romans 13 in order to support his policy, but I found it unsettling. In part because the specific juxtaposition of a governmental action and a Bible verse goes well beyond politicians’ more customary comments that their faith infuses their ethical and moral judgment. But also because that verse, as the scholar John Fea has pointed out, has a history in American politics: It was cited by Loyalists who argued that rebellion against Great Britain was a kind of rebellion against God’s law, and by slaveholders who used it to decry abolitionists and defend slavery. So for me, Sessions’ citing of that verse was the strongest argument against the policy he was describing that I could imagine.

Carlson: There is nothing illegal or even inappropriate about a political official invoking scripture to guide the nation, its citizens or its laws. Countless presidents have done so to constructive effect. Jimmy Carter’s presidential inaugural invoked the prophet Micah’s call “to do justly, and to love mercy, and to walk humbly with thy God.” That would be an apt passage for Sessions to quote announcing the end of this immoral policy, given the president’s new executive order.

Q: Is Sessions’ take on Romans 13 a fair and accurate interpretation of the passage?

Carlson: Sessions’ mistake was not that he quoted scripture, but that he proof-texted a passage — he took it out of context of the wider scriptural themes found throughout the Bible, which enjoin compassion, kindness to strangers and care for the vulnerable. In fact, just a few lines later in Romans, Paul says that the greatest commandment is to love one’s neighbor and that “love is the fulfilling of the law.”

O’Donnell: A number of theologians have made two other points: First, that the Apostle Paul himself (the source of Romans 13) ran afoul of the law; and second, that Romans 13 assumes that government is a force for good — if it is not, obedience is not required. I think it’s interesting that those who turn to American history and those who turn to Christian scripture can find a great deal that seems to support occasional law-breaking in pursuit of a deeper justice.

Q: What are some reasons religious leaders have given for opposing the family separation policy?

Carlson: Many leaders and groups of different Jewish, Muslim and Christian traditions have come out against the policy — even groups who have been supportive of the Trump administration. Some do so on scriptural grounds, like those I mentioned above, or out of other moral and theological commitments to protecting human dignity, which this policy violates. There are also a lot of religious leaders who, like other citizens, deeply resent Sessions cherry-picking a passage from the Bible to justify highly questionable policies of the state. Sessions’ speech demonstrates religious illiteracy as well as poor appreciation of America’s own history.

O’Donnell: There’s been an extraordinary array of voices calling for an end to family separation at the border: Jewish groups, Muslim groups, Quakers, the United Methodist Church, the Southern Baptist Convention, the U.S. Conference of Catholic Bishops, and on it goes. Most of the statements in one way or another contrast the policy with obligations to care for the vulnerable and welcome the stranger.

Q: The U.S. Constitution states that “Congress shall make no law respecting an establishment of religion,” yet one might argue that lawmakers can’t help but be influenced by their religious beliefs (or lack thereof) when making decisions about policies. How far can that go before it becomes problematic? Is there a gray area?

O’Donnell: The separation of church and state has never meant the separation of religion and politics. That is true because faith and faith traditions influence people’s understanding of right and wrong, and politics does, too. Faiths offer guidance about how to treat loved ones and strangers, how to forgive and punish and how to measure one’s own needs against others. In the modern world, those are also questions negotiated through politics. So I think that we will always have discussions and arguments — and Supreme Court cases — that involve Americans trying to figure out how we can reconcile our respect for the claims of specific faiths with our deep desire to live in harmony.

Q: What is the difference between “civil law” and “natural law”? And how do they determine how religious leaders approach the question of the relationship between religion and the law?

Carlson: When Rev. Martin Luther King Jr. advocated civil disobedience in the cause of civil rights, he drew heavily from scripture and relied on religious thinkers going back to the fifth century. His letter from Birmingham City Jail cited St. Augustine, who said that “an unjust law is no law at all,” as well as St. Thomas Aquinas, who said that a just law is one that squares with the natural law. What all of these figures were saying is that there is always a higher law with which human-made laws must conform and by which they will be judged. Civil laws that discriminate against people or that deny human beings the dignity due to them are out of sync with the natural law.

What is interesting about the natural law is that it presumes all people, regardless of their religious beliefs, have reason and the ability to discern basic moral laws of the universe: to avoid evil, to preserve human life, to do no harm, and to promote the rearing of children. The administration’s family separation policy violates every one of these natural law principles, thereby making it an “unjust law.”

Top photo by Charlie Leight/ASU Now