VOL. 16, NO. 2

March 27, 2014

Back to the Basics:
Straightening Up America, X
America’s Marriage Miasma, Part 5

By Virginia Armstrong, Ph.D., National Chairman

Has America bent over backwards too far in its spiritual, moral, and constitutional life so that we are in danger of “breaking”? This question is central to our current series of Court Watch Briefings. The question has been precipitated by America’s Culture War and echoes the anguished cry of the Father in the famous musical production, “Fiddler on the Roof,” who felt that revolutionary changes in his world were pushing him to the “breaking point.”

We are proving that America is indeed in the “danger zone” and is in dire need of a massive “straightening up process.” Nothing more clearly demonstrates this fact than 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 examining 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. 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. We state 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.

  1. 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 Humanist/Reconstructionist position on epistemology is fatally flawed at every turn, as revealed in the pro-homosexual court decisions in Hollingsworth v. Perry and Windsor v. U.S. We must remember that Perry/Windsor reflect far more than the specific issues and positions of the immediate parties to the cases. Rather, they afford us a panoramic view of the entire homosexual rights battle and should be viewed in that light. Four flaws are among the most pernicious found in the pro-homosexual rights epistemology.  We exam the first two here.

  1. Perry/Windsor are hypocritically ABSOLUTIST in epistemology, directly contradicting Humanism’s commitment to “relativism.” “Relativism” is one of the Humanist’s most frequently used weapons against the Judeo-Christian worldview — “all truth and meaning are relative” proclaim our foes. Yet absolutist positions permeate Humanist/Reconstructionist thought, as illustrated in Perry/Windsor.  A few examples are revealing:
    1. “All truth is relative” is a passionately proclaimed core of Humanist thought in general. But the statement itself is an absolute (non-relative) statement. Humanism is absolutist and therefore inherently oxymoronic. Yet Perry/Windsor contain many absolutist assertions, and the absurdity of these assertions is clearly illustrated by the few illustrations given below.
    2. “State definitions of marriage to include same-sex couples are within ‘the unquestioned authority of the States’” is an absolutist assertion of state government power. But if there were no “question” about this authority, there would be no Perry or Windsor — whether the states do have the “authority” to ban same-sex marriages is precisely the core question of Perry and is foundational to the issues raised in Windsor. Furthermore, the states’ authority as it has been recognized throughout Anglo-American legal history has never, ever included the power to radically redefine marriage, rejecting the Judeo-Christian meaning assigned in Scripture and accepted as binding in law and non-legal realms. (More on this in a later Briefing.)
    3. “Social science studies have disproven the hypothesis that gays and lesbians are more likely to abuse children” (Walker opinion, p. 101), This is an absolute statement. It is also fundamentally flawed and oxymoronic. The courts’ reliance on “science” and “social science data” argues that only “hypotheses” provable by applying the “scientific method” to the data under study are “facts.” But that assertion is itself an hypothesis unprovable by the scientific method. Again, Humanists/Reconstructionists fall on their own sword. Their cherished “Ultimate Source” of “facts” is actually just another value judgment serving Humanistic goals.
    4. “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians” (Walker opinion, p. 101). As we noted in our last Court Watch Briefing, the “religious beliefs” which Walker finds so opprobrious are clearly Biblically based, Christian beliefs. This “fact” of “harm” on which Walker focuses is associated with the “legal disadvantages,” “discrimination,” “prejudice against homosexuals,” etc. revealed in the evidence to which Walker gives “judicial notice.”

But this argument commits one of the most widespread and dangerous errors characterizing Humanistic claims on a variety of issues of which homosexual rights are only one, though a most critical, issue. Same-sex marriage bans do indeed distinguish — differentiate — between homosexual couples and heterosexual couples.  BUT to “distinguish or differentiate” between two opposite categories of behavior is not to inherently “discriminate or disadvantage” in an unconstitutional or invalid manner. A long-established principle of our law is that distinctions between groups are not discriminatory if they are reasonable, rooted in reality, etc. [American courts have distorted this standard by dividing it into three levels: the “rational basis test,” the “heightened scrutiny test,” and the “strict scrutiny test.” These are court-contrived, not constitutionally expressed. But all three recognize that governments may distinguish between conduct/groups for valid reasons.] Indeed, all laws, ipso facto, divide that which they govern into categories, groups, etc., and distinguish between those categories for purposes of law.

Thus, the Walkers of America must explain why “religious beliefs” are not a valid basis for law.  But they cannot do this because Walker and Company would have to prove that Scriptural teachings that homosexuality is sinful and wrong are themselves “wrong, invalid, violative of reality, etc. . . .”  And Walker’s own god of science/the social sciences is inadequate to this gargantuan task. Thus, homosexual activists are left with assertions about religious beliefs and science/the social sciences that are themselves non-scientific, i.e., are value judgments. And these Humanistic value judgments certainly cannot be scientifically proven superior to Scriptural teachings against homosexual conduct.

  1. Perry/Windsor’s epistemology is AMBIGUOUS. As is obvious from the illustrations above, the Humanistic/Reconstructionist approach to truth and meaning (epistemology) leaves law (and life) in a hopeless and deadly muddle. What we have just seen are the actual out workings of what Schaefferian scholar Nancy Pearcey has aptly identified as one of the most critical concepts of the contemporary American elite’s basic epistemological position the “fact/value split.” This split was first identified by Francis Schaeffer as the “upper-lower story split” concerning truth one of his central themes. 

This dichotomy so dear to homosexual rights activists and other Reconstructionists argues that civil law must be based on “facts” — “neutral, objective, public” propositions that are provable by “science” and its progency, especially “the social sciences.” “Moral and religious views and principles” are inherently “non-facts” — they are “biased, subjective, and private” matters not “provable” by science or the social sciences. Christian views and principles are, therefore, inappropriate as proofs in court proceedings such as Perry/Windsor. They are also relegated to the margins of society, having no role to play in the culture in general, not just in law.

But such an epistemology generates specific results that are, as illustrated in Point #1 above, severely ambiguous. That fact alone renders the fact/value split a dangerous and useless fiction. As the plurality justices in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) opined (correctly for once), “Liberty finds no refuge in a jurisprudence of doubt.” The fact/value split thus falls on the same sword that we have identified already. The assertion of the fact/value theory cannot itself be proven by science/the social sciences cannot be proven to be a “fact.” Additionally, therefore, which “proofs” relevant to a case are “facts” that courts can/should consider and which “proofs” are “values” which courts must ipso facto disregard or specifically reject?

The answers, of course, lie “in the eye of the beholder” — in the views and values of the judge(s) deciding the case. The real conflict in Perry/Windsor and similar cases is that of the whole Culture War conflict — the War of Worldviews between Humanism/Reconstructionism and the Judeo-Christian/Constitutionalist worldview. What is at stake, as Harold Berman demonstrates in his analysis (to which we have been referring), is the “very collapse of our entire Western legal tradition.” The Perry/Windsor epistemology wreaks havoc with the concepts of absolute truth and inherent logic of the Law key components of the Western legal tradition outlined by Professor Berman. And as Nancy Pearcey of Houston Baptist University’s Schaeffer Center so cogently states, “The clash between these two understandings of morality [the Judeo-Christian v. the Humanistic] will determine whether liberty is gained or lost in the 21st century.  It is imperative to reassert the transcendent moral truths that undergird freedom in every society.”

We will consider Fatal Flaws #3 and #4 in a later Court Watch Briefing.

 To be continued . . . . . .