Tag: gay marriage

Defining Idolatry Down

Published on by D. G. Hart43 Comments

Now that Roman Catholics have a pope, attention has turned to Washington D.C. and arguments before the Supreme Court over the Defense of Marriage Act. A couple of posts by the Allies caught (all about) my eye. The first came from Joe Carter who went all in by tying Christian tolerance of gay marriage to idolatry (I haven’t even seen the Baylys try this one):

The idolatry of Christian same-sex marriage advocates takes two general forms. The first group still recognizes the authority of God’s Word, or at least still believes in the general concept of “sin.” They will freely admit that, like other types of fornication, same-gender sex is forbidden in the Bible, and even excluded by Jesus’ clear and concise definition of marriage. Yet despite this understanding they still choose to embrace same-sex marriage because they have made an idol of American libertarian freedom. They have replaced Jesus’ commandment—”You shall love your neighbor as yourself”—with the guiding motto of the neopagan religion of Wicca, “Do what you will, so long as it harms none.”

In endorsing laws based solely on the secular liberal-libertarian conception of freedom (at least those that produce no obvious self-harm), they are doing the very opposite of what Jesus called them to do: They are hating their neighbors, including their gay and lesbian neighbors. You do not love your neighbor by encouraging them to engage in actions that invoke God’s wrath (Psalm 5:4-5; Romans 1:18). As Christians we may be required to tolerate ungodly behavior, but the moment we begin to endorse the same then we too have become suppressers of the truth. You cannot love your neighbor and want to see them excluded from the kingdom of Christ (Eph. 5:5).

The libertarian-freedom idol (LFI) has not been manufactured entirely by millennials, the generation of Protestants who seem most comfortable with laws that allow gay marriage. LFI was at least a factor in the baby-boomers implementation of worship forms that entirely capitulated to the aesthetics and impulses of music that these adolescents and young adults were listening to on the radio (music that was celebrating sex and drugs no less). In other words, Protestants outside the mainline churches (sometimes called evangelical) abandoned the restraints of Scripture when they turned to praise bands and 30 minutes of swaying and singing before the motivational speech (that used to be called a sermon). If they want the rest of the culture to resist the temptation of freedom, they might actually start to reflect such resistance in their own worship services, a branch of human activity that has much more to do with the first four commandments of the Decalogue than the seventh (sixth for Roman Catholics) that pertains directly to sex and marriage.

If readers think the parallels between P&W (for the charismatic challenged, Praise & Worship worship) tolerance of gay marriage are far fetched, they may want to consider Kevin DeYoung’s post which echoes Carter’s complaint. DeYoung expands the list of cultural factors that have made it impossible for Christians to oppose gay marriage meaningfully: “Gay marriage is the logical conclusion to a long argument, which means convincing people it’s a bad idea requires overturning some of our most cherished values and most powerful ideologies.”

DeYoung lists five such values:

1. It’s about progress. Linking the pro-gay agenda with civil rights and women’s rights was very intentional, and it was a masterstroke. To be against gay marriage, therefore, is to be against enlightenment and progress. . . .

2. It’s about love. When gay marriage is presented as nothing but the open embrace of human love, it’s hard to mount a defense. Who could possibly be against love? But hidden in this simple reasoning is the cultural assumption that sexual intercourse is necessarily the highest, and perhaps the only truly fulfilling, expression of love. It’s assumed that love is always self-affirming and never self-denying. . . .

3. It’s about rights. It’s not by accident the movement is called the gay rights movement. And I don’t deny that many gays and lesbians feel their fundamental human rights are at stake in the controversy over marriage. But the lofty talk of rights blurs an important distinction. Do consenting adults have the right to enter a contract of their choosing? It depends. Businesses don’t have a right to contract for collusion. Adults don’t have a right to enter into a contract that harms the public good. . . .

4. It’s about equality. Recently, I saw a prominent Christian blogger tweet that she was for gay marriage because part of loving our neighbor is desiring they get equal justice under the law. Few words in the American lexicon elicit such broad support as “equality.” No one wants to be for unequal treatment under the law. But the issue before the Supreme Court is not equality, but whether two laws–one voted in by the people of California and the other approved by our democratically elected officials–should be struck down. Equal treatment under the law means the law is applied the same to everyone. Gay marriage proponents desire to change the law so that marriage becomes something entirely different. Surveys often pose the question “Should it be legal or illegal for gay and lesbian couples to marry?” That makes it sound like we are criminalizing people for commitments they make. The real issue, however, is whether the state has a vested interest in sanctioning, promoting, and privileging certain relational arrangements. . . .

5. It’s about tolerance. Increasingly, those who oppose gay marriage are not just considered wrong or mistaken or even benighted. They are anti-gay haters. As one minister put it, gay marriage will eventually triumph because love is stronger than hate. Another headline rang out that “discrimination is on trial” as the Supreme Court hears arguments on Proposition 8 and DOMA. The stark contrast is clear: either you support gay marriage or you are a bigot and a hater. It’s no wonder young people are tacking hard to left on this issue. They don’t want to be insensitive, close-minded, or intolerant. The notion that thoughtful, sincere, well-meaning, compassionate people might oppose gay marriage is a fleeting thought.

What is striking about this set of cultural assumptions is how much they were also part of the arguments for getting rid of “traditional” worship and ushering in the praise bands and worship leaders. With the exception of the notion of rights, contemporary worship was about updating the church (progress), reaching out to our children (love), a leveling of musical and aesthetic forms (equality, as in Shine Jesus Shine is as good as Of The Father’s Love Begotten), and making the church less elitist (tolerance). Even the notion of rights was evident in the arguments for contemporary worship even if the word did not show up in the sense that few critics of P&W argued that believers had no right to worship God contrary to Scripture or in ways that would harm the fellowship of Christians. Put another way, no one has a right to worship God irreverently, which is form of blasphemy. But whether contemporary worship triumphed or simply became a legitimate option along with older reverent forms, P&W opened up Protestants outside the mainline to levels of tolerance and related confusions that are also evident in the way that some Protestants make room for gay marriage.

DeYoung suggests several ways forward, though he rightly avoids the word solution. In effect, he says Christians need to be more thoughtful and less prone to employ ideas that dominate the culture. This is true. I suggest the way forward is to chant psalms. If Christians became accustomed to a different sensibility in worship on Sundays, if they saw a difference between what they do on the Lord’s Day and what they do during the rest of the week, if they got used to spiritually eating the religious equivalent of broccoli, they might have the stomach to resist trends in the wider culture. It won’t be effective before the Supreme Court rules, but it actually may be successful by 2040.

Postscript: Lest readers object that “traditional” worship was novel in its own right, they have a point. “Traditional” worship of the 1970s was largely the worship that prevailed from the 1920s. In other words, it was not the way that Calvin or Knox worshiped. But that so-called “traditional” worship did have a built-in sense that you didn’t not goof around in worship, and that frivolities of contemporary music and humor and this-worldiness were forbidden. Could that worship have been more biblical? Of course. Get rid of the choirs, the trumpets (which I sometimes played), and the observances of Mothers’ Day. But did those worshipers have a sense that they might offend God and should be careful not to? They did. That sense has vanished in most sectors of Protestantism in the U.S. thanks to contemporary worship.

Calling Jon Stewart's Bluff

Published on by D. G. Hart45 Comments

I am a Jon Stewart fan even though I only occasionally see clips of the Daily Show. Stewart was Larry Sander’s permanent guest host on the Larry Sanders Show, which earns Stewart high marks in the Hart household, the Sanders Show being a brilliant homage and parody of the late night talk show genre. Stewart also makes a cameo appearance in Wordplay, a witty and charming documentary about the culture of New York Times crossword puzzles’ editors, designers, players, and competition. For these reasons I was heartened to see thanks to my headlines feed at Google Chrome that Stewart had poked fun at Democratic mayors for saying that Chick-Fil-A was unwelcome in their cities. Here is the clip.

Stewart, as you might expect, dishes it out both ways, which is fine since using a sandwich as a form of political identity does not exactly seem what the Greeks had in mind when thinking through representative government. But (spoiler alert!) when he concludes that Chick-Fil-A’s and gay marriage’s products are both good, I demur. For one, has Stewart really considered how healthy a fast-food fried chicken sandwich is? I’m sure that dressings, fat, and steroid drenched chicken breasts make such meals a challenge to good health. For another, how do we know that gay marriage is a positive social arrangement? In fact, one objection to this change in law is that we have no idea what the consequences — positive or negative — of such a change to millenia of legal arrangements and cultural expectations will be. Though we do have some data from social scientists on the benefits of regular marriage.
(For instance, we have enough time to say that the National League is superior to the American League because the former does not use the designated hitter.)

So maybe the way to resolve the kerfuffle over Chick-Fil-A is to be doubly contrarian. Both Chick-Fil-A and gay marriage are unhealthy for America.

Then again, has anyone noticed that homosexuals are among the leading defenders of marriage at a time when marriage is at an all time low in the United States? Could it be that folks who used to thrive on an anti-bourgeois, urban, and culturally and politically radical identity have now embraced a convention associated with white-bread, middle-class, suburban life? Or is gay marriage simply a way of flipping the bird at all those Chick-Fil-A eaters who made family values a political slogan? You want family? You got it.

Why Conservatism Beats Biblicism

Published on by D. G. Hart93 Comments

An earlier reference to Ross Douthat’s blog posts on gay marriage was intended to show that people in the mainstream secular media can hear an argument that is laced with Christian norms and not go running to the Supreme Court for an injunction to shut said arguer down. Douthat concluded his series of posts (defending his column in the New York Times) with a lengthy response to Andrew Sullivan, one of gay marriage’s most provocative and intelligent advocates.

The entire post is worth reading, just to see the wider implications of what might seem like a straightforwardly up or down moral matter — whether marriage is for one man and one woman or not. But he ends with an appeal to the nature of conservatism that Protestants who think of themselves as conservative should well consider. The reason has to do with the nature of conservatism, which is not about defending morality and opposing wickedness (the Bayly version) but rather concerns conserving as much as possible what humans (whether Christian or not) have learned and benefited from the past. Douthat writes:

The benefits of gay marriage, to the couples involved and to their families, are front-loaded and obvious, whereas any harm to the overall culture of marriage and childrearing in America will be diffuse and difficult to measure. I suspect that the formal shift away from any legal association between marriage and fertility will eventually lead to further declines in the marriage rate and a further rise in the out-of-wedlock birth rate (though not necessarily the divorce rate, because if few enough people are getting married to begin with, the resulting unions will presumably be somewhat more stable). But these shifts will probably happen anyway, to some extent, because of what straights have already made of marriage. Or maybe the institution’s long decline is already basically complete, and the formal recognition of gay unions may just ratify a new reality, rather than pushing us further toward a post-marital society. Either way, there won’t come a moment when the conservative argument, with all its talk about institutional definitions and marginal effects and the mysteries of culture, will be able to claim vindication against those who read it (as I know many of my readers do) as a last-ditch defense of bigotry.

But this is what conservatism is, in the end: The belief that there’s more to a flourishing society than just the claims of autonomous individuals, the conviction that existing prohibitions and taboos may have a purpose that escapes the liberal mind, the sense that cultural ideals can be as important to human affairs as constitutional rights. Marriage is the kind of institution that the conservative mind is supposed to treasure and defend: Complicated and mysterious; legal and cultural; political and pre-political; ancient and modern; half-evolved and half-created. And given its steady decline across the last few decades, it would be a poor conservatism that did not worry at the blithe confidence with which we’re about to redefine it.

The New York Times: A Better Way?

Published on by D. G. Hart69 Comments

Many conservative Presbyterians and Reformed believe – along with the idea that no neutrality exists – that secular America is intolerant of red-blooded Christianity. The current alarm over gay marriage and abortion on demand is evidence of the Reformed-sky-is-falling-world-and-life-view.

Could it be that consolation might come to these upset souls from the secularized (as opposed to hallowed) pages of the New York Times? It could if conservative Protestants would take a gander at the columns written by Ross Douthat. When the Times hired him away from the Atlantic Monthly, some conservatives worried that Douthat, a smart, Roman Catholic, and remarkably wise-for-his-age-writer, might succumb to temptation to fit with the liberal intelligentsia (as if Atlantic is Chronicles) in by soft pedaling his conservatism. But this has hardly been the case. Within the past month Douthat has posted at his Times blog (in addition to columns) a number of serious and thoughtful posts against gay marriage that conservative Protestants should well consider, both for encouragement in culture-war well doing and for learning how to make an argument with people who don’t share your faith (or any).

On August 9th, Douthat wrote in response to a post by Noah Millman who explained why he was supporting gay marriage:

What I would strongly dispute, though, is his suggestion that it’s possible to escape entirely from ideological conceptions of marriage, into a world where it’s all just people loving people, and the way we treat one another is the only thing that matters. This seems like an extremely naive view of how ideas intersect with human action, and how cultures shape behavior. Of course all ideals and ideologies are imperfect descriptions of reality, and semi-quixotic attempts to graft order onto the inherent messiness of human affairs. But you can’t escape them just by declaring that they’re “artificial,” because such artifice is itself natural to man, and inherent to culture-making and social order. Every society has its ideals and ideologies, about marriage as much as about any other institution. And the fact that wedlock was once somewhat more about property and somewhat less about love than it is today doesn’t mean that our ancestors didn’t have their own theories of marriage, and their own arguments about what the institution meant and ought to mean.

Read the Greeks and Romans; read the New Testament; read Shakespeare and The Book of Common Prayer. There was never a time when human beings weren’t building ideologies of marriage, and there was never a culture where those ideologies didn’t have an impact on how people wed and parented and loved.

This means that if the ideology that justifies defining marriage as lifelong heterosexual monogamy gets swept into history’s dustbin, we won’t suddenly be flung into a landscape where the only real things are people and the people they love. We’ll just get a different ideology of marriage in its place, one that makes a different set of assumptions and generalizations and invests the institution with a different kind of purpose. And we don’t need a judge’s ruling (though Judge Vaughn Walker’s analysis was certainly clarifying!) to know what that ideology will look like: It’s the increasingly commonplace theory that marriage exists to celebrate romantic love and provide public recognition for mutually-supportive couples, with no inherent connection of any kind to gender difference and/or procreation, and with only a rhetorical connection to the ideal of permanence.

Because Douthat is thoughtful and because he writes for the Times, lots of people pay attention to what he writes and so various bloggers and op-ed writers responded to his August 9 post. One of those came from Glenn Greenwald, who argued that whether or not the state supports heterosexual marriage, the ideal of one-man-and-one-woman marrying could still prevail without legal sanction. One example to which Grennwald appealed was racism. Nearly everyone believes racism is wrong even if the state protects the rights of racists to speak freely and associate voluntarily.

Douthat responds this way:

. . . take alcohol and cigarettes. Why are Marlboros more stigmatized than Budweisers in contemporary America? Well, in part, it’s because there’s been a government-sponsored war on tobacco for the last few decades, carried out through lawsuits and public health campaigns and smoking bans and so forth, that’s far eclipsed the more halting efforts to stigmatize alcohol consumption. Here again, public policy, rather than some deep empirical or philosophical truth about the relative harm of nicotine versus alcohol, has been a crucial factor in shaping cultural norms.

And the same is true, inevitably, of marriage law. Culture shapes law, of course: Judge Walker’s decision last week would be unimaginable without the cultural shift that’s made gay marriage seem first plausible and then necessary to many people. But law tends to turn around and shape culture right back. And this is particularly true when the law in question is constitutional law, because constitutional rights carry a distinctive legal weight and an even more distinctive cultural freight. (To take just one example, I don’t think it’s a coincidence that the cultural space for making a moral critique of pornography has shrunk apace in the decades since the Supreme Court expanded First Amendment protections for pornographers, and limited the reach of obscenity laws.)

So if Anthony Kennedy follows Walker and finds that the traditional legal understanding of marriage is unconstitutional — and, by extension, that it’s irrational and bigoted to think otherwise — it’s just naive to say that this won’t have a ripple effect in the culture as a whole.

The point here is not to discuss the merits of Douthat’s arguments – though they are considerable. It is instead to take notice and see that people of faith do speak up in public secular life and do not lose their jobs for doing so, even at the New York friggin’ Times! I wonder if more of the anti-2k crowd were to take a page from Douthat the public debates over hotly contested issues would be not only more “fair and balanced” but also more people would “decide” to regard favorably (rather than as kooks) those who defend the way that Westerners have practiced the family lo these many years.

The Underbelly of Gay Marriage

Published on by D. G. Hart60 Comments

The federal court decision on California’s Prop 8 legislation has prompted many responses. One significant theme is that conservative Protestants, who oppose gay marriage, whether from the pulpit or in ordination standards and hiring practices, should prepare for continued marginalization and even legislative harassment if they continue to publicly oppose gay marriage. In this vein, Carl Trueman writes:

Those evangelical leaders, academics and evangelical institutions that prize their place at the table and their invitations to appear on `serious’ television programs, and who enjoy being asked to offer their opinion to the wider culture had better be prepared to make a choice. As I have said before in this column, we are not far from the place where to oppose homosexuality will be regarded as in the same moral bracket as white supremacy. Those types only appear on Jerry Springer; and Jerry generally doesn’t typically ask them their opinion on the ethics of medical research, the solution to the national debt, or the importance of poetry to a rounded education.

(BTW, Trueman adds that the older generation of conservative Protestants dropped the ball on this one and failed to produce an exegetical argument against homosexuality. He remembers that for his peers, “now in middle age, dislike of homosexuality . . . had more to do with our own cultural backgrounds than with any biblical argumentation.” He even admits that “we were basically bigots and we needed to change.” Trueman may be too young and too English to remember – if he is middle-aged, what does that make me? – that when John Boswell’s much read and discussed book came out, Christianity, Social Tolerance, and Homosexuality [1980], this geezer remembers any number of evangelicals responses to Boswell, all before the age of the Internet, peppered with important historical and exegetical arguments about biblical teaching on homosexuality.)

I may be as naive as I am old, but I do not agree with Trueman’s assessment that opposition to gay marriage will become synonymous with white supremacy and other crack pot ideas from the perspective of the cultural mainstream. At a deep level, Americans identify with the underdog. Homosexuals have used this to gain acceptance, even though people with the kind of access they appear to have to cultural elites are generally not eligible for the category of the oppressed.

Minority groups in the United States do oppose homosexuality and they do so without any noticeable threat. For instance, Muslims are not keen on gay marriage, nor are orthodox Jews, or African-American Protestants for that matter. And yet, the thought of the state threatening these groups with penalties for their stances on homosexuality seems far-fetched. If Andrew Sullivan were to come to a place in policy debates where he wound up on the other side of a dispute with Jesse Jackson, I bet Sullivan would have enough sense not to charge Jackson with bigotry – something that rarely sticks on minorities. And if Jackson were a spokesman for African-American ministers opposed to homosexual marriage, I doubt he would be banned from the Sunday morning talk shows for doing so. I could actually see lots of bookings (though I wouldn’t be at home to watch them).

The problem for evangelicals is that they are the minority who thinks like a majority. It would be one thing to look at the numbers, recognize you don’t have the votes, and look for ways to protect your own sideline institutions. This was the approach to public life in the United States by Roman Catholics and they found their political outlet in the multi-cultural Democratic Party. But evangelicals have readily identified as the mainstream tradition in the United States, with claims about the nation’s Christian founding, and an accompanying political theology that says God loves republics and freedom. Evangelicals have also tended to approve of the Republican Party’s efforts to impose cultural uniformity on the nation. In which case, evangelicals may like to think that they are a minority only seeking toleration for themselves what other minority groups want (or have). But they have a uniformity-by-majority disposition that seeks to establish their norms as those of the nation.

This is the main reason for quick and ready dismissals of evangelicals as bigoted and intolerant, not their actual views or practices on homosexuality. Gay marriage is an emblem of a deeper cultural divide that prevents white conservative Protestants from embracing some form of cultural diversity. If they could concede ground to homosexuals (I don’t know if it should be civil marriage), they might be able to gain concessions for their own churches, schools, and families. But for the better part of 200 years, evangelicals have approached public life as a zero-sum game.

Scott Clark is sensitive to the particular consequences that gay marriage would have for the entire culture, and not for a certain sector of it, and argues plausibly for considering the social consequences of gay marriage. Scott is particularly concerned about the fallout for the family:

By analogy it is not possible to re-define the fundamental units of society without a cost. Consider any society. Assuming a certain degree of natural liberty and mobility, if people are living together in a defined space, those people have consented voluntarily to live together. They have made a society. What is the basic unit of that society? It cannot be the isolated individual if only because no mere individual is capable of forming a society or of perpetuating a society. There must be a basic social unit. Historically that social unit has been understood to be a heterosexual family, a father, mother, a grandfather, a grandmother and their children and grandchildren because it is grounded in the nature of things.

I tend to agree with this but sense it is almost impossible to use this line of reasoning in a plausible way. For forty years our society has been experimenting with a host of new social forms. Some of those were surely welcome – racial integration, and redefining women’s roles. But the impetus to overturn unwanted hierarchies did not leave much room for recognizing the value of hierarchy more generally and the way that social order depends upon other kinds of order. And so along came sex, drugs, and rock ‘n’ roll as the baby boomers’ favorite idioms for resisting cultural and moral conventions.

Evangelicals may have taken longer and been more selective in appropriating the cultural shifts of the 1960s and 1970s, but when it came to worship and sacred song they did so with abandon. Granted, it is a leap even to suggest – let alone argue – that Praise and Worship worship was a step on the path to gay marriage. But if Christian rock did to religious conventions what rock did to cultural conventions, it is possible to wonder where the bending of conventions ultimately leads.

Scott points in the direction of his observation when he writes of the generational differences on opposition to homosexuality. The younger generation has:

been raised in a culture which not only tolerates homosexuality but celebrates it. Consider the contrast between the way homosexuality was regarded in popular culture in the first half of the 20th century. Liberace was openly effeminate and made only the thinnest of attempts to protest his heterosexuality. Homosexual movie stars regularly went out of their way to create a heterosexual image and especially when it was contrary to fact. Some movie studios had a policy requiring single male actors (e.g., Jimmy Stewart) to visit a studio-run bordello in order to demonstrate their heterosexuality.

In the second half of the 20th century the old conventions, which has lost their grounding in nature and creational law, were deconstructed. . . . All of this took decades but it happened. It’s a real change of culture, of attitude, of stance, of definition of what constitutes acceptable social and sexual behavior and norms.

If Scott is right, and I think he is about the gradual ways in which the culture has changed since 1960, then evangelicals may want to rethink why it is that their disregard for what the created order reveals as appropriate for Christian worship is okay but homosexual disregard for the created order of sexual reproduction is not. It could be that Trueman’s point about bigotry has a point: can you really sing Christian rock in praise of God and oppose gay marriage with a straight face?

The Bible and the Politics of Sex

Published on by D. G. Hart81 Comments

Discussions about the relative value of special (i.e. the Bible) or general revelation (e.g. natural law) for politics and society often bog down on the politics of sex. What about abortion? It is a heinous practice that cannot be outlawed on as flimsy a basis as natural law or private conscience. What about gay marriage? The Greeks were pretty good at natural law sorts of arguments but not necessarily reliable on same-sex relationships. Or what about women in the military? (I actually think nature is far more instructive here than God’s word, having seen some of the tortured reasoning from Presbyterian communions on women serving in the military.) The idea that most Americans will rally around an argument from general revelation to ban women from the armed services seems far fetched.

And of course beyond whether or not natural law will be more effective than Scripture in public debate is the issue of what’s right. If God requires certain kinds of holiness from his people, and believers are implicated in a host of immoral activities by virtue of their citizenship and taxes at work, then shouldn’t Christians object to laws and policies on the clear grounds of the Bible?

The problem for sufficiency-of-Scripture advocates, though, is that government these days involves a lot more than sex. After all, the president’s health care legislation is more than 1,000 pages. I haven’t seen it. I know many believers are concerned about the potential for government-funded abortion. But can this piece of legislation simply be boiled down to pro-life implications? At stake are questions about the power of the federal government, the private sectors of medical insurers, drug companies, the livelihoods of physicians, and even public health. In other words, I’d bet that 99 percent of the document involves matters that Scripture won’t resolve. And yet, Christians only seem to react to those aspects of law that pertain to abortion while insisting that the Bible is the standard for public life.

An article in the New Republic recently about copyright laws and Google’s attempts to make all books available on line illustrates the weak link in the Bible only argument. The author, Laurence Lessig, starts with the case of Grace Guggenheim, the daughter of a successful documentary film maker who wanted to reproduce digitally all the films made by her father. But Guggenheim could not complete the task. Lessig explains:

Her project faced two challenges, one obvious, one not. The obvious challenge was technical: gathering fifty years of film and restoring it digitally. The non-obvious challenge was legal: clearing the rights to move this creative work onto this new platform for distribution. Most people might be puzzled about just why there would be any legal issue with a child restoring her father’s life’s work. After all, when we decide to repaint our grandfather’s old desk, or sell it to a neighbor, or use it as a workbench or a kitchen table, no one thinks to call a lawyer first. But the property that Grace Guggenheim curates is of a special kind. It is protected by copyright law.

Documentaries in particular are property of a special kind. The copyright and contract claims that burden these compilations of creativity are impossibly complex. The reason is not hard to see. A part of it is the ordinary complexity of copyright in any film. A film is made up of many different creative elements–music, plot, characters, images, and so on. Once the film is made, any effort at remaking it–moving it to DVD, for example–could require clearing permissions for each of these original elements. But documentaries add another layer of complexity to this already healthy thicket, as they typically also include quotations, in the sense of film clips. So just as a book about Franklin Delano Roosevelt by Jonathan Alter might have quotes from famous people talking about its subject, a film about civil rights produced in the 1960s would include quotations–clips from news stations–from famous people of the time talking about the issue of the day. Unlike a book, however, these quotations are in film–typically, news footage from CBS or NBC.

The point of Lessig’s example is that reproducing documentaries becomes impossible because of the fees necessary to secure permission (again) to use footage contained in the original product. For instance, one documentary on the Civil Rights movement, considered the most complete visual chronicle of the events, will never be seen again because the original permissions have expired and the company that made the film no longer exists.

Lessig goes on to raise questions about the recent settlement of Google’s plans to reproduce books on-line. He believes that a similar set of hurdles has entered the realm of books that once only applied to other media. He concludes:

I have no clear view. I only know that the two extremes that are before us would, each of them, if operating alone, be awful for our culture. The one extreme, pushed by copyright abolitionists, that forces free access on every form of culture, would shrink the range and the diversity of culture. I am against abolitionism. And I see no reason to support the other extreme either–pushed by the content industry–that seeks to license every single use of culture, in whatever context. That extreme would radically shrink access to our past.

Instead we need an approach that recognizes the errors in both extremes, and that crafts the balance that any culture needs: incentives to support a diverse range of creativity, with an assurance that the creativity inspired remains for generations to access and understand. This may be too much to ask. The idea of balanced public policy in this area will strike many as oxymoronic. It is thus no wonder, perhaps, that the likes of Google sought progress not through better legislation, but through a clever kludge, enabled by genius technologists. But this is too important a matter to be left to private enterprises and private deals. Private deals and outdated law are what got us into this mess. Whether or not a sensible public policy is possible, it is urgently needed.

This is a long article, well worth reading for those interested in law and the future of the book. And this post hardly does justice either to the article or issues involved. But the article does illustrate a point: most of what magistrates do pertains to matters far removed from the clear moral teaching of Scripture about sex and marriage. So if some are going to fault natural law for not performing a slam dunk on the hot button topics of the culture wars (abortion and gay marriage), when will those advocates of a biblical approach to politics admit that Scripture won’t resolve important questions like this one about the copyright of words and images?