Tuesday, August 10, 2010
Apologetics.com show on Federal Prop 8 Cse Perry
At the link is Chris Neiswonger's article about the Perry case and audio of last weekend's Apologetics.com radio show on the same topic. I was happy to be one of the guests on the show. Link: http://www.apologetics.com/index.php?option=com_content&view=article&id=526%3Aproposition-8-and-the-gay-marriage-debate&catid=43%3Akkla-995-fm-los-angeles&Itemid=74
Monday, August 09, 2010
Luther on our Treasure in Christ
"When I have Christ, I have all that is necessary. Neither death, sin, nor the devil can hurt me. If I believe in Christ I have fulfilled the law; it cannot accuse me. I have conquered hell; it cannot hold me. Everything that Christ has is mine. Through Him, we obtain all his possessions and eternal life. Even if I am weak in faith, I still have the same treasure and the same Christ that others have. There is no difference: we are all made perfect through faith in him, not by what we do." - Martin Luther (Trans. James Galvin)
Thursday, August 05, 2010
Perry v. Schwarzenegger, post II
The whole role of the trial court in Perry v. Schwarzenegger is an example of why decisions about distributive justice – who should get what in society and how society should be structured – were normally made by legislators, not courts. Sure, courts announced what the law should be in new cases or cases where the rules announced before made no sense, but they did so in the context of affecting one plaintiff and one defendant. Courts did corrective justice – restoring the balance between the doer and the sufferer, as Aristotle might have put it. No court prior to the last forty years or so would have considered it right for it to restructure the entire law and institution of marriage. Yet that is exactly what this court hopes will happen if its opinion is ratified by the federal Ninth Circuit Court of Appeals and the Supreme Court of the US.
In the trial, the court heard a small selection of “experts” pontificate on vast areas of knowledge well beyond the verification of science or art, particularly in such a short time by so few individuals. Yet, in theory, the whole future history of the United States could turn on these few poorly grounded opinions. One of the more interesting factual findings of the court was:
“Religious beliefs that gay and lesbian relationships are
sinful or inferior to heterosexual relationships harm gays and
lesbians.” P.101
Is this a precursor to persecution and harassment of Christians who publically hold true to the moral beliefs of centuries of mankind and the clear teaching of the Bible? Perhaps that is too radical a supposition, but it is hard to see it in any other light since religious belief has nothing to do with the facts of the case before the court. No such “finding of fact” was necessary. Certainly too, the experts could not prove such a thing. That no one likes to be told their conduct is immoral is obvious. But it is good for people engaged in immoral conduct to be reminded of their error and of the true way regardless of how embarrassing that may be. No doubt brothel owners and professional con men would prefer their chosen livelihoods to be legal and socially acceptable. Perhaps they cry real tears at night over the hostility of antiquated religious beliefs. No doubt they justify their conduct to themselves and say they are only giving people what they want and need to be happy. No doubt it would be a great personal loss to them to change occupations since their upbringing and inclinations may have equipped them for no other trade. But no court should say laws against prostitution or pyramid schemes violate the Fourteenth Amendment to the US Constitution as a result of their hurt feelings. Nor should any court threaten people with faith in God by proclaiming their beliefs “harmful” to the pimp or fraudster so in need of repentance.
In the trial, the court heard a small selection of “experts” pontificate on vast areas of knowledge well beyond the verification of science or art, particularly in such a short time by so few individuals. Yet, in theory, the whole future history of the United States could turn on these few poorly grounded opinions. One of the more interesting factual findings of the court was:
“Religious beliefs that gay and lesbian relationships are
sinful or inferior to heterosexual relationships harm gays and
lesbians.” P.101
Is this a precursor to persecution and harassment of Christians who publically hold true to the moral beliefs of centuries of mankind and the clear teaching of the Bible? Perhaps that is too radical a supposition, but it is hard to see it in any other light since religious belief has nothing to do with the facts of the case before the court. No such “finding of fact” was necessary. Certainly too, the experts could not prove such a thing. That no one likes to be told their conduct is immoral is obvious. But it is good for people engaged in immoral conduct to be reminded of their error and of the true way regardless of how embarrassing that may be. No doubt brothel owners and professional con men would prefer their chosen livelihoods to be legal and socially acceptable. Perhaps they cry real tears at night over the hostility of antiquated religious beliefs. No doubt they justify their conduct to themselves and say they are only giving people what they want and need to be happy. No doubt it would be a great personal loss to them to change occupations since their upbringing and inclinations may have equipped them for no other trade. But no court should say laws against prostitution or pyramid schemes violate the Fourteenth Amendment to the US Constitution as a result of their hurt feelings. Nor should any court threaten people with faith in God by proclaiming their beliefs “harmful” to the pimp or fraudster so in need of repentance.
Wednesday, August 04, 2010
PERRY v. SCHWARZENEGGER, the opinion in the Prop. 8 trial, part I
A Federal district court in San Francisco, months after hearing witnesses and closing arguments, has declared California’s Proposition 8 unconstitutional. Proposition 8 had declared merely that in California the term “marriage” could be applied only to one man and one woman. It accomplished little more than preserving the appearance of a distinction between legally recognized relationships for one man and one woman, and California’s legally recognized relationships for homosexual couples (groups are yet to come, but in principle cannot be stopped if current trends continue).
The Plaintiffs in the case argued successfully that Proposition 8 and the old fashioned understanding of marriage violated the Fourteenth Amendment to the Constitution of the United States because it treats same sex couples differently than heterosexual couples. Of course, such different treatment was expected by the moral core and religiously orthodox core of nearly all cultures for nearly all of recorded history, but courts today assume we know better. The people of the past thought it was just as obvious that homosexual relationships were not like marriages as that burglary was not like entering your own home. Somehow we miss the difference.
The defendants argued that the will of the people should carry the day. In the big scheme of things this is a difficult argument, because sometimes the majority of people want the wrong thing. That is why our founders created a republic instead of a pure democracy. But then the founders would have been shocked by this outcome in a court of law and would have considered it a vicious refusal by the court to apply the law. The defendants also made the utilitarian arguments, which I believe to be true, that children are better off being raised by a mother and father, and that heterosexual relationships are more stable than homosexual relationships. The defendants also made the tactical choice not to present much evidence. I think they were more afraid of their witnesses being mocked for their ideas than of the lack of evidence for their side before the court. And indeed, because of the way our legal system works today, making an argument this court would have found persuasive is as difficult for us as it would have been easy for our ancestors.
The underlying problem here is one addressed by a number of Christian writers, including Dallas Willard and Nancy Pearcey: our society divides "reality" into the objective sphere of science on the one hand and the subjective sphere of religion and morality on the other hand. This is not really so. Moral truth and real religious truth are objective and knowable species of truth. But, on the basis of the alleged subjectivity of morality and religion, morality and orthodox Christianity are banned from consideration in making public policy. The judge in this case said:
“ A state’s interest in an enactment must of course be
secular in nature. The state does not have an interest in
enforcing private moral or religious beliefs without an
accompanying secular purpose. See Lawrence v Texas, 539 US 558,
571 (2003); see also Everson v Board of Education of Ewing
Township, 330 US 1, 15 (1947).”
And by “secular” they mean that arguments from any moral system not based on utilitarianism or pure reciprocity are also excluded. Naturally science cannot actually tell anyone what they "ought" to do - science measures and describes things and events in the experimentally and observationally repeatable material world, science says nothing about normativity. So public policy is made through a variety of shell games that involve elite manipulation of the courts or manipulation of the public, whichever works best. Practical political power and will are really the only criteria; though arguments to salve the dishonest intellect and to appeal to the passions and emotions must be made to keep up appearances. Materialist scientism, and instrumentalist faith in autonomous humankind is the established religion of our government. We no longer have the Rule of Law because the Law above the Law - the reason, universal eternal truths, and moral order of God are disregarded unless they too can be smuggled in, through some appealing way, as "tradition."
This situation is extremely dangerous. If the current paradigm exhibited by the federal trial court in San Francisco prevails, it may take decades, but extreme damage to the souls of our children and the character our civilization is inevitable. On the other hand, if people yield to the temptation to use power politics, or worse, violence, to impose their will on the elites who back the current standard, the precedents set could prove just as devastating to freedom, reason and truth in the long run as the immoral rule of judges is becoming in the short run. May God guide us in how to unravel the maze of evil we have made for ourselves by our failure to clearly teach and maintain the truth as the truth in all areas of life.
The Plaintiffs in the case argued successfully that Proposition 8 and the old fashioned understanding of marriage violated the Fourteenth Amendment to the Constitution of the United States because it treats same sex couples differently than heterosexual couples. Of course, such different treatment was expected by the moral core and religiously orthodox core of nearly all cultures for nearly all of recorded history, but courts today assume we know better. The people of the past thought it was just as obvious that homosexual relationships were not like marriages as that burglary was not like entering your own home. Somehow we miss the difference.
The defendants argued that the will of the people should carry the day. In the big scheme of things this is a difficult argument, because sometimes the majority of people want the wrong thing. That is why our founders created a republic instead of a pure democracy. But then the founders would have been shocked by this outcome in a court of law and would have considered it a vicious refusal by the court to apply the law. The defendants also made the utilitarian arguments, which I believe to be true, that children are better off being raised by a mother and father, and that heterosexual relationships are more stable than homosexual relationships. The defendants also made the tactical choice not to present much evidence. I think they were more afraid of their witnesses being mocked for their ideas than of the lack of evidence for their side before the court. And indeed, because of the way our legal system works today, making an argument this court would have found persuasive is as difficult for us as it would have been easy for our ancestors.
The underlying problem here is one addressed by a number of Christian writers, including Dallas Willard and Nancy Pearcey: our society divides "reality" into the objective sphere of science on the one hand and the subjective sphere of religion and morality on the other hand. This is not really so. Moral truth and real religious truth are objective and knowable species of truth. But, on the basis of the alleged subjectivity of morality and religion, morality and orthodox Christianity are banned from consideration in making public policy. The judge in this case said:
“ A state’s interest in an enactment must of course be
secular in nature. The state does not have an interest in
enforcing private moral or religious beliefs without an
accompanying secular purpose. See Lawrence v Texas, 539 US 558,
571 (2003); see also Everson v Board of Education of Ewing
Township, 330 US 1, 15 (1947).”
And by “secular” they mean that arguments from any moral system not based on utilitarianism or pure reciprocity are also excluded. Naturally science cannot actually tell anyone what they "ought" to do - science measures and describes things and events in the experimentally and observationally repeatable material world, science says nothing about normativity. So public policy is made through a variety of shell games that involve elite manipulation of the courts or manipulation of the public, whichever works best. Practical political power and will are really the only criteria; though arguments to salve the dishonest intellect and to appeal to the passions and emotions must be made to keep up appearances. Materialist scientism, and instrumentalist faith in autonomous humankind is the established religion of our government. We no longer have the Rule of Law because the Law above the Law - the reason, universal eternal truths, and moral order of God are disregarded unless they too can be smuggled in, through some appealing way, as "tradition."
This situation is extremely dangerous. If the current paradigm exhibited by the federal trial court in San Francisco prevails, it may take decades, but extreme damage to the souls of our children and the character our civilization is inevitable. On the other hand, if people yield to the temptation to use power politics, or worse, violence, to impose their will on the elites who back the current standard, the precedents set could prove just as devastating to freedom, reason and truth in the long run as the immoral rule of judges is becoming in the short run. May God guide us in how to unravel the maze of evil we have made for ourselves by our failure to clearly teach and maintain the truth as the truth in all areas of life.
Test the Prophets
Dunbar Plunket Barton relates an interesting story about John Holt, Chief Justice of the Court of King’s Bench appointed by William III. Holt was a strong Christian, but did not suffer fools or false prophets.
A man came to Holt announced that he, the visitor, was a “prophet of the Lord God” and that God had instructed him to tell Holt to issue a document called a nolle prosequi to release a particular man currently held in prison and awaiting trial. A nolle prosequi, by the way, was a document issued by a prosecutor stating that he would not continue to prosecute a case against a particular defendant. Holt said to the would-be prophet “Thou art a false prophet and a lying knave. If the Lord God had sent thee, it would have been to the Attorney-General, for He knows that it belongeth not to the Chief Justice to grant a nolle prosequi. But I, as Chief Justice, can grant a warrant to commit thee to bear him [the prisoner] company.”
There is an old saying “The Devil Knows Latin”; but Holt knew the Lord knows the law.
A man came to Holt announced that he, the visitor, was a “prophet of the Lord God” and that God had instructed him to tell Holt to issue a document called a nolle prosequi to release a particular man currently held in prison and awaiting trial. A nolle prosequi, by the way, was a document issued by a prosecutor stating that he would not continue to prosecute a case against a particular defendant. Holt said to the would-be prophet “Thou art a false prophet and a lying knave. If the Lord God had sent thee, it would have been to the Attorney-General, for He knows that it belongeth not to the Chief Justice to grant a nolle prosequi. But I, as Chief Justice, can grant a warrant to commit thee to bear him [the prisoner] company.”
There is an old saying “The Devil Knows Latin”; but Holt knew the Lord knows the law.
Tuesday, August 03, 2010
The Complexity of Legal Change
History is full of examples of the complexities of legislation and law. While everyone has some idea of what is just, our own interests and passions tend to get in the way. It is often difficult to procure productive change without overstepping the legitimate powers of government and thereby setting precedents useful for destructive change later on. It is also difficult to protect some real or imagined rights or interests without infringing other real or imagined rights. These difficulties are among the reasons “conservatives” favor relative stability in law.
One example from the reign of the English King James II is seen in the circumstances surrounding the Declaration of Indulgence and the trial of the Seven Bishops.
One of the great injustices of England has been the persecution and discrimination against religious minorities that occurred from the middle ages up to modern times. The legal impediments to dissenters from the national church were only gradually eliminated. In part, the problem stemmed not from malice, but from the mere existence of a national established church and from the good intentions to maintain unity and avoid seditious and destructive opinions as much as possible for the good of the people and the commonwealth.
But, from our perspective with the passage of time, we can see how the best intentions often worked a mischief. The same England that gave us Magna Charta, the King James Bible, and the Westminster Confession also burnt the bones of Wycliffe, burned Cranmer at the stake, imprisoned John Bunyan, and refused to let Baptists hold political office for an unconscionable amount of time. When we limit freedom for the sake of unity or purity of doctrine, it is an inevitability, given fallen human nature, that we will sometimes be mistaken in what is correct or true, that we will make mistakes even when we do know what is true in the abstract, and that the enemies of truth will at some point gain enough power to use the same rules against those who believe the truth – or so the experience of history seems to teach us.
King James II tried to change the situation in the late 1600s by issuing a decree known as the Declaration of Indulgence, and a second decree known as the Second Declaration of Indulgence. The first Declaration of Indulgence was issued in 1687, the third year of James II reign. In the declaration James II says his intent is to make the people of England happy by “granting to them the free exercise of their religion.” James II sensibly writes “conscience ought not to be constrained nor people forced in matters of religion.” James II observed truthfully that all the efforts of the last four monarchs to promote a single unified religious opinion in England had failed, and all such efforts were doomed to failure. Building on these principles, James II says he will protect the established church, but that all penal laws punishing people for failure to adhere to and participate in the established church are now suspended. James goes on to declare that all religious groups may have their own meetings (which had not been allowed). But, as he is still worried about sedition, the non-Church of England groups must meet openly, allow visitors, disclose their regular meeting sites to local government representatives, and avoid preaching any sort of treason. James II went even further to eliminate all existing oaths of religious orthodoxy as tests for holding office in England. To crown all this off, James II pardoned everyone who had been accused or punished under the laws eliminated by the Indulgence.
In the Second Declaration of Indulgence, issued in 1688, James II essentially said, though not in these words, “despite what you may have heard about the Declaration of Indulgence, I really meant it and it is for your own good – freedom of conscience is good for everybody.”
You would think that these declarations would have put James II down in the history books as a great wise king, far ahead of his time. But they did not. James II got a bad reputation with the majority that has lasted down to this day. Why? Well, a lot of other things entered into it: James abused the court system by trying to intimidate judges, he wanted to become an absolute monarch, he had a Roman Catholic wife and people thought he was trying to bring back absolutist Roman Catholic rule over England despite all the talk about religious liberty . . . oh, and he conspired to have France invade England to back him up in his fight with Parliament. Many members of Parliament thought that the Declaration of Indulgence was beyond James' proper authority as King. He could not do something like this – only Parliament could make such a radical change in the laws. Indeed, the Declarations claimed to unravel many Acts of Parliament, and spreading the Declaration of Indulgence itself was seen by many as a violation of a law laid down in the time of Elizabeth that involved not only possible legal penalties, but carried an anathema – a sort of theological curse – against any churchman who so violated it. And, Parliament suspected James did not really believe in freedom of conscience for the long run – he just wanted it long enough to get his pro-Roman Catholic friends into enough government offices and positions of power to seize control of the government and return England by force to the Romanist fold.
In the context of this fight, along came the Case of the Seven Bishops. Seven of the rulers of England’s established Anglican Church, including the Archbishop of Canterbury, objected to the Declarations of Indulgence. The King issued an order that the Declaration of Indulgence be read in every church and distributed by clergy to their people. The seven bishops petitioned the King refusing to read the Declaration in church or to distribute it. The King had the Seven Bishops prosecuted for libeling him with their statements in the petition for relief from the law.
Do you see the tremendous irony? In order to further a statement supposedly meant to establish religious conscience the King brought criminal cases for libel against five clerics over what they did not do in church. As if that were not enough, he was punishing them for asking him for help to avoid violating the law and coming under the threat of prosecution from Parliament and a curse from the church. On top of this, the King’s authority in the whole matter was suspect. The King was violating freedom of conscience and religion in the name of freedom of conscience and religion – and was doing so in violation of England’s unwritten constitution. If the King lost, it was a setback for religious liberty. But if the King won it helped establish that the King had the power to act as a tyrant – a precedent that might ultimately result in the King talking away religious liberty.
The King lost. The jury came in with a verdict on not guilty. The same year Parliament drove James from the throne and replaced him with monarchs with unimpeachable Protestant Christian credentials. Religious liberty would be won, but on a slower time table. Absolute monarchy, the threat of tyranny, and the specter of a new Roman Catholic established church were banished.
I hope this very brief description serves to illuminate the problem of legal complexity. Today, the problems of the complex interactions of rights, powers, and laws are no less byzantine. There are many today who seek radical changes in society. They wish us to think differently, feel differently, eat differently, make less dust, ignore moral rules handed down by God and endorsed by every major culture for centuries, educate children differently, and ultimately – they hope – change human nature itself. They seek to do all this through laws and regulations of questionable legal pedigree and authority. And they often are heedless of the sweeping chaos they will unleash. They are willing to take away rights given by God to uphold new rights given by man. At least the letter of James II’s Declarations bore on its face a noble sentiment. The same cannot be said of those who seek to replace the hard won freedom of religion with freedom from religion, and the liberty to choose among goods with a petty tyranny over plows and breakfast tables. The new progressives too often seek James II’s claimed power without James II’s claimed excuse.
One example from the reign of the English King James II is seen in the circumstances surrounding the Declaration of Indulgence and the trial of the Seven Bishops.
One of the great injustices of England has been the persecution and discrimination against religious minorities that occurred from the middle ages up to modern times. The legal impediments to dissenters from the national church were only gradually eliminated. In part, the problem stemmed not from malice, but from the mere existence of a national established church and from the good intentions to maintain unity and avoid seditious and destructive opinions as much as possible for the good of the people and the commonwealth.
But, from our perspective with the passage of time, we can see how the best intentions often worked a mischief. The same England that gave us Magna Charta, the King James Bible, and the Westminster Confession also burnt the bones of Wycliffe, burned Cranmer at the stake, imprisoned John Bunyan, and refused to let Baptists hold political office for an unconscionable amount of time. When we limit freedom for the sake of unity or purity of doctrine, it is an inevitability, given fallen human nature, that we will sometimes be mistaken in what is correct or true, that we will make mistakes even when we do know what is true in the abstract, and that the enemies of truth will at some point gain enough power to use the same rules against those who believe the truth – or so the experience of history seems to teach us.
King James II tried to change the situation in the late 1600s by issuing a decree known as the Declaration of Indulgence, and a second decree known as the Second Declaration of Indulgence. The first Declaration of Indulgence was issued in 1687, the third year of James II reign. In the declaration James II says his intent is to make the people of England happy by “granting to them the free exercise of their religion.” James II sensibly writes “conscience ought not to be constrained nor people forced in matters of religion.” James II observed truthfully that all the efforts of the last four monarchs to promote a single unified religious opinion in England had failed, and all such efforts were doomed to failure. Building on these principles, James II says he will protect the established church, but that all penal laws punishing people for failure to adhere to and participate in the established church are now suspended. James goes on to declare that all religious groups may have their own meetings (which had not been allowed). But, as he is still worried about sedition, the non-Church of England groups must meet openly, allow visitors, disclose their regular meeting sites to local government representatives, and avoid preaching any sort of treason. James II went even further to eliminate all existing oaths of religious orthodoxy as tests for holding office in England. To crown all this off, James II pardoned everyone who had been accused or punished under the laws eliminated by the Indulgence.
In the Second Declaration of Indulgence, issued in 1688, James II essentially said, though not in these words, “despite what you may have heard about the Declaration of Indulgence, I really meant it and it is for your own good – freedom of conscience is good for everybody.”
You would think that these declarations would have put James II down in the history books as a great wise king, far ahead of his time. But they did not. James II got a bad reputation with the majority that has lasted down to this day. Why? Well, a lot of other things entered into it: James abused the court system by trying to intimidate judges, he wanted to become an absolute monarch, he had a Roman Catholic wife and people thought he was trying to bring back absolutist Roman Catholic rule over England despite all the talk about religious liberty . . . oh, and he conspired to have France invade England to back him up in his fight with Parliament. Many members of Parliament thought that the Declaration of Indulgence was beyond James' proper authority as King. He could not do something like this – only Parliament could make such a radical change in the laws. Indeed, the Declarations claimed to unravel many Acts of Parliament, and spreading the Declaration of Indulgence itself was seen by many as a violation of a law laid down in the time of Elizabeth that involved not only possible legal penalties, but carried an anathema – a sort of theological curse – against any churchman who so violated it. And, Parliament suspected James did not really believe in freedom of conscience for the long run – he just wanted it long enough to get his pro-Roman Catholic friends into enough government offices and positions of power to seize control of the government and return England by force to the Romanist fold.
In the context of this fight, along came the Case of the Seven Bishops. Seven of the rulers of England’s established Anglican Church, including the Archbishop of Canterbury, objected to the Declarations of Indulgence. The King issued an order that the Declaration of Indulgence be read in every church and distributed by clergy to their people. The seven bishops petitioned the King refusing to read the Declaration in church or to distribute it. The King had the Seven Bishops prosecuted for libeling him with their statements in the petition for relief from the law.
Do you see the tremendous irony? In order to further a statement supposedly meant to establish religious conscience the King brought criminal cases for libel against five clerics over what they did not do in church. As if that were not enough, he was punishing them for asking him for help to avoid violating the law and coming under the threat of prosecution from Parliament and a curse from the church. On top of this, the King’s authority in the whole matter was suspect. The King was violating freedom of conscience and religion in the name of freedom of conscience and religion – and was doing so in violation of England’s unwritten constitution. If the King lost, it was a setback for religious liberty. But if the King won it helped establish that the King had the power to act as a tyrant – a precedent that might ultimately result in the King talking away religious liberty.
The King lost. The jury came in with a verdict on not guilty. The same year Parliament drove James from the throne and replaced him with monarchs with unimpeachable Protestant Christian credentials. Religious liberty would be won, but on a slower time table. Absolute monarchy, the threat of tyranny, and the specter of a new Roman Catholic established church were banished.
I hope this very brief description serves to illuminate the problem of legal complexity. Today, the problems of the complex interactions of rights, powers, and laws are no less byzantine. There are many today who seek radical changes in society. They wish us to think differently, feel differently, eat differently, make less dust, ignore moral rules handed down by God and endorsed by every major culture for centuries, educate children differently, and ultimately – they hope – change human nature itself. They seek to do all this through laws and regulations of questionable legal pedigree and authority. And they often are heedless of the sweeping chaos they will unleash. They are willing to take away rights given by God to uphold new rights given by man. At least the letter of James II’s Declarations bore on its face a noble sentiment. The same cannot be said of those who seek to replace the hard won freedom of religion with freedom from religion, and the liberty to choose among goods with a petty tyranny over plows and breakfast tables. The new progressives too often seek James II’s claimed power without James II’s claimed excuse.
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