VOL. 16, NO. 4

July 17, 2014

Back to the Basics:
Straightening Up America, XI
America’s Marriage Miasma, Part 5.B.

By Virginia Armstrong, Ph.D., National Chairman

In this Briefing, we continue asking the question, has America bent over backwards so far in our spiritual, moral, and constitutional life that we are in danger of “breaking”? Precipitated by America’s Culture War, this concern echoes the anguished cry of the Father in the famous musical production, “Fiddler on the Roof,” a father who felt that revolutionary changes in his world were pushing him to the “breaking point.”

We here are proving that America is indeed undergoing revolutionary changes similar in deadliness to those feared by Tevye in “Fiddler.” America’s dire need of a massive “straightening up process” is nowhere more clearly demonstrated than in the recent same-sex marriage decisions of the U.S. Supreme Court Perry v. Hollingsworth and Windsor v. U.S. To understand more fully these egregious decisions, we are engaging in constitutional/jurisprudential apologetics — analyzing the various court opinions in these cases, employing the unique and powerful analytical tools crafted for us by the preeminent Christian apologist, Francis Schaeffer. A major theme of Schaeffer’s paradigm was to find, and respond properly to, the tension between the real world and the illogical positions of unrealistic philosophies — the “tension point truth” theme. Thus, we are currently comparing the Judeo-Christian worldview of law and culture (which is consistent with reality) to the Humanistic worldview (which is incongruent with reality). Six crucial components constitute a worldview’s theories of law, and we shall consider in this Briefing the third of these components, an analysis we began in our last Briefing. At that time, we examined two of the four fatal flaws in the epistemology of the Perry/Windsor decisions, which give us a panoramic view of the entire homosexual rights battle and the epistemological clashes involved. In this Briefing, we examine the last two flaws of the Humanistic/Reconstructionist position. As before we state below the Judeo-Christian position in bold type and include in italics the relevant characteristic of the Western legal tradition which Professor Harold Berman has declared that the West, including America, is losing.

3. EPISTEMOLOGY: The nature, meaning, and knowledge of legal norms and standards. Are these norms and standards absolute or relative? Must they be logical? How are they discovered, determined, articulated, interpreted, created, etc. Is there “true truth” which law must embody?

At the heart of God’s Higher Law are norms and standards that manifest absolute truth and meaning. They are expressed in both natural law and revealed law (the Scripture) but most perfectly in revealed law, and are inherently logical. Man is endowed by God with powers of reason and logic and is to exercise these powers (though they are flawed by the Fall) to apprehend that law which God reveals to him. Civil (human) law should thus reflect God’s Higher Law, and man is held accountable for conforming civil law to Higher Law.

The first two flaws of Perry/Windsor were their hypocritical ABSOLUTISM and their inherent AMBIGUITY.   We now consider a third intractable problem.

3. Perry/Windsor inevitably generate adjudicative ANARCHY that is, chaos in both the reasoning and the results of judicial decisions. In Perry, U.S. District Judge Vaughn Walker, whose “Findings of Fact” we have already cited a number of times, creates a classic illustration of Humanistic/Reconstructionist adjudicative anarchy in his opinion. One example of this fatal epistemological flaw is Walker’s usage of the “legislative facts” v. “adjudicative facts” distinction, which is a long-standing and valid element in American law.   Adequate, accurate, appropriate facts are essential to any solid judicial decision. Thus, the “legislative v. adjudicative” distinction is vitally important. This standard has required courts to “give judicial notice to,” i.e., consider in their decisions, only “adjudicative facts” — those that can be “found” by a judicial body rather than by a legislative body. The fact-finding of the former is supposedly quite formal and very restrictively bound by strict rules of evidence, legal precedents, number and nature of persons who can argue before a court, etc. Furthermore, this “fact finding” is to be directly related to specific parties, issues, remedies, etc. Judicial fact-finding is fundamentally different from the wide-ranging fact-finding powers of legislative bodies, which can consult a relatively huge pool of information, persons, etc., and utilize many tools in their fact-finding and resulting determination of general (as well as specific) remedies and other policies.

But a constitutional revolution has been created by Reconstructionists, who re-define “legislative” and “adjudicative” and radically re-allocate to these two categories the alleged “facts” which are so critical to judicial decisions. This is a textbook example of what I have long described as the Reconstructionist judges’ “define and destroy” tactic in their warfare against our Judeo-Christian Constitution and culture — the tactic that defines terms in a Humanistic manner, but retains the term itself so that “the rest of us” are duped into ignorance as to how such Reconstructionist definitions actually destroy the terms they purport to protect.

We better understand Walker’s use of this tactic by examining the opinion in which the U.S. Ninth Circuit Court of Appeals reviewed and upheld Walker. Because district courts are to be the primary “fact-finders” in our judicial process, appellate courts supposedly only “review” findings of fact “for clear error.” In addressing Walker’s “Findings of Fact,” the “Nasty Ninth” correctly admitted that “It is debatable [an understatement!] whether some of the district court’s findings of fact concerning matters of history or social science are more appropriately characterized as ‘legislative facts’ or as ‘adjudicative facts.’” The Circuit Court then evades answering this question by rendering a narrow verdict on the district court’s fact-finding. The only findings to which the appellate judges chose to give “any deferential weight” are those findings concerning the “messages supporting Proposition 8” and the “encouragement [in these messages] to voters” to approve the measure. These, declared the judges, “are clearly ‘adjudicative facts’ concerning the parties and ‘who did what, where, when, how, why, with what motive or intent.’”

But our previous examination of the findings by Judge Walker has already demonstrated that his “facts” concerning support for Proposition 8 and messages relevant to this issue are not “adjudicative facts.” Indeed, they are not even “facts,” but value judgments of Walker and the pro-homosexual forces with whom he sides [see Court Watch Briefing, 3/27/14]. Among those findings which are “non-facts” are (1) that judicial decisions must be based on only “facts” — propositions that are provable by “science” and its progeny, especially the social sciences; (2) that there is “indisputable” support for same-sex marriage by social science studies; (3) that opposition to same-sex marriage is based solely on “moral and religious views and principles” which are inherently “non-facts;” (4) that “animus” (“hatred”) is central to opposition to homosexual marriage; and (5) that “religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

These “non-fact facts” share multiple fatal flaws, including (but not limited to) the following. (1) None of Walker’s propositions can be “proven” by “science” or the “social sciences”; (2) indeed, life and logic clearly disprove these pro-homosexual arguments; (3) reducing the entire Judeo-Christian worldview’s opposition to same-sex marriage to mere hatred on the part of Judeo-Christian advocates (without any valid proof) itself smacks strongly of bigotry and hatred toward Judeo-Christian advocates; (4) all of these flaws demonstrate that Walker’s unsupported (and unsupportable) but vicious attack on Scriptural principles forbidding homosexual conduct is itself a “religious, moral value judgment,” which constitutes unscientific and unconstitutional support for humanistic religious and moral values in opposition to Christian religious and moral values. This violates to an extreme degree the “separation of church and state” principle which Reconstructionists so loudly trumpet when it serves their purposes.

These egregious errors in Reconstructionist fact-finding (which plague Windsor as well as Perry) reach full force when they are joined to the judges’ errors in their “findings of law.” Proceeding from this non-factual foundation, the higher courts, including the U.S. Supreme Court, find that both Proposition 8 and DOMA violate the U.S. Constitution’s due process and equal protection guarantees applicable to both state governments (Fourteenth Amendment) and the national government (Fifth Amendment).

Regarding due process, the Humanist judges stoutly declare as a matter of law that “The freedom to marry is recognized as a fundamental right protected by the Due Process Clause.” And a “fundamental right is one that is rooted ‘in our Nation’s history, legal traditions, and practices.’” Furthermore, as a matter of law, the states “have the unquestioned authority” to define and regulate marriage. Laws which restrict “fundamental rights” are subject to “strict scrutiny” review by the courts. This “level of review” by the courts imposes the most stringent of all limits on governmental powers. Virtually all of these “findings of law” are open to severe question, as we have asserted in previous Briefings. Indeed, it is quite correct to label these findings of law as “non-law.”

Non-law” findings masquerading as law also plague the courts’ handling of equal protection guarantees, which the Perry/Windsor judges declare to have been badly violated. These Humanist judges declare that both the state and national bans on same-sex marriage have no justifiable basis. The bases the judges identify are “animus” (Proposition 8) and “. . . at the very least . . . a bare congressional desire to harm a politically unpopular group” (DOMA). Thus, there is created an “irrational classification based on sexual orientation” (Proposition 8) and an “unconstitutional deprivation of the equal liberty of persons that is protected by the Fifth Amendment’s due process and equal protection principles” (DOMA). Judge Walker also declares that homosexuals “are the type of minority [the] strict scrutiny [standard] was designed to protect.” Thus, he provides, in addition to the “fundamental rights argument,” another ground for imposing the most stringent limits on governmental power if sexual orientation is the law’s basis of classification.

Reconstructionist courts’ pernicious errors in fact-finding produce a foundation of non-facts (i.e., value judgments and religious and moral views of the judges and their pro-homosexual allies), which are followed by the revolutionary tactic of assigning these non-facts to the category of “adjudicative facts.” The latter then become foundational to the courts’ “findings of law,” which are themselves highly questionable. The result is factual/legal decision-making that accords the highest levels of constitutional protections possible to “non-law” findings based on “non-fact” findings. It beggars the imagination to envision a worst illustration of adjudicative anarchy — chaos in both the reasoning and the results of judicial decisions.

And so, as applied here, Francis Schaeffer’s “tension point truth” theme clearly reveals the great tension distance and conflict between Reconstructionist positions in Perry/Windsor and the real world the external world and man himself as they “really are.” This distance and conflict are further highlighted by Harold Berman’s analysis of the lethal erosion of the Western legal tradition. Berman describes contemporary Western law as losing its roots in the absolute truth/reason/logic characteristic of the Judeo-Christian worldview. Now the Western legal tradition is plunging backwards into a morass of uncertain, contradictory, convoluted, and illogical legal norms and language. This plunge is spawned by Humanistic jurisprudence and constitutional theory, and is occurring before our very eyes. It is inescapably clear that if a legal system is even to survive in the real world, it must be anchored in the Judeo-Christian worldview.

We conclude by recalling the words of Francis Schaeffer with which we began this series of studies: “Nowhere have the divergent results of the two total concepts of reality, the Judeo-Christian and the humanistic world view, been more open to observation than in government and law.” And nowhere now have the divergent results of the two concepts of reality been more obvious than in the Perry/Windsor decisions and the other arguments with which pro-homosexual rights activists continue to pound America. We therefore also remember Schaeffer’s call to action: “. . . now for us [in the late Twentieth Century], more than ever before, a presuppositional apologetic is imperative.” Our current series of Court Watch Briefings is dedicated to answering Schaeffer’s call, a vigorous exercise in constitutional/jurisprudential apologetics. We shall continue that effort in our next issue, where we will conclude our analysis of the fatal flaws of Humanistic epistemology as revealed in the Perry/Windsor decisions.

To be continued . . . . . . .