Monday, April 20, 2015

A Common Sense Guide to Same-Sex Marriage and the Constitution

Next Tuesday, April 28, 2015, the Supreme Court of the United States will hear oral arguments in four consolidated cases, all of which deal with the issue of same-sex marriage. It promises to be a "landmark case," whichever way it is decided. In all likelihood this will be the Roe v. Wade of the current generation.

In cases of such cultural and legal significance, it is important for Christians to understand the arguments that are being presented. While we may have a strong theological grasp of why marriage—biblically defined—consists of a lifelong monogamous union between one man and one woman, the legal arguments concerning the constitutionality of state marriage laws are a different issue. Yet I believe that Christians should endeavor to stay informed and active in civic engagement, especially in cases like these. Though not everyone can be a constitutional scholar, anyone willing to pay attention and think critically can understand the applicable laws and principles of this case. My aim is to communicate the legal argument in favor of states with same-sex marriage bans in a way that is understandable by the ordinary person with no legal training whatsoever.

First, we must understand what is the issue, legally, that the Court will decide. The constitutional issue is not whether same-sex marriage is good or bad. Nor is it whether the view of traditional marriage is the right view. There is no constitutional argument that heterosexual marriage should be the norm for the entire nation. The issue in this cases is whether the Constitution requires states to recognize same-sex marriages. Or, to put it the other way around, does the Constitution allow each state to define marriage for itself? A careful consideration of the Constitution and relevant cases reveals that yes, each state can define marriage for itself. Consequently, the Constitution does not require every state to recognize same-sex marriages. So let's dive into the argument. The following Question Presented is from Petitioners' (i.e., individuals seeking same-sex marriages) brief:

QUESTION PRESENTED: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

A legal analysis of this question generally has three parts:

1. Do states have the authority to define marriage? If so, are there any constitutional constraints?
2. Do the state marriage laws at issue violate the 14th Amendment's Due Process clause?
3. Do the state marriage laws at issue violate the 14th Amendment's Equal Protection clause?

If the answer to either questions two or three are yes, then the state laws are unconstitutional. But let's start with question number one: Do states have the authority to define marriage? And if they do, what constitutional restraints apply to those definitions?

State Authority to Define Marriage

States traditionally have enjoyed the right to define and control the institution of marriage. Since our nation's founding, states have overseen the civic institution of marriage, conferring benefits and establishing consequences for the breakup of marriages. The US Constitution, however, does not set a national standard for marriage that all states must follow. Simply put, the Constitution is silent on the issue of marriage; therefore, the power to regulate and define marriage is left to the states as part of their general sovereign authority.

Several Supreme Court cases have upheld and reaffirmed the state's integral role in defining and regulating marriage. For more extensive reading on the history of the state's involvement in marriage, the State of Utah's Petition for Certiorari in a similar marriage case is worth a read.

More recently, however, the Supreme Court addressed this very issue in the "DOMA" case, often called the Windsor decision. This case struck down as unconstitutional the federal Defense of Marriage Act, in which the federal government refused to recognize or confer benefits to same-sex married couples. In reaching its decision to invalidate the law, the Supreme Court relied on the bedrock premise that states controlled marriage, not the federal government. In other words, the Court held that the federal government could not refuse to recognize state-sanctioned same-sex marriages precisely because the power to define and police marriage lies with each state.

Although this decision was lauded as a victory for LGBT rights, the underlying principle of the case cuts against Petitioners here. Either Windsor was incorrectly decided (and thus requires reversal), or the states can define marriage for themselves, and Petitioners' argument fails. Simply put, our nation has a longstanding history and tradition of conferring the marriage power to states, and a decision contrary to that would fly in the face of a long list of settled legal precedent.

Even though states have the authority to define marriage, those definitions are subject to constitutional constraints that apply to all other state laws. In other words, state marriage laws must follow the constitutional protections guaranteed by the 14th Amendment (which makes most federal constitutional rights applicable to the states). This takes us to question number two: do the state laws in this case violate the 14th Amendment's Due Process clause?

Fundamental Rights Analysis

The 14th Amendment to the Constitution generally prohibits the government from infringing upon a person's life, liberty, or property without due process of law. Over time (and through much debate, but not a topic for this article), the Court has understood this provision of the Constitution to protect a person's fundamental liberties from being infringed upon by the states. It is a "substantive rights" guarantee. The Constitution, however, does not specify what fundamental liberties, or "rights," a person has. So, the Court looks to our nation's history and tradition to determine if there is a fundamental right at stake. If there is a fundamental right at issue, then the law must be narrowly tailored to further a compelling governmental interest, using the least restrictive means available. This is called the "strict scrutiny" test, and it is a high burden to overcome. 

The first step in fundamental rights analysis is to determine what is the "right" being addressed. Then, once the right is named specifically, the Court will determine if that right is "fundamental," i.e., a constitutionally protected liberty interest. A right is fundamental in American law if it is "so deeply rooted" in our nation's history and tradition as to be implicit to the concept of ordered liberty. (Unfortunately, the existence or non-existence of these rights depends upon the makeup of the Supreme Court.)

If, however, the identified right is not a fundamental right, then the Court applies the "rational basis" test to the law. Under rational basis review, the law must simply bear a rational basis to furthering a legitimate government interest. It is a fairly low standard of review—most laws withstand this test.

Let's consider the fundamental rights analysis with respect to the current marriage cases before the Court. In the Petitioners' written brief, they describe the right at issue as "the right to marry the one adult of their choice," regardless of gender. To be sure, the wording is crafted carefully and intentionally. According to Petitioners, though, this right—as stated—is fundamental to American liberty. But let's consider this assertion in the light of our nation's history and tradition.

The 14th Amendment, on which the Petitioners rely, was adopted in 1868. At that time, no state recognized same-sex marriages. In fact, no sovereign nation in the entire world allowed same-sex couples to marry until the year 2000. In America, the first state to allow same-sex marriage (Massachusetts) did not do so until 2004—a mere decade ago. Therefore, it is a far stretch of the imagination to assert that the right of persons to marry the one adult of their choice—independent of gender—is "so deeply rooted in our nation's history and tradition" as to be implicit to the concept of ordered liberty. Ordered liberty has flourished in this country for nearly 250 years without same-sex marriage. If anything, one could say that sexual complimentarity in marriage is deeply rooted in our nation's history and tradition, not same-sex marriage. To say that it is a fundamental right does not line up with what, by definition, constitutes a fundamental right. The Supreme Court has used this line of reasoning as recently as the Windsor decision. 

Moreover, the Petitioners did not provide any limiting principle to this fundamental right to marry other than that it be the "one" person that another person chooses to marry. But this ignores other longstanding prohibitions against marriage choice that operate as legitimate (and unquestioned) constraints on marriage options. For example, most—if not all—states have some sort of law prohibiting marriage between, say, brother and sister. These "consanguinity" laws remain unchallenged, yet they clearly operate against the Petitioners' definition of the fundamental right to marry. There are other examples, but the point is that the freedom to marry whomever one wants is not deeply rooted in our nation's history and tradition. Same-sex marriage, therefore, is not a fundamental right guaranteed by the Constitution. 

So, if same-sex marriage is not a fundamental right, the Court should apply the rational basis test, where the law must bear some rational basis related to furthering a legitimate government interest. But even under this test, the Petitioners argue that same-sex marriage bans bear no rational relationship to a legitimate government interest. Instead, they argue that bans on same-sex marriage are based solely on an arbitrary animus towards same-sex sexual relationships and homosexual individuals. A closer look at what marriage is, and its relationship to an ordered civil society, however, reveals that this claim is false. Even more, an honest look at the historical record reveals that traditional definitions of marriage are not based on an animus towards gays and lesbians. Indeed, throughout history, societies that were notably tolerant of homosexual behavior still defined marriage as between one man and one woman. For an extended discussion on this topic, I recommend Ryan T. Anderson's lecture at Franciscan University on the uniqueness of man-woman marriage and its role in society.

Simply put, the government has a legitimate interest in the success of the family as the foundation of a civil society. Many states, relying on voluminous social science data, have concluded that a married mother and father under one roof is the most stable and healthy environment in which to raise children. The unique advantages that a sexually complimentary marital relationship provides for children is well-documented and extensive. Petitioners, though, largely ignore this data. So, in order to promote a flourishing family structure and society, several states have defined the marriage relationship to be the heterosexually monogamous relationship between one man and one woman. True, not all couples have children, and many couples who desire children cannot have them. But the fact remains that man-woman marriage is the preferred family situation for raising any children that may result from a marital union. Excluding the requirement of sexual complimentarity in marriage ignores this biological and teleological reality. Governments, therefore, have endeavored to create a structure in which families and children can thrive. Surely the government has at least a legitimate interest in providing a culture in which families can flourish and children can thrive.

In order to pass muster, then, the state's law must bear a rational relationship to this interest. Clearly, defining marriage as between a man and a woman is rationally related to the government's objective of promoting a stable and productive family atmosphere. This is a low standard, but the positive relationship between stable family environments and a stable and productive society is well documented—and rational. Petitioners, however, must go so far as to say that this relationship, and the belief that children deserve the chance to be raised by both mother and father, is completely irrational. Completely irrational! This is a bold claim. Taken to its logical end, Petitioners must affirm that millenia of experience and social science are completely irrational and meaningless.

The truth is that state laws defining marriage as between a man and a woman do have a rational basis in furthering a legitimate government interest. The state laws, therefore, withstand the fundamental rights analysis. On to question three: do the states' laws violate the Equal Protection clause?

Equal Protection Analysis

The next part of the analysis focuses on the Equal Protection clause of the 14th Amendment, which says that no state shall deny any person "equal protection of the laws." Historically, this has been understood to prohibit discrimination on the basis of race. All laws should apply equally to all people, regardless of race. Under modern Equal Protection analysis, however, there is a two-part test. 

The first element of the test seeks to determine if the law disfavors, or treats differently, a protected class of persons. "Protected class" status has traditionally been reserved for classifications based on race, and to some extent, sex. If a law treats members of a protected class differently, then the Court will apply the "strict scrutiny" test mentioned above. If there is a "quasi-protected class," such as a classification based on sex (or sexual orientation, as argued by Petitioners), then the court will use an analysis called "intermediate scrutiny." In order to meet the heightened scrutiny standard, a law must be "closely related" to an "important government interest." And if there is no protected class, the Court will apply the rational basis test. 

Petitioners in this case mount an attack on marriage laws on two separate fronts. First, they argue that same-sex marriage bans discriminate on the basis of sexual orientation, and that sexual orientation discrimination should trigger the "heightened scrutiny" standard of review. Second, they argue that, even if heightened scrutiny does not apply, the states' same-sex marriage bans do not pass even the rational basis test. 

Because we have already discussed the rational basis analysis, let's address the claim that same-sex marriage bans discriminate against gays and lesbians on the basis of their sexual orientation. Petitioners' argument on this claim absolutely depends upon the premise that same-sex marriage bans discriminate against certain people on the basis of their sexual orientation. A closer look at the issue, however, reveals that this is simply false. (In my opinion, this is the most important part of the analysis, and a point often overlooked). 

The truth is that defining marriage to include only a man and a woman has nothing to do with sexual orientation. It has everything to do with sexual complimentarity. A ban on same-sex marriage does not, as Petitioners argue, foreclose the option of marriage for homosexual individuals. Many gay and lesbian men and women have entered into fulfilling, loving, and successful marriages. In fact, a group of same-sex attracted men filed a "friend of the Court" brief to show (and admirably so) that LGBT persons can enter into faithful and meaningful man-woman marriages. If Petitioners are correct that same-sex marriage bans foreclose the entire LGBT population from fulfilling marriages, then they must also affirm that the myriad man-woman marriages entered into by homosexual men and women are shams and virtually meaningless. 

This point bears repeating (because Petitioners have done an excellent job of framing the issue): same-sex marriage bans do not discriminate on the basis of sexual orientation. Same sex marriage bans do not prevent gays and lesbians from marrying; gay and lesbian individuals are as equally free to choose to enter a marriage relationship as heterosexual individuals. The claim that same-sex marriage bans discriminate against gays and lesbians is simply false. The basis for "discrimination" in this case is sexual complimentarity, not sexual orientation. And sexual complimentarity is not a protected class under the Constitution. 

Because the classification at issue does not have "protected class" status, heightened scrutiny should not apply, and the Court should engage in the rational basis test outlined above. Given the leniency of rational basis review, the state laws should withstand the proper Equal Protection analysis.

Conclusion

Same-sex marriage, simply put, is not a fundamental right protected by the Constitution. Nor do same-sex marriage bans unfairly discriminate against gays and lesbians on account of their sexual orientation. Appeals to constitutional equality alone do not tell us which version of marriage should apply equally to all. And because the Constitution is silent on the definition of marriage, the ability to define its parameters should be left to each state.  

Resources for Further Study:




Wednesday, April 15, 2015

Beggar Child

Sometimes I feel like a child, tugging at his father's leg. "Daddy, I want this, Daddy, I want that. Daddy, give me these things." Only it is a man tugging desperately at the foot of a holy God. Should I be so bold? Only the things I ask aren't bad: Give me peace, give me joy, deepen my dependence on you, give me integrity and freedom from sin.

These things I ask for incessantly. Does God hear? Does He want to give? Does He delight in me? Or am I like the crying child whose mother brings him a drink of water in the night just to stop the crying? Sure, the mother loves her child, but the crying tries her patience.

Am I thus with God? But still I am like that child—helpless. I cannot get the drink of water for myself, especially the kind of water that I seek. Helpless—just a beggar who barely knows that for which he ought to beg. Do what you will with me; I have nothing to give, except my life—to the Father, through the Son, and by the Spirit.

Thursday, March 19, 2015

Results-based Reasoning

I want to follow up with a few thoughts related to my earlier post on King v. Burwell. There, I dealt with certain legal nuances in the King v. Burwell case and extrapolated those into the broader culture. Eventually we ended up, like many times before, at the Garden of Eden. But there is more to this case—and the principles at play—that warrants investigation. There have been some recent developments in other areas of society that play into this as well. The Hillary Clinton email scandal comes immediately to mind.

First, let's start with a question. Why was the King v. Burwell case so highly politicized? Statutory construction isn't one of the hot-button wedge issues between the Left and Right. And yet this case made front-page news for days. What did the media focus on? Was it methods for determining the meaning of a sentence in a statute? "Republicans are strongly committed to the historical-grammatical approach, but Democrats have been calling to use the narrative context approach." No, that didn't happen. What happened was that the media—and the political narratives—focused on the results of both possible outcomes of the case. From there, they reasoned why the law should or should not be upheld, based upon the desirability of such results. I understand this approach, but I think it is misguided and devalues truth. I also see this approach deeply imbedded in the way society—and Christians—sometimes approach reasoning in general. Let's call it results-based reasoning.

Results-based reasoning has as its aim a particular desired result, and reasons from that point to arrive at a principle that supports the desired result. Usually people employ this method when there is a strong commitment to a particular result or policy in any given situation. This is commonly seen among lobbyists in Washington (even lobbyists for Christian causes). I have seen Christians engage in results-based reasoning in abortion cases, same-sex marriage cases, religious liberty issues, and many other related political topics. A great treatment of the topic with respect to religious liberty can be found here. We see a (rightfully) desired result, and we justify shaping and shifting and hem-hawing on the law because the result is good. There is the right result, so we need to make the law say whatever it needs to say to fit that result. 

We do this sometimes with the Bible: "if the Bible means X, then Y will result, and I don't like Y, so clearly the Bible doesn't mean Y." This method is enticing; however, in conservative, evangelical circles, I believe there is a healthy reticence to engage in this type of reasoning. We preach (or we ought to preach) "the Bible means X, therefore do Y." I realize that is a simplified scenario, but the principle is the same: The Bible is our authority, so we reason from it, not to it. In other words, we look at what the Bible says, and arrive at a result using the Bible as our foundation. We do not look at a desirable result and fit the Bible's meaning into that result. We are Christians, and so we stand in submission to God's word; the Bible does not submit to our desires. 

But how should Christians engage with non-canonical texts that still hold authority over our lives? Should we use the same process of reasoning, or are the rules different? I submit that the process for interpretation and application of biblical texts should also apply to all other texts (or laws) to which we are submitted. We should do this precisely because we are Christians.

A common victim of results-based reasoning is the Constitution. But the Bible and the Constitution are similar in that they are both a textual authority that govern something or someone. So we should interpret the Constitution the same way we interpret the Bible because both are an authority in our lives.

A proper submission to biblical authority reasons from the text of the Bible. Similarly, a proper submission to constitutional authority (which is also required of us) reasons from the text itself to whatever results from that reasoning. This is not to say that there won't be disagreements about the results. There will be. But the "litmus test" is whether we shoe-horn the Constitution to fit our desired result, or whether we engage in an honest attempt to follow what the text says and apply it faithfully to each situation.

Here is a great example of results-based reasoning in the King v. Burwell case. The author takes a predicted result of an unfavorable decision—that many people would lose subsidies—and reasons backward to the principle that the President only has to obey the Supreme Court's orders for the parties involved in that lawsuit. Thus, he concludes, the administration could still offer subsidies to everyone else besides the four parties to the lawsuit.

Now, the notion that the rest of the country does not have to obey a Supreme Court ruling (i.e., only the litigants to that case must obey the order) is a debatable topic. But usually it is debated in theory among academics. In academic debate, however, the question is usually this: is this a legitimate and legal course of action a priori, as a first principle? In this article, the question is put differently: can we use this debated legal principle to justify our desired ends? The question is quite different, and it illuminates the underlying worldview of the askers: truth is not an end to be reached; rather, it is a tool to be shaped towards a desired end.

People who love truth—or at least understand the nature of it—must understand that results-based reasoning is a denial of the immutability of truth. And to deny the immutability of truth is to deny the existence of truth. An immutable truth is no truth at all. Intellectually, I do not know many Christians who would deny that truth exists. But functionally, many of us operate as if it doesn't—or, at least, we can construct our own truth. This is why we are ok with using an "alternate" interpretation of the Bible when it suits our desired outcome. Or it is how we can say "yea, but..." when discussing a host of other issues. 

Christians should interact with other authoritative texts the same way we interact with the Bible. Its meaning is fixed and ascertainable. The "ascertaining" of that meaning may take time, effort, and debate, but it does not change, because the text itself has not changed. 

In the end, as always, there is a deceiver lurking in our ear: "does the text really say...?" Let us learn from the mistakes of our first parents and put off this old way of thinking. Both for the Bible and the Constitution. 



Tuesday, March 10, 2015

The Rule of Law and Original Sin

On March 4, 2015, the Supreme Court of the United States heard oral arguments in King v. Burwell, the case  that will determine whether subsidies provided for under the Affordable Care Act will be available to plans purchased on the federal health care exchange. The outcome of the case could have sweeping consequences for people who relied on federal-exchange funded subsidies to pay their healthcare premiums under the ACA. Aside from the pragmatic implications on everyday citizens, the underlying issue in this case illuminates a much deeper problem in the way our country (and culture) relates to the “the law.”

Some background information on the main issue in the case will help us understand what is going on. When Congress passed the Affordable Care Act, there was a section in the law that provided subsidies (in the form of tax credits) to qualifying individuals who purchased plans through a healthcare exchange established by their state. The language of the law provided that premium assistance would be available to certain individuals if they were covered under a health insurance plan for each “coverage month.” The law then defines “coverage month,” with respect to an applicable taxpayer, as any month if “as of the first day of such month the taxpayer…is covered by a qualified health plan…that was enrolled in through an Exchange established by the State under section 1311 of the ACA.” 26 U.S.C. § 36B(c)(2)(A)(i). 

In other words, a qualifying taxpayer has to meet a series of conditions before they are eligible to receive subsidies. One of those conditions is that they be enrolled in a qualifying plan at the beginning of the month in which they seek assistance. The second condition to receiving assistance is that the person must be enrolled in a health plan through a state-established Exchange. It’s in the very definition of “coverage month.” 

As the state and federal healthcare exchanges were created (i.e., healthcare.gov), the IRS bore the responsibility of determining when and to whom premium assistance was available. In spite of the textual limitations of § 36B, the IRS interpreted that provision to authorize tax credits also for individuals who purchased health insurance through the federal exchange rather than the state exchanges. This highly politicized legal battle ensued. If the federal government’s interpretation is incorrect (that the ACA authorized subsidies for plans purchased on the federal exchange), then potentially millions of people will be “on the hook” to repay the IRS for premium subsidies wrongly credited to them.

So, the legal questions remain: does § 36B of the ACA authorize the IRS to provide tax subsidies to individuals who purchase health insurance through the federal exchange? And if it doesn’t, who has the authority to re-write the law? Does that rest with Congress, or can the Supreme Court re-write laws? 

Although the legal questions in this case may seem technical and unimportant, the implications—and even the very existence of this case—reveal something true about our legal culture and about human nature. The legal questions, on its face, are easy. The statute requires that subsidies be made available only to people who purchased insurance through their state exchange. The subsidies were meant to act as an incentive for states to participate in the Affordable Care Act. The language of the statute is clear and unambiguous, and when such is the case, there is a long legal precedent of following the plain text of a statute. Moreover, only Congress has the authority to change the law. The Supreme Court cannot, by it’s founding charter (the Constitution) re-write poorly worded statutes. 

Then why is this case before the highest court in the Unites States? Because culturally (and politically), the clear meaning of the statute’s text stands in the way of something that many people want: the subsidies. It is the age-old conundrum of wanting something badly but not having the authority to get it. And it exemplifies a pattern of behavior and rebellion that is as old as rebellion itself.

Here in King v. Burwell, the Court is asking “does the law really say that subsidies are only available through state exchanges?” In other words, the law is clear, but does it really mean that we have to abandon the federal exchange subsidies? This is not a new question, of course. People (and courts) have been asking that question of clearly written laws and rules since the beginning of mankind. Eve fell for the same tactic when Satan asked, “did God actually say ‘You shall not eat of any tree in the garden?’” (Genesis 3:1). She saw the fruit, saw that it was good for food and pleasing to the eye, and so she ate of it, falling for Satan’s linguistic trickery. This is the original sin—a grasp at power and authority that belongs to a greater and higher authority. In this case, however, it is a question of who has proper authority with respect to written statutes. Who has the authority to re-write laws? Do courts have the authority to re-write poorly worded statutes, or does Congress have that sole authority under the Constitution? 

The Constitution is fairly straightforward in permitting the Supreme Court to decide “cases and controversies” among litigants under the existing law. There is no authority for the Supreme Court to re-write statutes (especially ones that are constitutional on their face). And yet we have a judicial body poised to potentially disregard the duties given to it by the Constitution—it’s “creator,” if you will. Where else have we seen a similar pattern—a created thing disregarding (and possibly disobeying) the will of its sovereign creator? In Romans 1, we see a similar pattern of people disregarding their creator and fashioning for themselves a code of conduct contrary to the revealed natural order of things. The creatures, in essence, shake their fists at their creator in rebellion. So too, it seems, does our judicial system figuratively shake its fist at the very thing that created it. At the end of the day, it is a question of authority. And humans have always struggled with the concept of authority. 

This is not the first time there has been a potential judicial usurpation of legitimate Congressional authority. It has been happening with consistent regularity. But we should also be conscious that, even as our judges invert the order of authority, so we do the same in our own hearts every day. The solution—for both judges and citizens—is not stricter authority. The solution is, and always has been, repentance and faith in Christ. Only then will we be freed from the shackles of rebellion and liberated to the submission of good and godly authority. 

Wednesday, January 21, 2015

The State of (dis)Union

Last night, with much political fanfare, President Obama gave his sixth State of the Union address to Congress, members of the Supreme Court, and millions of Americans watching at home. It was his shortest speech yet, but I will give credit where credit is due: President Obama is a talented speaker and a gifted politician.

But I am leery of the disconnect between what the President envisions as a flourishing society and the means by which he proposes to get there. In fact, I am leery of the President's vision for what constitutes a flourishing society in the first place.

Foundational to my disagreements with the current state of affairs is the end to which government—our government—is established. What is our government doing, and why are they dong it? I believe this is where we have gone off the rails. Many may disagree with my assessment, and that is fine. I do have a bias; I believe one purpose of government is inherently better than other purposes of government. So when I look at how America governs her people, I believe we have suffered from serious mission drift. The causes of this drift may be complicated and convoluted, but I believe the solution (at least initially) is simple and clear.

To start, I want us to take a look at a few short quotes from some early State of the Union Addresses: George Washington's first address in 1790 and Thomas Jefferson's first address in 1801. From there, I want to compare their vision for government to our current vision for government and give, what I believe to be, our current state of the union based on the purpose of government laid out in those speeches.

In 1790, George Washington charged the Senate and the House of Representatives to pursue knowledge for their people because it helped secure their freedom. "To the security of a free constitution [knowledge] contributes in various ways...to discriminate the spirit of liberty with that of licentiousness—cherishing the first, avoiding the last—and uniting a speedy but temperate vigilance against encroachments [on liberty]...." That is powerful language, but it speaks clearly to the end for which Washington believed the government existed: to secure liberty (as opposed to licentiousness) for the people. This is the end toward which the government labored.

How does America's government of today line up with Washington's vision in 1790? Not well. The most glaring object is that our government today exists to secure the licentiousness of the people rather than their liberty. Remember, they are different. And I need not labor here with specifics to show that we as a country expend tremendous labors in promoting licentiousness over liberty. Moreover, our government has never controlled and restricted more aspects of commerce, property use, and business—even of small business owners—than it does now. To many, the government is merely running an extortion racket.

Thomas Jefferson shared similar sentiments with Congress in his 1801 State of the Union Address:
"The prudence and temperance of your discussions will promote within your own walls that conciliation which so much befriends rational conclusion, and by its example will encourage among our constituents that progress of opinion which is tending to unite them in object and will. That all should be satisfied with any one order of things is not to be expected; but I indulge the pleasing persuasion that the great body of our citizens will cordially concur in honest and disinterested efforts which have for their object...to establish principles and practices of administration favorable to the security of liberty and property, and to reduce expenses to what is necessary for the useful purposes of government." 
"To establish principles and practices of administration favorable to the security of liberty and property." This was seen as a foundational function of government. In other words, Jefferson saw that the end of government was to secure what rightfully belonged to the people: their liberty and their property. These were not things granted by the government, but things secured by it, for they were rights endowed to us by God. And so the government was tasked with laboring toward that end.

The same is true for today, though we may not recognize it. Life, liberty, property—these are rights that God has given to us through Jesus Christ, regardless if one is a Christian. They persist regardless of governmental regime. They are "inalienable." But I believe we as a society have given up these rights (or at least given up protecting them) in a big way. How is this shown? Look at how our government takes life for granted, or rather how it has an impossible time understanding what life is. A government complicit (and supportive) in killing 1 million babies each year has no conception of what it means to protect life. And I don't trust it to labor toward that end, either.

Have we endeavored to secure liberty? I don't think so, but we have certainly labored to secure licentiousness (see above) at the expense of liberty. Our current view of government is that, if something is good, it should be free, and if something is bad, it should be prohibited. It is no way to govern a free people. (And who decides what is good or bad?)

Have we labored to secure property? Even less so. Our Executive Branch of government has 70 independent executive agencies  and 15 departments, made up of unelected and unaccountable officials, many of which have unilateral authority to investigate, prosecute, and take the property of citizens who cannot vote them out of office. Some of these agencies cannot be dissolved by Congress, and their budget cannot be reduced by Congress either. It is truly "taxation without representation."

I could go on. We are in a crisis of liberty, which, I will admit, is not the worst thing in the world. There are far more repressive governments and systems that could endanger our freedom. But we are regressing. Why?

I believe that liberty begins in the hearts of a liberated people. Liberated from what? Liberated from sin through the gospel of Jesus Christ. Any notion of liberty that rests on another foundation will inevitably degrade into licentiousness and a distaste for liberty. It is no accident that in the wake of massive numbers of individual conversions to Christ, there is an increase in liberal, democratic society. Freedom from sin, I believe, truly results in a free society. Liberated hearts create liberated men, and liberated men live free in the places they find themselves in.

So how do we get back to liberty? We preach the gospel and make disciples. We pray for a reformation of the hearts of our neighbors and a turning of the people from their sin to their salvation in Christ. We must remember that liberty itself is not the end to which we labor. Rather, it is a fruit of our success in the gospel. The solution to our mission drift is simple and the call is clear: "go therefore and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, teaching them to observe all that I have commanded you" (Matt. 28:19–20).

Biblical worldview training and public discourse on such things are important, but they must be built on a foundation of prayer and heart transformation. Such things are only accomplished by the Holy Spirit, working as he wills. May we pray that he descends upon us—upon our country—in a great way. Only then will we enjoy the fruits of righteousness.

Tuesday, December 30, 2014

Law and Liberty in the Sharing Economy

“Responding to an evolving hospitality industry, the Texas Hotel & Lodging Association recently started crafting legislation that would give property owners reason to pause before opening their homes and apartments to temporary guests.” The Houston Chronicle reported this story on December 10, 2014, which details the THLA’s attempts to introduce legislation that would regulate innovative short-term lodging businesses such as Airbnb, HomeAway, and VRBO.  

In my last article on government regulation, I dealt with the Houston City Council’s similar attempts to regulate ride-sharing services Über and Lyft. This story is the same old story.   Businesses like Airbnb, HomeAway, and VRBO allow homeowners to put up rooms in their homes for short-term lodgers, much like a hotel or inn, except it is a cheaper and “cozier” alternative to more traditional lodging choices. These rental websites have grown in popularity thanks in part to the success of the “sharing economy,” and it has benefitted both travelers and homeowners. The barriers to entry are low for homeowners, and the lodging choices are cheaper for travelers.

See the rest of my article at HBU's The Kingdom Economy website here.

Wednesday, December 10, 2014

A Time to Build Up, and a Time to Break Down

In light of recent events in our country, yesterday our church called its members to fast and pray for racial reconciliation. Initially I was skeptical; I have a natural reticence to go along with something just because someone tells me to do it. I want to be able to put my intellectual and emotional support behind something before committing to it. So instead of abstaining from food, I considered abstaining from the fast. But that's precisely why I needed to participate, and I did. I fasted and prayed for racial reconciliation—sort of. I will explain.

I am not going to write about Ferguson, Eric Garner, the situation in Cleveland, or any other recent incidents involving police brutality and racial tension, although the temptation to do so has been strong. I am writing about what God revealed to me during our fast, and what I think it means more broadly for the church, or maybe just for my own heart. I normally deal in polemics, but this time I am writing personally.

I had a hard time with this fast initially. From the outset, I've thought that the response and reaction to these situations has been overblown and misses the real issues. I didn't see the need to talk about racial reconciliation—I thought the real problems were elsewhere. So I rolled my eyes, so to speak, at the idea of fasting for racial reconciliation. What does that mean? Nevertheless, I committed to doing it because I knew, deep down, that there were likely sinful attitudes polluting my motives and creating a divide between me and my brothers in Christ. I am glad I did.

Let me be clear up front: I believe—and passionately so—that every human being is created equally in God's image. We are all descended from Adam, every one of us. And we are all reconciled by the same blood of Christ. So there is zero distinction along racial lines in terms of human dignity and worth. Zero. (Secularism, by the way, can offer no such unambiguous foundation). Despite my beliefs, however, I have to deal with the reality that there are racial tensions in our country (and even, I have to assume, in some of our churches).

This is difficult for me personally because I do not harbor real, objective prejudices against any particular race; I really believe in the equal dignity of all people. So, my thinking goes, if I'm not harboring racism in my own heart, then it's not a problem. This attitude tends to foster another attitude further down the line: minorities' concerns and fears of systemic racial injustice are, at worst, illegitimate and, at best, merely misplaced.

And here is where the Lord revealed my sin in the midst of this fast. My racial sin is not thinking or acting like one race is inherently better than another. My racial sin is believing that certain minorities aren't thinking properly about race in the first place. It's the sin of pride. My pride says that I am the one who is defending true justice, that I am the one who is thinking properly about racial tension, and that I am the one who has a firm grasp on the nuanced truth of these situations.

I wasn't esteeming my brothers and sisters as better than myself; I esteemed their thinking as inferior to mine. I wasn't bearing with my brothers and sisters in their burdens; I was secretly thinking their burdens weren't really burdens. And I wasn't considering the sufferings of others in how I approached the situation. That's unwise and prideful.

The book of Ecclesiastes says there is "a time to break down, and a time to build up." My timing was wrong.

This was because of my own pride. Therefore I must repent of that way of thinking and instead build up my brothers and sisters before I seek to break down bad arguments. As a wise friend explained, "we want to win people, not arguments."

So while it may not be that I have harbored overt racial animosity in my own heart, I have not fostered a foundation upon which to listen to those who have legitimately experienced it. Regardless of the merits of any of these individual cases that sparked this fasting and prayer, it's never unwise to listen first, judge later.

In light of that, I am sincerely excited—and hopeful—for the upcoming conversations in our church regarding racial tensions and what reconciliation looks like. I have devoted serious thought to these issues before, but I believe that God will honor our fasting and prayer to bring about true reconciliation—the reconciliation that only occurs through our mutual need for the forgiveness of sins, bought by the precious blood of Christ.