Oct 3, 2015

Pope Commemorates 600th Anniversary of Concordat of Bologna by Conciliating the U.S. Congress

Pope Leo and King Francis Agree To Destroy the Liberty of the French Church
Popes, like all Christians, sometimes do really unchristian things in difficult situations, like solemnly agreeing to let kings control church offices, or, more recently, giving speeches before Congress that tickle the ears of infanticidal environmentalists, slither silently over the crimes of the state against divine and human law and neglect the name of Jesus Christ. These things happen when Popes are under terrible political pressures.

Consider a recent unsurprisingly unpublicized and uncelebrated anniversary of the Vatican: six hundred years ago, in 1515, France's King Francis I, after his decisive destruction of the Pope's military allies at Marignano, convinced Pope Leo X (above) to enter the unholy and immoral Concordat of Bologna. By this treaty, the Pope gave control of the French church's offices to Francis to avoid military defeat in return for some direct subsidies to Rome at the cost of the French church.

Battle of Marignano
The Concordat of Bologna conceded to French kings the right in perpetuity to tax church property and to pick who would hold all the key ecclesial offices: archbishops, bishops, abbots, etc. This gave the King lots of room to hand out rich sinecures to his friends and make sure pro-monarchists controlled key church offices.

The Pope gained more than nothing by the deal. In return for his official and financial control of the French church, Francis agreed to abandon his nation's principled commitment to conciliarism, (i.e. the Council of Basle's constitutionalist teaching that the decrees of a church council were superior to the pope and that the pope must obey conciliar canons and call regular councils). French kings didn't like conciliarism anyway because its principles form the basis for legal control over all political authorities. Conciliarism is the soil from which the idea of modern constitutionalism (law controls government) grew. For his part, fighting a domestic battle with French Christians who thought their tithes should support their own churches not Vatican armies, Francis was glad to agree that the Pope had absolute authority to command local churches to accept the king's appointments and pay taxes to the king.

Thus, as part of the Concordat, Francis formally negated the Pragmatic Sanction of Bourges, which had allowed local French church selection of bishops etc. and prevented the pope collecting his annual dues from France until he agreed to hold regular councils. The negation of the Pragmatic Sanction also allowed the Pope to start collecting a portion of France's church revenues again. The big losers were the local church communities that lost their ability to elect their own church leaders and now had to pay tithes to both king and pope. Francis gained a lot, the Pope a little, and French Christians paid for the gains of both. This corrupt deal also helps explains Francis' hostility to the Reformation; he didn't have any control over the appointment of Protestant church leaders or collect any tithe from their churches.

Today, no Pope would claim that he could faithfully do such an outrageous thing as hand over church office selection to a king. What greater responsibility does the church have than to make sure that those in ecclesial offices are good men who "hold firmly to the trustworthy message as it has been taught"? (Titus 1:9) This can't be delegated to the state. But then Francis did have an army in the Pope's backyard threatening his worldly possessions and power. It also allowed Leo to purge and displace the conciliarist elements in France. The monarchists were glad to affirm papal supremacy against them because it secured their newly secured rights to tax and appoint under the Concordat. All this was a horrible thing for Leo to agree to. The Reformers certainly were unimpressed with the ecclesiology that the Concordat expressed. But, given the circumstances, as Pope Francis might say, "Who am I to judge?"

Without judging Pope Francis, we still may ask what similar difficulty must have made Pope Francis neglect Christ in his speeches before Congress and the U.N.? His rhetoric was literally unchristian in the sense that he did not name Jesus Christ. Let's concede that he gave good political speeches just as Leo made a politically justifiable Concordat. But what horrible pressure must be put on a man who claims the office of Peter to turn from Christ again in such a way? Is this how sheep are fed?

I assume that Pope Francis' actions like Leo's are a sign of enormous pressure: steeply declining attendance at mass in the United States and elsewhere, continued fall out over cover-ups of child sexual abuse, a world elite hostile to the most basic aspects of Christian truth and life. This is a man who apparently wanted to meet with Kim Davis but could only do so in secret and only confirmed the meeting with reluctance, and threw her under the bus as soon as challenged about the meeting. Now I think things are bad today. But I assume that Pope Francis knows much better how bad things are. If he is afraid to mention Jesus' name in Congress or meet with Kim Davis in public, how much more terrible things must be. If the Pope can only "challenge" the U.S Congress by demanding they do want what they want to do: more "to protect the environment," i.e., take even more power away from people and aggregate more to themselves, then what horrible threats he must see. I hope he ultimately negotiates a better bargain for what he surrenders than Leo did with Francis.

Sep 24, 2015

"Evangelicals Won't Cave"

This piece by Russell Moorepresident of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, is an excellent response to the political power and pride of the American sexual revolutionaries. We have been so habituated to thinking of ourselves sociologically as Americans that it is easy to forget how easily American Christians will outlast the current mania for sexual self-degredation. 

The concluding plea for calm is, in other ways, wrong. Certainly, Christians have peace and do not trust in princes. But the Obergefell decision was not simply another wrong decision. Although it was only the most recent in a "long train of abuses and usurpations, pursuing invariably the same object," the justices' open contempt for law and declaration of purpose to force all Americans to conform to a new sexual ethos has a greater evidentiary significance. By its reasoning, it "evinces a design" to proclaim an idolatry of man and by its effect to limit the religious liberty of Christians by forcing us to to give "symbolic and material support to homosexuality." 

As such, it wrought a fundamental change in how the United States should be viewed and related to by Christians. We should be agitated politically by this change, the way we are agitated and not calm before any serious injustice that can be righted. Americans, particularly poor Americans, are being destroyed by the destruction of the law of marriage and sexual morals that the U.S. has accomplished. This has been brought about by many actions of the U.S. But Obergefell makes it clear that the destruction of the theological and moral identity of Americans has been the goal all along and is the goal for the future. Poor Americans are the ones who have been most affected by the resulting increase in divorce, out-of-wedlock births and demoralization. It is not a denial of the peace that we have in Christ to be upset about this act of injustice and the harm that it is causing to millions of people.    

Sep 21, 2015

A Few Thoughts on Obergefell that are not Generally Raised in Discussion

A great deal has been written about the Obergefell v. Hodges decision which was decided three months ago this week.  There is not much to be added to the many great articles that have been written on the consequences of this decision. Nonetheless, there are a few interesting minor points about the decision that I have not seen raised yet. Granted, I have not been able to keep up with all the discussion of the case, and these points are possibly being raised elsewhere. But to date, these have not made much traction.  I point out five of these issues.

1.  The four dissenters are showing integrity in their textualist approach to the Constitution.  The Constitution was enacted with a heavy emphasis on structure protection of liberty Each of the dissenters has a record showing support for this interpretation, rather than seeking the expansion of rights that are not stated clearly in the text.  Presumably, each of the four dissenters is fairly strongly opposed to same sex marriage. And yet, none of the dissenterss address the same sex marriage head on. Each directs his argument toward the profound attack on federalism that the majority opinion represents.  Justice Scalia goes so far as to claim he is indifferent about the substantive issue underlying the case. I suspect that there is some hyperbole there in that statement. However, Scalia's record and speeches strongly support his stated view that the role of the Supreme Court is a very limited one. He is being consistent. While he may have strong views on topics that are outside his perception of the Court's jurisdiction, he would be content to allow states to pass laws he finds abhorrent without finding a basis for Supreme Court action on the matter.

2.   Postmodernism creeps into the Court's reasoning. Rather than a cold recitation of the facts, the Court recounts three of the stories from the 16 couples whose marriages make up the pool of plaintiffs behind the case. Why these three? Justice Kennedy wishes to set forth the most resonant stories to indicate the emotional impact of the cases before setting forth the technical details. This smoothly fits into the analysis because 21st century readers are now used to argument arising from narrative detail, rather than logic and reason.  Compelling stories are certainly a big part of litigation. However, it has generally been the role of the advocates to set the emotional tone for the argument, not the Court. The narratives are obviously irrelevant to the analysis that follows. Kennedy could have foregone any specific details, other than the fact that there have been 16 instances of efforts to create same sex marriages in states where such unions were unlawful, which found their way before the Court. Or, he could have given the details of each of the sixteen cases.  The choice to go for three was that these provided touching instances of suffering by people engaged in noble activities or suffered heartbreak. Kennedy justifies his recounting of these three stories to show "the urgency of the petitioners' cause from their perspective." That is an odd basis for recounting the facts. There are few cases where the perspective of the litigants is not one of urgency.

The first of the three cases involves the Obergefell/Arthur relationship. There, Arthur died very shortly after the couple had a dramatic marriage ceremony in a state where same sex marriages were legal. The actual facts of the marriage relevant to this case are not moving. But Kennedy includes this narrative to demonstrate that the lack of a legal marriage would be "hurtful" to Obergefell. That is, a new fundamental right must be found because of the emotional harm caused by the law. This is of a piece with the right to dignity that underlies this opinion and some of Kennedy's earlier reasoning elsewhere. More on the challenges of dignity-based rights later.  In this instance, the pain is not intrinsic to the status of the litigants, it is in the impact of mortality on a relationship.  All relationships in which one partner predeceases another give rise to deep feelings about what could have happened but for the death.

The second case, DeBoer/Rowse, involved a lesbian couple who adopted children who were disabled to the extent that they required a great deal of care. The sacrifice of these two women is admirable. However, as Kennedy could not reference an actual tragedy to support this story and give it the "urgency" on which his opinion partially relies, he implies a hypothetical one. He can only speak of what would happen to the children "were tragedy to befall" the couple.

In the third instance, the DeKoe/Kostura relationship, involved a combat veteran, who, because he took a job with the Reserves in Tennessee, which did not recognize same sex marriage, brought the couple from a state where they were considered legally married to a state where their marriage was no longer lawful. The compelling part of the story being that a combat veteran is involved, and it points out the challenges caused by differing laws in a nation of federated states. More on that issue later.

The common theme in these narratives is that the application of the law can be painful to the parties. That is not unusual. In much litigation, parties suffer great hurt from the outcome of the decision. Indeed, in many cases, it is certain that one party will be greatly aggrieved no matter who prevails. This is in part why we speak of the metaphor of  justice being blind. The application of the law is to be shielded from bending justice because of sympathy for the litigants.

3.  Federalism is losing rhetorical force in popular democratic ideals.  The DeBoer/Rowse case demonstrates how complex federalism can be. It is admittedly strange for those who advance the argument that marriage is to be permanent to claim that one's status can change as he crosses state lines. However, that peculiarity of federalism has been the case from the founding of the republic. Where one state does not recognize the grounds of a marriage in another state (based on age of the parties or closeness of family ties, for example), marriage seems strangely malleable.  However, our courts have long accepted the dissonance of states with different qualifications for marriage, and  the the full faith and credit clause of the Constitution has never been successfully invoked to protect a marriage deemed void in a state. The problem caused by different definitions in different states cuts both ways. Where it is greatly inconvenient to citizens who move, states ought to be hesitant to dramatically change the standards for marriage so as to be out of syn with the other states.

This argument is going to sound hollow to those who do not hold federalism in high regard. Those parts of the Constitution that are nondemocratic or impede central control, such as the Electoral College, are losing their support in the popular culture.  It should be recognized, though, that abandoning these protections comes at a cost to the nation in holding back tyranny. When considering the changing nature of marriage for those married in a state with more expansive qualifications than most states when they travel across the country, it is easy to depreciate the value of federalism. This is the case because  the ones who bear the cost of federalism are easier to identify and sympathize with than those who bear the potential threat of tyranny when federalism is undermined. Yet the cost is real.

4. Dignity is an unreliable basis for a legal right. Justice Kennedy has advanced an approach to constitutionalism that supports protection of dignity. While no one is opposed to dignity, and it is in fact the motivation for a great deal of legislation, it can undermine predictability in judicial decisions as claims of dignity are easily drawn into conflict with each other.  Indeed, Justice Kennedy's opinion illustrates this.

One of the grounds for Kennedy's claim for the importance of marriage is that it lets children avoid the stigma of being raised by unmarried parents. This aligns with Kennedy's dignity reasoning.
It is undeniable that there is indeed a stigma associated with being born outside of marriage. However, that stigma is tragic because a child has no choice in his or her parentage, and efforts to diminish the stigma are worthy of support by the Court and other institutions. However, Kennedy's reasoning actually enhances the stigma. In his quest to advance the dignity of those who are children of same sex couples who seek to be married, he unwittingly adds to the shame of those who were not. Thus are the challenges of a dignity-based jurisprudence.

5.  The majority opinion sets back the authority of the Supreme Court as an impartial arbitrator of Constitutional interpretation.  There are parallels between the Obergefell case and Roe v. Wade in that both cases advance rights not expressly or impliedly addressed in the Constitution based on vague references to the Fourteenth Amendment. However,  Roe v. Wade has lost regard over the years in part because of its opaque textual use and loose reliance on flimsy moral reasoning. Roe v. Wade 's logical lapses were "cleaned up" in later cases, although its progeny still never made the textual source for their authority persuasively clear.  Obergefell is Roe v. Wade all over again. Only this time, the Court is far more bold in demonstrating its willingness to  overstep legislative lines.  While attempting to obscure the fact that the nation's legislatures have not embraced same sex marriage, it plainly acknowledges that only 11 states have legislatively recognized same sex marriage.

Justice Scalia criticizes the majority for its hubris.  Arrogance is a common complaint in emotionally pitched disagreements.  However, arrogance is much overrated as a vice in rhetoric. That a party to a disagreement is egotistical neither advances nor defeats the logic of the claim.  Certainly, the Kennedy opinion demonstrates hubris. But that is less of a concern than its bracing admission of treating a minority view as fundamental.  It is hard to imagine why Kennedy would include a paragraph that is needless to his argument which admits the power grab of the Court. It can only be assumed that Kennedy has become so accustomed to his Court's role in resolving splits in the Federal Circuit Courts that he assumed that readers would recognize the benefit of the Court stepping in where there is a split in state legislatures. Certainly, the most compelling argument for not finding a fundamental right would be that a relatively new legal right has only been recognized by 11 states.

Much more is going to be written on the import of the Obergefell decision in the coming days. It will no doubt soon be elevated to the ranks of those Supreme Court decisions that are so iconic that they need not be read in order to have the rhetorical effect of just invoking their name. However, the passage of time necessarily is going to mean that as the case is dissected in the many litigated matters that will rely on its reasoning, the dangerously loose reasoning is going to create many problems not yet contemplated. It is to be hoped that the arguments that seek to advance its excesses, such as an over powerful reliance on the vague right to dignity, and the Court's ability to shorten the deliberative legislative process in favor of positing the views of those who can constitute a majority of the Court, will render clear just how poorly reasoned this case really is.

Sep 9, 2015

Rod Dreher Apologizes to Kentucky "Hillbilly" For Error, Not for Calling Her a "Dingbat," "Appalachian Joan of Arc"

Destructive forces are at work in the city; threats and lies never leave its streets. If an enemy were insulting me, I could endure it; if a foe were raising himself against me, I could hide from him. But it is you, a man like myself, my companion, my close friend, with whom I once enjoyed sweet fellowship as we walked with the throng at the house of God. Ps 55:11-4 
Rod Dreher, Crunchy-Con author and Christian blogger for the American Conservative Magazine, has joined the bien-pensants in their attacks on Kim Davis. Principled criticism is good (iron sharpens iron) and Dreher has well developed arguments that he can offer against Davis' stand. Dreher leads a movement called the "Benedict Option," which has many thoughtful things to say about how Christians should change their strategy and resist America's anti-Christian orthodoxy by culture-engaging "retreats" into intentional Christian communities. The reference in the term "Benedict Option" is to the mode by which Benedictine monastic communities withdrew, protected and engaged culture during another nadir in civilization.

Dreher's proposed strategy conflicts with Davis' insistence on the right of a lesser Christian magistrate (as equally ordained by God and required by God to serve Him justly) to interpose herself between the people and superior magistrates engaged in lawless action, like redefining marriage against the express rule of God. The special duty of lesser magistrates to resist, because they too are appointed by and responsible to God, is why Obadiah was right to hide the prophets from Ahab (1 King 18) and clerks in Axis-occupied territories were right not to hand over lists of Jews. (Read about the doctrine of the lesser magistrates and the Magdeburg confession, here.)

Now, Dreher may be right to pursue what he calls the "Benedict Option" and to disfavor direct resistance to U.S. marriage tyranny. I'm sympathetic to his ideas. But in recent personal attacks on Kim Davis, he has crossed the line of valid criticism and turned to ethnic epithets and personal attacks. This is more disappointing because he has real arguments to make. Dreher is now pursuing the Benedict Arnold Option and its winning him respect from the establishment.

Pausing from castigating Davis for creating bad PR for Christians, Dreher recently noted that his blog is also  supplying ammunition to George Stephanopoulos against Mike Huckabee and Huckabee's defense of Davis. Dreher must take a great deal of comfort in knowing that he has such established company in his contempt for Kim Davis and is not creating negative PR for Christians like her.

Dreher recently lost control of his personal contempt for Davis, calling her a "jailed hillbilly egotist." See his twitter below. Taken in by a poorly spelled hoax, Dreher thought he was denouncing this Davis "hillbilly" for the "arrogance" of comparing her imprisonment for conscience to the imprisonment of Dr. Martin Luther King, Jr. and asking for prayers for herself like Jesus Christ before his crucifixion.

So deceived, after beginning with a measured, "this is insane," Dreher concluded:  "This dingbat thinks she's an Appalachian Joan of Arc but she's just the ego-tripping leading lady in a Jerry Springer Passion Play."  [After I wrote this, Dreher deleted these self-condemning lines from his blog. The link is to google's cache.]

I would like Dreher to explain why it is appropriate to criticize someone in serious writing as a "hillbilly." What exactly could it add to legitimate analysis to denigrate a person as a "hillbilly" from Appalachia and associate them with the Jerry Springer show? How are these things relevant to whether she displays "arrogance" in comparing her situation to King's imprisonment? How does Dreher think that being an Appalachian hillbilly disqualifies someone from invoking the same principles of justice as King?

Eventually, Dreher was told that the letter was not written by Davis. It was a hoax. So he partially apologized: "I fell for that elaborate #KimDavis troll. I apologize to Kim Davis for criticizing her based on the false doc & media reports on it."

Dreher, however, did not apologize for the disparaging epithets that he hurled against Davis. The hoax letter did not indicate that Kim Davis was a "hillbilly" or from "Appalachia" or a suitable participant on the Jerry Springer show. He did not "base" these epithets on the hoax or media reports on it. Dreher's error in attributing a poorly spelled letter to someone he is willing to stereotype as a "hillbilly" did not cause him to use denigrating language. I don't think his mistake in believing the hoax, unless he himself views it as caused by his own prejudice against an Appalachian, requires much of an apology. Mistakes happen. Dreher needs to apologize for using language that indicates a contempt for certain classes of people.

Can we all agree that no one deserves to be ridiculed for her regional and ethnic associations? Can we all agree that referring to a woman imprisoned for her faith as a "dingbat" crosses some line? Dreher has written some lovely words about his relations with African Americans and his ability to see through their eyes. Perhaps he needs to look through Kim Davis' eyes, too.