Thursday, February 12, 2009

Darwin's Birthday

Today is also the birthday of Charles Darwin. Darwin has, perhaps, had a more lasting influence on society than Lincoln. It is ironic that Lincoln and Darwin were born on the same day. Lincoln was the great emancipator and the advocate of equality before the law. Darwin’s ideas, by contrast, have been misused to justify racial discrimination, colonialism, and ruthless, almost lawless competition in business. Even more ironically, those who believe, as Lincoln did, that humans are equal because they were all created to be the same kind of thing and share the same ancestry, are commonly held in contempt today by the disciples of Darwin, who consider themselves to be more enlightened.

Darwin and his disciples have convinced most people that common features of biology are not the result of common design for common function, or the result of design elegance, or the result of design unity, or even the result of common needs in meeting design requirements for coping with a common environment, but are instead the result of common ancestry. Thumbs on chimps and humans could be viewed as a result of a designing God finding thumbs useful for his more intelligent creations and unnecessary for his more mundane creations. Elegant design of DNA might mean that whales would also share the “thumb gene” even though they have no thumbs. For Darwin by contrast, the thumb and thumb gene are “proof” of development of humans, chimps, and whales from common biological ancestors.

It is undoubtedly true that animals adapt in minor ways to their environments and that new varieties of species can “evolve” through selective breeding. The modern varieties of dogs, cats, and citrus fruit produced from a few dogs, cats, and citrus fruits show this to be true. But, some people still doubt that chance, solar radiation, and natural selection could create cats from citrus fruit or dogs from cats, or all three from common ancestors without the intervention of God. The problem of life from no life is greater still. The problem of something that cannot last forever coming from a forever of nothing is even greater. The solution of an immaterial eternal God creating time, space, animals and all is much more elegant and satisfying. Sadly, scientific experiments in the present cannot confirm ether historic creation or historic evolution - though they may one day, show the impossibility of evolution as we currently understand it.

Unhappily, believing Darwin undermines the basis of objective human rights, the rule of Law, and belief in a “Common Good” to be sought by human communities. Nevertheless Darwin’s disciples have not abandoned his discipleship and will be celebrating his birth with great joy and some bitterness over hold outs like myself. I wish them well and pray for their enlightenment.

Abraham Lincoln's 200th Birthday

Today, February 12, 2009, is the 200th anniversary of the birth of Abraham Lincoln, the 16th president of the United States. Lincoln was born in Kentucky. His family moved to Indiana and later to Illinois. At 22, Lincoln made a trip to New Orleans via flat boat to sell a variety of goods with friends. The scenes of slavery that he saw in New Orleans scarred his mind and haunted him for the rest of his life.

Lincoln started his political career at 23 as a member of the Whig Party. He was elected to the Illinois State Legislature in 1834. He read the law, and was admitted to the Bar in 1837. He moved to Springfield and began a practice of law that would ultimately become very successful. Lincoln had a number of impressive clients, including railroads. He served four terms in the Illinois Legislature, and in 1846, Lincoln was elected to a term in the U.S. Congress. He went on record both against slavery and against the Mexican War. In the 1850s, Lincoln became involved in the formation of the Republican Party. In 1858, Lincoln made one of his most famous speeches alluding to the biblical quotation that “a house divided against itself cannot stand.” Lincoln compared the government of the United States to the house that would not stand saying the US would not survive if it tried to remain half slave and half free. He believed that either the entire Union would come to allow slavery, or would abolish it. The divided Union could not remain. Future legal events bore him out. The Supreme Court’s Dred Scott opinion had implications, which if unchecked, would have forced the spread of slavery to all of the states and territories.

In 1858, Lincoln engaged in a series of famous debates with national political figure, Stephen Douglas. One of these debates occurred in my own home town, Quincy, Illinois, where there is still a large monument commemorating the debate in the town’s old Central Park. Lincoln lost the Illinois Senate race, but he won the 1860 presidential election also against Stephen Douglas. Lincoln received fiery criticism from both sides. He was hated by those who favored slavery for his statements on the immorality of slavery and the need for its eventual abolition. He was likewise despised by the radical abolitionists for his unwillingness to immediately end slavery through force. At the time Lincoln was elected president, the country was already firmly divided over slavery and the South had already repeatedly threatened to secede from the Union and make war against the northern states in order to preserve slavery and to avoid the North’s regime of industry protecting tariffs. It’s easy to see now that the South would have been better off economically if they had renounced slavery, turned their former slaves into employees, and industrialized by building their own cotton mills to produce thread, fabric, and clothing. The South was caught in a delusion. They saw a false image of themselves and of their northern opponents. The north failed to deal well with the problem of slavery because of greed. The evil of slavery had warped the understanding of law and culture in both north and south. Faced with Lincoln’s election, the South seceded from the Union and began attacking Union outposts among the southern states. This, of course, was an act of war which began the terrible Civil War of the United States between the southern states and the northern. Lincoln led the country through the horrible cataclysm of the Civil War.

Lincoln famously noted in his second Inaugural Address that the horrible suffering of the Civil War was in some way a chastening from God for the horrors of slavery as practiced in the South and long encouraged and tolerated by the North. Lincoln ended slavery through his sponsorship of the Thirteenth Amendment to the Constitution. During the war Lincoln ordered the freedom of slaves in Confederate controlled territory through the Emancipation Proclamation. Lincoln is justly famous for arguments against slavery. We would consider those arguments to be natural law arguments. Lincoln argued from the nature of human beings and the implications of their choices to say that slavery was improper. He noted slavery’s incompatibility with the Declaration of Independence and slavery’s incompatibility with morality and sound public policy.

Lincoln is still resented by some today because of his centralization of power in the federal government and his resistance to the secession of the southern states. Some Southerners still resent the destruction of the south meted out by the Union Army, acting under Lincoln, in its attempt to demoralize the south and end the war. It is often forgotten that Lincoln did not threaten to attack the South, but that the South did, in fact, attack the northern outposts in southern territory, triggering the war. Lincoln tended to be a pragmatic incrementalist, seeking to make changes a bit at a time. The Civil War forced quicker and more radical changes.

Shortly after the end of the war, Lincoln was assassinated. The bitterness of the war led to harsh treatment of the south. After early attempts at promoting racial equality in the south, the United States abandoned those efforts and left political control of the south to the almost entirely Democrat white population. It was not until the civil rights movement of the 1950’s that legal inequality was finally dealt with once again. We still suffer from the damage to law and society done by the evils of slavery and discrimination.

The young Lincoln was not known as a particularly religious person, though his parents had been Baptists and he himself attended a Presbyterian church from time-to-time. Lincoln began reading the Bible during the war, and admitted to friends that this most sublime document had a transformative effect upon his life. He was also strongly influenced by the Declaration of Independence and its statement that “all men are created equal, and are endowed by their Creator with certain unalienable rights.” America will always remember the eloquent way in which Lincoln reminded us of that and other timeless truths.

Monday, February 09, 2009

CA Court of Appeal Protects the Religious Freedom of a Private School - says school not a business under the Unruh Act

A recent article in the Los Angeles Times by Maura Dolan, dated January 28, 2009, documents a unanimous ruling by a three-judge panel of the Fourth District Court of Appeals holding that the California Lutheran High School in Riverside County was not a business under the Unruh Act, and as such was allowed to enforce rules against apparent lesbian conduct.

According to the article, the case involved two female students who were expelled in their junior year for lesbian-like conduct. The court cited the 1998 California Supreme Court precedent finding that the Boy Scouts of America were not a business establishment under the Unruh Civil Rights Act. The girls sued the school for invasion of privacy, false arrest, and discrimination. The court found against them and for the school on these matters as well.

The court recognized the school’s religious belief that homosexuality is inappropriate. The court understood that the school’s conduct code allowing students to be expelled for engaging in immoral or scandalous conduct was an essential part of its religious message. The court wrote, “The whole purpose of sending one’s child to a religious school is to ensure that he or she learns even secular subjects within a religious framework.” This understanding is of key importance. Religious freedom would be a meaningless cliché if parents were not able to send their children to schools that actually teach and reinforce those religious beliefs. If religious schools are forced to engage in practices or allow practices that are antithetical to the core of their beliefs, those schools will no longer be able to truly reflect their faith.

This is not to say that there can’t be difficulties with religious schools. This is not to say that there can’t be grave difficulties with what a religious school might teach. Radical Islamic madrasas that advocate violence against non-Muslims merely because of their lack of faith in their radical brand of Islam, or who demand female genital mutilation are obviously problematic. But belief that sexual immorality is improper and should be discouraged particularly among the young is not a damaging or aberrant belief. The orthodox versions of all major religions and the majority of all world civilizations have taught that some restraint of human sexuality is good, necessary, and appropriate. Nearly all of them have agreed that homosexual conduct is inappropriate and immoral. Discouraging young people from homosexual activity is in no way physically damaging to them or to other people. Most religions and most civilizations would say it is actually spiritually and mentally beneficial and wholesome to discourage homosexual activity and other sexual immorality. This should not be mistaken as a bias against sexuality itself either. Biblical Christianity and again most major religions and civilizations have strongly encouraged the expression of sexuality within the sanctity of heterosexual marriage. Sex is a wonderful, beautiful, and powerful thing when it is part of the bond between a married man and woman. In other instances, this powerful force can be destructive in many ways. It is only reasonable that private schools should be allowed to teach what Christianity and indeed other religions have taught for thousands of years. They should be allowed to teach what the experience of millions of Christians has ratified. And it is a good thing that a court has been willing to recognize the law and its boundaries and limitations rather than giving in to the constant pressure of those who demand social approval for sexual immorality.

In the 37-page opinion in Jane Doe v California Lutheran High School Association et al, the court was considering an appeal from a summary judgment in favor of the defendants. The plaintiff’s attorney has indicated a desire to petition the Supreme Court of California to take up the case. Sadly, the California courts have already decided that certain religious corporations, even non-profit religious corporations, can sometimes be businesses under the Unruh Act. The court noted that the school is a social organization whose primary function is the inculcation of values. They cited the school’s mission statement that “CLHS exists to glorify God by using His inerrant Word to nurture discipleship in Christ…” The school is selective in its membership based on what it believes. The court pointed out that the school offers admission to Lutheran families and those who “are in harmony with the policies and principles of our school.” The court also cited a 1998 California attorney general opinion that the admissions decisions of private religious schools are not subject to the Unruh Act. The court further noted that precedent establishes that “private organizations can engage in some business transactions with members without the risk of becoming a business enterprise for the purposes of the Unruh Act.” The court does not address the question of whether the school would be allowed to violate the Unruh Act as an expression of association, religious freedom, or the rights of parents if they actually came under the Unruh Act. They merely looked at the narrow question of the Unruh Act’s applicability.

The court further noted with respect to the invasion of privacy count, that disclosing the school’s suspicions about the students’ sexual orientation to their parents was not an invasion of privacy. Indeed, the court noted that the parents had a right to know why their children were being expelled. The court noted that “even assuming plaintiffs had some legitimate expectation of privacy regarding their sexual orientation, that expectation was diminished once they enrolled in a private school that deemed homosexual conduct to be a violation of school rules. This is true even if they had never read the Christian conduct rule; obviously, the school had rules, and they could be subject to them even if they never read them.” The court further noted that there were no feasible or effective alternatives that would have had a lesser impact on the students’ privacy than the measures that were taken.

The court also rejected the cause of action for false imprisonment based on the questioning of the students by the principal for a period that allegedly extended over two hours. The plaintiffs had conceded that their false imprisonment claims stood or fell with their Unruh Act claim. Because the school’s purpose in the detention did not violate the Unruh Act, it was not unreasonable or contrary to law. There was no allegation that, apart from the Unruh Act violation, the confinement was excessive in duration or scope.

The court also ruled on a variety of discovery matters and dismissed a count of unfair competition that was also based on the Unruh Act. It is always encouraging to see the Court of Appeal apply California law in a clear, reasonable, and narrow manner.

Should Christians Ever Revolt against a Tyranous Government?

Should Christians ever resort to the violent overthrow of governments? Apart from the pragmatic issue of how well it works, Romans 13 seems to forbid rebellion. Many Christian thinkers have thought this passage only protected governments acting legitimately. But I have to admit the text makes no such distinction.

I think that the answer to the use of rebellion may be tied up in a variety of other questions. First is the question of whether or not objective moral rules change over time. I am quite sure that they don’t. Genuine moral rules flow from the nature of God Himself, and God never changes. Sometimes individuals or societies come to know more about God, but God Himself does not change, and His rules don’t change. If God does not change, then the events that are approved of morally in the Old Testament can give us some guidance. We have to be careful because there are some events in the Old Testament that were immoral that the text does not comment on clearly. With respect to revolts, we do find a couple of examples in the Old Testament. First, we find a revolt against foreign tyranny or hegemony in the book of Judges. In Judges 3:12 Ehud kills the king of Moab. One does have to be careful with the book of Judges though. So many foolish actions amid a few brave ones. Another revolt takes place in Judah itself. In II Kings 11, there is a rebellion against the usurping queen Athaliah by the priests, the military, and the true heir to the throne, Joash. This revolt seems to meet with nothing but approval from the text. While Athaliah was a usurper, she did represent the status quo.

These examples lead to a second problem. What makes a government a government from God’s point of view anyway?

The third problem in trying to resolve the issue of rebellions is whether or not there is a hierarchy to moral rules. While there are many nuanced positions available, popular theologian Norman Geisler has pointed out that there are basically three positions among Christians who hold a strong view of Scripture. First, the classic Pietist position that moral principles never come into conflict and there is no real hierarchy of moral principles. Second, the Lutheran position that there is a hierarchy of morals, but when they come into conflict we do the lesser evil. The lesser evil is still a sin, but often a necessary one which God can forgive. Third is the Calvinist position that there is a hierarchy of moral principles and that you are not sinning when you follow the greatest good. You can readily see how this might apply with the problem of rebellion. If it is a moral truth that we are to obey the government, what happens when it comes into conflict with a higher moral principle like preserving innocent human life or preventing the murder of innocent human life? It becomes even more complicated in states where the government and the people are intertwined so that the people become accomplices in whatever the state undertakes or fails to undertake. Pietists would tend to say that you could never rebel against the government because no moral principle can override any other. Lutherans would say that if the government is up to serious evil like murdering innocents, you may rebel against the government in an emergency, but doing so would be a sin for which repentance and forgiveness would be necessary. The classic Calvinist position would be that if the government is going around killing innocent people, it is actually your duty to rebel against it and replace it with a better government, but that you need to be awfully cautious about taking this step and what the actual results are going to turn out to be. Under the Calvinist position, you are not sinning by rebelling against the government because preserving innocent human life and maintaining appropriate and legitimate government override the general moral principle of obedience to the state. By the way, while the Pietists, Calvin, and Luther are the names associated with these views, all these views have been around as long as there have been human beings. Their application has merely been less systematic or group linked.

A fourth major issue is the question of whether or not application of moral principles should be based on playing it safe or on accepting moral adventure in which we may do the wrong thing for good reasons. Pietist groups generally stick with playing it safe. Calvinists, like Presbyterians and Congregationalists in the early United States, and the Puritan Anglicans have tended to practice moral adventure. Certainly there is always a danger of arrogance or mistake involved in any choice to use violence. Nevertheless, I think it is arguable from the parable of the talents and other passages in Scripture that God probably does call us to moral adventure rather than to moral safety. But the use of violence is so serious it should only occur in very unusual circumstances – such as when no alternative of the ballot box or the news paper is available.

Tuesday, February 03, 2009

The Good, the Bad, and the Terrible: President Obama's first weeks

President Obama’s first weeks in office have been full of all sorts of announcements and statements from the president. One of the good ones was his presidential memo mandating transparency and openness in government. I hope that the government follows up fully with the kind of disclosure Obama says he favors. Unfortunately, not everything was that good. Something that seems good on its surface but may not really be so was the president’s executive order concerning “ensuring lawful interrogations.” This order limited interrogation techniques used by the military and a number of other government agencies to those listed in the Army Field Manual. The purpose behind this is in some ways noble. It is important that it be completely clear that the American government does not in any way condone the torture of prisoners. Torture is largely ineffective. It makes people tell you whatever you want to hear rather than what is necessarily true. There are also serious moral problems with inflicting torture upon even the most evil of people. However, successful interrogation may not require torture, but often does require innovation, creativity, and surprise. I have to admit that I haven’t read the entire Army Field Manual section on interrogation, so I don’t know everything that it says. But the problem is that people in training to be terrorists can read the Army Field Manual and will know everything that it says. The anticipation that everyone will follow the Field Manual allows them to prepare themselves much more adequately to face future interrogation if captured. It’s probably a good idea to be able to surprise detainees with interrogation techniques that, while not amounting to torture, are not what they expected or were prepared for.

The president’s executive order on ensuring lawful interrogations was not the worst thing that’s come out of the Obama White House in its first week, however. The most terrible thing was the January 23, 2009, presidential memoranda setting aside the Mexico City Policy. In 1985, Ronald Reagan created the Mexico City Policy. This was an announcement that directed the United States’ Agency for International Development to withhold US aid funds from all organizations that used non-US aid funds to support abortion overseas. It was the official government policy between 1985 and 1993 when President Clinton rescinded it. George W. Bush reinstated the Mexico City Policy in 2001, and it remained in force until rescinded by Obama on January 23 of this year. Opponents of the Mexico City Policy call it the “global gag rule.” They feel constrained because they would rather promote abortion than any other kind of family planning. Some organizations have chosen to go without government funding rather than give up the right to perform and promote abortions overseas. I am always shocked by this strange eagerness to kill unborn children in foreign countries. Sadly, the Obama administration has decided to allow the government to provide money to organizations that promote and perform abortions throughout the world with the stroke of a pen in the form of this new memorandum repealing the Mexico City Policy. But this was not a surprise. Obama promised during his campaign to repeal the Mexico City Policy. In his interview with Saddleback Pastor Rick Warren, Obama indicated that he did not know when human rights vest in a human being. This is strange for a constitutional lawyer and a person who wants to be president of the United States. But it is in some way consistent with someone who thinks that it should be legal and reasonable to kill human beings in the womb. For a president who prides himself on his practicality and non-partisanship, the immediate rescission of the Mexico City Policy seems a strangely partisan and ideological act with which to begin a presidency. I and many others have prayed that God would restrain President Obama from taking this step. Let us hope that he is convicted of his error and at some point not only reinstates the Mexico City Policy, but becomes an advocate for the right to life for all living human beings. Let us hope that he comes to recognize what is obvious, that in conception a living sperm joins with a living egg to form a living human being who is alive for legal purposes until natural death. Human beings do not go from a state of being physically unalive to a state of life when they come out of the womb. All the wishes and social construction and linguistic distortion of abortion promoters will not change reality. Let us hope that some day President Obama and the rest of our nation are willing to open their eyes and accept reality rather than seeking to perpetuate a woman’s license to kill her own children.