This and That
January 24th, 2010 by Darryl G. Hart
David Strain makes a very good point about the doctrine of the two thingies:
If the Kingdom is not advanced by ‘the sword’, that is, by means of physical coercion, but the God ordained role of the civil magistrate is to use the sword to enforce the rule of law, how can the Christian’s work as a civil magistrate be the work of the Kingdom?
As part of my duty to follow Scott Clark’s marching orders on covenant theology, I’ll mention his post on parallels between the controversy over Federal Vision today and Machen’s contest with liberalism some eight decades ago:
Like the liberals and latitudinarians on the early 20th century the Federal Visionists of our times use similar tactics against the confessionalists. They have tried to silence the confessionalist critics through shame or through implied or express suggestions of ecclesiastical or professional pressure. When that doesn’t work, the other tactic is to suggest that the confessionalist critics are immoral or somehow disreputable. Just as in the case of Machen, the liberals and latitudinarians would rather have the churches focus on the ostensible bad behavior (or incorrect social views) of the confessionalists rather than upon the deviant doctrine or ecclesiastical practice of the theological revisionists.
When J. Gresham Machen was driven out of the PCUSA, the liberals and their latitudinarian accomplices did not “get him” on a doctrinal charge but on a charge of not playing nice with others. He refused to abandon his support for the Independent Board of Foreign Missions (confessionalists do care about the lost AND getting our theology right) so they charged and convicted him in a sham ecclesiastical trial of being disobedient to the church. In light of the developments, in the PCUSA, in the decades that followed the idea of trying and disciplining a minister for supporting an independent (non-denominational) missions agency is amusing but they were able to get away with it then because they had control of the levers of power and because they had the cooperation of the latitudinarians.
On further reflection about the idea of republication, how could the Westminster Divines have been by implication any clearer than when they wrote the Shorter Catechism? It goes like this:
Q. 39. What is the duty that God required of man?
A. The duty which God required of man was obedience to his revealed will.
Q. 40. What did God at first reveal to man for the rule of his obedience?
A. The rule which God at first revealed to man was the moral law.
Q. 41. Where in is the moral law summarily comprehended?
A. The moral law is summarily comprehended in the ten commandments.
Tags: ecclesiastical controversy, Federal Vision, Machen, republication, two-kingdoms
DGH, I have great respect for your intellect, so that increases my frustration when you ask “If the Constitution is not exhaustive, how so is the Bible when it wasn’t given to be a book of laws for the state?”
after I said,
JRC: “First, I don’t take Scripture as exhaustive. It provides norms, which function positively as goals and negatively as checks.”
Can we agree that I have said that Scripture is *not* exhaustive?
Thanks,
JRC
I think a Christian magistrate would definitely start with what is shared in common. But if push comes to shove, if the choice is between “common ground” and a law that is manifestly unjust (know by its flat contradiction with Scripture), then common ground might have to give way. No?
JRC
DGH, don’t understand your post or where you see boasting. I don’t believe the credit for Christian contribution to the legal order of the West goes to the churchmen who contributed to it. I’d hope that it would give ground for praise to God who in his mercy and providence suffused the states of the Western world with a moral grounding to law, which was the intent since the divine origin of the state (Gen. 4:15ff). It’s noteworthy that states and legal systems that did not flower in the ground of a Christian (or Jewish) cultural context lack most of the moral fiber of the Western legal systems that did. Fundamentally, they often lack respect for human dignity, liberty, and human rights.
I believe we 2K advocates should also speak with an eye to historical accuracy. We rightly speak of natural law grounding the city of man and rightly want to avoid confusing the two kingdoms, as the English historically did. We sometimes define natural law to be the moral order inscribed in the world and especially in human nature, an order that is known to all people through their natural faculties (especially reason and/or conscience) even apart from supernatural divine revelation that binds morally the whole human race. Then we speak as if natural law, alone, contributed to the West’s moral order. And we say the Magistrate should not look to scriptural norms. Without significant qualification, those kinds of assertions are historically naive. The Magistrates of the Anglo American legal system, as with much of the Western world, have long looked to scriptural norms every time they opened their law books, whether they knew it or not.
I would suggest that we can remember from this that natural law,without the influence of Christians, does not always guarantee a salutary legal or moral order, and historically it has not. I’m a strong 2K advoacate, and don’t suggest that we return to churchmen sitting as heads of courts of equity or law. Nonetheless, it is instructive to note that, where Christian ethics shaped the law, the legal system and moral fiber of the culture became superior to legal systems in non-Western cultures. I would suggest that this should encourage Christians, in their individual capacity as citizens of the city of man, to work where they can to help maintain or uplift the legal/moral order through their voting and other actions as private citizens. This position would distinguish my 2K position from that of more radical 2K advocates who advocate Christians not vote according to their scripturally informed conscience, as for example, where some advocate Christians violate the 2K doctrine by casting a vote for Prop 8 or engaging in any form of political activism. Natural law, on its own, without the salt and light of Christian influence, has not in fact produced in most non-Western societies that lack a Christian tradition a just legal order or a moral order that is of the kind God is pleased to see prevailing in the City of Man.
CVD, I understand your point but you do not seem to concede that prior to English common law there was Plato, Cicero, Augustine, and Aquinas. Protestants merely added to what was already cooking in the West. And for those who want a pure Reformed approach to everything, including politics, it is very hard to square that with the way that Protestants appropriated what they received from pagans and idolaters.
DGH: Anyway, how would a Christian magistrate on your view serve a Mormon constituency other than by going for something you share in common with them, not by going to the book that separates you from them?
Jeff: But if push comes to shove, if the choice is between “common ground” and a law that is manifestly unjust (know by its flat contradiction with Scripture), then common ground might have to give way. No?
I think we’re getting close to the heart of the matter. A society that welcomes all sorts of people and also invites them to participate in government cannot ever justify it’s policies (laws, wars, court rules, etc) by resorting to a claim of epistemic privilege without courting unending cultural warfare. Over time, the government will turn from an instrument of cooperation based on consent to one of control based on coercion. And so the battle is on. Isn’t that what we see now?
Evangelicals insisting that only a Christian informed by the bible can properly govern. Many Muslims, both Sunni and Shia, think that government should be run by Muslims guided by their sacred writings. We also hear claims to exclusive knowledge based on gender, sexual orientation, race, and class. These dominate our political discussion. Does the phrase “wise Latina” ring a bell? There’s no discourse. There can’t be in an environment in which it is taken for granted that moral knowledge is exclusive and that the government can wield its sword based on this exclusive moral knowledge. There can only be struggle–the only way to avoid the tip of the sword is to be the one wielding it.
My answer to Jeff has to be an emphatic No! You present a false choice between “common ground” and biblical morality. The doctrine of Natural Law teaches that though it may be actively suppressed, there exists a common morality among men. While still acknowledging that sin has both darkened the mind of man and dulled his conscience, the doctrine of common grace teaches that God has still granted great knowledge and skill to the unregenerate when it comes to science, philosophy, and culture. This should give us great confidence that we can build a society and a government based on cooperation.
Jeff, and so what exactly is the justice of polygamy? Some OT saints practiced it. And it is a problem and certainly a no-no for church officers. But if Sean Kemp had married all the women with whom he had fathered a child, wouldn’t that be more just than what we have now?
The point is that we don’t generally turn to the Bible for justice. Sin? yes. Grace? yes. But justice — especially the idea of what is fitting, is something that comes from observing nature. That is why Aristotle was so brilliant. He wasn’t turning to the Bible.
Yes, Jeff, the Bible is not exhaustive. And can we agree that the Bible is not a textbook of jurisprudence, political theory, or public policy?
I would suggest that we can remember from this that natural law, without the influence of Christians, does not always guarantee a salutary legal or moral order, and historically it has not. I’m a strong 2K advoacate, and don’t suggest that we return to churchmen sitting as heads of courts of equity or law. Nonetheless, it is instructive to note that, where Christian ethics shaped the law, the legal system and moral fiber of the culture became superior to legal systems in non-Western cultures.
If superior legal systems and moral fiber are the result of Christian influence, what exactly is the problem with having “churchmen sitting as heads of courts of equity or law”?
This position would distinguish my 2K position from that of more radical 2K advocates who advocate Christians not vote according to their scripturally informed conscience, as for example, where some advocate Christians violate the 2K doctrine by casting a vote for Prop 8 or engaging in any form of political activism.
I wonder if you’re misreading what some 2K advocates are actually intending to convey. Nobody is suggesting withdrawal from political engagement. But as long as you characterize things this way it’s the old-fashioned ruse of saying, “If you don’t care like I care then you don’t care.” Fubar. All some 2Kers are suggesting is that one employ a greater measure wisdom when it comes to the all too familiar two-dimensional games of culture war and power plays. That goes equally for those on either side, for example, of something like Prop. 8.
DGH, I concede the contributions of the classical western tradition, including pagans, to our legal system and culture. My point was more narrowly focused on the Anglo-American legal system. Though I’m not a scholar of legal history, I found Maitland’s history of the English legal system compelling, and he’s generally recognized as the leading authority. His take is that the Greek and Roman tradition had little influence on the Anglo-American legal system. Most of the flesh on the bone — the development of the common law and equitable principles, the principles of due process, the jury system, proof beyond a reasonable doubt, presumption of innocence, the forms of actions, the dignity of the human person, notions of what is fair and just — developed after the Norman Conquest through the Court of Chancery, where the Lord Chancellor was an ordained minister and often a trained theologian.
It does seem reasonable to assume that the Greek and Roman tradition established a framework and set of assumptions within which the specifics developed. I take it as undisputed that much medieval theology borrowed from these traditions.
Zrim, it’s one thing to have an official clergyman of the official state church designated as the Lord Chancellor (head of the Court of Chancery) deciding cases and making law with scriptural footnoes, quite another to have a Christian lay person vote, write a letter, speak to a neighbor, send a check to a candidate’s campaign, serve on a PAC, or call their Congressman, speak out in condemnation of abortion, vote for Prop 8, all the while making decisions guided by a conscience formed by Scripture.
Yes, there are bloggers and pastors who in the name of 2K say condemn those actions as a confusion of the kingdoms. One well known such person in the 2K camp endorsed gay marriage. The rationale seems to be that in a pluralistic culture, Christians should resign themselves to unbelievers having their way with the law. If they want legal abortion and gay marriage, it is fundamentally wrong for us to oppose those efforts in any way, at the ballot box or by word or pen. I respectfully disagree.
CVD,
I voted no on Prop. 8 ( http://jedpaschall.wordpress.com/2009/12/03/rethinking-proposition-8/ ), and I have caught a lot of flack for this. I certainly do not believe that my vote constituted letting unbelievers have their way with the law, I saw it as an issue of equal rights in a manifestly plural society. Are other Christians free to disagree as a matter of conscience? Of course. But I think it was a horrific blunder for so many churches to make official condemnation of the Prop. let the voters decide.
*Abortion is an entirely different issue, and I believe that a natural law argument is sufficient for the pro-life cause to make a sound legal argument for banning abortion.
Jed, I respect your view. Many Reformed friends agree with you. I put marriage in the same category as abortion, a natural law issue. Marriage is a creation ordinance. In addition, Paul in Rom. 1:26-27 refers to relations that are “contray to nature.” This passage is often cited by proponents of natural law (of which I count myself one) as a proof text for natural law. I just offer that for consideration.
I agree churches should not take an official position on any ballot issue. The church qua church should not involve itself in politics. But the individual Christian is not under such disability.
This analysis is insufficiently radical. The Bible isn’t a textbook, period. It has some didactic sections, but it is a narrative that tells the story of salvation.
Along the way, it includes instructions about “ends” — how God’s people should function in their lives. Their lives, not merely their churches. (I know you agree, I’m just being emphatic).
So to the extent that Christians’ lives intersect with jurisprudence, political theory, or public policy, then to that extent the Bible potentially has something to say about it.
It’s a fallacy to say, “The Bible isn’t a textbook of X; therefore, it does not speak to X.” The most obvious counterexample would be the ad absurdum:
“The Bible isn’t a textbook of 1st century Palestinian history; therefore, we cannot use it to say that ‘Jesus was raised from the dead’ is a historical fact.”
The “textbook” argument is just not sound.
JRC
Historically, can you identify governments that have *not* been instruments of control based on coercion but *have* been instruments of cooperation based on consent?
It’s a lovely ideal, don’t mistake me; but I question whether taking your view would in fact lead to cooperation based on consent.
Certainly, what I have seen of the “plurality” movement has not been cooperation based on consent, but rather the pushing of a particular ideology and a particular meta-ethic (namely, utilitarianism) on those who would rather just be left alone.
So expand on this: if my views lead to endless conflict, do yours lead to a better place? If so, when and where?
Again, I’m not saying that fighting is desirable. I’m just questioning whether your rebuttal (“but that leads to fighting!”) has any teeth.
Fantastic. Tell me how it goes down: how does one use the Natural Law to build a society and government based on cooperation?
JRC
CVD,
I am all for individual Christians vocalizing their opinions. I also agree that there is a natural law argument against gay marriage. I think this where the complexity comes in though. There may be natural law arguments against the exercise of certain modes of free speech, but I maintain that the First Amendment is a fair law. Is it possible that just because there is a compelling NL argument that the NL precedent must necessarily be applied as a matter of law in the political system? I would maintain that there is an argument of necessity in the case of abortion, but not for gay marriage. Admittedly I am still sorting through the good and necessary consequence as a Reformed newbie, but this is where I stand right now and I am willing to own it.
…it’s one thing to have an official clergyman of the official state church designated as the Lord Chancellor (head of the Court of Chancery) deciding cases and making law with scriptural footnoes, quite another to have a Christian lay person vote, write a letter, speak to a neighbor, send a check to a candidate’s campaign, serve on a PAC, or call their Congressman, speak out in condemnation of abortion, vote for Prop 8, all the while making decisions guided by a conscience formed by Scripture.
Yes, those are different things. One is primary involvement, the other more secondary (and heavy on the activism). But you have suggested that superior systems have come by way of believers being primarily involved in the actual crafting of state and policy (and, by implication, when believers are not crafting then these things are inferior). So, it would seem to follow that if we want superior systems we should in fact want churchmen “deciding cases and making law with scriptural footnotes,” wouldn’t it? I have no problem whatsoever with believers being primary agents, but I’m not at sold that our very presence makes things superior. Some might call that pretty arrogant and self-satisfied. So if we’re going to say “this is one thing, but that’s another,” I would rather say it’s one thing for one to be involved crafting law, another for one to think his work will always yield something superior simply because he’s him and the other isn’t.
Yes, there are bloggers and pastors who in the name of 2K say condemn those actions as a confusion of the kingdoms. One well known such person in the 2K camp endorsed gay marriage. The rationale seems to be that in a pluralistic culture, Christians should resign themselves to unbelievers having their way with the law. If they want legal abortion and gay marriage, it is fundamentally wrong for us to oppose those efforts in any way, at the ballot box or by word or pen. I respectfully disagree.
I do, too, CVD. But I can live with misguided pro-lifers who simply want to push back as hard as Roe shoved. I’m not about to pull out the big guns for the sake of my states’ rights persuasions and tell them that that their federalism implies impiety the way they tell their choice-interlocutors are the devil’s viceroy’s. And I’ll try to keep a reign on suggesting that throwing uncareful support behind the pro-life movement flirts with idolizing the highest temporal good, life itself (that thing Jesus said must be laid down to even live). But 2K affords us to be able to disagree, and strongly, on certain civil matters. Just because someone agrees with someone you disagrees with it doesn’t mean he thinks “unbelievers should have their way with the law.” When Machen opposed Prohibition along with certian other unbelievers, and certain other Christians supported it, was he saying that “unbelievers should have their way with the law”?
Don’t let anyone fool you … no-one’s got this all worked out.
Jed:
Gay marriage should be opposed because it not only offends natural law, but it offends a fundamental creation ordinance that is a critical foundation to human life and society, in my view, as Dr. Peter Jones of Westminster Seminary has argued persuasively. He argues that it is not merely sinful, but an overthrow of creation at the most fundamental level, a frontal assault on God unlike any other. The same can’t be said of every sinful act or law. Jones argues that gay marriage is therefore a greater evil than abortion. That trumps equal rights.
Wisdom plays a role here. It’s too late in the day for Christians to argue for, to take some examples, replacing no-fault divorce with fault divorce, too late to argue for laws against adultery or fornication or reinstating the civil cause of action for alienation of affections (even though you could argue on natural law grounds for all). The culture here has moved too far south. But it’s not too late to argue for preserving traditional marriage.
I don’t understand your First Amendment argument. The FA is, with only a handful of exceptions, a guarantee against government restraint, not private. There are natural law arguments against deceptive and fradulent speech, and our law imposes sanctions against such speech under certain circumstances. There are natural law arguments against rude speech, but I wouldn’t advocate for laws against rudeness. We have to employ wisdom.
CVW,
I don’t fundamentally disagree with Dr. Jones’ assessment of the nature of the offense of gay marriage. What I am not convinced on is whether or not it trumps equal rights. The only real power the government in the marriage issue is that of a property contract between consenting adults. This is why I see it as a civil rights issue. Would I view a state-sanctioned gay marriage as a valid one? No. But I am not up in arms about the designation because in our legal system the term doesn’t carry the same legal weight that it does in Scripture.
As to the preservation of marriage in our culture: I’d like to see it happen in the church first. I can’t help but think that if we did a better job of this in-house we wouldn’t have a better effect on marriage in the broader culture.
I think you fairly articulated what I was getting at with the FA – we don’t unilaterally apply natural law, rather use wisdom in applying it on a case-by-case basis.
Jed wrote re: same sex marriage. “I saw it as an issue of equal rights in a manifestly plural society.” CVanDyke wrote “Gay marriage should be opposed because it not only offends natural law…. it is not merely sinful, but an overthrow of creation at the most fundamental level, a frontal assault on God unlike any other.” And, “But it’s not too late to argue for preserving traditional marriage.”
I agree with Jed. Same sex marriage has been a fact in my Province for 61/2 years, and 41/2 years in the whole country. Those who married persons of the same sex were living with their partners prior to their ability to legally marry. They were in same sex relationships then as they are now. When the issue first arose, I was not in favour, but then realized that my marriage to my late wife was before God as well as the state. I thought of all the heterosexual marriages where partners were unfaithful to each other, persons who had been married numerous times, marriages such as that of Britney Spears that lasted mere hours, as well as polygamous marriages by certain Mormon and Muslim groups.
I realized my marriage was not hurt by those and that my commitment to my wife before God had nothing to do with other marriages. Therefore, fear not, TRADITIONAL marriage is alive and well. Christian marriage is not affected by worldly marriage. Christian marriage is before God. Marriage for the state is merely an administrative issue. Two kingdoms works.
Wout:
Glad to hear life and marriage up north is good.
I don’t believe two kingdoms theology requires Christians not oppose gay marriage, and wisdom says we should. Same sex marriage is productive of much harm. It’s harmful to children, harmful to the moral climate of a society, and establishes new legal entitlements and threats to religious freedom (under U.S. law as interpreted by our courts) that can be inimial to the liberties of Christians and church related organizations. When the government places its imprimatur of approval on something, it legitimaizes and normalizes it, in public perception. Sociologists call this the pedagogical and symbolic function of state action. That’s why the change in law is sought. We’re worse off for it.
This isn’t intended as a brief against same sex marriage, but in support of my broader point that 2K not be pushed beyond its boundaries to hold that it disables individual Christians the way it does institutional churches.
Guys, I promised not to “beat this drum” more, and I’ve fallen into doing it … so let me cease my participation here. RL, DGH, I’ll take note of any further thoughts you have, but please don’t take it amiss if I don’t respond.
CVD:
“Same sex marriage is productive of much harm.”
I don’t have any political or theological point. As a colleague, I just wanted to point out the classic lawyer syntax of this sentence. Only a lawyer would say “gay marriage is productive of much harm” instead of “gay marriage hurts society.” I think it’s a byproduct of reading centuries of case law.
This isn’t intended as a brief against same sex marriage, but in support of my broader point that 2K not be pushed beyond its boundaries to hold that it disables individual Christians the way it does institutional churches.
If it’s done right then it won’t, because that’s part of the point of 2K–to protect liberty of conscience. If liberty is trampled that’s a pretty good sign that it isn’t 2K anymore. So if I abstain from voting on Prop. 8, or if I refuse to sign the pro-life petitions, or otherwise refuse to get in lock-step behind warrior rhetoric and tactic, that means my conscience mayn’t be bound. 2K says that you have the right to lobby me on the phone to keep Adam and Steve permanantly single, and I have the right to hang up. And we both have the right to claim the other is contributing to the injury of society, but neither of us may imply impiety. That may only happen when one of us confuses justification with sanctification.
CVD said,
Wisdom plays a role here. It’s too late in the day for Christians to argue for, to take some examples, replacing no-fault divorce with fault divorce, too late to argue for laws against adultery or fornication or reinstating the civil cause of action for alienation of affections (even though you could argue on natural law grounds for all). The culture here has moved too far south. But it’s not too late to argue for preserving traditional marriage.
If I understand John Witte correctly it seems he is arguing for a governmental enactment of dual laws of both civil marriage and covenant marriage. From what I understand some states have already enacted this dualism. Is it your opinion that it is too late in the day to allow this dual aspect? How, if at all, would this dualism affect the culture?
Jeff, you may have signed off this discussion, but I do think that when you describe the sphere of the Bible in reference to the truth that “Christians’ lives intersect with jurisprudence, political theory, or public policy, then to that extent the Bible potentially has something to say about it” you have taken a strange hermeneutical turn. It is like saying that Shakespeare writes about law, English monarchs, and Italian merchants and so readers of Shakespeare should use him in figuring out politics and economics. Shakespeare has lots of wisdom. But if you were to base politics or economics on him, I think you’d be a little nutty.
The Bible is about God, man, sin, and redemption. It is not about society and markets.
CVD, you wrote that one well-known advocate of 2k “endorsed gay marriage.” I think this is borderline slanderous regarding 2kers, and it smacks of the demagogery in which Dr. K and his attorney have engaged. If you are referring to Miss Irons, I would not say that she is a proponent of 2k or well known other than through Dr. K’s mischief.
I also wonder what you would say about someone whose response to gay marriage advocacy is to restrict the benefits attached to hetero marriage, thus making marriage less attractive to gays. Wouldn’t it be possible to use that argument to scare-monger with those who trumpet family values and Christian marriage?
RL, I plead guilty. Poor syntax. Only lawyers write that way. I try to edit out that kind of thing from letters and briefs but don’t edit my blog entries very carefully.
DGH, you gotta get out more. I sat across the table from a sem prof who argued for same sex marriage on 2K grounds. I’ve heard it from URC pastors who are stout 2K advocates. I’ve heard it from friends and colleageus who criticized me for working to oppose same sex marriage. I’ve read it on this blog site from bloggers who voted against Prop 8, thus supporing the Cal. Supreme Court’s mandating of same-sex marriage, on equal rights and 2K grounds. Quite frankly I don’t think you’re serious.
Re your proposal to restrict benefits of existing marriage, I’d don’t know what you have in mind and would have to hear a specific proposal.
igasx, personally I believe dual marriage tracks are more problematic than civil unions and traditional marriage. It’s problematic in that I don’t think we want to countenance anything called marriage that is same sex. And it’s problematic in that the courts are more likely to find an equal protection violation to a first class and second class kind of marriage. The California court already seized this argument to condemn traditional marriage. The argument was that having opened the door to same sex civil unions, California cannot restrict marriage to different sex couples.
CVD, I may not get out as much as I need to, but claiming that someone has said something across the table from you or that people have posted comments — none here that I know has advocated gay marriage; that’s not the same as debating the merits of a particular law or policy — is very different from saying that a prominent 2k person has endorsed gay marriage publicly. If that has happened in print, I would like to see the argument. But your characterization makes it seem that gay marriage is something that many (and important) 2kers advocate. It does resemble baiting.
I can’t say more about the other side yet because the statement by a 2k critic about reducing the perks for hetero marriage have not yet gone public. But when they do I’ll squeek.
CVD,
I suppose equal protection could be a problem depending upon how the laws were framed. If both homo and hetero unions had an opportunity for covenant marriage then I would think the equal protection problem would be alleviated. If only hetero’s were allowed covenant marriage and both hetero and homo were allowed civil unions then maybe the equal protection problem would surface. Even if homo unions were allowed to participate in covenant marriage it would have a significant positive pedagogical impact on society in that we have revived what has been lost since most American Christians have no clue about the duties of covenant marriage and treat their marriages as simply civil unions.
Additionally, I think you and Peter Jones are wrong in assessing marriage as a greater creational mandate than life. All other mandates flow out of being created in the image of God and would be superfluous without it.
Jed:
The only real power the government in the marriage issue is that of a property contract between consenting adults.
I’m sympathetic to your overall position, but that statement just isn’t accurate. Here are some other benefits of marriage: the right to make medical decisions on behalf of spouse, the right to determine where a predeceased spouse is buried, certain child custody rights (varies by state and can be quite complex), the right to not testify against spouse in criminal matters, the ability to sue for wrongful death (loss of consortium), etc.
RL,
The correction is duly noted, thank you. These other benefits are still contractual, and I do not see a problem with states granting gays these rights. The most sticky issue is obviously child custody and adoption laws, which is fair, but hopefully 2k-ers can develop a rational NL response to that particular issue in public discourse.
BTW,
I am not advocating gay marriage like it’s a good thing. I am only stating that as a principal of civic equity the prohibition of gay marriages on religious grounds subverts the notion of separation of church and state, since it seems like something the church has taken a concerted interest in squashing.
Jed,
I didn’t think you were advocating for gay marriage, and wouldn’t accuse you of it. I’m a Rothbardian on this (and most other) political issues–liberty, equality, and justice would be best served by government involving itself with marriages as little as possible. This would be the case if the benefits of marriage flowed directly from a private (“contractual”) relationship between the spouses (as it did for most of Western history).
But that’s not how it is. Government has stepped in and decided to give benefits to married people that the couple couldn’t have obtained through private contractual dealings. For example, two people could enter a binding contract concerning burial plots, distribution of their property to their children, and other matters concerning their relationship vis-a-vis one another. But the government gives them rights beyond this. People aren’t generally free to contract to not testify against one another in criminal matters, but the government grants this right in marriage. People aren’t generally free to agree to give themselves a tax break, but they gain this in marriage. The list could go on. The government did all this to encourage marriage.
Shouldn’t those who oppose gay marriage also oppose inter-faith marriages? If some marriages honor God and others don’t, shouldn’t the churches be making sure that the government isn’t simply encouraging marriage in a broad sense or do they believe that gay marriage is the only marriage that is an affront to God? It sounds a lot to me like compulsory prayer in school, which inevitably forces underage atheists (and other non-Christians) to commit acts of idolatry.
RL,
I should have qualified my BTW – CVD was claiming he knows 2k-ers who “advocate” gay marriage, as if it is a desirable union. I seriously doubt any 2k proponent actually advocates gay marriage, but there are at least a few who see no value in denying gay marriages legal status. I wanted to make sure I wasn’t misunderstood.
I am with you 100% on gov’t being over-involved in marriage, but aren’t these kind of impositions the province of government? I can think of several areas that government has horned in on that I would just assume be left alone.
I had to chase down the Rothbard reference, seems like a pretty interesting dude. I have to read more, but anyone associated with the Austrian School is bound to pique my interests. So much to learn, so little time.
Jed,
If you’re looking for an accessible, current, and comprehensive libertarian jurisprudence, I strongly recommend Randy Barnett’s The Structure of Liberty: Justice and the Rule of Law.
If you want to read a study in how far we have drifted from our Constitutional moorings (at least as envisioned by the Founders) with advice on how to begin a Constitutional renewal, read Barnett’s Restoring the Lost Constitution.
Barnett is an award-winning law professor at Georgetown Law, so these are serious works, but I can tell you take these things serious, so I recommend them to you.
One note: If you google his name, I’m sure you’ll find a lot of free works online (law review articles, etc). In many such works he uses the phrase “polycentric social order” without explaining it. It’s basically a highfalutin’ way of saying “federalism.”
RL,
Thanks for the resources! As an aside this line in his 7/17/2007 WSJ op-ed sums up why I made the move from the Republican Party to the Libertarian Party:
“First and foremost, libertarians believe in robust rights of private property, freedom of contract, and restitution to victims of crime. They hold that these rights define true “liberty” and provide the boundaries within which individuals may pursue happiness by making their own free choices while living in close proximity to each other. Within these boundaries, individuals can actualize their potential while minimizing their interference with the pursuit of happiness by others.”
As it concerns the gay marriage debate, I think that so many Christians have not fairly contemplated the nature of “the boundaries within which individuals may pursue happiness by making their own free choices while living in close proximity to each other.” My gay (and gay sympathizing) friends and coworkers clearly understand my biblical convictions on marriage, and where there is profound disagreement there is also deep respect for the liberty of conscience and choice, it’s the only way we can co-exist without an ideological jihad. It’s this uneasy peace that has opened a lot of doors for me to testify to the truth and relevance of the gospel, where a concerted opposition to liberty with other conservatives would have closed them.
RL and JP, before you go out and purchase a subscription to Reason magazine, I would offer a word of caution on the libertarian front. I myself am registered as a Libertarian, mainly to avoid the weak-kneed “independent” status and to register my complaints with the two major parties. But as much as libertarianism gets right about the problems of centralization, it often stumbles (in its current forms) with persons and their social relations. So don’t forget about traditionalist conservatives, like those over at Front Porch Republic, who also don’t like the GOP but are smart about a whole lot of other matters, like, as Wendell Berry put it, what are people for?
DGH, I am not sure I follow, could you elaborate a bit on the Libertarian deficiencies regarding persons and their social relations?
Jed:
I took it as a given that you, a conservative Christian, do not personally endorse homosexuality. I know many like you who oppose homosexuality on biblical grounds yet endorse legalizing same-sex marriage on 2K and/or civil liberties grounds. I disagree but of course understand the distinction.
I wonder how your libertarian views would address so-called morals-based legislation. Historically the police power of the state was thought to include the power to legislate to uphold general morality. (The Supreme Court appears to have struck that state power, finding morality not a “rational basis” to sustain some classificaiton schemes. The court seeems not to have considered that much legislation is designed to uphold morality as conceived by the lawmakers.) Some libertarians argue against morals based legislation as a wrong intrusion into private decisions. For example, it is unlawful to discriminate in the provision of public accommodations on the basis of race or gender (among many other bases). These laws, which are both federal and state, are based on a moral conviction that such discrimination offends moral sensibilities. My clothing store now not only cannot refuse to sell based on skin color; it cannot offer free tailoring to men but charge women for tailoring. It is argued by supporters of anti-discrimination laws that that discrimination against women is immoral. I’m just curious about how the libertarian view would see these laws. Support, condemn, something more nuanced?
CVD,
Fair question. I do think that Libertarians have to account for the overlap between law and morality better than they do currently. For example, the assertion that morals based legislation is a wrong intrusion into private decisions as an off-hand dismissal of any legislation with moral connotations is in itself a moral assertion that should be subject to argumentation in the public square. As a general rule I do see a lot of merit in anti-discrimination laws because they seek to maximize liberty for a much broader segment of society, even if the liberties of some who would prefer to discriminate are minimized. Generally I am in favor of government that maximizes personal liberty while maintaining order and mitigating as much collateral moral damage as possible. However, since we live in a plural society with so many competing value systems, moral collateral damage is a given since there will be ideological “winners” and “losers” on many important issues. I am not sure how you get around that from any political vantage point.
Jed,
That’s interesting that you legitimize legislation that aims to “mitigate collateral moral damage” while maximizing liberty. I need to read more in libertariansim. Most of the writers/speakers I’ve heard or read don’t think law should have any moral aim or goal since that is a private decision. They would base legislation on maximizing market efficiency, or necessary infrastructure maintenance, etc., and don’t like anti-discrimination laws. Maybe there are different species of libertarians.
CVD,
I made the move to the Libertarian party because it best represented my economic views and convictions on liberty. However, I have only made this move since the ‘08 elections and some of my views may not be 100% libertarian, but I am comfortable with my current alignment.
Jed, I would probably share all or most of those views. My only hesitation on libertarianism is I’m troubled by the writers/speakers I’ve read or heard who seem to have a coldly a-moral view of the world. I need to study more in this area. Thanks.
CVD:
You know there are different species of libertarians. I think these anti-discrimination statutes violate a person’s right to contract and associate with whomever he wants (and this includes the right to not contract and not associate with whomever he wants). By the way, these anti-discrimination laws were about as effective at promoting racial harmony as the old anti-sodomy laws were at quelling gay relationships; they accomplished little, if they accomplished anything at all. The federal versions of these laws were (and remain) also a clear violation of the Constitution.
What cases do you have in mind when you say that SCOTUS has “struck” the states’ ability to legislate for public virtue? Lawrence v Texas? In that case, the Court struck that anti-sodomy law only after it found that the defendant had a fundamental right to engage in a private sexuall relationship with a member of the same sex. Finding that such a fundamental right exists, as you know, triggers a higher standard of scrutiny than a mere rational-basis review, since fundamental rights are protected against state interference by the 14th Amendment. And, as I’m sure you know, the state in Lawrence v Texas conceded that the case was a matter of private morality, not a matter of public virtue. That is, they conceded that gay sexual relationships should be banned simply because they are wrong. That argument can never fly. We would have no judicial review of any legislation if all that was needed to justify it was that the legislators thought it was the right thing to do. That would undermine Constitutional democracy as we know it.
RL:
Thanks or the clarification of libertarianism. Will have to read more.
I had in mind Lawrence v. Texas and the trajectory from that case. As you’ll recall, the majority in Lawrence held that “public morality,” which for a century had sufficed as a state interest that could sustain a statute under challenge, was not a “legitimate state interest” at all. In his dissent, Justice Scalia recognized the death of morals based legislation and warned that State laws against bigamy, same-sex marriage, adult incest, prostitution, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Bowers, which Lawrence overruled, was in the long line of cases that traditionally found public morality a legitimate state interest.
The law reviews and subsequent cases have recognized that after Lawrence “public morals” is no longer a legitimate state interest and a basis to sustain even rational basis scrutiny. For example, the Fifth Circuit struck down Texas’ sex toy ban holding that “morality is an insufficient justification for a statute” and “interests in ‘public morality’ cannot constitutionally sustain the statute after Lawrence. Reliable Consultants, Inc., v. Earle, No. 06-51067, 2008 WL 383034 (5th Cir. Feb. 12, 2008).
I take it that a libertarian philosophy would herald this development as a net positive. If not, I’ll stand corrected. But at least my libertarian colleagues are joyful.
Jed, my objections to libertarianism concern the radical individualism that haunts its current manifestation. It is one thing to be anti-big government. It is another to let the sovereign individual be big government. What is often missing in libertarianism is a decent account of persons as social creatures, and so the importance of families and other mediating institutions for civil society. Heck, I’d even favor strong state government over strong federal govt. Anti-federalism is a different way of being anti-big government that avoids libertarianism’s individualism.
Here’s a pretty good article.
http://www.firstprinciplesjournal.com/articles.aspx?article=501
Great concept, and many thanks for taking the effort to publish it; I’m sure otheres benefited too. It really opened my eyes for some new conclusions that I hadn’t thought of before.