VOL. 16, NO. 1

February 11, 2014

Back to the Basics:
Straightening Up America, IX
America’s Marriage Miasma, Part 4

By Virginia Armstrong, Ph.D., National Chairman

“How far can you make a man bend over backwards before he breaks?” is the anguished cry heard in one of the most widely acclaimed musical productions of the Twentieth Century, “Fiddler on the Roof.” This question generates the theme for our current series of “Briefings,” the question whether America has bent over backwards too far in its spiritual, moral, and constitutional life. Are we on the verge of “breaking” and in need of a “straightening up process”? A strongly affirmative answer to that question is is shouted by the recent same-sex marriage decisions of the U.S. Supreme Court — Perry v. Hollingsworth and Windsor v. U.S. We are analyzing these cases with the tools crafted for us by the preeminent Christian apologist, Francis Schaeffer. We are currently employing the Schaffer tactic of finding the tension between the real world (with which the Judeo-Christian worldview is consistent) and the logic (or “illogic”) of Humanistic presuppositions about jurisprudence and the Constitution.  Six crucial components constitute a worldview’s theories of law. In this “Briefing” we consider the second of these components.

  1. COSMOLOGY:   The sources of law; the “hidden depths” of the law from which the “visible law” springs, from which it originates.

God has created a body of Higher Law and authorized human governments to enact civil laws embodying this Higher Law – a responsibility for which human beings will be held accountable. Civil law has it own unique history and identity as the “law but springs inevitably from fundamental philosophical and theological truths.

This core, or “critical,” component of the Judeo-Christian worldview pertaining to law and law-related disciplines is one we recently discussed in some depth (see our Court Watch Briefing of April 15, 2013). We return to this issue now as a part of our argument that the Constitution must be grounded in the Judeo-Christian worldview in order to survive and thrive. We are identifying each of the six crucial components of a worldview’s treatment of “law,” defining that component, stating the Judeo-Christian position, and illustrating the flaws of the Humanistic position concerning that concept.

In our earlier “Briefing,” we noted that legalizing same-sex marriage is a radical departure from both God’s Higher Law and Anglo-American civil law as it has existed as far back in its legal history to, at least, 1533 A.D.  A plethora of documentation proves indisputably that American law’s definition of marriage as involving only a male and a female is rooted in the foundational theological and philosophical truths of the Judeo-Christian worldview and Western civilization. The ultimate source of America’s jurisprudence and constitutional law is the foundational truths of the Judeo-Christian worldview, and American law has its own history and identity as the “law” in proceeding from its “non-legal” foundational truths.

The U.S. Supreme Court’s decisions in Hollingsworth v. Perry and Windsor v. U.S. crash head-on into God’s Law and Judeo-Christian jurisprudence, and do so in ways more pernicious than judges’ two previous fatal fiascos (concerning homosexual behavior in 2003) in Lawrence v. Texas (U.S. Supreme Court) and Goodridge v. Massachusetts (Supreme Judicial Court of Massachusetts) (see Virginia Armstrong, The Basic Blackstone: Constitutionalist Papers, 2d ed., 2009). We consider here an illustrative, but not exhaustive, cursory examination of some of the most egregious of these flaws. Much of the most revealing evidence of the extreme Humanism pervading judges’ disposition of all four fundamentally important homosexual rights cases cited here is most extensively and painfully obvious in the Perry opinion rendered by U.S. District Judge Vaughn Walker, a practicing homosexual. At the trial, Walker penned a 139-page opinion with a lengthy “Findings of Fact” section better labeled “Findings of Fiction.” While we reference this, as well as multiple other documents in these cases, we are refuting central arguments of homosexual activism in general and Humanism in the ways they support the homosexual cause. The Perry/Windsor fatal flaws include the following and should be understood as reflecting the values and views of pro-homosexual activism in general.

  1. One federal judge is an adequate and accurate source for the most foundational jurisprudential and constitutional decisions made in America today. Judge Walker’s findings are both explicitly and implicitly foundational to the revolutionary pro-same-sex marriage decisions made by the higher courts in Perry and Windsor.  Such usurpation of power by a single federal judge has obvious and disastrous implications for a multitude of American views and values in both laws and other arenas of life.  A “judiocracy” or “judicial supremacy” prevails; and judges create the law, rather than just construing it, as they are empowered to do.

This seismic shift in American law and culture is not new, but reaches its peak in Perry and Hollingsworth. Legal scholars agree that such a shift has occurred but vigorously disagree over the results of the shift. Court supporter, Cornell Law School Dean William Ray Forrester declared in 1977 that [the Court] can no longer be described with any accuracy as a court, in the customary sense.  . . . [Instead] it has become the major societal agency for reform.” Court critic law professor Michael Stokes Paulsen agrees that such an upset has occurred, but views the phenomenon with great alarm (2000): “. . . the Supreme Court, as currently constituted, [is] a lawless, rogue institution capable of the most monstrous of injustices in the name of law, with a smugness and arrogance worthy of the worst totalitarian dictatorships of all times.” Indeed the Court “has forfeited its legal and moral legitimacy as an institution.”

  1. One federal judge’s views and values trump the views of a sizable majority of a voting population clearly expressed and legally recognized in a ballot initiative process. California’s “Proposition 8” amended the California state constitution, disallowing same-sex marriages, by a clear pro-amendment vote.  R. I. P. “consent of the governed.” What the Walkers of the legal elite give us is not a Constitution written by and for “We, the People,” but a cult described with such celebratory approval as that penned in 1982 by well-known law professor and TV commentator, Arthur Miller: “[Federal judges function] as a defacto Council of Elders [and] may be likened to the oracles of ancient Greeks.  . . . The constitution is a theological document . . . [A]nd the Justices [plus other federal judges] are the High Priests who keep it current with each generation of Americans.”
  1. One federal judge’s values also trump the pro-morality/pro-family positions deeply and broadly held by a wide array of large religious groups in America. Judge Walker specifically endorses Humanist views and values in his “Findings of Fact,” which are based on the testimony of four “lay witnesses” and nine “expert witnesses.” Far from adopting the tactic of some pro-homosexual advocates who attempt to distort Biblical teachings to condone homosexual conduct, Walker cites indisputable evidence that the Bible does indeed teach the sinfulness of homosexuality. And Walker specifically and viciously castigates Biblical-believing advocates of the traditional “opposite-sex marriage” position. “’Religion is the chief obstacle for gay and lesbian political progress, . . . ’” (Walker opinion, p. 101). Among the large and well-known religious groups specifically vilified by Walker for throwing up such “barriers to progress” are the Southern Baptist Convention, the Roman Catholic Church, Evangelical Presbyterian Church, Lutheran Church-Missouri Synod, and Orthodox Church of America.
    1. Walker’s assertion that Christians’ pro-morality/pro-family position is grounded — has its source in — only in “animus” (“hatred”) toward homosexuals is itself hateful and bigoted. No objective proof for Walker’s malicious characterization is offered. Walker merely parrots earlier judges’ assertions that restrictions on homosexuals in Colorado were “born of animosity toward the class of persons affected” (cf., the U.S. Supreme Court’s groundless declaration of “animus” in Romer v. Evans, 1996).
    2. The Walker opinion, so typical of Humanist tactics in general, professes to protect against “religious intrusion” into law, against resorting to religion as the/a source of law; but it is the Walker position which actually violates the Establishment Clause. The courts have long held that the Establishment Clause requires that laws “neither advance nor inhibit religion (cf., Lemon v. Kurtzman, 1971, and its judicial progeny) and that laws must be “religiously neutral.” The Walker-type argument is a scurrilous anti-Christian attack, which is certainly NOT religiously neutral and which “inhibits” Christian beliefs and practices. Furthermore, these being the facts, Walker’s Humanism is actually an establishment of HIS religious beliefs, which violates the Establishment Clause because the Court itself declared in a decision never over turned that “secular humanism” is a “religion” (Torcaso v. Watkins, 1961).
    3. Walker trumpets the worn-out platitude that religious opposition to same-sex marriage has no source beyond a “private moral view” which “harms gays and lesbians” and “is not a proper basis for legislation.” But how can the moral view shared openly and forcefully by at least five major American religious groups cited by Walker himself be “private”?  Furthermore, the assertion that a phenomenon is “improper” (or “wrong” or “bad” or similarly popular adjectives of choice hurled at Christians by homosexual activists) is ITSELF a “moral” view. Same-sex marriage advocacy again falls on its own sword. Indeed, morality bases/sources for law are inevitable. As Justice Byron White declared in writing the majority opinion in Bowers v. Hardwick (1986), “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause [which is what today’s homosexual activists are fighting for], the courts will be very busy indeed.”  Unfortunately for our culture and our Constitution, Justice White was prophetically right.

In his use of the “private moral view” argument, Walker introduces into the same-sex marriage debate another key feature of  Francis Schaeffer’s apologetics — the “upper-lower story dichotomy,” or what we have already briefly referenced as the “fact/value split” of today’s academia. This concept affects not only our cosmology — our view of the sources of law —, as shown here, but moves us into the third crucial concept of a worldview’s positions on law — the concept of  “epistemology.” As we focus on epistemology in an upcoming “Briefing,” we are clearly in the midst of a social revolution. The Vaughn Walkers of America are viciously attacking our Constitution and our culture. Arming ourselves with knowledge, as James Madison advised, is essential to defending our Constitution and our culture and to “Straightening Up America.”