Friday, November 27, 2015

The Gospel of Rights

Princeton University students taking over the President's office in protest. 
At the outset of this post, let me note that it has taken on a different character than when I began to write. Initially I wanted to relate the recent college protests to a conversation about truth and rights, where those ideas come from, and how secularism can't offer a sufficient answer to their questions. But I ended up making my way into the clouds, where I got stuck for some time. The point is this (and keep it in mind as you read): universities are in turmoil right now because for too long we have taught students that truth comes from within, and that an offense against that subjective truth is a threat to our personhood and dignity. How did we go astray?

Over the past few weeks, protests have erupted on several college campuses, with students calling for university-wide changes to combat racism, sexism, and other campus ills. The media have covered the protests widely and, as one might expect with college students, the demonstrations have been rather theatrical. Here is a rundown of some notable incidents (this is not an exhaustive list):

  • At Yale University, a faculty member (and Master of Silliman College) sent an email to students hinting that they should work out the issue of culturally insensitive Halloween costumes among themselves, and that the University would not police their costume usage. In response, the students demanded that she and her husband be removed from the faculty. The fallout from students was swift and severe, and eventually the administration caved to their demands. 
  • At Mizzou, a couple of incidents of racists remarks and actions on (and off) campus led to students staging hunger strikes, sit-ins, and protests. Their main complaint was that the University had not done enough to combat racism and improve race relations on campus. Protesting groups demanded that the University Chancellor and President resign—which they did, rather swiftly. Notably, a student journalist who showed up to the protest site (to document and photograph the protest) was forcibly removed by a faculty member for violating the protestors' need for privacy and "space"—on a public university campus.
  • At Princeton University, several students conducted a sit-in in the President's office until the University met several of their demands, including removing Woodrow Wilson's name and likeness from the campus, requiring "cultural competency training" for all faculty and staff, required classes on marginalized people groups, and a separate, dedicated space for black students on campus.
  • At Smith College, students staged a sit-in to protest racial tensions at their college, but would only allow sympathetic journalists to cover their story. All others were banned from the protest area.
  • And of course, there are many more.
Much of the media criticism of these events has been severe. Commentators have focused their efforts on the intolerance of today's academic culture. College campuses are becoming a dangerous place for dissenting opinions. Students demand that Universities limit the scope of acceptable speech on campus. Mandatory cultural sensitivity classes. Race-based housing—all in the name of progress. (But demanding a "blacks only" space hardly seems like progress). 

Ironically, these protests are the fruit of a secular worldview, the very thing that many of these students' professors fought to implement decades ago. Hyper-progressive professors and colleges are reaping what they have sown—an autology of autonomy. A self-study of self-rule: look within, from whence your own individual law comes. Sometimes, though, the law that we create unto ourselves conflicts with the law that others create for themselves. And when competing autonomies collide, whose law controls? Who is right, and why? A secular worldview is not equipped to answer those questions with any clarity or conviction. Recent campus culture has only illuminated the main problem: when we sow the seed of autonomy, the natural fruit is an exertion of raw power—at the expense of the "other"—to protect that which is created by the autonomous.

Competing autonomic ideals breed power struggles, but secularism does not provide an adequate way to resolve them. That we no longer have an overarching moral principle to deal with the clash of ideals only exacerbates the tension. Which person's individual law wins? Well, who's to say? In the end what this posture gets us is straight-faced acceptance of moral insanity. And when we do not have a    binding metaphysical and moral principle that governs us, we have to resort to raw power to determine who/what is right. Might makes right is a real thing when we are not governed by a fixed standard. So the real issue, in all of this, is rights and truth: what rights do we have? Where do they come from? What is true? And who decides what is true?

In the secular system, rights are given, taken, and protected only by those in power: university presidents, legislatures, Supreme Courts, mobs, etc. There is no other authority to which we may appeal. That's how the Supreme Court can "create" a "right" to abortion in Roe v. Wade. Rights are "handed down" to us from a governing body, an "other" entity of man. So while the secular worldview teaches that we are a law unto ourselves, it simultaneously teaches that rights are given by other men. Those who are most powerful, culturally speaking, are the ones who give us rights. This strange mix of autonomy (self-law) and democracy (people-rule) creates a situation in which we expect the law we make for ourselves to be rights that are given and respected by others. In other words, I create a law for myself and then demand that those in power give me rights in accordance with that law. 

But if rights are given to us by other men, then rights can be taken away by other men. And if that's true, then our rights to life, liberty, and property are as secure as Anthony Kennedy's choice of breakfast—which is to say not very. So when we perceive that our rights are being threatened by other men, we have no choice but to appeal to raw power to protect them. And in our culture, an appeal to personal victimhood is the rawest expression of power we have, because it cannot be challenged—empirically, objectively, or with any truth claim. The assertion of power is completely subjective, just like the autonomous creation of law. We end up taking a posture of victimhood in every instance because it ensures that the power is used to attain rights that coincide with our law of self. Thus, micro-aggressions and safe spaces. The only way to give, preserve, and defend rights in a secular framework is by the exertion of power.

In a biblical worldview, however, things are completely different. Upside down, even. Because in the gospel, our rights were secured not by power, but by weakness

By Christ's willing submission to the weakness of the cross, he secured for us (eternally!) all the rights due to us as image-bearers of God. Our rights have been vindicated and protected in the greatest way imaginable, yet it was accomplished by an exertion of weakness in human form. In Christ, we have secured life, liberty, and a promised land (property) that is sure, undefiled, unfading, and incorruptible. This is the good news of the gospel.  

Our rights come from God, and they are given to us as a reflection of his character. This means that men are not capable of giving rights to us. And if men are not capable of giving rights, they are not capable of taking rights away from us. That's why the Declaration of Independence states that the proper function of government is to secure those unalienable rights given to us by God. Remember: governments secure rights, they do not give rights. The latest protests merely represent the fundamental misunderstanding that governments and human authorities grant us rights. 

In the same way, we cannot create rights for ourselves when we understand that rights come from God. This is a good thing. When rights come from outside of us (from God, as revealed in nature and Scripture), we are able to appeal to them as binding across nations, peoples, and time. Otherwise, we would have no authority (other than autonomy) to appeal to, and we end up with the problems showcased earlier. Because we cannot create rights for ourselves, we can claim that all men are created equal—the existence and authority of rights does not rest within ourselves; rather it comes from outside of us, binding us together under one authority. This does away with victimized expressions of power as a way to vindicate a person's subjective truth: when truth comes from outside the person, then a person's notion of victimhood must conform to what this truth is. Raw power does not create or validate truth.

But if rights come from God, and Christ secured these rights for us by his death, resurrection, and ascension, what is the result? The result is two-fold: it means we must hold our neighbor's rights as sacred and hold our own rights loosely. We hold our neighbor's rights as sacred because God gave them to our neighbor and they are reflective of his character. Men cannot lawfully take what God has given to another man, so we protect our neighbor's rights as an act of obedience to the law of love. Yet we can hold our own rights loosely because they have already been secured for us, and nothing can take them away in the end. In other words, men cannot take away what God has already secured. So we need not worry that our rights will be taken away from us by men; they cannot, ever. Because rights exist outside of man's authority, we can hold our own loosely, knowing that whatever we suffer here, our rights are vindicated and protected in Christ. 

Look to Christ as our example, who had the right of equality with God, yet humbled himself to the point of death, in order that he might secure his neighbor's rights. In doing so, he also secured his own place at the right hand of the Father. So in laying down his rights to secure the rights of his neighbor, he thereby secured his own rights in eternity. And we can do the same: we can lay down our own lives for the rights of our neighbors, and in so doing obtain the rights set aside for us in eternity. We will have life, liberty, and property in Christ, but only if we first lay down our lives for the life, liberty, and property of our neighbors. This is how the gospel shows us what rights are for. They are an agent of self-sacrifice, a way to lose your life that you may find it. 

College campuses would do well to return to a similar conception of rights. With a focus on protecting the rights of their neighbors—instead of their own—first and foremost, university students stand a chance of returning to a culture of intellectual rigor, virtue, and the pursuit of truth. But this only happens when a people turn from the yoke of slavery to sin to the liberty of the gospel, where true freedom is found.

Monday, August 17, 2015

Animal Worship and Human Sacrifice

Wherever there is Animal Worship there is Human Sacrifice. That is, both symbolically and literally, a real truth of historical experience. -G.K. Chesterton
Now that we have seen the 6th Planned Parenthood video, along with the Cecil the Lion uproar, Chesterton looks like a certified prophet. Wherever there is animal worship, there is human sacrifice nearby. 

I was reading in 2 Chronicles the other day about King Ahaz, King of Judah between Jotham and Hezekiah. King Ahaz's reign is notable mainly for how ungodly it was. Here is how the Chronicler reports it: 
Ahaz was twenty years old when he began to reign, and he reigned sixteen years in Jerusalem. And he did not do what was right in the eyes of the Lord, as his father David had done, but he walked in the ways of the Kings of Israel. He even made metal images for the Baals, and he made offerings in the Valley of the Son of Hinnom and burned his sons as an offering, according to the abominations of the nations whom the Lord drove out before the people of Israel. 2 Chron. 28:1-3
The symbol for Ba'al/Ashteroth worship, which is what Ahaz crafted metal images for during his reign, is the bull. And then he "burned his sons as an offering," or, literally, "made his sons pass through the fire." This was an act of ritual child sacrifice to appease the pagan animal gods. 

So, in one king's reign, he sets up images of animals for people to worship and sacrifices his own children to those images. It followed the culture around him and was not limited to ancient Israel/Canaanite people. The animal worship/child sacrifice dichotomy can be traced through ancient history fairly easily. Chesterton was right, historically speaking. But does the adage hold true for the current age?  If we look around us, do we see both animal worship and human sacrifice in the same culture? 

The events are not hard to miss, but interpreting the signs may present difficulties. Anyone can be a "Monday morning culture-back," but can we see what is going on around us? Cecil the Lion, killed by a big-game hunter, nearly shuts down the internet with rage against the hunter, an American dentist. The outrage and threats have been so severe that even the Zambian conservationists are confused. They hunt lions all the time. In the wake of all this, people begin calling for protests of parcel carriers (like FedEx, UPS, etc.) until they agree to cease all shipments of animal remains, if those animals were killed for sport. 

At the very same cultural moment, we have witnessed the unfolding of what really goes on behind Planned Parenthood's doors. The abortion mill is being exposed for what it really is: child sacrifice to appease the god of this age, sexual freedom. Yet we as a society have been complicit (and supportive) of this practice for decades, resulting in the sacrifice of literally millions of children. 

Somehow, through all the irony, the same group of people elevate animals to human status, yet find it unthinkable that a woman would be prohibited from sacrificing her child to the god of convenience. Wherever there is animal worship, there is human sacrifice. 

When we depart from worshiping the God who created both human and animal life, we lose the ability to value human life as God values it. And when we exchange the worship of God for the worship of created things, we distort the true order of importance for creatures. Man is no longer considered made in the imago Dei, but rather another step in the evolutionary chain.  
We often scoff at ancient civilizations that worshiped animals. "Offering children to appease the animal gods? How näive." But are we really that different today? 

Friday, June 26, 2015

The Gospel and Identity Politics

A little more conspicuous than Kanye West
The other day, I saw a CNN program where a black news reporter was holding up a Confederate flag with an on-screen graphic asking “are you offended?” I’m no fool—I know that the stunt was designed to polarize and spark a passionate yet vapid conversation about race, racial history, and the symbolism of hate. Those are all topics worthy of real conversation, yet I sensed that CNN did not care so much about the substance of the conversation as it did the polarized outrage of its viewers. Anger sells. But what are we as Christians supposed to make of this kitschy stunt? What was it trying to accomplish, and is it true? 

I believe the message here was an appeal to racial loyalties in order to spark a debate about the merits of those loyalties. Or maybe it was upend those loyalties. Either way, it was an appeal to identity politics. In our culture, identity politics plays a major role in the national conversation, but it goes by many names: race-baiting, victim-blaming, fill-in-the-blank shaming, “mansplaining,” “check-your-privilege,” and many more odd terms. The point of identity politics is to appeal to part of a person’s identity—who they are—and convince the person that this certain part of their identity inherently guarantees the rightness of whatever idea it is they are promoting; then pit it against people whose corresponding identity is the opposite in order to undercut their position. In technical terms it’s called a genetic fallacy—that the origin of an idea determines its rightness instead of the merits of the idea itself. It is, by definition, unreasonable thinking.

But identity politics is a tricky temptation because everyone—myself included—wants to identify with something. And the options of identity that the culture presents are easy. So that is how we pit women against men, blacks against whites, and poor against rich in order to score political points. 

At its core, identity politics is a lie—a false antithesis. Antithesis is a contrast or opposition between two things, like hate being the antithesis of love. Identity politics survives on the idea of the antithesis. If you believe that love requires you to support people’s lifestyles unconditionally, then those who oppose certain lifestyle choices are driven by hate. If you’re poor, then your enemy is rich people. If you are black, then your enemy is the privileged white class. If you’re a woman, then your enemy is the patriarchy, and so on. Your side is always right, and the other side is always wrong.

But what does the Bible say about the idea of antithesis and identity politics?  In scripture, the true antithesis in this world is not blacks against whites. It’s not women against men. It’s not poor against rich. And it's not Republican against Democrat. The true antithesis is the seed of the woman against the head of the serpent (Gen. 3:15). Everything else is a false narrative, a replica of the truth. 

So when the media—or your friends, neighbors, and co-workers—try to pit two groups against one another as enemies, don’t take the bait. The only enemies we have are the seed of righteousness against the seed of unrighteousness. For “there is neither Jew nor Greek, there is neither slave nor free, there is no male and female, for you are all one in Christ Jesus.” (Gal. 3:28). The only answer to the problem of identity politics is the gospel, the great equalizer. For we are all one in Christ Jesus. And the one side we are on is the side of righteousness. 

As we live as the visible church in the world, let’s not play identity politics. The Bible doesn’t pit men against women. It doesn’t cast whites as the enemy of blacks. And it doesn’t cast Democrats against Republicans. These are not “camps” to which belong the notions of right and wrong. The Bible, in the true antitheses, always pits righteousness against unrighteousness—the light of Christ against the darkness of Satan. So all of us who are in Christ are one, and we all share one enemy: unrighteousness. And by the work of the Holy Spirit, Christians are freed from false racial, gender, and socio-economic divisions that attempt to overshadow the true antithesis and diminish the building up of the body of Christ. A house divided against itself will not stand. But we are being built into one building—the dwelling place of God. In this place there is no room for identity politics; the truth will not abide it.

Thursday, May 14, 2015

The Rule of the Trigger-Warning Class

Safe for almost everyone, white heterosexual
cis-gender males excluded.
I haven't commented much on the "trigger warning" craze in academic institutions across the country. Frankly, the narrative on college campuses has been so foolish and ridiculous that I don't think it warrants a substantive response. Suffice to say that people who demand that professors, lecturers, speakers, and even entire courses change their material because it may be offensive or "triggering" to certain minority "identity groups" are not mentally ready for college. There, I said it. Trigger warning.

The latest spectacle at Columbia University is a prime example of what I am talking about. Read the whole thing, but here is a great snippet that captures the spirit of the age:
"Ovid's 'Metamorphoses' is a fixture of Lit Hum, but like so many texts in the Western canon, it contains triggering and offensive material that marginalizes student identities in the classroom. These texts, wrought with histories and narratives of exclusion and oppression, can be difficult to read and discuss as a survivor, a person of color, or a student from a low-income background."
Even more extreme examples can be found here. Honestly, it's incredible. The delusion of the academic community, with its self-congratulating, permanent abstraction from reality, has become something of a comedic trope, even among the academic community itself. At least they're laughing at themselves. I blame Twitter. For real.

What will our society will be like when the "trigger warning" culture takes over our major institutions? This mindset, at least for now, is largely confined to professors and students at major American universities. But the students at elite universities today will be the leaders of our elite institutions tomorrow. Government, mainstream media, public service, the arts—all of these cultural and political institutions recruit heavily from Ivy League and other "top tier" universities. And these are the institutions, for better or worse, that shape the culture. So, what happens when the young twenty-somethings of today, with trigger warnings and safe spaces in tow, take over the institutions that shape culture? 

It's hard to say what will happen. But if the trend continues, it doesn't look good. And by trend I mean the practice of silencing and shaming by force anyone who has anything to say that may remotely in some way offend someone who has a certain identity of themselves that is in some way outside the majority or mainstream. Again, I blame Twitter. If you cannot read and discuss depictions of violence and oppression in an ancient, mythological context, there is no way that you can deal with actual oppression and actual violence in the real world. It's out there, and those oppressors don't care about your trigger warnings or identity crisis.

But, just maybe, these young passionate twenty-somethings will mentally and emotionally outgrow their need for trigger warnings and safe spaces. Maybe the whole enterprise is just a ruse of university intellectuals. I hope so, but I am not counting on it. The radical ideas of the last generation are the mainstream ideas of the now generation. And judging by the last year or so, the safe-space mafia is gaining significant power in these institutions, quickly bringing them to heel when there is any chance of a perceived slight against some identity group (white males excluded). Ironically, this is no way to foster an inclusive society. 

I hope that the trigger-warning-safe-space crowd will soon recognize the logical absurdity of their central position in an institution historically committed to the free flow of ideas. If not, we will soon have bigger problems. Victims of real violence and real oppression deserve real counseling, not safe spaces where they can be shielded from exposure to controversial ideas. And seriously, Twitter is part of the identity politics problem.

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 these 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.


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.