Why the Supreme Court's Decision Doesn't Change the Concept of Marriage

Is the question of same-sex marriage over? The Supreme Court has ruled in Obergefell v. Hodges that same-sex marriage is legal and must be recognized across the United States. Does that settle the matter? Actually, no. The Supreme Court has made other definitive decisions which have been later overturned because the assumptions from which those decisions were made were false. Last Monday marked the 160th anniversary of Dred Scott v. Stanford, a seven to two decision by the U.S. Supreme Court that African-Americans whose ancestors were slavers were ineligible to be considered people of the United States. This May will mark the 90th anniversary of the famed Buck v. Bell decision by the Court, where they authorized the forced sterilization of people.

So, what are the assumptions underlying the Obergefell decision? One is that the state has a role in defining marriage.1 Certainly, governments have traditionally recognized marriage and crafted legislation that affects its citizens on the basis of their marriage status, but do governments have the authority to define the very essence of what constitutes marriage? Just what is marriage and who gets to define its terms?

How Do We Begin to Understand Marriage in Relation to Law?

In the debate over same-sex unions, it has been popular to place the "what is marriage" question into a dichotomy. Most people ask whether marriage is something invented by the state or something that stands objectively outside the state. In reality, though, there are three categories societies rely upon to understand and help in the civil interaction between its individuals: societal creations, societal conventions, and natural laws.

Societal creations are those things that are invented by the state. Examples include which is the "right" side of the road to drive on, the legal recognition of corporations as individuals for legal contracts, and the postal system. Each of these are creations of the state and each can be redefined or even abolished through legislation.

Natural laws, on the other hand, are recognized by the state but sit above the state. The right to life, the right practice one's religious beliefs without undue government interference, the right to not be enslaved, and the right to the fruits of one's labor are things that government doesn't give us; we hold them inherently as a result of being human. While governments can pass legislation that denies us our rights, the rights themselves don't go away. They are simply being infringed upon. Just as the slavery issue proved, even if the law states slavery is legal, that doesn't eliminate the right to freedom for the slave. It just means the law is corrupt.

Societal Conventions Differ from Societal Creations

But there's a third aspect to societal interactions: societal conventions. These are things that naturally come out of civil human interaction. David Hume defined convention as "a sense of common interest; which sense each man feels in his own breast, which he remarks in his fellows, and which carries him, in concurrence with others into a general plan or system of actions, which tends to public utility."2I think that's right. Shows of respect, for example, are ubiquitous across all cultures. However, what counts as a sign of respect can differ widely, like bowing before a company president versus simply shaking his hand.

The wedding ring is another convention we use to communicate marriage. Not taking another person's spouse would fall into natural law, but the way to recognize a person as married can and has differed in different societies, with the wedding ring serving as a societal convention that is recognized across Western culture.

Is Marriage a Creation, a Convention, or a Reflection of Nature?

Justice Kennedy in his majority opinion seems to place marriage in the category of a societal convention. He said, "The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society." Here, Kennedy is I think purposely obtuse. What does he mean by "the ancient origins of marriage?" The coupling of men and women to produce children is older than human history itself. It's ingrained into our biology. Does that mean every sexual encounter is tantamount to marriage? Of course not. However, marriage has always been seen as the intentional joining of two people of the opposite sex presumably for life, whether or not any government exists to recognize it as such.

Kennedy is also right to say that marriage has not stood "in isolation from developments in law and society." But that doesn't mean marriage itself is a societal convention. While the ring that helps people recognize marriage is a convention, the marriage that it symbolizes existed before rings. It existed before marriage certificates. Marriage is actually a reflection of nature, and to degrade it to a social convention that can be changed or redefined undercuts the essence of what marriage actually is.

So, what about those "developments in law and society" to which Kennedy refers? He rightly raises the point that arranged marriages are no longer the norm for Western societies. More importantly, he points out law of coverture are no longer recognized, either. Is this an example showing how legal recognition changed marriage itself? Do these changes show that marriage itself can evolve? No, for these do nothing to change the essence of marriage, which is the only recognized institution humanity has ever had to properly rear the next generation. Let me state that again. There exists no other institution that human beings recognize for the proper creation and rearing of children than man-woman marriage.

Governments cannot define marriage because governments didn't create marriage. Governments can only recognize marriage as the institution rooted in nature that it is. Like other natural laws, governments can choose to ignore what marriage is or choose to abuse or withhold it from its citizens. Just because the Supreme Court said that Dred Scott had no inalienable rights because his ancestors were slaves or Carrie Buck had no right to protest her forced sterilization, doesn't mean those rights didn't exist. It just meant the Court was in grievous error.

In my next article, I'll go a little further into the distinction between creations, conventions, and natural laws, demonstrating that even though governments may pass laws with respect to aspects of marriage, it in no way proves that marriage itself can be defined by law.

References

1. In the decision, Justice Kennedy wrote, "Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations."
2. Hume, David. "Appendix III. Some farther considerations with regard to Justice." An Enquiry into the Principles of Morals. The University of Adelaide Library. 26 Feb. 2014. Web. 13 Mar. 2017. https://ebooks.adelaide.edu.au/h/hume/david/h92pm/appendix3.html.

Nature, Desire, and the Purpose of Marriage

Why is it important that natural laws be considered when passing legislation? In his book, Written on the Heart: The Case for Natural Law, J. Budziszewski outlines Thomas Aquinas' approach to natural law and how it should anchor our civil laws. Budziszewski first points out that natural laws function kind of like primary colors. They are foundational and all other colors can be developed by the mixing of red, blue, and yellow.

One confusing aspect of natural law is how Aquinas believed that all natural inclinations are good and should be pursued while seeking after unnatural inclinations should be avoided. Budzeszewski notes it sounds like Aquinas is teaching that whatever one's desire is, that should be fulfilled. However, that isn't what is meant. He then draw the distinction between any inclination, including those that may have resulted from our fallen nature, and natural inclinations. The difference is found in the teleology, that is the end purpose or design of the thing being discussed. Budziszewski explains:

In drawing the two sexes together, for instance, sexual desire serves two purposes, one called procreative and the other unitive. Why not a third: pleasure? Has Thomas got something against having a good time? No, but he follows Aristotle in viewing pleasure as a result of our activities rather than the purpose for which we do them—as a crowning grace, not a goal. The problem is that pleasure can result from doing wrong as well as from doing right. Therefore pleasure cannot be used as a criterion for judging between good and bad inclinations; rather the purposes of the inclinations must be used to judge between good and bad pleasures.

Now the procreative purpose of physical union is to bring children into a secure family in which they can be taught and cared for by a mother and father who love them. Only a man and a woman can procreate a child, and we sever the institution of marriage from the natural purpose of procreation only at our peril. Perhaps that is too obvious to require further discussion. The unitive purpose, however, is not so obvious. What we mean by saying that physical union has a unitive purpose is that it can also further a deeper union between the husband and wife.

To understand the unitive purpose we must recognize that the sexes are not only different but complementary. God could have made just one self-sufficient sex. Instead he made two, each of which feels itself incomplete and longs for the other. The canyon between them is deep, but bridging it is well worth the patience and discipline it requires.

To be sure, there are other ways to use the sexual powers, ways that do not bridge the canyon. For instance, solitary sex sinks a person more deeply in the self; sodomy sinks him into a looking-glass idol of the self; and promiscuity merely uses the other for the purposes of the self. By contrast, marriage holds forth the prospect of altogether forgetting the self in care and sacrifice for the other. We come to ourselves by losing ourselves. This extraordinary intimacy is among the profoundest of natural goods. Of course, Divine law goes even further, describing it as a foretaste of our supernatural good—that still deeper union to which we are invited with the wholly other, who is God—but that is another topic.1

This is a clear way to understand how the design of human beings points to a natural man/woman pairing, and how sexual function has primary and tertiary purposes. It doesn't deny sex for couples that may be infertile, since they are still acting within natural inclinations, even if no child will ever result. However, it also highlights the impossibility of any same-sex coupling to ever be able to make the same claim. This is why whenever I talk about marriage, I talk about natural marriage, because man/woman marriage reflects biology and natural law.

References

1. Budziszewski, J. Written on the Heart: The Case for Natural Law. Downers Grove, IL: InterVarsity, 1997. Print. 70-71.
IMage courtesy Ray Dumas and licensed via the Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) license.

Why Christian Opposition to Obergefell is Not Pushing a Theocracy

Last Friday's Supreme Court decision that forced all fifty states to recognize same sex unions as legal marriage continues to ripple through our culture. So many people on all sides of the issue are confused about just how far the decision impacts them, their faith, and their lives.

My friend Mike Licona reposted a question concerning how the Supreme Court's ruling affects Christians and why we are so upset. He recounts:

Chris Armer commented on my earlier post. He asked whether I believe a Christian might be able to look at the issue of same sex marriage in a manner similar to religious liberty; that a Christian could be against the act but for the freedom to do that act. For example, one might disagree with Islam but support a Muslim's right to worship freely in the U.S.1

I also saw a meme circulating on the Internet that asks, "You're upset because you want your religious laws to be the law of the land. Do you know who else wants that? ISIS." Are these charges fair? I don't think so. While it is true that my religious belief informs my opposition to Obergefell, it is not the only factor involved. In fact, I think there are at least three separate but interrelated offenses that the Obergefell decision violated and it's important to understand the distinctions between them.

1.The Obergefell Decision Contradicts Christian Theology

The Obergefell decision offends Christians because of their theological understanding of marriage. Marriage is described in the Bible as the joining of a man and a woman where "they two shall become one flesh" (Matt 19:5, Gen. 2:24). Such a phrase denotes a physical joining of two people together—in other words sexual relations. Biblical marriage is conjugal; and of everything is working as intended, the two will literally become one flesh in producing a child.

Because homosexual sexual relationships are forbidden in the Bible, Christians see the Obergefell decision as antithetical to biblical values. They are right in this. The objection above, though, holds in this instance. There are many other human acts that are not illegal but are anti-biblical. Take the ever more common occurrence of two people living together out of wedlock. Should the government outlaw these relationships, too? Of course not. We are, as Licona rightly noted, not a theocracy and Christianity has never been about coerced morality.

Still, Christians are part of the governmental authority and from this position alone they have a right to keep immoral actions from becoming sanctioned. Christians have every right to protest and try to vote down laws making recreational use of marijuana legal, for example. The United States is a government of the people, by the people, and for the people, thus Christian views should count as part of that process. This is not a push of theocracy; it is giving a voice to a significant portion of the U.S. constituency. It is the outworking of a representative democracy. The ISIS comparison fails in this respect.

However, my complaint against Obergefell is not simply theological. There are at least two other spheres the decision affected, and those are important to recognize as well.

2.The Obergefell Decision Denies the Democratic Process

While Christians are not trying to impose a theocracy upon the nation, they are also upset because the decision really violates the established process of representative government we agreed to in both the Declaration of Independence and the Constitution. The dissenting Justices clearly saw this decision as a Constitutional tragedy. Chief Justice Roberts wrote:

Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. ... Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.2

Justice Thomas characterized the decision even more starkly:

The Court's decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a 'liberty' that the Framers would not have recognized, to the detriment of the liberty they sought to protect.3

Alito and Scalia spoke in similarly harsh terms. It is a fact that when the question of defining marriage was put to a vote, natural marriage was winning handily. Thirty of the fifty states passed Constitutional amendments reserving marriage to one man and one woman by an average margin of 68%.4 Only the state of Minnesota's vote in 2012 failed to gain a majority of the votes required to pass the amendment. In most of these states, the vote was struck down by judges, usurping the will of the electorate.

Of course it is not always true that the majority has a correct view of the rights of others. The history of slavery in our country shows this. However, it is also not true that Supreme Court decisions are always a corrective as the Dred Scott, Buck v. Bell, and Roe v. Wade decisions also show. Righteous indignation at a court that decides a case because of personal ideology instead of the limited power the Constitution affords the Federal government should be applauded.

As Scalia commented, "Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."5 The United States was never to be an Oligarchy. Christians, who were winning democratically in the majority of states, had their voice and the opportunity of democracy stripped from them through judiciary fiat.

3.The Obergefell Decision Ignores Natural Law

Lastly, and perhaps most importantly, the Obergefell decision is wrong because it violates the basis of marriage that may be found in natural law itself. Natural Law has been recognized as the foundation of our entire system of government since Jefferson penned his famous words in the Declaration of Independence. Just as one can look to the nature of human beings to know all are of equal worth, so one may look to nature to understand that marriage transcends government sanction. Marriage has a biological component of producing children and this makes the institution different than either societal creations or societal conventions.6

Our government may not be a theocracy, but it must recognize natural law to be considered just. Marriage is the only institution in human history that has been recognized as the proper institution for producing and rearing children. We do not allow children to be produced in government hatcheries. We do not encourage parents to abandon their children to government agencies. We encourage children to be brought up in stable homes and we expect biological parents to shoulder the responsibility of rearing their children. That's what deadbeat dad laws are all about.

Nature dictates that every child has a biological mother and a biological father. Every. Single. One. Because of this, there is a responsibility the parents bear when creating a new life. Codifying homosexual unions either denies the child's right to a legally recognized mother and father or it separates the child from the parents completely, assuming biology has no bearing at all on what constitutes a parent.

The Obergefell decision degrades marriage by diminishing it from its recognized role across societies as the primary institution for creating and rearing children. It purposely cleaves the procreative aspect of marriage since there is no way any homosexual union could ever produce a child. This is a clear and compelling difference between natural marriage and homosexual unions. The nature of the two unions is different. As Francis J. Beckwith explains:

The argument against same-sex marriage is based on the nature of human persons as gendered beings who have a purpose that is derived from that nature. That is to say, male-gendered human persons are meant for coupling with female-gendered human persons, even if their coupling does not result in procreation. This argument is not based on a human person's current function, ability, or desire, each of which could be inconsistent with how human persons ought to be by nature. For example, a person who is blind is lacking something physically, though he or she is still a human person who by nature ought to be seeing. In the same way, a sterile, aged, or willingly childless person is still a gendered human person whose purpose for marital union (if he or she does not have the gift of celibacy) can be consummated only by one-flesh communion with someone of the opposite gender. This remains true even if he or she has desires that are contrary to what he or she ought to desire by nature.7

Martin Luther King, in his famous "Letter from the Birmingham Jail" explained the difference between a just and an unjust law:

How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. 8

If the Obergefell decision shows that it is neither rooted in eternal law nor natural law, then it should be opposed on grounds that the law has no basis for being just. Christians can dismiss the charge we are trying to establish a theocracy as unfounded. The grievance against this decision is grounded in a more fundamental premise than that.

References

1. Licona, Michael. "Chris Armer commented on my earlier post." Facebook. Facebook, 1 July 2015. 03 July 2015. https://www.facebook.com/michael.licona/posts/817911368292791?pnref=story.
2. Soergel, Andrew. "9 Need-to-Know Quotes From the Obergefell v. Hodges Opinions." US News. U.S.News & World Report, 26 June 2015. Web. 03 July 2015. http://www.usnews.com/news/articles/2015/06/26/9-need-to-know-quotes-from-the-Obergefell-v-hodges-opinions.
3. Soergel, 2015.
4. See the statistics provided at "List of Former U.S. State Constitutional Amendments Banning Same-sex Unions by Type." Wikipedia. Wikimedia Foundation, 2 July 2015. Web. 03 July 2015. https://en.wikipedia.org/wiki/List_of_former_U.S._state_constitutional_amendments_banning_same-sex_unions_by_type.
5. Soergel, 2015.
6. For the distinctions of each of these, see "Can Governments Define Marriage?" at https://www.youtube.com/channel/UCvECw-SDIducb0l-fzxfvHA
7. Beckwith, Francis J. "Wedding Bell Blues: Understanding the Same-Sex Marriage Debate." Christian Research Institute. Christian Research Institute, 22 Apr. 2009. Web. 03 July 2015. http://www.equip.org/article/wedding-bell-blues-understanding-the-same-sex-marriage-debate/.
8. Esposito, Lenny. "Martin Luther King's Letter from the Birmingham Jail." Come Reason's Apologetics Notes. Come Reason Ministries, 17 Jan. 2011. Web. 03 July 2015. http://apologetics-notes.comereason.org/2011/01/martin-luther-kings-letter-from.html.

Can Governments Define Marriage? (video)

The issue of what marriage is who should be allowed to marry is making headlines around the world. With the homosexual lobby pushing for states to recognize same-sex marriage, it becomes more important than ever to understand just what marriage means and who has control over its definition.

In this video, Lenny explains that marriage stems not from any law or court decision, but from the same source as human equality: natural law. Thus marriage, like human equality, cannot be redefined.



Image courtesy Fibonacci Blue [CC BY 2.0], via Wikimedia Commons

Why God is the Foundation of American Liberty

In the United States, the Pledge of Allegiance has been a part of American life since 1942 when congress passed the Flag Code into law, describing the proper ways to display and treat the nation's flag. 1 At that time, the pledge did not contain the words "under God" in it. It also originally stipulated that citizens should say the pledge with their right hands outstretched toward the flag. However, given that salute's eerie similarity to the Nazi salute, the wartime congress quickly amended the law to have citizens place their right hands over their hearts. 2

It wasn't until 1953, when Democratic Congressman Louis Rabaut and Republican Senator Homer Ferguson introduced a bill to congress to amend the Pledge to include the words "under God" that the national debate was brought center stage. During this time, many different voices contributed to the debate. While a lot of media today explain away the addition as simply a knee-jerk response to those "Godless communists" in the Soviet Union, I think there is much more to the addition than that. Several civic groups, most noticeably the Roman Catholic Knights of Columbus had decided to include the phrase in their recitation of the Pledge a few years prior, modeling it after Abraham Lincoln's use of the term in his Gettysburg address.3 Other groups began to do likewise.

God and the Constitution

In general, the question of how God relates to American government was swirling at the time. In 1952, the U.S. Supreme Court had just decided a case (Zorach v. Clauson, 343 U.S. 306) stating school children should be excused from attending public school for reasons of religious education or religious observance. Justice William O. Douglas, in writing for the majority said:

The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concern or union or dependency one on the other. That is the common sense of the matter. Otherwise the State and religion would be aliens to each other—hostile, suspicious, and even unfriendly…

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state [343 U.S. 306, 314] encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.4

Liberty Relies on the Natural Rights that God Bestows

As one can see, it was widely recognized that the United States was a nation founded upon certain principles, and those principles had at their root the belief that God exists and he is the source of those natural rights that this country holds so dear.

Such a concept shouldn't be shocking to anyone who has read the Declaration of independence. Even though Thomas Jefferson was a deist, he recognized that God alone grounds our rights. In writing about the revolution, he said "The god who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them."5 Jefferson in another letter goes on to reinforce this view. When speaking on the issue of slavery, one that had begun to divide the nation, he said:

And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever. 6

Because the liberties of Americans depend on God and the foundational recognition that all governments must be held to this standard, which is a standard above themselves, the pressure increased to add the words "under God" to the pledge.

A New Birth of Freedom

On Feb 7, 1954, President Dwight Eisenhower attended a service at New York Avenue Presbyterian Church where he heard Rev. George Docherty deliver a sermon entitled "A New Birth of Freedom," highlighting this distinction and drawing on Lincoln's Gettysburg Address. While Docherty did say "I could hear little Muscovites repeat a similar pledge to their hammer-and-sickle flag in Moscow with equal solemnity," to assume that was the focus of his reasoning would be to do him and President Eisenhower a disservice. You may real Docherty's entire sermon here, but for conciseness, here is the relevant portion:

There is no religious examination on entering the United States of America- no persecution because a man's faith differs even from the Christian religion. So, it must be 'under God' to include the great Jewish Community, and the people of the Moslem faith, and the myriad of denominations of Christians in the land.

What then of the honest atheist?

Philosophically speaking, an atheistic American is a contradiction in terms. Now don't misunderstand me. This age has thrown up a new type of man-we call him a secular; he does not believe in God; not because he is a wicked man, but because he is dialectically honest, and would rather walk with the unbelievers than sit hypocritically with people of the faith. These men, and many have I known, are fine in character; and in their obligations as citizens and good neighbors, quite excellent.

But they really are spiritual parasites. And I mean no term of abuse in this. I'm simply classifying them. A parasite is an organism that lives upon the life force of another organism without contributing to the life of the other. These excellent ethical seculars are living upon the accumulated spiritual capital of Judeo-Christian civilization, and at the same time, deny the God who revealed the divine principles upon which the ethics of this country grow. The dilemma of the secular is quite simple.

He cannot deny the Christian revelation and logically live by the Christian ethic.

And if he denies the Christian ethic, he falls short of the American ideal of life.

In Jefferson's phrase, if we deny the existence of the god who gave us life how can we live by the liberty he gave us at the same time? This is a God-fearing nation. On our coins, bearing the imprint of Lincoln and Jefferson are the words "In God we trust." Congress is opened with prayer. It is upon the Holy Bible the President takes his oath of office. Naturalized citizens, when they take their oath of allegiance, conclude solemnly, with the words "so help me God."

This is the issue we face today: A freedom that respects the rights of the minorities, but is defined by a fundamental belief in God. A way of life that sees man, not as the ultimate outcome of a mysterious concatenation of evolutionary process, but a sentient being created by God and seeking to know His will, and "Whose soul is restless till he rest in God."

In this land, there is neither Jew nor Greek, neither bond nor free, neither male nor female, for we are one nation indivisible under God, and humbly as God has given us the light we seek liberty and justice for all. This quest is not only within these United States, but to the four corners of the glove wherever man will lift up his head toward the vision of his true and divine manhood.7

After that sermon, President Eisenhower went to congress and asked them to reintroduce the amendment to the Flag Code, which he signed into law on May 28, 1954.

References

1. Streufert, Duane. "United States Code." USFlag.org. Duane Streufert, 8 July 1995. Web. 20 Apr. 2015. http://www.usflag.org/uscode36.html.
2. "Historical Timeline - Under God in the Pledge." ProCon.org. ProCon.org, 2015. Web. 20 Apr. 2015. http://undergod.procon.org/view.timeline.php?timelineID=000029.
3. "Historical Timeline", 2015.
4. Zorach v. Clauson, 343 U.S. 306 (1952). United States Supreme Court. 28 Apr. 1952. Web. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=343&invol=306
5. Looney, J. Jefferson, ed. The Papers of Thomas Jefferson: Retirement Series. Princeton: Princeton University http://www.monticello.org/Press, 2004. Web.
6. Looney, 2004.
7. Docherty, George. "A New Birth of Freedom." Virtue, Liberty, and Independence. City-On-A-Hill, 7 Feb. 1954. Web. 20 Apr. 2015. http://liberty-virtue-independence.blogspot.com/2012/02/new-birth-of-freedom-rev-george.html.

The Injustice of Government Defining Marriage

In the history of the United States, there are two United States Supreme Court decisions that everyone agrees were breathtakingly egregious. Both were rulings focusing on government laws that tried to police the natural course of human beings and both times the Court came down on the wrong side of nature.

The first case involved an African-American man named Dred Scott who was bought as a slave. Although his master, Peter Blow, moved from Virginia to the state of Missouri where slavery was illegal, Scott wouldn't be released by Blow. Scott attempted to purchase his freedom and was denied, so he sued for his family's freedom.1 In 1850, the St. Louis circuit court ruled that Scott was free, but appeals and counter appeals went all the way up to the Supreme Court, which threw out the verdict on the grounds that as a man of African descent, Scott didn't have standing to sue in a court of law. In fact, the Supreme Court ruled that "When the Constitution was adopted, [those of African descent] were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its 'people or citizens.' Consequently, the special rights and immunities guarantied to citizens do not apply to them."2

The second case focused on a woman named Carrie Buck and the state of Virginia's desire to forcibly sterilize her against her will. Virginia had recently passed a law that "the state could sterilize anyone found to be incompetent because of alcoholism, epilepsy, feeblemindedness, insanity, or other factors."3 Buck was presumed to be feeble-minded and to have come from a mother who was similarly classified as such. You can read the details here, but the Supreme Court agreed that the state had a compelling interest in forcibly sterilizing Buck against her will, with Justice Oliver Wendell Holmes famously pronouncing "Three generations of imbeciles are enough."4

Redefining What It Means to Be Human

Some would point to both these decisions as wrong because the Court did not grant more freedom to the plaintiff. But it isn't freedom in the sense of the unrestricted ability to do what one wants that was at issue. For example, there is a real compelling interest to incarcerate dangerous criminals. If granting freedom for freedom's sake is all that we should recognize, then prisons don't make much sense.

It isn't freedom where the courts went awry, it was the fact that the court tried to override the natural understanding of what it means to be human. The Dred Scott decision sought to redefine the concept of a person, stating that the government has the power to define just who qualifies as a person. If your family is from the African continent, then the government is within its right to redefine your personhood. The Buck v Bell decision argued that the government had the right to redefine who is deserving of having children or which genes should be passed on to future generations.

Nature and Natural Law

 In both cases, nature and biology would say that there is nothing fundamentally different in Mr. Scott's makeup that makes him any less human and therefore any less a person than anyone else. In Carrie Buck's case, the Court allowed the state to break the natural function of her body and stop it from reproducing. In both cases, the Courts didn't recognize the facts that natural law had established but thought that government institutions could redefine natural law into whatever meaning they wished.

Today, there are two other cases that divide the people. In the 1972 Roe v Wade decision, the Court granted the states the power to redefine an unborn baby as something other than a person, and, just like Dred Scott, without guarantee of the rights and protections that all citizens enjoy. In the as yet undecided same-sex marriage cases, the Court is weighing whether states can refuse to redefine marriage to include same-sex couples. States that make such inclusions are also ignoring the natural process that every child is the product of a man and a woman and marriage is simply the codification that process as the best environment for children.

The Danger of Tyranny

We see the decisions against Scott and Buck as coercive intrusions of government over flexing its power to thwart what "Nature and Nature's God entitle them" as the Declaration puts it. Governments must maintain law and order. However, any government that believes it can redefine any aspect of natural law is not creating more freedom; it is creating enslavement. For even if you are a proponent of the new definition, you are conceding that the Government has the power to ignore nature and redefine any aspect of humanity that it so wishes. Once we cede such power to the courts or the government, there are no limits to the tyrannies they could enact. Natural rights must be anchored in natural law and natural law is reflected in our natural biology. When legislation or legal opinions contradict the basic functions of human beings, we all lose.

References

1. PBS. "Dred Scott's Fight for Freedom." PBS. WGBH Educational Foundation, 1989. Web. 19 Mar. 2015. http://www.pbs.org/wgbh/aia/part4/4p2932.html.
2. Scott v. Sandford. 60 U.S. 393. U. S. Supreme Court. 1857. Legal Information Institute. Web. https://www.law.cornell.edu/supremecourt/text/60/393.
3. Smith, J. David and the Dictionary of Virginia Biography. "Carrie Elizabeth Buck (1906–1983)." Encyclopedia Virginia. Virginia Foundation for the Humanities, 31 May. 2013. Web. 24 Jun. 2013. http://encyclopediavirginia.org/Buck_Carrie_Elizabeth_1906-1983.
4. Buck v. Bell, Superintendent of State Colony Epileptics and Feeble Minded, 274 U.S. 200.U.S. Supreme Court. 1927. American Legal History – Russell. 18 November 2009. Web. http://www.houseofrussell.com/legalhistory/alh/docs/buckvbell.html.

An Atheist's Bait and Switch on Morality

In the 1988 comedy Coming to America, Eddie Murphy plays an African prince who seeks a wife by trying to blend in with the "regular people" of New York. One way he attempts this is by taking a job at a hamburger shop named McDowell's. Part of the joke is that McDowell's advertises with some familiar golden arches and red and white color schemes, hoping to capture an unsuspecting customer desiring a Big Mac. In the film, owner Cleo McDowell explains: "Look...me and the McDonald's people got this little misunderstanding. See, they're McDonald's...I'm McDowell's. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns have no seeds."

In the real world, McDowell's wouldn't stand a chance in a court of law. They've intentionally mislead customers to think their experience is going to be one thing, when it is in fact a cheap imitation. That's the feeling I had this morning reading the latest article by Michael Shermer in today's paper. Entitled "The influence of science and reason on moral progress," Shermer claims that we are "living in the most moral period in our history" and then makes a bold assertion:

To what should we attribute this moral progress? Understandably, most people point to religion as the primary driver, given its long association with all matters moral. But the evidence shows that most of the moral development of the last several centuries has been the result of secular forces, and that the most important of these are reason and science, which emerged from the Enlightenment.1

Substituting a Cheap Imitation of Natural Law

The article has a huge number of problems, like trying to classify the writings of Immanuel Kant, John Locke, and Thomas Jefferson as exercises in empirical science. He writes, "Enlightenment natural philosophers (we would call them scientists today) such as John Locke, Thomas Jefferson and Immanuel Kant placed supreme value on reason, scientific inquiry, human natural rights, equality and freedom of thought and expression."2 Actually, no one calls them scientists. One doesn't study Kant or Locke in Life Science class. Go to any college or university and you will find analysis of their works in the philosophy department. Shermer is astoundingly wrong here.

In reading the article, Shermer is dead set on substituting the real arguments made by men like Locke and Jefferson with his own cheap imitation.  He takes the phrase "natural philosophers" and "natural law" and equivocates on what the word "natural" means. He portrays it to mean "only dealing with nature," that is the material world. But such an assumption is like substituting a tofu patty for 100% pure beef. The Natural Law that Locke appeals to is based on the created order. Locke states:

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.3

Appealing to God for Equality

One can easily see that Locke is using the term "naturally" to talk not of biology or material aspects of human beings, but of the right of each person to be free. Locke says that this state of nature derives from the Natural Law or law of nature. He goes on to specify the source for that law:

In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security; and so he becomes dangerous to mankind, the tye, which is to secure them from injury and violence, being slighted and broken by him (Section 8)…

that every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, … and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind (Section 11)…

I doubt not but it will be objected, that it is unreasonable for men to be judges in their own cases, that selflove will make men partial to themselves and their friends: and on the other side, that ill nature, passion and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men (Section 13). 4

So, in arguing that government has authority to punish evil men, Locke appeals to God and his created order. That is, the natural state of man means God created him with freedom, but also the warrant to protect himself from others. Since men tend to play favorites, the Government must judge all men impartially, and again the government is given this authority by God (ref Romans 13:1-7).

Of course, Shermer doesn't have to be a Lockean scholar to understand this. All he needed to do was read the Declaration of Independence where Jefferson clearly spells it out in the words "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." That's a pretty fair summation of Locke and the word Creator is right in the middle of it.

Part of Shermer's problem is he sees everything through his scientism/materialist worldview. He forces the word nature to mean something that Kant, Locke, and Jefferson didn't intend it to mean. He hasn't simply "left off the seeds," he's changed the entire main course. Shermer's morality is a bait and switch that no nutritional value whatsoever.

References

1. Shermer, Michael. "The Influence of Science and Reason on Moral Progress." Los Angeles Times. Los Angeles Times, 27 Jan. 2015. Web. 27 Jan. 2015. http://www.latimes.com/opinion/op-ed/la-oe-shermer-bending-moral-arc-20150127-story.html.
2. Shermer, 2015.
3. Locke, John. "Chapter II. Of the State of Nature." The Second Treatise of Civil Government. N.p.: Public Domain, 1690. Constitution Society. Constitution.org. Web. 27 Jan. 2015. http://www.constitution.org/jl/2ndtr02.txt.
4. Locke, 1690.

How Modern Society Turns Virtue into Vice

Our culture today has lost the concept of virtue. As I've written before, colleges have placed feelings above values, and relativism above moral responsibility. Because the only thing now considered wrong is the critique of another's actions, the concept of virtue has nearly disappeared from Western society. We feign virtuousness by boasting of our tolerance and demand a society where no one's choices are called out as illegitimate. But that misunderstands the very nature of virtue.

In this short quote below, J. Budziszewski explains just what virtue is:

If I said, “The excellence of a knife is its sharpness,” you would know what I meant: sharpness is the specific quality that enables a knife not just to cut, but to cut excellently. Another word for excellence is virtue. So you would also know what I meant if I said the virtue of an eye is clearness or that the virtue of a racehorse is swiftness. Clearness is what enables an eye to see excellently, swiftness is what enables a racehorse to race excellently. Once again we have a formula. A virtue or excellence of a thing (there may be more than one) is the specific quality that enables it to perform its function or proper work excellently and so achieve its highest good.

Like our last formula, this one too can be applied to mankind. How do we know whether a particular human quality, such as courage or ruthlessness, is a virtue or not? The proper work of a human soul is using and following reason. So the quality is a virtue only if it helps it to do so excellently. For instance, one virtue is theoretical wisdom, the discipline of mind which helps us reason our way to truth while avoiding error; another is practical wisdom, the discipline of mind which helps us reason our way to good choices while avoiding evil.

But here we run into a problem. It looks at first as though the only true virtues are intellectual ones. What about moral virtues, such as courage, justice, self-control and friendliness? Isn't there a place for them? Yes, for two main reasons. To understand the first one, remember that more than one thing is active in the human soul: not only the power of reasoning itself but also the power of feeling and the power of desiring. … Just as the intellectual virtues discipline the thoughts, the moral virtues discipline the feelings and desires. An example of moral virtue that disciplines the feelings is courage, whereas an example of moral virtue that disciplines the desires is self-control.

To sum up, the main reason the intellectual virtues are not the only virtues is that different virtues are needed to put each of the different powers of the soul in rational order. The second main reason is that different virtues bring the soul into rational order in different respects.1

Virtue is lost in our society because we no longer look at the entire person and his purpose for existence. Modern culture has elevated feeling above reason; the action or critique is wrong because it makes someone feel bad or it stifles his desire. Instead, one must understand what it means to be an excellent human being, which encompasses both intellectual and moral excellence. To not approach human excellence holistically turns tolerance into a vice, not a virtue.

References

1 Budziszewski, J. Written on the Heart: The Case for Natural Law. Downers Grove, Ill: InterVarsity, 1997. Print. 26-27.

Supreme Court Decisions Cannot Define Morality

Many people are anxiously awaiting the United States Supreme Court Decisions on the constitutionality of California's Proposition 8 and the federal Defense of Marriage Act (DOMA). Many supporters of same-sex marriage think that once the Court rules on the issue, they will be vindicated and anyone who views SSM as either a moral violation or a biological impossibility will be proven wrong. But the Supreme Court wasn't designed to provide good answers to either morality or biology. For a clear example of that, we need only look to the fate of Carrie Buck.

According to the Encyclopedia of Virginia, Buck was born in Charlottesville in 1906. Her father died when she was very young. When she was three her mother was committed to the Virginia State Colony for Epileptics and Feeble-Minded, mostly on the basis of her ongoing promiscuity.1 Buck then lived with a foster family, developing normally until she became pregnant at the age of 16. Ignoring Buck's claims that she was raped by their nephew, her foster family foisted the charge of promiscuity and feeble-mindedness on Buck and had her likewise committed.

About this time, the state of Virginia had recently passed a law that "the state could sterilize anyone found to be incompetent because of alcoholism, epilepsy, feeblemindedness, insanity, or other factors." The lawmakers knew their legislation was a constitutional gamble. As the Encyclopedia puts it:

"Behind the law was the eugenic assumption that these traits were hereditary and that sexual sterilization could thus prevent their transmission. Uncertain that the new law could withstand a constitutional challenge, the framers and supporters of the law arranged to test it in court. They chose Buck in the belief that she had inherited her feeblemindedness from her mother and that her daughter showed signs of slow mental development as well."2

Buck's forced sterilization worked its way up Virginia's appellate courts until she appeared before the U.S. Supreme Court in April of 1927. On May 2 of that year, Justice Oliver Wendell Holmes, Jr., speaking on behalf of an 8-1 majority ruled that the forced sterilization law was constitutional. In the majority opinion Holmes famously wrote:

"It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough."3

By all accounts Holmes was a brilliant U.S. Supreme Court Justice. He served for almost thirty years and is considered a scholar "who, more than any other individual, shaped the law of the 20th century" according to biographer Albert W. Alschuler.4 But as a legal scholar, Holmes was neither a theologian nor a biologist. He was neither a philosopher nor a geneticist. So, how could that Court be the last word morally for a question that has at its basis what being human means?

Of course, the pro-eugenics crowd testified with their experts as to Carrie's diagnosis. The Court's decision, though, did not turn on whether Carrie Buck's diagnosis was accurate, even though Holmes believed it was.  In the majority opinion he wrote, "There can be no doubt that so far as procedure is concerned the rights of the patient are most carefully considered, and as every step in this case was taken in scrupulous compliance with the statute and after months of observation, there is no doubt that in that respect the plaintiff in error has had due process of law. The attack is not upon the procedure but upon the substantive law"5 (emphasis added).

Holmes was a lawyer; as such he ruled on the legality of the laws set before him. In order to declare eugenics acceptable, the justices would have to reason on legal grounds. Therefore, the majority agreed that "compulsory vaccination is broad enough to cover cutting the Fallopian tubes." Eight Supreme Court Justices had to change the definition of what a vaccination is in order to legally include forced sterilization. Only then could eugenics practices gain traction. But in so doing the Court made the claim that the state rather than God can decide how human reproduction should work in the lives of certain individuals.

In fact, Aubrey Strode, the attorney arguing on behalf of Virginia made this explicit. According to Scott Polirstok:

"Strode argued that a feebleminded individual will benefit from having his/her lost liberty ‘restored' following a sterilization procedure. In other words, a feebleminded individual who had not as yet been sterilized, did not have any liberty as a sexual being because of the fear of producing children who would be mentally deficient. However once sterilized, the individual and society could be free of the fear of producing defective children and hence liberty would be ‘restored'."6

Holmes' decision in this case was neither morally upright nor biologically accurate. Today we see such a decision as abhorrent, and rightfully so. But it was always abhorrent, even when the court ruled that it was legal and a decision that was "better for the world" or that the individuals would be "restored" to sexual liberty. It didn't matter that eight very intelligent and well-schooled justices saw fit to allow such atrocities to American citizens. They were wrong and their ruling did not make forced sterilizations moral.

When we try to claim that simply because something is legal that makes it moral, we fall victim to a type of pragmatic moral relativism that will blow to and fro with the whims of the culture. But that's not what morality is. Real moral values and duties don't change. They are objective, based in God and who we are as human beings. The circumstances of how those values and duties play out may differ, but the principles remain unchanged. So, don't think that any court decision means the death knell for morality.

Carrie Buck was forcibly sterilized in 1927 and Virginia perpetrated the same cruelty on over 8,300 others for nearly fifty years. Nationally, the number of forced sterilizations is estimated at 60,0007 and sterilizations continued through most of the 1970's. Many of the victims are still alive and seek reparations from the state. And if you're wondering, the Buck v. Bell decision has never been overturned. Does that make it the right thing to do?

References

1. Smith, J. David and the Dictionary of Virginia Biography. "Carrie Elizabeth Buck (1906–1983)." Encyclopedia Virginia. Virginia Foundation for the Humanities, 31 May. 2013. Web. 24 Jun. 2013.<http://encyclopediavirginia.org/Buck_Carrie_Elizabeth_1906-1983>

2. Ibid.

3. Russell, Thomas D. "BUCK v. BELL, Superintendent of State Colony Epileptics and Feeble Minded, 274 U.S. 200 (1927)." American Legal History – Russell. 18 November 2009. , http://www.houseofrussell.com/legalhistory/alh/docs/buckvbell.html> Accessed June 24, 2013.

4. Alschuler, Albert W. Law Without Values: The Life, Work, and Legacy of Justice Holmes. (Chicago: University of Chicago Press, 2000). 1.

5. Russell. Ibid.

6. Polirstok, Scott. "Buck v. Bell: A Case Study" Binghamton Journal of History. Binghamton University. <http://www2.binghamton.edu/history/resources/journal-of-history/buck-vs-bell.html> Updated 6/3/2012. Accessed 6/24/2013

7. Stern, Alexandra Minna. Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America. (Berkeley: University of California Press, 2005). 84.

Exorcising God from Martin Luther King

Yesterday, the Los Angeles Times ran an Op-Ed piece entitled "King's Easter epistle" by David B. Oppenheimer for Easter Sunday. The article wasn't really a nod to Easter observances. Rather, it marked the 50th anniversary of King writing his famous "Letter from a Birmingham Jail." Oppenheimer discusses the events surrounding King's imprisonment and how he answered the charge of how one could violate the law in arguing  for following the rule of law. He also reproduces a portion of King's letter, ending with what Oppenheimer feels to be the key idea: "One may well ask: 'How can you advocate breaking some laws and obeying others?' The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws."

Photo credit: Adam Jones, Ph.D.

While all of this is well and fine, I find it interesting that Oppenheimer stops his quote short. He takes a 540 word paragraph and lops off 15 words that make up the last sentence. The closing of the King passage reads, "I would agree with St. Augustine that 'an unjust law is no law at all.'"

Why would Oppenheimer choose to exorcise that sentence? Perhaps the reason is that in both the article and in the excerpt, Oppenheimer avoids the question of "What is it that makes a law just or unjust?" But this is King's goal in writing his letter! He is not simply telling his interlocutors why he chooses to protest, but providing the moral basis for so doing. King holds that the moral grounding for discerning between just and unjust laws is found in God Almighty.

The fact that King rooted his morality in a biblical belief is clear from the letter itself. In the very next paragraph of King's letter, he writes:

 "Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law."

So, King quotes from Augustine and Aquinas in grounding his judgment between just and unjust laws in the moral law.  Both Augustine and Aquinas argue that the moral law is rooted in God's law, a point which King agrees when he follows up the phrase "moral law" with its clarification "the law of God." This makes sense as King begins the paragraph quoted in the article with the sentence "We have waited for more than 340 years for our constitutional and God given rights." Notice King states that his rights are given by God. That makes them irrevocable by local ordinance.

I think it's telling how Oppenheimer chooses to amputate a sentence from the key area of his excerpt on King. He feels that discussing the examples of prejudice King cites will move his audience and those examples alone are enough to buoy King's argument.  But King didn't feel this way. He used the examples as a way of setting the stage for his real argument: men have rights endowed to them by God and it is the responsibility of anyone who follows that God to also act out against the injustice of those laws. Later in the letter, King writes:

"Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

"We should never forget that everything Adolf Hitler did in Germany was 'legal' and everything the Hungarian freedom fighters did in Hungary was 'illegal.' It was 'illegal' to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws."

I do agree with Oppenheimer that "Anyone who hasn't read King's response lately (and most of us who have) would benefit from spending a few minutes reading it this Easter weekend." But Oppenheimer needs to take off his selective glasses and receive the letter as a whole.  As King noted above, just doing what is legal or illegal because the state has declared it such doesn't make it just or right. We need to ground our concept of justice in "a higher moral law."  Only then can we see clearly and advocate justly.