• About
  • Books

memoirandremains

memoirandremains

Author Archives: memoirandremains

Christ’s Eternal Existence (Manton) Sermon 1.4

27 Monday Mar 2023

Posted by memoirandremains in Colossians, Thomas Manton

≈ Leave a comment

Tags

Colosssians, Thomas Manton

C.         None was fit to give this ransom but Jesus Christ, who was God-man.

1.         He was man to undertake it in our name, and God to perform it in his own strength;

a.         a man that he might be made under the law, and humbled even to the death of the cross for our sakes;

b.         and all this was elevated beyond the worth of created actions and sufferings by the divine nature which was in him, which perfumed his humanity, and all done by it and in it.

2.         This put the stamp upon the metal, and made it current coin, imposed an infinite value upon his finite obedience and sufferings.  [Since the obedience of Jesus was the obedience of the God-man, God incarnate, the human obedience had infinite worth.]

a.         [Proof of the point] By taking human nature a price was put into his hands to lay down for us:

i.          Heb. 10:15, and his divine nature made it sufficient and responsible, for it was the blood of God:

ii.         Acts 20:28, ‘Feed the church of God, which he hath purchased with his own blood;’ and

iii.        Heb. 9:13, ‘For if the blood of bulls and goats, and the ashes of an heifer, sprinkling the unclean, sanctifieth to the purifying of the flesh, how much more shall the blood of Christ, who through the Spirit offered himself without spot to God, purge your conscience from dead works to serve the living God?’

b.         It was that flesh and blood which was assumed into the unity of his person—as a slip or branch grafted into a stock is the branch of the stock, and the fruit of it is the fruit of the stock.

3.         A naked creature without this union [of God and mand] could not have satisfied the justice of God for us. This made his blood a precious blood, and his obedience a precious obedience….

D.        Nothing performed by Christ could be a sufficient ransom for this end, unless he had crowned all his other actions and sufferings by laying down his life, and undergoing a bloody and violent death.

1.         [Why?]

a.         Partly to answer the types of the law, wherein no remission was represented without a bloody sacrifice;

b.         partly from the nature of the thing, and the fulness of the satisfaction required until all that was finished, John 8:20. Death was that which was threatened to sin, death was that which was feared by the sinner.

2.         [It was not just his blood per se, for any bleeding would have been sufficient then. It was the sacrificial death which matter.] ….Surely his death was necessary, or God would never have appointed it; his bloody death suited with God’s design.

3.         God’s design was to carry on our recovery in such a way as might make sin more hateful, and obedience more acceptable to us.

a.         Sin more hateful by his agonies, blood, shame, death; no less remedy would serve the turn, to procure the pardon and destruction of it….His design was for ever to leave a brand upon it, and to furnish us with a powerful mortifying argument against it, by the sin-offering and ransom for souls….

b.         To commend obedience. …. All his former actions, together with his death and sufferings, make but one entire act of eminent obedience; ….

E.         From this ransom and act of obedience there is a liberty resulting unto us, for the redeemed are let go when the ransom is paid.

1.         [Here is an interesting comment on the effect of our being freed “from the law”]

a.         Christ came not to free us from the duty of the law, but the penalty and curse thereof.

b.         To free us from the duty of the law is to promote the devil’s interest.

c.         No; he freed us from the wrath of God that we may serve him cheerfully, to establish God’s interest upon surer and more comfortable terms,

2.         [The relation of this freedom to the work of the devil] and so by consequence from the power of the devil, which is built on the curse of the law and reign of sin. Satan’s power over us doth flow from the sentence of the condemnation pronounced by the law against sinners, and consists in that dominion sin hath obtained over them. If the curse of the law be disannulled, and the power of sin broken, he is spoiled of his power. Col. 2:14-15

[a.        Another verse relevant here is Heb. 2:14-15. Christ destroyed him who had “the power of death, that is, the Devil, and deliver all those who through of death were subject to lifelong slavery.” The fear of death created by the law creates the power to enslave by sin, seems to be the idea here.]

F.         That we are not partakers of this liberty, nor of the benefit of this ransom, till we are in him, and united to him by faith, …

1.         Certainly we must be turned from Satan to God before we are capable of receiving the forgiveness of sins,

2.         We do not actually partake of the privileges of Christ’s kingdom till we be first his subjects:

3.         Man’s recovery to God is in the same method in which he fell from him. It is first brought about by a new nature, and communication of life from Christ. He regenerateth that he may pardon, and he pardoneth that he may further sanctify and make us everlastingly happy.

Christ’s Eternal Existence (Manton) Sermon 1.3

24 Friday Mar 2023

Posted by memoirandremains in Atonement, Thomas Manton

≈ Leave a comment

Tags

Christ's Eternal Existence, redemption, Sermon, Thomas Manton

The prior post on this sermon may be found here.

II.        Secondly, The nature of redemption.

What is redemption by the blood of Christ?

[He gives the overview to follow]

In opening it to you, I shall prove six things:—

A. A captivity or bondage.

B. That from thence we are freed by a ransom, or price paid.

C. That none but Christ was fit to give this ransom.

D. That nothing performed by Christ was sufficient till he laid down his life.

E. That thence there is a liberty resulting to us.

F. That we do not actually partake of the benefit of this ransom till we be in Christ.

A.        Our being redeemed supposeth a captivity and bondage.

1.         All men in their unrenewed estate are slaves to sin and Satan, and subject to the wrath of God.  Titus 3:3, John 8:23

a.         [But isn’t doing what you want freedom?] Men imagine a life spent in vanity and pleasure to be a very good life; it were so, if liberty were to be determined by doing what we list [desire/wish] rather than what we ought.

b.         [Even when they desire to leave these things, they care still held captive. The language of “addiction” is not used by Manton, but the inability to stop is described.]

c.         [Satan has power in this] Now as they are under sin, so they are under Satan, ‘who worketh in the children of disobedience,’ Eph. 2:2; 2 Tim. 2:26

d.         [Such people are both prey for Satan, the roaring lion; and will suffer the wrath of God. Eph. 2:3]

2.         [We would suffer the same]if grace had not opened a way for us to escape, what should we have done?

B.        To recover us, there was a price to be paid by way of ransom to God.

1.         [We are not rescued by our begging, God’s mercy without justice, or any such thing] but by the payment of a sufficient price, and just satisfaction to provoked justice.

2.         [The ransom was not paid to Satan.]

a.         [We sinned against God.]

b.         [Satan has no power when God justifies us.]

c.         That redemption implieth the paying of a price is clear, because the word importeth it. [This is a logical implication from the language of redemption. The words translated “redemption” was used to describe the process of buying back a slave or captive of war”

“ἀπολύτρωσις, εως, ἡ orig. ‘buying back’ a slave or captive, i.e. ‘making free’ by payment of a ransom (λύτρον, q.v.; prisoners of war could ordinarily face slavery).”Arndt, William, et al. A Greek-English Lexicon of the New Testament and Other Early Christian Literature, 3rd ed., University of Chicago Press, 2000, p. 117.] Matt. 20:28; 1 Tim 2:6

d.         God could have saved men by the grace of confirmation, but he chose rather by the grace of redemption. [I assume by “confirmation” God could have kept us from sinning.]

e.         This recovery was not by a forcible rescue, but by a ransom.  

f.          [With us, Christ is a lamb. With his enemies, he is a lion.]

3.         But why was a ransom necessary? Because God had made a former covenant, which was not to be quit and wholly made void but upon valuable consideration, lest his justice, wisdom, holiness, veracity, authority should fall to the ground. [God told Adam that by violating the law, he would die. If God were to merely forgive without fulfilling the demands of the law, God would fail in several respects]

a.         [God’s justice would suffer].  The honour of his governing justice was to be secured and freed from any blemish, that the awe of God might be kept up in the world [Rom. 3, 5, 6, 25, 26; Gen. 18:25. This is an interesting argument: upholding God’s justice was necessary to secure God’s honor.

b.         [God’s wisdom would suffer. If God gave a law to Adam, and Moses, and then simply ignored his own law, that would mean God did not understand what he was doing.]

The law was not given by God in jest, but in the greatest earnest that ever law was given. Now, if the law should be recalled without any more ado, the lawgiver would run the hazard of levity, mutability, and imprudence in constituting so solemn a transaction to no purpose.

c.         [God by nature cannot ignore sin.] His holy nature would not permit it. There needed some way to be found out, to signify his purest holiness, his hatred and detestation of sin, and that it should not be pardoned without some marks of his displeasure. His soul hates the wicked, and the righteous God loveth righteousness, Ps. 11:6.

d.         [God’s authority would suffer.]  It would be a derogation from the authority of his law, if it might be broken, and there be no more ado about it.

e.         [God’s truth would suffer. If he declared death and then changed his mind, he had not told the truth.]. We look upon the threatenings of the law as a vain scarecrow; therefore, for the terror and warning of sinners for the future, God would not release his wrath, nor release us from the power of sin and Satan, which was the consequent of it, without a price and valuable compensation.

Thomas Traherne, The Soul’s Communion with her Savior. 1.1.6

23 Thursday Mar 2023

Posted by memoirandremains in Thomas Traherne

≈ Leave a comment

Tags

The Soul's Communion With Her Savior, Thomas Traherne

§. 7.

Upon this Information the Blessed Virgin Mary arose and went into the Hill-Country to the house of Zacharias[1], to visit her cousin Elizabeth[2], who no sooner heard her salutation, but the babe[3] leaped in her Womb, and she was filled with  the Holy Ghost: so that she said with  loud voice, Blessed art thou among women, and blessed is the fruit of thy womb, whence is it that the Mother of my Lord[4] should come to me?[5]

Aachen Altar

I praise thy Name,

For this marvelous effect of thy Presence[6],

O Blessed Jesus,

and for the powerful influence of thy Spirit[7] manifest therein,

even before thy Manifestation[8] to the world[9].

Help me, O Lord,

so to correspond[10] with Thee in thy gracious visitations[11]

as to discharge all the offices of love, friendship, and christian piety

incumbent on me toward all relations[12],

that I also may be a joy unto thy servants,

and they such unto me,

as Thou art unto us all[13].

And let the voice of thy Salutation, sounded in mine Ears

by the ministry of thy Word[14],

make me blessed in believing

that there shall be a performance of those things which were told us from the Lord[15],

as well concerning the Second Coming to judge the world

as hath already been of thy First Coming to redeem it[16].


[1] Zacharias is the husband of Elizabeth and the father of John the Baptist. He is the first person we meet in the Gospel of Luke, as Zacharias is entering the temple to burn incense. We have learned that his wife has been unable to bear children.  The Angel Gabriel appears to tell him that she will have a son.  Zacharias expresses some skepticism and asks for a sign, so the Angel strikes him dumb until the child is born. Elizabeth is pregnant at the time of Mary’s visit.

[2] Jesus and John the Baptist are related.

[3] John.

[4] Jesus is the “Lord.”

[5] The prayer which is follows is that we should respond to hearing the Word of God just as Elizabeth and John responded to the presence of Jesus.

[6] The effect of Jesus’ presence upon John the Baptist

[7] The Holy Spirit in various places in the New Testament is also known as the “Spirit of Christ”. On the question of why the Holy Spirit is called the “Spirit of Christ”, see John Owen’s A Discourse Concerning the Holy Spirit, in particular:

It will be said, perhaps, that he is called the “Spirit of Christ” because he is promised, given, and poured out by him. So Peter speaks, Acts 2:33, “Having received of the Father the promise of the Holy Ghost, he hath shed forth this, which ye now see and hear.” But in this regard, namely, as given by Christ the mediator, he is expressly called the Spirit of the Father; he was given as the promise of the Father: for so he is introduced speaking, verse 17, “It shall come to pass in the last days, saith God, I will pour out of my Spirit on all flesh.” And so our Saviour tells his disciples that he would “pray the Father, and he should give them another Comforter, even the Spirit of truth,” John 14:16, 17. Nor is he otherwise the Spirit of Christ, originally and formally, but as he is the Spirit of God,—that is, as Christ is God also. On this supposition I grant, as before, that he may consequently be called the “Spirit of Christ,” because promised and sent by him, because doing his work, and communicating his grace, image, and likeness to the elect.

Owen, John. The Works of John Owen. Edited by William H. Goold, vol. 3, T&T Clark, pp. 61–62.

[8] In 1 John 1:2, John refers to the Incarnation in this manner, “the eternal life, which was with the Father and was made manifest to us.”

[9] Before Jesus was born.

[10] That I would have the appropriate response to the “visitation” of God.

[11] A “visitation” would be an especial intervention by God. For example, in Ruth 1:6, it is said that God “visited” His people, meaning God had broken the famine. A visitation can also be a peculiar admonition of God’s people for sin, such as Sibbes explains:

God usually visits a people when some horrible crying sins reign amongst them, as (1) atheism. Beloved, God stands upon his prerogative then, when he is scarce known in the world; when they say, Where is God? God sees us not, &c. So, likewise (2), when idolatry prevails. This is spiritual adultery and a breach of covenant with God. Again (3), when divisions grow amongst a people.

Sibbes, Richard. The Complete Works of Richard Sibbes. Edited by Alexander Balloch Grosart, vol. 1, James Nichol; James Nisbet and Co.; W. Robertson, 1862, p. 379.

[12] It is interesting to consider these expressions of the Christian life as “offices”; responsibilities.

[13] The hope and goal in our relations among the Church is that we be a joy to others and they to us. This is a good prayer, Make me a joy to Your people.

[14] To hear the Word of God, read or preached, should bring in the same sort of response of John the Baptist at the Lord’s visitation.

[15] That we should do those things we have been instructed to do.

[16] We are preparing for the Second Coming of Christ.

Thinking About Meaning While Weeding the Garden

22 Wednesday Mar 2023

Posted by memoirandremains in Uncategorized

≈ Leave a comment

Tags

Meaning, morality, Objective

The extraordinary bouts of rain to fall upon California has led to an extraordinary bounty of weeds forcing themselves about the plants in my yard. Today, in a respite between showers, I was freeing a decorative plant from the infestation of some noxious greenery. And as one does, I thought of how the weed worked like cancer, sucking up the nutrients and water meant for the plant I desired.

This led me to consider the deep ecological thinking that humanity is like a weed or cancer upon the earth. Thus, humanity needs to be culled – or perhaps even abrogated for the good earth.

From that I thought: What is the harm which comes to the earth if human beings are well but some other life on earth is not? Whatever answer I come to is the answer of a human being. If l land some pagan ecology and think that “life” itself is what matters, and human beings are merely the froth of this wave, it is still a human being who has this thought. No grass or caterpillar or goose is worried about this metaphysical existential problem.

The meaning exists in the human mind.

This leads to an interesting quandary for those make humanity the culprit, the cancer upon the globe.

Let us assume an utterly materialistic understanding of nature, by this I mean whatever forces there may be within the universe, the universe is the boundary of reality. There are molecules in motion.

In such a universe, meaning a useful fiction of the human mind; but “meaning” has no existence independent of the human mind. We cannot go exploring through the universe and find meaning somewhere. Meaning has no existence beyond a human being thinking, “This has meaning.”

If this so, destroying human beings would destroy the tenuous meaning which could exist. It would also “mean” that the world was meaningless. There is no moral difference between gushing mercury into an oyster bed and tending to a rose or rescuing a baby from a fire.  Some person may make some sort of judgment about one thing or the other, but the moral value would extend no further than the judgment.  Meaning is a function of human intelligence.

Right or wrong would simply be a majority opinion.

And if human beings were all gone, the world would be meaningless.  Racoons hunting crayfish might still happen, but it would have no moral value: that moral value could only come from human beings.

The thought that well, life will go and perhaps better without us, is merely a thought of a human being. But the value of “life” and “better” and whatnot do not exist. That is a nonsense statement neither true nor false.  It is a vapor which would disappear without a human being to think it.

The other possibility is that there is some meaning independent of the human mind. For such an abstraction to be exist, it would necessarily exist in another mind.  Meaning is a kind of way an intelligence thinks about an event. For meaning to something other than an incident abstraction of human beings, but to a fact; meaning must be grounded in something other than human beings thinking of it.

What sort of mind would suffice to ground meaning as an objective fact?

Thomas Traherne, The Soul’s Communion With Her Savior 1.1.6

17 Friday Mar 2023

Posted by memoirandremains in Uncategorized

≈ Leave a comment

Tags

The Soul's Communion With Her Savior, Thomas Traherne

§. 6.

Holy Jesus, who, for the morerational engagement[1] of the Virgin’s faith, didst further acquaint her by the same Angel, Behold, thy Cousin Elizabeth, who was called barren, she also hath conceived a Son in her old Age[2].

I magnify thy Holy Name[3],

Because with God nothing shall be unpossible[4].

This Maxim may suffice to silence all the cavilling inquiries of human reason[5],

How this should be:

For the same power that makes the barren Womb fruitful,

can with the same facility dispense with those Laws of Nature

that render it unlikely there should be a Virgin-Mother[6]:

And that Spirit, which, by breathing on them, was able to make dry bones live[7],

may be very rationally believed[8] of sufficient power to impregnate a Virgin’s Womb.

And therefore, in considering this transcendent mystery[9] of my Savior’s Incarnation,

I will rather admire and recount his Goodness and Truth,

than question his Power, or pry into the manner of its accomplishment;

and in all his trials of my faith or patience, my Soul shall say,

as  Mary of the Lord did, Be it unto me according unto thy word.[10]


[1] By rational engagement, he means a good ground for believing the announcement to be true.

[2] Here we learn that the announcement of John (the Baptist’s) birth which opened the book of Luke was to Mary’s cousin.

30 And the angel said unto her, Fear not, Mary: for thou hast found favour with God. 31 And, behold, thou shalt conceive in thy womb, and bring forth a son, and shalt call his name JESUS. 32 He shall be great, and shall be called the Son of the Highest: and the Lord God shall give unto him the throne of his father David: 33 And he shall reign over the house of Jacob for ever; and of his kingdom there shall be no end. 34 Then said Mary unto the angel, How shall this be, seeing I know not a man? 35 And the angel answered and said unto her, The Holy Ghost shall come upon thee, and the power of the Highest shall overshadow thee: therefore also that holy thing which shall be born of thee shall be called the Son of God. 36 And, behold, thy cousin Elisabeth, she hath also conceived a son in her old age: and this is the sixth month with her, who was called barren. 37 For with God nothing shall be impossible.

Luke 1:30–37 (KJV)

[3] In this instance, the comment following the Scripture quotation is not in the form of a prayer as much as a meditation. The first line is an allusion to

1           Bless the Lord, O my soul:

And all that is within me, bless his holy name.

Psalm 103:1 (KJV)

[4] Luke 1:37. There is a further allusion to the birth of Isaac:

13 And the Lord said unto Abraham, Wherefore did Sarah laugh, saying, Shall I of a surety bear a child, which am old? 14 Is any thing too hard for the Lord? At the time appointed I will return unto thee, according to the time of life, and Sarah shall have a son.

Genesis 18:13–14 (KJV)

[5] Contrary to our modern prejudice that we only recently figured out that virgins cannot become pregnant and dead men to do not resurrect from the dead, questions about these matters were debated and considered since before Jesus. The claims of the Gospel beginning with a virgin birth and ending with a resurrection have been matters of philosophical debate since time of the Gospels. The claims were not received because the people back then were credulous. Traherne is putting the question on a different foundation: The power for this miracle to occur is a power of God, alone. When asking how, the answer should be, God has that power. Trying to figure how that power could be exercised based upon my understanding of physics and physiology is beyond the point.

[6] The narrow argument here is that if God can make a woman can have no children to bear a child (Elizabeth), God can make a virgin pregnant ( Mary). The broader argument is that even normal pregnancy and birth are miraculous, we are just used to such things.

[7]

The hand of the Lord was upon me, and carried me out in the spirit of the Lord, and set me down in the midst of the valley which was full of bones, 2 And caused me to pass by them round about: and, behold, there were very many in the open valley; and, lo, they were very dry. 3 And he said unto me, Son of man, can these bones live? And I answered, O Lord God, thou knowest. 4 Again he said unto me, Prophesy upon these bones, and say unto them, O ye dry bones, hear the word of the Lord. 5 Thus saith the Lord God unto these bones; Behold, I will cause breath to enter into you, and ye shall live:

Ezekiel 37:1–5 (KJV)

[8] One cannot admit the power of God and then say, this particular miracle is not possible.

[9] It is a thing which can be admired though not completely understood.

[10] Mary becomes the model of faith: I cannot understand how God will do this miracle. But rather than question it I will receive and admire it: Let God act and I will believe. He has been careful to argue this is not a bare fideism or an irrational conclusion: I have good reason to believe God can this present thing, because God has shown his power in these past things.

Addressing Loneliness

16 Thursday Mar 2023

Posted by memoirandremains in Biblical Counseling, Psychology

≈ Leave a comment

Tags

Loneliness

I just finished a paper written by some PhD’s at the University of Essex entitled, “Understanding Loneliness: a Systematic Review of the Impact of Social Prescribing Initiatives on Loneliness.”

The authors make a helpful distinction between loneliness and isolation:

“Loneliness is a subjective, unwelcome feeling of lack or loss of companionship that occurs when there is a mismatch between the quantity and quality of social relationships that a person has, and those that that person wants.Though often associated with isolation, loneliness is distinct in that it is a feeling, while isolation is an objective measure of the number and quality of contacts that one has. Thus, it is possible to be lonely while surrounded by others, or to have very few social contacts but not feel lonely.”

Loneliness is thus a perception of the quality of my social interactions. I recall other reading which placed the important element of social contact on being able to share one’s difficulties — I imagine sharing one’s joys would also be relevant. What matters here is that loneliness is a factor of how I understand my relationships.

The paper went onto look at studies which had sought to address loneliness as a public health issue. Various interventions were examined whereby social workers of some sort sought to help lonely people find someone else with whom they could have companionship.

The “Aim” of one of the studies reads as follows, “Aim: Connecting people, helping them find purpose in their lives.”

It does make me wonder, what sort of world have we created for ourselves, when we have to train people to go out and try to get other people to feel lonely and to have a sense of purpose. If you had spoken to the dirt-poor ancestors of these people of England from 300 years before and said you were there to help not feel lonely and to have purpose, I suppose they would have thought you daft. What do you mean lonely? What do you mean purpose? We have far more stuff and apparently far less meaning.

We see people who have a frankly religious fury over things such as responding to the climate, which in the end is really an engineering problem (If rain patterns change, how do we move water to where it is needed); or a religious passion over identities which would have been non-existent just a few years ago. Perhaps it would be best to understand what we see as people eeking out a new religion for themselves. They are prescribing and demanding rites and responses to answer their loneliness and meaning.

These are functions which would have been performed

Brief in Chiles v Salazar

15 Wednesday Mar 2023

Posted by memoirandremains in Uncategorized

≈ Leave a comment

Here is a brief filed by a friend of mine.

amicus-brief-iff-filed-chiles-v-salazar-10th-cir-22-144563-copyDownload

Thomas Traherne, The Soul’s Communion With Her Savior, 1.1.5

14 Tuesday Mar 2023

Posted by memoirandremains in Thomas Traherne

≈ Leave a comment

Tags

The Soul's Communion With Her Savior, Thomas Traherne

The previous post from this work will be found here.

§. 5.

Then said Mary to the Angel, How shall this be, seeing I know not a Man? Whereunto the Angel answered, The Holy Ghost shall com upon thee, and the Power of the Highest shall overshadow thee, therfore also that Holy Thing which shall be born of thee shall be called The Son of GOD.

I praise and magnify the Name,

O thou Son of God,

for thine infinite condescension to become the Son of Man[1].

It is not less Blessed and Mysterious to conceive[2] Thee in the Heart by Faith,

than to carry Thee in the Womb of Flesh:

Send therefore, I beseech thee,

the same Spirit and Power to rest upon mine Affections[3],

till Christ be formed in me[4],

that thy Humility and Holiness,

thy Life and Love,

may be brought forth in my conversation[5],

and so adapt me to be called the Son of God[6].


[1] While my search is limited, the earliest I could find this exact phrase was in John Owen, for whom it was a favorite. For example:

We may behold this glory in his infinite condescension to take this office on him, and our nature to be his own unto that end. It did not befall him by lot or chance;—it was not imposed on him against his will;—it belonged not unto him by any necessity of nature or condition, he stood not in need of it;—it was no addition unto him; but of his own mind and accord he graciously condescended unto the susception and discharge of it.

Owen, John. The Works of John Owen. Edited by William H. Goold, vol. 1, T&T Clark, p. 323.

The phrase was picked up Jonathan Edwards, who also used it frequently. It would seem then, as a tentative possibility, that Traherne and Edwards got the phrase from Owen.

[2] Traherne is here playing on a pun on the word “conceive”.  It can mean the physical conception within a mother. It can also mean an intellectual apprehension of a thought.   The idea here is as follows: The miracle of Jesus’ birth from Mary was a miracle beyond belief. And that Christ should be made in us, that we would partake of his life is equally blessed and inconceivable. This will be a theme worked out in the prayer.

As for the pun, Shakespeare had used the pun in the opening scene of King Lear.

Act I, Scence 1, King Lear. Glouchester has just introduced his bastard son to Kent.

KENT

Is not this your son, my lord?

GLOUCESTER

His breeding, sir, hath been at my charge: I have

so often blushed to acknowledge him, that now I am

brazed to it.

KENT

I cannot conceive you.

GLOUCESTER

Sir, this young fellow’s mother could: whereupon

she grew round-wombed, and had, indeed, sir, a son

for her cradle ere she had a husband for her bed.

Do you smell a fault?

[3] The prayer here may be understood by a reference to the slightly earlier work of John Owen:

First, The pattern which we ought continually to bear in our eyes, whereunto our affections ought to be conformed, is Jesus Christ and the affections of his holy soul. The mind is the seat of all our affections; and this is that we ought continually to design and endeavour, namely, that the “same mind be in us that was in Christ Jesus,” Phil. 2:5. To have our minds so affected with spiritual things as was the mind of Christ is the principal part of our duty and grace; nor do I think that any man can attain any con siderable degree in spiritual mindedness who is not much in the contemplation of the same mind in Christ, 2 Cor. 3:18. To this purpose ought we to furnish our minds with instances of the holy affections that were in Christ, and their blessed exercise on all occa sions. The Scripture makes a full representation of them unto us, and we ought to be conversant in our meditations on them. What glorious things are spoken of his love to God and his delight in him, whence also he “delighted to do his will, and his law was in the midst of his bowels,” Ps. 60:8,—seated in the throne of his affections! What pity and compassion had he for the souls of men, yea, for the whole human kind, in all their sufferings, pains, and distresses! How were all his affections always in perfection of order, under the conduct of the spirit of his mind! Hence was his self-denial, his contempt of the world, his readiness for the cross, to do or suffer according to the will of God. If this pattern be continually before us, it will put forth a transforming efficacy to change us into the same image

Owen, John. The Works of John Owen. The Grace and Duty of Being Spiritually Minded. Edited by William H. Goold, vol. 7, T&T Clark, pp. 467–68.

[4]   Paul writing to the Galatians, “my little children, for whom I am again in the anguish of childbirth until Christ is formed in you!” Gal. 4:19.

[5] All conduct, not merely speech.

[6] “28 And we know that for those who love God all things work together for good, for those who are called according to his purpose. 29 For those whom he foreknew he also predestined to be conformed to the image of his Son, in order that he might be the firstborn among many brothers.” Romans 8:28–29 (ESV)

Draft Brief on First Amendment Protection

10 Friday Mar 2023

Posted by memoirandremains in first amendment

≈ 1 Comment

Tags

Biblical Counseling, Chiles, first amendment

Below you will see the current rough draft of a friend of the court brief we will file next week in the appeal of the district court decision in Chiles v Salazar.

RULE 29 STATEMENT

Under Federal Rule of Appellate Procedure 29(a)(2), the Associations of Certified Biblical Counselors (“ACBC”) files this amicus curiae brief with the consent of all parties. No counsel for any party authored this brief in whole or in part, and no person or entity, other than ACBC and its counsel, made a monetary contribution intended to fund the preparation or submission of this brief.

INTRODUCTION

         The Association of Certified Biblical Counselors represents a group of Christian counselors who provide counsel and training in and consistent with the traditional practice of the Christian religion. Admittedly, the instant regulation is not directly applicable to ACBC’s members and their work. However, due to the similarities in appearance between instruction in the practice of the Christian religion in a one-on-one setting and the practice of psychotherapy, that is, one person speaking to another about a circumstance and seeking help based upon the knowledge of a counselor, there is a concern that the rules which are imposed upon Christian therapists through licensing regulation may eventually be imposed upon Christians who are providing training in the practice of the Christian outside of the licensed relationship. Further, ACBC’s counselors are chilled in their speech for fear of similar prosecution for practicing their faith-based counseling. These concerns are heightened on the basis of the novel theory advanced by the State of Colorado and approved by the lower court that speech may be censored in the name of “harm.”

         The Christian religion entails doctrines of self-denial in many areas of life, including sexual conduct. This counsel of self-denial is the sort of counsel which the State of Colorado has determined is “harmful.” Christians are given responsibility to encourage one-another in efforts at chastity, which is what the State of Colorado has forbidden to Christian therapists under the guise of regulation of a profession.

         Accordingly, ACBC has an interest in this law being struck down in its current form.

THE LOWER COURT GIVES AND TAKES AWAY

         The lower court provides a rehearsal of the well-known rules respecting the protection of speech, of the wrongs of content-based restrictions on speech, and the related rules applicable. Since those rules are well-known to this court and have been adequately presented by Ms. Chiles’ attorneys, amicus will assume such rules for purpose of this argument and move its attention to the manner in which the lower court creates a sweeping new power of the government to censor speech while at the same time giving the appearance of merely applying current law.

         The lower court in reaching its unsupported conclusion first affirmed the rules protecting speech but then eviscerated those rules by means of a logical misstep and a fundamental misreading of existing law. This is then bolstered by the creation of a new basis for censorship made appealing on the ground that it favors the current opinion of the political majority.

         What has happened in this case is that the lower court has structured a new legal theory which creates the power of political majority to censor speech on the ground that it is “harmful.” ‘Harmful’ speech has never been approved as a touchstone for constitutional jurisprudence. Since what constitutes harmful speech will always be speech the majority disapproves, were the lower court’s approach accepted, the political majority can lay waste to any subject it deems ‘harmful’, thereby banning all utterance it disapproves. That is simply not the law.

THE LOWER COURT ERRS BY MISAPPLYING PRECEDENT

The crux of the lower court’s decision is found in this paragraph:

And Defendants do not—and cannot—dispute that Ms. Chiles speaks to her clients during counseling sessions (See ECF No. 45 at 23-24). But speech made in professional contexts is not always pure speech. See EMW Women’s Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 429 (6th Cir. 2019) (“Casey and [National Institute of Family and Life Advocates] recognize that First Amendment heightened scrutiny does not apply to incidental regulation of professional speech that is part of the [professional] practice . . ..”)

The key word in this analysis is “incidental”.  That word becomes a rhetorical pivot which is turned to eradicate First Amendment protections.

First, the court must consider what was actually upheld in EMW. In EMW, the government defined certain minimal disclosures to be made by a health care provider before obtaining informed consent for a medical procedure: “The Ultrasound Informed Consent Act—is an informed-consent statute.” (EMW Women’s Surgical Ctr. v. Beshear (6th Cir. 2019) 920 F.3d 421, 446)

This is similar to a lawyer being required to make certain disclosures about billing rates and reimbursement for costs prior to offering a client a retainer agreement. Yes, the decisions have different stakes, but defining the minimal precontract disclosures is a regulation of the profession. For instance, Colorado Rules of Professional Conduct, Rule 1.5(b), requires the attorney to make a series of disclosures for a contingent fee agreement to be enforceable.

In fact, the second case cited by the lower court in support of the power of “incidental regulation of professional speech” (Ohralik v. Ohio State Bar Assn (1978) 436 U.S. 447) actually concerned precontractual communications between a lawyer and a potential client:

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), this Court held that truthful advertising of “routine” legal services is protected by the First and Fourteenth Amendments against blanket prohibition by a State. The Court expressly reserved the question of the permissible scope of regulation of “in-person solicitation of clients — at the hospital room or the accident site, or in any other situation that breeds undue influence — by attorneys or their agents or `runners.'” Id., at 366. Today we answer part of the question so reserved, and hold that the State — or the Bar acting with state authorization — constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.

Ohralik v. Ohio State Bar Assn (1978) 436 U.S. 447, 448-49 The Ohralik Court did not uphold a law which regulated the content of the lawyer’s counsel given during the professional relationship as the lower court did. Thus Ohralik concerned solely precontract speech.

Ohralik then gave as support a citation to a series of cases which permitted regulation of speech. Each of the cases cited by the Ohralik court concerned either precontract speech (such as a misleading securities’ report) or speech soliciting a contract to engage in behavior which was illegal independent of the solicitation:

Moreover, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage Ice Co., 336 U.S. 490, 502 (1949). Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976 (1969), corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), the exchange of price and production information among competitors, American Column Lumber Co. v. United States, 257 U.S. 377 (1921), and employers’ threats of retaliation for the labor activities of employees, NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61-62 (1973).

(Ohralik v. Ohio State Bar Assn (1978) 436 U.S. 447, 456)

When one understands what Ohralik actually permits and curtails, one can see that the lower court’s use of Ohralik goes well beyond what that Court actually held:

As Defendants argue, speech made in a professional context—particularly in the context of licensed professional counseling—is distinguishable from, for example, political speech (ECF No. 45 at 23). Ms. Chiles admits that she is a licensed professional counselor with a graduate degree in clinical mental health, and that her speech is made in the course of her work as a professional counselor (ECF No. 1 at 29-31 ¶¶ 104, 108). “[I]t has never been deemed an abridgment of freedom of speech . . . to [regulate] a course of [professional] conduct . . . merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Ohralik, 436 U.S. at 456 (quotations omitted).

The lower court misuse of Ohralik flows from its failure to provide a full citation to what the Court actually wrote. When one compares the language from Ohralik and the abridgement provided by the lower court here, the distinction is obvious. Neither EMW nor Ohralik, nor even the cases cited by Ohralik, stand for the proposition that the government has the power to ban pure speech given during the course of a professional relationship after the contract has been formed. The cases stand for the a quite different proposition — that a professional must make certain disclosure prior to entering into a contract.

That distinction between regulating precontract disclosure concerning the nature of services which could or would be rendered, and regulating the content of a therapeutic relationship are fundamentally different concerns. If Colorado required a therapist to disclose to a potential client that the therapist held to Alderian or Freudian or Jungian or Client Centered Therapy or CBT or (any number of other models and techniques) prior to entering a contractual relationship, that regulation may be similar to EMW or Ohralik. If Colorado required Ms. Chiles to disclose she was a Christian who holds certain positions on human sexuality, that may be permissible. But when Colorado moves to a law prohibiting Ms. Chiles from relying upon her Christian commitments during the therapeutic relationship it undoubtedly violates the First Amendment.

THE LOWER COURT ERRED BY BANNING SPEECH ON THE BASIS OF “HARM”

The Supreme Court has already explained this issue in a thorough and incontrovertible manner:

The most basic of those principles is this: “[A]s a general matter, … government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union,535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (internal quotation marks omitted). There are of course exceptions. ” ‘From 1791 to the present,’ … the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘include[d] a freedom to disregard these traditional limitations.’ ” United States v. Stevens, 559 U.S. ––––, ––––, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (quoting R.A.V. v. St. Paul,505 U.S. 377, 382–383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ). These limited areas—such as obscenity, Roth v. United States,354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), incitement, Brandenburg v. Ohio,395 U.S. 444, 447–449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)(per curiam), and fighting words, Chaplinsky v. New Hampshire,315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) —represent “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” id., at 571–572, 62 S.Ct. 766. Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminalize the creation, sale, or possession of certain depictions of animal cruelty. See 18 U.S.C. § 48 (amended 2010). The statute covered depictions “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed” if that harm to the animal was illegal where the “the creation, sale, or possession t[ook] place,” § 48(c)(1). A saving clause largely borrowed from our obscenity jurisprudence, see Miller v. California,413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419(1973), exempted depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” § 48(b). We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it. The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a “simple balancing test” that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test.Stevens, 559 U.S., at ––––, 130 S.Ct., at 1585. We emphatically rejected that “startling and dangerous” proposition. Ibid. “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” Id., at ––––, 130 S.Ct., at 1586. But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the “judgment [of] the American people,” embodied in the First Amendment, “that the benefits of its restrictions on the Government outweigh the costs.” Id., at ––––, 130 S.Ct., at 1585.

(Brown v. Entertainment Merchants Assn. (2011) 564 U.S. 786, 790-92)

A supposed rationale that speech is “harmful” as a justification for banning it, in any context, simply has not received the traction except in the lower court.

MINORS HAVE FIRST AMENDMENTS TO SPEAK AND HEAR

Colorado may then argue, we are not merely banning “harmful” speech, but we are banning speech which is “harmful” specifically to minors. Apparently, this claim is based on the minor being too delicate to hear the words. But adding the word “minors” to the equation does not move the constitutional analysis in favor of censorship. The basic principle at issue here was affirmed by the United States Supreme Court 48 years ago:

It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults. See, e.g., Ginsberg v. New York, 390 U.S. 629 (1968). Nevertheless, minors are entitled to a significant measure of First Amendment protection, see Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. See, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 1968); Rabeck v. New York, 391 U.S. 462  (1968).

(Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 212-13) Since that time, a number of courts have developed and clarified the principle that minors are entitled to First Amendment protection for the information they receive.  Those cases affirm that minors have robust First Amendment rights.

In 2000, the city of Indianapolis sought to forbid minors from access to video games which the city council deemed “harmful”. The Seventh Circuit rejected that statute. In one part the Court explained:

The grounds must be compelling and not merely plausible. Children have First Amendment rights. Erznoznik v. City of Jacksonville,422 U.S. 205, 212-14, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Tinker v. Des Moines Independent School District,393 U.S. 503, 511-14, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). This is not merely a matter of pressing the First Amendment to a dryly logical extreme. The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, illustrates the danger of allowing government to control the access of children to information and opinion. Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. And since an eighteen-year-old’s right to vote is a right personal to him rather than a right that is to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.

(American Amusement Machine Ass’n v. Kendrick (7th Cir. 2001) 244 F.3d 572, 576-77) The State of Illinois gathered more “evidence” for its restriction on video games:

Dr. Craig Anderson, a psychologist and professor at Iowa State University, testified on behalf of the defendants. Dr. Anderson summarized research, including his own, regarding the relationship between minors’ exposure to violent video games and aggressive thoughts and behavior. Based on this research, Dr. Anderson testified that “it seems clear that exposure to violent video games increases aggressive behavior, aggressive thinking, physiological arousal, aggressive feelings, and is also associated with a decrease in prosocial behavior.”

(Entertainment Software Ass’n. v. Blagojevich (N.D. Ill. 2005) 404 F. Supp. 2d 1051, 1059) More recent research has discredited the opinions of psychologists such as Dr. Anderson on the effects of videogames, but that is the way with science. What does matter is that state statute was unconstitutional, in part because it infringed upon the First Amendment rights of minors:

We think it important first to reaffirm our observation in American Amusement Machine Association v. Kendrick,244 F.3d 572, 576 (7th Cir.2001), that “[c]hildren have First Amendment Rights.” The implication of this observation is that our narrow tailoring inquiry must be broader than the question of whether adults will be affected by the challenged legislation. The Constitution also requires us to ask whether legislation unduly burdens the First Amendment rights of minors. And for good reason — as we observed in AAMA history has shown the dangers of giving too much censorship power to the State over materials intended for young persons. See AAMA, 244 F.3d at 577

(Entertainment Software Ass’n v. Blagojevich (7th Cir. 2006) 469 F.3d 641, 646-47) Since that time, it is commonly held by the courts that such restrictions violation the First Amendment:

The issue of regulating violent video games to minors has been decided in the Seventh and Eighth Circuit, both of which have found that the attempted regulation in those districts violates the First Amendment. Amer. Amusement Mach. Ass’n v. Kendrick,244 F. 3d 572 (7th Cir. 2001), Interactive Digital Software Ass’n v. St. Louis County,329 F.3d 954 (8th Cir. 2003). Several other District Courts have similarly held such acts to be unconstitutional. SeeVideo Software Dealers Ass’n v. Maleng,325 F.Supp.2d 1180 (W.D. Wash. 2004),Entertainment Software Ass’n v. Blagojevich,404 F.Supp.2d 1051 (E.D. Ill. 2005) (“E.S.A.”) (granting preliminary injunction), Video Software Dealers Ass’n v. Schwarzenegger,401 F.Supp 2d 1034 (N.D. Cal. 2005) (granting preliminary injunction).

(Entertainment Software Ass’n v. Granholm (E.D. Mich. 2006) 426 F. Supp. 2d 646, 649-50) The point of such cases is that First Amendment protections are afforded to minors, even in instances where the minor seeks access to speech which the legislature has determined is harmful.

This court should so hold likewise and reverse the lower court.

This is not to say that legislatures cannot prohibit certain types of speech be transmitted to a minor. But that is not what has happened here. Obscene speech can be prohibited on the ground that it is not protected by the First Amendment:

Though we deal here with restrictions not limited to obscenity, we note that obscenity is not within the class of speech protected by the First Amendment. ( Ginsberg v. New York (1968) 390 U.S. 629 [20 L.Ed.2d 195, 88 S.Ct. 1274]; Roth v. United States (1957) 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304].) The state may adopt a standard of obscenity applicable to minors which is broader than that applicable to adults and which denies minors access to materials to which adults could not be denied access. ( Ginsberg v. New York, supra,390 U.S. 629.) “Nevertheless, minors are entitled to a significant measure of First Amendment protection . . . and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. [Citations omitted.]” ( Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 212-213 [45 L.Ed.2d 125, 133, 95 S.Ct. 2268].) “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” ( Erznoznik, supra,422 U.S. at pp. 213-214 [45 L.Ed.2d at p. 133].)

(American Booksellers Assn. v. Superior Court (1982) 129 Cal.App.3d 197, 201) The State of Colorado never found the speech at issue obscene; nor did it ban the speech for all purposes and by all persons: if it were obscene, it could be banned on the ground that it is not protected rather than it is “harmful.”

The Supreme Court has already spoken on this issue has expressly rejected the rationale advanced by Colorado herein:

The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults —and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. “[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Erznoznik v. Jacksonville, 422 U.S. 205, 212–213, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (citation omitted). No doubt a State possesses legitimate power to protect children from harm, Ginsberg, supra, at 640–641, 88 S.Ct. 1274; Prince v. Massachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 88 L.Ed. 645 (1944), but that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik, supra, at 213–214, 95 S.Ct. 2268.

(Brown v. Entertainment Merchants Assn. (2011) 564 U.S. 786, 794-95)

In this particular instance, speech which is consistent with the religious and moral traditions of millions of Americans and which has an extensive history would be among the speech which the statute seeks to prohibit. And, if a state can prohibit the speech under the guise of a licensure, the state would then arguably be able to ban any speech by any person by merely exercising the “harmful” standard. The courts have wisely rejected that standard to date. This Court should stand with them.

NEITHER THE POPULARITY OF THE CENSORSHIP NOR THE JUDGE’S OWN MORAL CALCULATION ARE GROUNDS TO BAN SPEECH

It is the duty of the court to protect the individual from the excesses of the political branches, “When a [] regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.” (Jones v. North Carolina Prisoners’ Union (1977) 433 U.S. 119, 143, Marshall, J., dissenting)

An irony of the instant case which will strike all readers when the cases involving speech to minors is considered below, is that the speech barred today was the speech favored yesterday; and the speech favored today, was speech which the political branches previously sought to suppress. It is an accident in history that we all think we have now reached the stage of full wisdom and truth, and that the speech which a majority favors today is Truth. The First Amendment is in place just because we have never become perfectly wise.

It is the task of the Court to allow the parties to squabble over truth without 51 out of a 100 coming to rest on that which is popular today. Socrates was put to death because a majority of his fellow citizens thought it scandalous to believe the sun was a flaming stone and not a god. The majority is rarely if ever circumspect in its authoritative pronouncements, which is why our courts have seen fit to protect the minority positions.

Here, the State of Colorado could not prohibit all persons from speaking on the subject prohibited by this statute, therefore, it cannot prohibit psychotherapists from speaking on this topic. Or stated otherwise, if the state could prohibit this speech merely because 51% of the legislature found it “wrong” or “hurtful” would mean the legislature could ban any speech if 51% of the legislature agreed.  But the First Amendment is in place precisely because a minority must have the right to speak. There is no need for the courts to protect the speech of the majority, the majority will always get what it wants.

This creates pressure upon any judge. Yet, however much the individual sympathizes with one side in any debate, the duty remains, the obligation imposed by the judicial oath “to administer justice without respect to persons;” a duty to protect the speech and religion of those whom the judge personally finds disagreeable. (Nat’l Review, Inc. v. Mann 140 S. Ct. 344, 347-48 (2019) [“Our decisions protecting the speech at issue in that case and the others just noted can serve as a promise that we will be vigilant when the freedom of speech and the press are most seriously implicated, that is, in cases involving disfavored speech on important political or social issues.”])

         It is no support for the law compelling (or restricting) speech that it is the will of the majority (Wooley v. Maynard, 430 U.S. 705, 715 (1977); National Socialist Party v. Skokie (1977) 432 U.S. 43 [displaying Swastikas protected speech]) It is the minority who most need protection before the Court. As Justice Stevens wrote, “[T]he federal courts — and particularly this Court — have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution.” (Harris v. Reed, 489 U.S. 255, 267 (1989), Stevens, J., concurring; Cobell v. Norton 212 F.R.D. 14, 20, (D.D.C. 2002) [“the Court is mindful of its obligation to protect the free speech rights of defendants.”])

         Where the political process will not act to protect fundamental rights to speech, to religion, it is the duty of the court to protect those rights even for those whose beliefs and opinions do repel the majority. (Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015))[1]. The Colorado statute concerns speech and religion in a counseling context which touches upon some of the most fundamental values we have as human beings and fundamental rights as those deserving the protection of the Constitution. (Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).) That Colorado may have a laudable goal is no basis upon which it may suppress protected speech. (Billups v. City of Charleston 961 F.3d 673, 683-84, (4th Cir. 2020)). 

         To achieve its stated end, the Colorado statute maintains unconstitutional means: it forbids and compels based upon content.  ((Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018)) [content-based restrictions offend the First Amendment]) [2]  It unconstitutionally favors one viewpoint and forbids all others. ((Matal v. Tam,137 S. Ct. 1744, 1765-66 (2017) [viewpoint restrictions offend the First Amendment]) By allowing only one viewpoint it seeks to compel speech approved by the government[3]. To fail to speak as the government demands forces one out of the economy and threatens ruin with fines and litigation.

CONCLUSION

         In conclusion, the lower court erred by upholding an unconstitutional ban on protected discourse. Irrespective of the current politics or the court’s own preference, the First Amendment places a wall of separation between the government and quelling the voice of its people. The courts have been stationed upon that wall to protect the speech of the minority, no matter how small, despised, or misguided in the eyes of the court.


[1] The courts have repeatedly affirmed the First Amendment’s limitation on governmental power. ( See, e.g., Thonen v. Jenkins  491 F.2d 722, 723 (4th Cir. 1973) (“‘But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”); Mainstream Loudoun v. Board of Trustees of Loudoun 2 F. Supp. 2d 783, 795 (E.D. Va. 1998) (“We are therefore left with the First Amendment’s central tenet that content-based restrictions on speech must be justified by a compelling governmental interest and must be narrowly tailored to achieve that end.”))

[2] “Ratified in 1791, the First Amendment provides that Congress shall make no law ‘abridging the freedom of speech.’ Above all else, the First Amendment means that government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ [Citation.]” (Barr v. American Assn. of Political Consultants, Inc., 140 S. Ct. 2335, 2346 (2020); Holloman ex Rel. Holloman v. Harland (11th Cir. 2004) 370 F.3d 1252, 1264 ((“The Speech Clause of the First Amendment protects at least two separate, yet related, rights: (1) the right to freedom of expression, and (2) the right to be free from compelled expression. United States v. United Foods, Inc.,533 U.S. 405, 410, 121 S.Ct. 2334, 2338, 150 L.Ed.2d 438 (2001).”)

[3] First Amendment prohibits compelled speech. (United States v. United Foods, Inc., 533 U.S. 405, 410 (2001); see, Wooley v. Maynard 430 U.S. 705, 714-15 (1977)) The act of government compulsion as to speech is always demeaning and always wrong. (Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31 (2018) 138 S. Ct. 2448, 2464 (2018) [“When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette, supra, at 633, 63 S.Ct. 1178; see also Riley, supra, at 796–797, 108 S.Ct. 2667 (rejecting “deferential test” for compelled speech claims).”])

Christ’s Eternal Existence, Manton Sermon 1.2

09 Thursday Mar 2023

Posted by memoirandremains in Thomas Manton

≈ 1 Comment

Tags

Colossian 1:14, Thomas Manton

[Next Manton considers at length what is implied by the language of “forgiveness.” Notice that this is not explicitly in the sermon text.  Manton is working with the concepts of redemption and forgiveness and then working out what must be implied within those concepts. He does not merely quote ten verses with the word forgiveness, nor give a definition of forgiveness. Instead he works out the logic of forgiveness being offered by God.]

4.         It remaineth, therefore, that forgiveness of sin is a dissolving the obligation to punishment ….

a.  [He considers first the cause-effect relationship between crime-punishment, one gives rise to the other] …. There can be no punishment without a preceding fault and crime.

[This creates a new implication: if the crime is not present, the cause for the punishment is likewise set aside.] Therefore, if the judge will not impute the fault, there must needs be an immunity from punishment, for the cause being taken away, the effect ceaseth, and the sin committed by us is the meritorious cause of punishment.

[This leads to divine relationship]. If God will cover that, and overlook it, then forgiveness is a dissolving the obligation to punishment.

b. [If I am punished, I cannot be forgiven at the same time. Therefore, the offer of forgiveness implies the absence of punishment.

c.  [He next argues on the character of God. If God tells the truth, then forgiveness must mean an absence of punishment] It would seem to impeach the justice and mercy of God, if he should exact the punishment where he hath pardoned the offence. His justice, to flatter men with hopes of remitting the debt, where he requireth the payment; his mercy, in making such fair offers of reconciliation, when still liable to his vindictive justice. There may be indeed effects of his fatherly anger, but not of his vindictive wrath.

d. [Having considered the logic of the matter he reviews some passages Ps. 32:1, 51:2; Is. 38:17; Jer. 31:34; Micah 7:19, which all speak of God’s extravagant mercy and grace in forgiving and forgetting sin. He takes these passages as metaphorical, and then asks what must be true if these are the metaphors used to describe the forgiveness? It must be complete, which is consistent with analysis of the logic or mercy and forgiveness.]

[What do we take from this first section? He proves the point he raised at first: Forgiveness is not merely an incidental, I was not punished. It is analysis of what must be true if I am forgiven, and can I truly conclude that God offers actual forgiveness. The result is the forgiven sinner knows himself to be free of punishment for sin, even if he may be corrected by this Father.]

← Older posts

Categories

Archives

Recent Posts

  • Christ’s Eternal Existence (Manton) Sermon 1.4
  • Christ’s Eternal Existence (Manton) Sermon 1.3
  • Thomas Traherne, The Soul’s Communion with her Savior. 1.1.6
  • Thinking About Meaning While Weeding the Garden
  • Thomas Traherne, The Soul’s Communion With Her Savior 1.1.6

Categories

Archives

Recent Posts

  • Christ’s Eternal Existence (Manton) Sermon 1.4
  • Christ’s Eternal Existence (Manton) Sermon 1.3
  • Thomas Traherne, The Soul’s Communion with her Savior. 1.1.6
  • Thinking About Meaning While Weeding the Garden
  • Thomas Traherne, The Soul’s Communion With Her Savior 1.1.6

Blog at WordPress.com.

  • Follow Following
    • memoirandremains
    • Join 630 other followers
    • Already have a WordPress.com account? Log in now.
    • memoirandremains
    • Customize
    • Follow Following
    • Sign up
    • Log in
    • Report this content
    • View site in Reader
    • Manage subscriptions
    • Collapse this bar
 

Loading Comments...