“Law Follows Culture!”  Part 3

Navigating the Political and Cultural Winds

“[Y]ou shall not murder a child by abortion nor kill that which is begotten.”^[1] 

Can wicked rulers be allied with you, those who frame injustice by statute?^[2]

Introduction

It’s election week; and while this election does not present any actual existential threat, elections do have important consequences.  One consequence involves the legal and policy choices made or opposed by those empowered to govern.  In Parts 1 and 2 we explored through the lens of worldview how culture, law, and policy interact to affect one another, brewing a cultural stew.  Moreover, we have seen how ideas convey messages beyond their immediate products, whether it be Doritos or Burger King.  Those messages impact the culture’s collective moral imagination, often shifting the Overton window:  What was once inconceivable, becomes conceivable, then doable, and then even preferred, and finally protected by law.^[3]

In this final edition, we shall tell the sad story of how a seeming innocuous and well-intended decision – made by a Christian denomination – became leaven that culturally combined with law and policy to ultimately churn a corrosive sexual revolution.  Let’s get to the gist.

Contraception^[4], Culture, and the Legal Road to Roe and Beyond

In 1930, the 7^th Anglican Lambeth Conference broke with 2000 years of Christian ethical practice by permitting within narrow confines the use of contraception between married spouses.^[5]  As we shall see, this cultural move precipitated a host of legal consequences.  In addition, a key catalyst from another robe of culture, the Academy (Science) also poured gasoline upon Lambeth’s spark:  the invention and promotion of chemical hormonal contraception aka The Pill.^[6]

These twin cultural predicates positioned the legal culture to accelerate and approve^[7] the consequences of these ideas.  A series of SCOTUS rulings beginning in 1965 – just five years after the Pill – led unmistakably brick by brick^[8] from contraception to abortion to same-sex “marriage” to today’s transgender moment.  These bricks will be assessed for their legal and cultural messages.

1965:  Griswold

The Court first considered contraception in Griswold^[9] five years after the Pill.  There, the Court “found” in what it deemed “emanations” and “penumbras” that a right of privacy hovers somewhere in the constitution and thereby used that legal apparition to nullify an 1879 Comstock law.^[10]  Because law is culture as explained in Part 2, every decision conveys both a legal message as well as a cultural message.

Griswold’s Legal Message:

States may not forbid access to contraception for married couples, thereby federalizing the issue

Griswold’s’ Cultural Message:

The Procreative aspect of sexuality may be properly and permissibly separated from the Unitive aspect of Sexuality

The win or “victory” consisted NOT of giving married couples condoms or pills; rather, the win was this latent philosophical move of separating the Procreative from the Unitive purpose of sexuality.^[11]

1970:  No-Fault Divorce

The next brick came not from the Court, but from policy mavens:  No-fault divorce.  Pitching this as providing relief to “trapped” women, the reality is that the messages here undermined marriage in general and women in particular.^[12]

No-Fault’s Legal Message:

Permission is granted to divorce unilaterally for any reason or no reason, irrespective of the Other’s consent or the instigator’s prior vowed commitment

No-Fault’s Cultural Message:

Man may separate what God has joined . . .

1972:  Eisenstadt

Given the predicates of Griswold and the advent of no-fault divorce, the Court, when asked, logically extended them outside the marital bond.^[13]

Eisenstadt’s Legal Message:

States may not forbid access to contraception for fornicating couples, federalizing the issue; marriage is an unnecessary legal predicate for sexual activity

Eisenstadt’s Cultural Message:

Fornication is one equally valid option among many for sexual expression; commitment via marriage for sexual expression is merely optional and aspirational at best.

1973:  Roe

Roe’s brick – and it becomes a jurisprudential cornerstone – faces the failure of contraceptive technology.  When Technos supplants Telos^[14], what “can be done” will supersede what “should be done.”  When contraceptive technology fails – as does all technology – a wrongly calibrated compass^[15] only seeks and applies the “next thing” to “remedy” the technological failure – in this situation, erasing the “evidence of the product of conception.”  Roe proclaims powerful and unfortunately enduring legal and cultural messages.

Roe’s Legal Message:

The Court invented a purported constitutional right to “terminate pregnancy” predicated on Griswold’s invented “privacy” notion.  The purpose of this “right” exists to “correct” or remedy a contraceptive failure. This “solution” federalized the issue.

Roe’s Cultural Message:

Children result from some failure, either of planning or technology; Fertility becomes pathology, and choice becomes the ultimate or determinative standard of ethics.

1992 Casey

The Court revisited the legality of abortion in 1992.  It seemed that the reality of abortion – the killing of innocent children – weighed heavily and hopes surged that Roe would be overruled.  It was not.^[16]  Instead, a new articulated rationale for abortion – another brick – emerged – rooted not in Roe’s privacy concoction – but in a broader conception of unfettered personal autonomy, euphemistically labeled a “liberty interest.”  This new brick would come to bear the weight of many other paradigm-shifting subsequent rulings.

This new rationale, emanating from the pen of Justice Kennedy, drives many subsequent rulings that bulldoze other behavioral norms rooted in pre-political reality and the created order.  Casey guides the culture’s moral free-soloing with these lofty, though vacuous, words: 

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”^[17]

Casey’s Legal Message:

The Court affirmed Roe’s core holding while rejecting its trimester scheme and instead based the “right” on a liberty interest.  “Liberty” as now conceived becomes a predicate for more far-reaching legal rulings.

Casey’s Cultural Message:

The Court, citing women’s purported reliance interest on being able to order their lives around abortion’s availability, then referenced itself as being an institution whose reputation would be called into question if it eroded this reliance interest, thereby reinforcing the Court’s cultural and iconic function.

1996:  Romer

Four years following Casey, these foregoing legal and cultural bricks affected matters beyond both marriage and hetero-coupling.  In Romer^[18], the Court, again speaking through Justice Kennedy, reviewed a popularly enacted state constitutional amendment that favored recognizing heterosexual bonds but not recognizing homosexuality as a “suspect class” under equal protection analysis.  The Court invalided the amendment using the lowest level of scrutiny, the so-called rational basis test.  

By jettisoning the legal significance of marriage’s unitive and procreative purpose, as well as marriage being the exclusive venue for sexual expression, and by embracing abortion as being a deadly arrow chosen from one’s liberty quiver, the legal and cultural foundation now existed for ruling that no rational basis linked preferring heteronormativity over any other sexual desire. 

Romer’s Legal Message:

States may neither affirm, nor prefer, the ontological design of human sexuality.  There can be no rational nexus between such a preference and the common good.

Romer’s Cultural Message:

Absent a legally appropriate rationale, the only rationale for preferring heterosexuality is animus.  If anyone disagrees, it can only be because he hates.

2003:  Lawrence

Romer sets the stage for constitutionally normalizing same-sex sexual expression.  Lawrence^[19] presents another set up litigation with dubious origins in order to attack a criminal proscription of sodomy.^[20]  When invaliding this statute, Lawrence invokes all the now familiar cultural buzzwords:  choice, dignity, liberty, animus et al.

Lawrence’s Legal Message:

No state may ban same-sex sodomy as the only rationale for such bans would be animus and bigotry.  This federalizes the issue

Lawrence’s Cultural Message:

Morality plays no role re: legal ethics; choice and autonomy suffice.  Love is love^[21] . . .

2013:  Windsor

Windsor^[22] challenged the federal Defense of Marriage Act (“DOMA”), an act designed to provide uniformity for the federal approach to marriage under provisions of federal law so that matters such as bankruptcy, pension plans, military service, immigration, et al. would enjoy greater predictability and consistency.  The Court, speaking through Justice Kennedy, rejected that approach.

Windsor’s Legal Message:

The federal government may not prefer the ontological design of human sexuality.

Windsor’s Cultural Message:

Opposing same-sex “marriage” stems from – and only from – harboring the purpose and intent to disparage and injure homosexuals – to “de-dignify” them.

2015:  Obergefell

The final step for legally deconstructing marriage lay in federalizing marriage completely, and thereby invaliding the majority of state laws – over 30 – that defined marriage as the legal union between one man and one woman. Following its Roepath, the Obergefell^[23] Court via Justice Kennedy dispensed with all remaining marriage laws as written and codified by states via their elected representatives.

Obergefell’s Legal Message:

Marriage must be constitutionally defined to include same-sex couples as a law-conferred dignity thereby federalizing the issue.^[24]

Obergefell’s Cultural Message;

Marriage is no-longer Natural or Pre-political in any relevant sense, and thus “Family,” “Husband,” “Father,” “Wife” and “Mother” are merely legal – and only legal – constructions; they are not rooted in ontology.

The pretext of tolerance has passed; the practices must be approved by the State favoring certain third parties as against disfavored third parties – Federalizing the issue [Rm. 1:32] – One man described from a Christian perspective where the culture stands today in light of the edifice erected by these bricks:

“Our culture exploits its own holiness code to squeeze us to ‘confess’ non-sins while simultaneously demanding that we excuse, accept, and approve actual sins against God’s holy law.”^[25]

2019:  Equality Act

Progressive advocates seeking to capitalize on the aforementioned legal and cultural predicates have crafted misleadingly named legislation:  The Equality Act (H.R. 5).  This act, designed to comprehensively alter extant federal law, explicitly inserts “sexual orientation” and “gender ideology” into multiple facets of federal law.^[26]  Moreover, this proposed legislation purports to explicitly override constitutional protections for religious exercise.^[27]

H.R. 5 is a federal version of SOGI^[28] laws impacting public accommodations.  These provisions would legally and negatively impact religious freedom, but more fundamentally, they also undermine reality as it exists.

Consider Nancy Pearcy’s discussion regarding the far-reaching philosophical impact of SOGI provisions:

The long-term impact of SOGI laws will be even more destructive, however, erasing legal recognition not only of women [Sports, e.g. wrestlers, swimmers, and track and golf] but also of the family. Stella Morabito, senior contributor to The Federalist, explains: 

“Once you basically redefine humanity as sexless you end up with a de-humanized society in which there can be no legal ‘mother’ or ‘father’ or ‘son’ or ‘daughter’or ‘husband’ or ‘wife’ without the permission from the State.”

The state will then have unprecedented power to micromanage families:

“If you abolish sex distinctions in law, you can abolish state recognition of biological family ties, and the state can regulate personal relationships and consolidate power as never before.”

The state can make decisions regarding how parents educate their children, what medical treatment they use, what discipline they enforce, and so on, far beyond any current regulations. 

More fundamentally, the state can decide who counts as a child’s parents to begin with. Until now, it was nature (biological relationship) that defined who counts as a parent. The state saw its role as merely recognizing this natural reality. But under SOGI laws there will no longer be a presumption in favor of the child’s biological parents.

When gender is de-naturalized, parenthood will also be de-naturalized. ^[29]

Accordingly, by the mutual impact of culture and positive law, a creational pre-political institutional Norm – the family – will be subsumed under the political and legal order for its Ontology and Ordering.  SOGI laws deconstruct pre-political and natural realities.

Thus, if two men are deemed equivalent to a father and a mother, kinship becomes legally irrelevant.  And, this means that the body – and what it signifies – must be legally silencedbecause it repudiates the notion of “liberty” as now redefined – Biology now becomes in effect an enemy of liberty^[30] – Cf., Psalm 2’s description of the State and its legal/policy actors (kings and rulers) who reject the norms of God and His Christ:

Why do the nations rage^[a]
    and the peoples plot in vain?
² The kings of the earth set themselves,
    and the rulers take counsel together,
    against the Lord and against his Anointed, saying,
³ “Let us burst their bonds apart
    and cast away their cords from us.”

With this cultural and legal move, reality is increasingly rejected^[31] and instead, desires-appetites increasingly rule.  Make no mistake:  This too is a non-neutral, spiritual move which leads to Gnosticism, whether acknowledged or not:

We are not, after all, defined by whatever longings and aspirations come out of our hearts, despite the remarkable rhetoric of our times.  In the area of human well-being, that is the road to radical instability; in the area of theological beliefs, it leads to Gnosticism(where you try to discern the hidden divine spark within your self and then be true to it).^[32]

Where do we go from here?  What’s next strategically?  What’s next legally?  Can such matters even be argued – is it plausible – in America’s courts, pushing back against the bricked edifice of radical autonomy, unfettered choice, and ill-defined liberty? Can the bricks be replaced?  

If law follows culture except when it doesn’t, then not only may such arguments confidently be made, but they ought to be wisely made where the situation warrants it.^[33]  

Today’s landscape comprises one such situation because what means to be human hangs in the balance.  Biology is binary, not bigoted; it is binary since maleness and femaleness stem from the Creator’s creational norm:  

So God created man in his own image, in the image of God he created him; male and female he created them.^[34]

This creational design is linked to the Creator Himself and therefore our ultimate choice concerning biology rests on aligning with the Creator; there can be no neutral or middle ground:

15 “And if it is evil in your eyes to serve the Lord, choose this day whom you will serve,whether the gods your fathers served in the region beyond the River, or the gods of the Amorites in whose land you dwell. But as for me and my house, we will serve the Lord.”^[35]

Today’s cultural cathedral^[36] needs renovation; its jurisprudential bricks need replacing. The stakes could not be higher since with both law and culture, we either affirm reality or defy it. 

Let’s commit to creating beautiful culture, including positive law, that promotes human flourishing, flourishing for all in the presence of a glorious cultural cathedral.  This is TxC’s heartbeat and mission.  Precisely because law follows culture except when it doesn’t, this is plausible, reasonable, and inevitable.^[37]  So, “How Ya Doin??!!”

Next week, Lord willing, we will take a special TxC view of the election and its results – where has paganism prevailed and where has it been arrested.  Yet, never forgot, “he who is in you is greater than he who is in the world.”^[38]

^[1] Didache, cir. A.D. 70, https://www.newadvent.org/fathers/0714.htm

^[2] Ps. 94:20

^[3] Abortion is a prime example of this as is the entire LGTBQ agenda.

^[4] TruthxChnage takes no position regarding non-abortifacient contraception, either as a matter of Christian conviction, or legal policy; the remarks accompanying this section simply illustrate how ideas within both the general and legal cultures impact law, or as Paul put it, practices must be approved (Romans 1:32).

^[5] Resolution 15 reads in relevant part:  “in those cases where there is such a clearly felt moral obligation to limit or avoid parenthood, and where there is a morally sound reason for avoiding complete abstinence, the Conference agrees that other methods may be used, provided that this is done in the light of the same Christian principles.”  Resolution 16 expressed “abhorrence of the sinful practice of abortion.”  Resolution 18 deemed “sexual intercourse between persons who are not legally married” to be “a grievous sin.”.  The reality is that Resolution 15 provides the philosophical predicate to erase the ethical boundaries articulated by Nos. 16 and 18 and that in turn provides grounds for legally approving that “grievous sin” [fornication] and that abhorrent “sinful practice” [abortion] and beyond.  The legal and cultural reality after 1930 bears this out.

^[6] Eugenicist and founder of Planned Parenthood, Margaret Sanger championed and channeled funding for the Pill.  George Grant, Grand Illusions – The Legacy of Planned Parenthood, (1988), 74,75

^[7] Compare, Romans 1:32 – unrighteous practices press for approval.

^[8] Chief Justice John Roberts’ first public address quipped, “The rule of law is a cathedral we have to build brick by brick.”  See, https://althouse.blogspot.com/2006/03/rule-of-law-is-cathedral-we-have-to.html

^[9] Griswold v. Connecticut, 381 U.S. 479 (1965)

^[10] Comstock laws, named after anti-vice activist and U.S. Postal Inspector, Anthony Comstock, aimed at curtailing pornography and sexual trafficking; they were never intended nor used to prosecute married couples who sought access to contraception.  Nor was contraceptive access occluded in Connecticut.  The case was a setup lacking any basis in an actual deprivation of freedom.  See generally, Jennifer Roback Morse, The Sexual State, (2018), 95-105.

_

^[11] Confirming this:  the day following the ruling one of Griswold’s attorneys noted that the predicate for attacking anti-abortion laws had been set.  Scholarly writing by a co-attorney mapping the actual strategy appeared six months later.  Jennifer Roback Morse, The Sexual State, (2018), 114.

^[12] See, Jennifer Roback Morse, The Sexual State (2018), 191-262.

^[13] Eisenstadt v. Baird, 405 U.S. 438 (1972), used “equal protection” to strike down Massachusetts’ prohibition on contraceptive distribution to unmarried couples.  

^[14] For a comprehensive exploration of this point, see, Jeffery J. Ventrella, From Telos to Technos:  Implications for a Christian Public Life and Ethic (2017)

^[15] See Part 2 for an explication of this metaphor.

^[16] Reportedly, the Court’s initial vote did reverse Roe, but then Justice Kennedy changed his vote.  See, Jan Crawford Greenburg, Supreme Conflict (New York:  The Penguin Press, 2007).  Justice Kennedy’s jurisprudence figures prominently as a legal and cultural driver in the arenas of sexuality and autonomy, underpinning the departure from legally preferring and protecting creational norms.

^[17] Planned Parenthood v. Casey, 505 U. S. 833, 851 (1992).

^[18] Romer v. Evans, 517 U.S. 620 (1996)

^[19] Lawrence v. Texas, 539 U.S. 558 (2003)

^[20] Dale Carpenter, Strange Justice, https://www.nytimes.com/2012/03/18/books/review/the-story-of-lawrence-v-texas-by-dale-carpenter.html

^[21] The notion that positive law is free from morality, or that morality plays no role in it is philosophically naïve at best.  The reality is that every law draws a line as to what’s permitted or required and what is not – that is an ethical enterprise and thus involves morality.  The key question reduces not to whether one can legislate morality, but who’s morality will be legislated.

^[22] U.S. v. Windsor, 570 U.S. 744 (2013)

^[23] Obergefell v. Hodges, 576 U.S. 644 (2015)

^[24] This is a crucial point:  dignity is no longer inherent, but rather stems from legally imposed categories.  This move sets the stage for what is referenced as the Transgender moment, which necessitates a deconstruction of the natural and pre-political.  See Ryan P. Anderson, When Harry Became Sally – Responding to the Transgender Moment,  (2018, 2019).

^[25] New Testament professor and scholar Ardel Canneday, September 19, 2019 posting on Facebook

^[26] H.R. 5 passed the House but has not yet been considered by the Senate.  It attempts to do for almost all federal law what Bostock v Clayton County, 590 U.S. ___ (2020) wrongly did for Title VII.

^[27] Just how a statutory provision can purportedly enervate a constitutional protection in view of the supremacy clause (Art. VI, Cl, 2) remains mysterious – and dubious. For a broad popular critique of H.R. 5, see,   https://www.adflegal.org/detailspages/blog-details/allianceedge/2019/05/29/the-equality-act-would-mean-more-cases-like-these See also, https://www.adflegal.org/detailspages/blog-details/allianceedge/2019/05/01/what-you-need-to-know-about-the-inequality-of-the-equality-act

^[28] Sexual Orientation, Gender Identity laws.  Numerous political entities have enacted SOGIs.  Most, if not all, negatively impact religious freedom.

^[29] Nancy Pearcey, Love Thy Body: Answering Hard Questions about Life and Sexuality (2018), 212-213

^[30] Liberty is not unfettered freedom to do whatever we want, but rather the freedom to do what we ought, as Augustine taught.  See generally, John M. Frame, No Other God – A Response to Open Theism, (2001)

^[31] As to the ethical implications of “preferred personal pronouns” and their correlative and necessary denial of reality see, Jeffery J. Ventrella

https://www.christianlegalsociety.org/journal-christian-legal-thought-2018-vol-2, and also, McLaughlin, 

https://www.thepublicdiscourse.com/2019/09/56717/ For a cogent positive presentation of ontological claims at the highest level of litigation, see, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission,  Brief amici curiae of Scholars of Philosophy, Theology, Law, Politics, History, Literature, and the Sciences filed. (Distributed)

^[32] N.T. Wright, The Day the Revolution Began, (2016), 398

^[33] Gratefully, Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) overruled Roe in 2022.  However, in doing so the Court declined to take the further step of recognizing the unborn human as being legally fully protected.  Accordingly, the issue has been returned to the several states and yet, following Roe’s demise, abortions have increased.  https://www.cnn.com/2023/10/24/health/abortion-access-inequality-one-year-post-dobbs-wecount/index.html

^[34] Genesis 1:17

^[35] Joshua 24:15

^[36] See, Jeffery J. Ventrella, The Cathedral Builder:  Pursuing Cultural Beauty, (2007)

^[37] “For the earth will be filled with the knowledge of the glory of the LORD as the waters cover the sea.”  Hab. 2:14

^[38] 1 John 4:4