On Law, Religion and Ethics, law professor Perry Dane offers some sane and cogent discussion of the debate over the proposal to build a mosque near Ground Zero. His three-part posting is here, here and here. His link to the 1657 Flushing Remonstrance is particularly apropos.
Most of my readers probably know that U.S. District Judge Vaughn Walker has issued his ruling in the California Prop. 8 case.
The most troubling aspect of Judge Walker’s opinion may be paragraph 77 of his factual findings: “Religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians.” Paragraph 77 lists 18 findings in support of this proposition, including 77(i) – (p), which identify statements by Catholic and Orthodox Church bodies, as well as by various protestant churches, concerning homosexual practice and sin.
This section is troubling for several reasons. First, it highlights some ways in which the Church has acted wrongly towards homosexuals in the rhetoric and tactics that often have been employed in the culture wars. Indeed, it does not even scratch the surface concerning a deplorable history of violence and hatred for which the Church ought to sincerely repent. Contrary to Judge Walker’s conclusions, however, I don’t believe the harm necessarily inheres in the category of “sin.”
The opinion surrpetitiously establishes a conflict between faith and science by suggesting that a social-scientific definition of “harm” must trump any theological concept of harm. Judge Walker, it seems to me, clearly wishes to pour out moral approbation on Christianity for employing the category of “sin” in private sexual matters. To do so, he assumes a metaphysical stance that waves away any concerns beyond the here and now. But when Christian churches issue pastoral statements about sin, they assume an anthropology that extends beyond the world we presently inhabit. The very concept of “sin” implies a metaphysic in which the “harms” and benefits people experience, or may in the future experience, extend far beyond what seems evident in this life. The deepest and most honest Christian response to arguments about sin and “harm” must be that the short and temporary wound caused by a rebuke of sin yields eternal good.
A related concern is that Judge Walker mischaracterizes Christian sexual ethics by characterizing “sin” as only a sort of legalistic, negative, irrational divine command. The Christian tradition, however, is rich with ethical and theological reflection about human sexuality and the family, which extends far beyond a blind emphasis on rules. Judge Walker seems ignorant of the way in which Christian sexual ethics are situated in the basic doctrines of the difference and co-inherence of the Trinity, the gift of the good and generative creation, and the establishment of a unique community of worship.
Of course, we cannot expect a federal district court judge to involve himself or herself in such deep theological questions. And here, I would suggest that the lobbying and litigation tactics of the Prop 8 proponents were devastating for Christian mission and witness. Precisely because the secular law cannot deal in theology, arguments in support of Prop 8 had to be made on supposedly “neutral,” secular and “scientific” grounds. The rich Christian theology and ethic of family and sexuality had to be compressed into an unrecognizable lump of consequentialist mush. The result was all too familiar: religion loses when it compromises its metaphysical claims.
My initial feeling after reading Judge Walker’s opinion, then, is a stronger belief in Hauerwas’ axiom that “the Church must be the Church.” Our beliefs and ethics are rooted in metaphysical claims that are revealed more than they are empirically self-evident. We need to learn to live as an ekklesia in a culture that does not share most of our metaphysical presuppositions. And we need to learn how to live with and love others who do not share our presuppositions. Grand scale legislative, lobbying and litigation tactics will always result in the construction of public arguments that undermine our most important truth claims.
A wide range of Christian churches in Kenya have issued a joint statement opposing Kenya’s proposed new Constitution, which is being voted on in a referendum on August 5. They argue that the new Constitution would expand abortion rights, and they oppose provisions that would allow Muslims to use khadi courts “for matters such as law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”
I claim no expertise in the dynamics of the Kenyan Constitutional process or in Kenyan culture. I have to confess, however, that the issue of khadi courts generally seems more difficult and subtle than the Kenyan Church opposition suggests. Is it in the interests of religious liberty to require religious people to use government provided courts rather than also having access to the judicial system of their religion? Is a conflict between secular Western and Islamic views of justice inevitable in any democractic state with a Muslim population that desires to employ internal community / religious justice mechanisms?
I also have to confess a worry that America’s religious-cultural wars have been exported to the Global South through the influence of American fundamentalism on Kenya’s evangelical Christian groups. At least one Kenyan religious leader and civil rights activist, Rev. Timothy Njoya, feels the same way. Watch the clip below from about 2:00 to about 7:00 to get a flavor for Njoya’s views.
But then again, Njoya suggests that Kenya’s evangelical Christians should read Thomas Payne’s “The Age of Reason” — a strange choice to say the least — and makes some other outlandish claims. Moreover, it is not only Kenya’s evangelicals, but also the Catholic and Anglican Churches in Kenya, as well as Njoya’s own Presbyterian Church of East Africa, that oppose the new Constitution. And, if an amendment to the U.S. Constition were proposed that would allow abortion whenever it is “permitted by any other written law,” I would expect opposition from an equally wide range of Churches in the U.S., not only from fundamentalist groups.
I’d be very curious to hear from Islamic law and religion scholars about their views on this dispute. I’d also be curious to hear from anyone with more knowledge than myself of Kenyan politics and history about whether the opposition of these Kenyan churches has deeper historical and cultural roots that overshadow the influence of American culture war politics.
A good Economist video.
The Sunday service on July 4 at my church was excellent. One of our younger pastors preached on the theme of “hope.” He managed to tie together some thoughts about hope rooted in our national history in the U.S. (there was a stirring reading from the Gettysburg Address) with his recent experiences on a missions trip in Cambodia. He observed how the Church in Cambodia is starting to produce little pockets of culture out of the ashes of totalitarianism, including economic and artistic renewal, in places where the gospel of freedom in Christ is being heard.
The ashes of Cambodian totalitarianism, of course, include Pol Pot’s killing fields, which our pastor visited. He described how the rains every year expose more and more of the bones of the estimated 1.3 million people who died during the Khmer Rouge’s reign of terror. 
We are grateful that, for all our ills, nothing like the Killing Fields presently exists in the U.S., in no small part due to some of the moral and legal principles we inherited, however imperfectly and haltingly, from Christian, Jewish, and other religious sources. And we are grateful that there are communities in places like Cambodia where the Church is shining the light of the Gospel in its fullness.
At the same time, we may wonder: where is the answer to the bones that cry out for justice? We are painfully aware of the limits of justice in this life. Very few of the perpetrators of this sort of violence are ever identified, judged and convicted. Often they remain in power, or simply dissolve into anonymity. We cry out to God with the Psalmist: “How long will the wicked, O LORD, how long with the wicked be jubilant?” (Ps. 94:3). We look for the final judgment, the terrible “Day of the Lord,” when the “white horse, whose rider is called Faithful and True” is unleashed — “With justice he judges and makes war.” (Rev. 19:11).
But how does this final judgment restore the victims of Pol Pot? My Evangelical Christian tradition in particular has emphasized that the final judgment is ultimately a sorting out of all those who have, during life, exercised faith in Christ from those who have not. The vast majority of Pol Pot’s victims were not professing Christians. Most had probably never heard of Christ. Are they condemned to Hell with their tormentors? Where, then, is “justice” for them? If final justice is mostly about one’s access to Christian teaching during life (or in Reformed theology, about one’s election by God), how does this provide any foundation for attempts to do “justice” during this life? Was Qohelet right after all: “Vanity of vanities! All is vanity”? (Eccl. 1:2).
One contemporary Christian theologian who has wrestled with these issues is Jurgen Moltmann. His most recent book, Sun of Righteousness, Arise!: God’s Future for Humanity and the Earth, summarizes his many decades of brilliant, if sometimes controversial and perhaps even heterodox, theological writing. I commend the reading of Moltmann to everyone, particularly to Evangelicals and others who are perhaps a bit too wedded to neat theological formulas, and this latest book of his is a great place to start.
Moltmann lived through World War II — he was a reluctant German soldier, became a POW, and returned to post-war Germany as a pastor and theologian — and as a result he has a keen eye for the problem of justice. For Moltmann, God’s “final judgment” must be conceived of as “not the great reckoning, with reward and punishment” but rather “the victory of the creative divine righteousness and justice over everything godless in heaven, on earth, and beneath the earth.”
Moltmann’s theology often wrestles with the meaning of history, hope, and freedom, and even “final” judgment, he believes must be “open” to the future: “Because the judgment serves this new creation of all things, its righteousness is not a righteousness related to the past, which merely establishes what is done and requires it. It is a creative righteousness related to this future, a righteousness which creates justice, heals and rectifies.” This is a judgment of restoration and reconciliation, akin to a truth commission in which the perpetrators of violence “must listen to [their vicitms’] accounts and learn to see themselves with the eyes of their victims, even if this is terrible and destructive.” The intention of this judgment is “to put right the disrupted relationships between people and nations; its intention is not to reward or punish individuals. . . .” The last judgment, then, should be imagined as “a peaceful arbitration whose purpose is the furtherance of life, not as a criminal court which decides over life and death.”
Here is a compelling vision of hope for the dry bones in Cambodia’s killing fields. They will meet their murderers in the eschaton — and they will be reconciled to each other, and all in the end will be saved.
It will be difficult for most Christians in Augustinian traditions — including most Evangelicals — to accept much of Moltmann’s vision, not least his universalism. Personally, from my theological perspective, I desire to do my best to account for the fullness of the Biblical witness in a way that coheres with the Tradition, reason and experience. Rev. 20 does not seem to me a picture of universal reconciliation, and the Tradition, reason, and experience suggest that some people will refuse to be reconciled. And yet, Colossians 1:2 seems tantalizingly inclusive: the Christian hope is that Christ will “reconcile all things to himself.” Perhaps those of us in Evangelical Augustinian traditions cannot rely on Moltmann, but I believe we can at least learn from him that the cosmic scope of salvation must be bigger than our limited horizons if there truly is to be final justice. And maybe this can lead us to learn from our Catholic and Orthodox brothers and sisters, from the early Greek Patristic writers and from contemporary Catholics such as Balthasaar and Ratzinger, a bit more about the meaning and hope of salvation.
Many religious commentators on the CLS v. Martinez case are upset by the majority’s rejection of the argument that discrimination based on conduct differs from discrimination based on status. Some religious conservatives are keen to promote such a distinction because it would help immunize discrimination based on sexual conduct from strict constitutional scrutiny. For example, a church that refuses to hire people who practice a homosexual lifestyle – in other words, homosexuals who have sex – would not necessarily be discriminating against homosexuals as a class of people, particularly if the church is willing to hire people with homosexual inclinations who remain celibate.
The notion that a person’s internal inclinations and external actions can so easily be separated grates hard against the identity politics that underwrite our culture war debates. At some point, of course, nearly everyone agrees that certain inclinations must be stifled – such as the pedophile’s urge to sexualize children. But beyond extreme cases in which grave harm is inflicted on unwilling third parties, our majority culture’s highest possible value is the freedom of each individual to realize and actualize his or her own inclinations (or in law-review friendly language, to increase social welfare through the maximization of individual utilities and the minimization of externalities).
In a liberal, pluralistic democracy, it seems hard to suggest any other meaningful rule. If “life, liberty and the pursuit of happiness” are “inalienable rights,” and if the core purpose of our polis is the preservation of those rights, conduct-status distinctions must be anathema. A person is not free to pursue his libertarian happiness if he is restrained from acting in ways that would satisfy his inclinations without harming innocent third parties. When restraints must be imposed to protect the freedoms of others, these are cases of externality costs, not cases in which the utility of an inclination can be separated from the utility of the conduct produced by the inclination. Because the proper balance of utilities cannot be determined exhaustively ex ante, the best approach is to agree on a broad social contract framework for resolving disputes. Or so the neo-Rawlsian story goes.
From the viewpoint of Christian theology, this sort of libertarian theory is idolatry. The true telos of life is not to actualize one’s self by maximizing one’s own utilities. Rather, the goal of the good life is to become united with Christ. This involves the loss of one’s old self, with its inexorable inclinations toward sin and violence, and in its place the resurrection of a “new creation,” in joyful fellowship with God, with God’s creation, and with the community of God’s people, sharing in some mysterious measure in the perichoretic fellowship of the Father, Son and Holy Spirit. The libertarian self dies so that the self created by God for happy communion may live.
This is why the Bible draws no artificial distinction between what we do with our bodies and the state of our inner selves. In fact, much of the New Testament’s epistolary literature deals with the Gnostic heresy of that the body is an illusion. The early Gnostic sects tended towards either harsh asceticism or sexual license, because, for them, only the “spiritual” or inner plane really mattered. The Bible, and particularly St. Paul, will have none of this kind of dualism:
Do you not know that your bodies are members of Christ himself? Shall I then take the members of Christ and unite them with a prostitute? Never! Do you not know that he who unites himself with a prostitute is one with her in body? For it is said, “The two will become one flesh.” But he who unites himself with the Lord is one with him in spirit.
Flee from sexual immorality. All other sins a man commits are outside his body, but he who sins sexually sins against his own body. 19Do you not know that your body is a temple of the Holy Spirit, who is in you, whom you have received from God? You are not your own; you were bought at a price. Therefore honor God with your body. (1 Cor. 6:12-20).
For Christian anthropology, the inner and outer “self” is an integrated whole. There can be no sharp distinction between “inclinations” and “conduct.” A Constitutional standard that would distinguish “conduct” and “status” is foreign to a Christian view of the human person.
In this light, it seems surprising that so many of the Christian lawyers and organizations involved in the CLS v. Martinez case vigorously argued for a conduct / status distinction. I’m tempted to mitigate my surprise with a cynical nod towards the expediencies of litigation. If you want to “win” in the Supreme Court, a robust Pauline anthropology won’t do. The Court might, however, understand a legalistic approach to “religion,” under which communities are constructed through adherence to somewhat arbitrary rules.
Perhaps this argument is plausible: “religion” essentially is about external compliance, not internal transformation and the resurrection of the whole person. That is at least one possible sociological definition of “religion,” and it might be important to carve out spaces for people whose life plans intersect with communities that impose such rules.
Another potentially robust, if maybe still a bit cynical, explanation is that the Christian groups advocating an inclination / conduct distinction don’t want to be seen as illiberal. If the CLS excludes people engaged in homosexual activity from membership, it is not because the CLS is “anti-gay”; it is only a certain kind of conduct, not the person’s inner self, which is in question. But all this is sophistry. Indeed, there were “teachers of the law” in Jesus’ day who took a similar view. According to Jesus, these lawyers were no better than “whitewashed tombs” (Matt. 23:27).
The truth is that all Christian organizations that exclude people from membership based on homosexual behavior are “anti-gay,” insofar as “gay” is a definition of identity linked to a person’s deep inclinations. For that matter, Christian organizations can and often should be “anti-heterosexual,” “anti-business,” “anti-capitalist,” “anti-family,” “anti-life,” and so on, insofar as any of these categories of desire take the place of God. Just ask the one after whom the Christian faith is named: “If anyone comes to me and does not hate his father and mother, his wife and children, his brothers and sisters—yes, even his own life—he cannot be my disciple.” (Luke 14:26).
Of course, they way I’ve framed the question is problematic, because the posture of a Christian community shouldn’t be “anti” anything unless we first understand that “love,” particularly the love of God revealed in Christ, is everything. We are all about becoming united with God in love through Christ, in anticipation of the day when “God may be all in all.” (1 Cor. 15:28). It is love that excludes certain inclinations, desires, and conduct. Love compels us to order our desires and our conduct so that God’s community of shalom can be established. Love burns away all that which tends to dissolve this community: misplaced desire and misdirected conduct, all of a piece.
Christian communities are first and above all pro-love. “God is love” (1 John 4:8), and love, we recognize, is always a gift, freely given, freely received. God is the giver and we only respond. We love God only because He first loved us, and not because we deserve it. Indeed, until we are finally united with Him, our inclinations and desires continually tend towards selfishness and idolatry. We resonate with St. Paul’s agonized cry: “What a wretched man I am! Who will rescue me from this body of death?” (Rom. 7:24). We agree with Paul that we are rescued only in Jesus Christ.
It is because Christian communities are pro-love and pro-gift that we should always welcome gay people — along with all other strangers, all other aliens, all other outcasts — to fellowship with us. Yet, it is also because we are pro-love and pro-gift that Christian communities must establish standards of conduct that discipline the life of the community such that desire is continually directed towards the highest good, which is God and the peace God establishes.
Christians have historically understood sexuality in the context of a sacramental marriage commitment between one man and one woman, with the attendant possibility of new life in childbirth, because this reflects, we believe, something about the difference-and-coinherence of the persons of the Triune God Himself, as well as something about the gift of creation arising from the perichoretic joy known by God and instantiated in creation into that which is other than God. We understand sexual intercourse outside of the context of sacramental marriage to represent not only the violation of some external rule, but also a grave breach in the internal fibers of the community God is building. It is not out of animus for the person who is having sex outside of sacramental marriage that we might restrict the person’s role in the community. It is out of love, both for the person and for the community, and out of a great and overwhelming desire to see God’s peace realized for all.
The proposal that inclinations and conduct can be viewed in isolation, then, is exposed as empty and loveless. It reflects the sort of anthropological dualism towards which our neo-gnostic libertarian culture gravitates. This compromise should be resisted by the community called by the name of the Triune God revealed in Jesus Christ. Let us instead develop the courage to become an alternative community even when our distinctive witness forecloses access to the benefits of the libertarian secular state. We may, as good citizens in the earthly city, lawfully petition for the benefits of that citizenship, but let us do so without resort to legal theories rooted in a vision of the human person and the human community that falls so far short of what we believe is true and good.
Today the Supreme Court released its opinion in Christian Legal Society v. Martinez. If you have heard about this case from the press or from an advocacy group and are concerned about it, I’d encourage you to read the entire opinion as well as the concurrence and dissent. The whole package is ugly, I think. It seems that the principles of freedom of expression, association and religion have been mired in a Dickensian procedural swamp, which was either created by the majority or conveniently used by the majority to bypass the big issues presented by the case. I urge interested readers to peruse the entire 75 pages of all the opinions, so that you may experience for yourself how a question of important Constitutional moment can be drowned in the turgid waters of civil procedure.
The majority opinion, written by Justice Ginsberg, holds that U.C. Hastings’ “all comers” policy was content-neutral and reasonably related to the school’s policy of promoting a diverse forum for student activities. The all comers policy stated that approved student organizations must admit any student to membership or eligibility for leadership, regardless of the student’s status or beliefs. A pro-choice group, then, would have to admit pro-choice students, a Democrat club would have to admit Republicans, the Christian Legal Society would have to admit non-Christians or people who do not live according to the CLS’ views on sexual ethics, and so on.
Indeed, the all comers policy does seem content-neutral as Justice Ginsberg describes it. On its face, the all comers policy itself seems silly and unworkable — it essentially would require that no student organization can stand for anything other than the principle that it is good to encourage diverse viewpoints — but not unconstitutional.
In contrast, the dissent, written by Justice Alito and joined by Justices Roberts, Scalia and Thomas, goes into great detail about the factual circumstances of Hastings’ adoption of the all comers policy. In short, according to Justice Alito, the all comers policy was “adopted” as a litigation strategy late in the game. The policy really at issue, Hastings’ “Nondiscrimination Policy,” only prohibited discrimination based on a select few protected categories — race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. Enforcement of the Nondiscrimination Policy against groups, such as CLS, that discriminate in one of these categories on the basis of religious beliefs raises a very difficult Constitutional question: do the freedoms of religion, speech and association mean that the government must accommodate religious groups that discriminate based on categories such as sexual orientation?
In a previous post, I summarized the issues in the case, and expressed my view that the whole thing was an unfortunate manifestation of ongoing confusion by Christians about the relationship between American government and Christian faith. In his dissent, Justice Alito expresses disappointment with the majority and suggests that the majority’s opinion is “a serious setback for freedom of expression in this country.” He might be right, but maybe not for the reasons he expresses. In one sense, I’m glad the majority found a way to avoid deciding the more difficult issues presented by the Nondiscrimination Policy. There is a hard tension between citizenship in the Church and citizenship in a liberal (meaning classically liberal) pluralistic democracy. I don’t think it’s a tension that we in the Church should want to press up against so hard. Sometimes, the wiser course for the life and mission of the ekklesia is to maintain a faithful witness without suing for full government recognition of all our rights.
A good article in The Christian Century about growing evangelical support for immigration reform.
Just in time for summer beach reading, here is my latest legal academic article, Rational Antitrust Policy and Reverse Payment Settlements in Hatch-Waxman Patent Litigation, 98 Geo. L.J. 1303 (2010).
I posted my Memorial Day reflection on Jesus Creed, and got this comment from Travis Greene, which I think is awesome:
I wonder if those who are able, according to them, to easily hold patriotism and faith together without idolatry would do us weaker folks, whose consciences are troubled by this particular meat we see as sacrificed to idols, the favor of not singing loud songs in praise of America during church. You may be easily able to pledge allegiance to a nation but keep God first. You may be able to have a flag above the altar and remember which is more important. But it sickens me, and I know I’m not alone, and I wonder if for reasons of mission, ecclesiology, and simple compassion, you could just let this go.