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Do I Really Need to Concern Myself With the Law

21 Saturday Aug 2021

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I am finishing up what will be a book on “intersection” of legal issues and pastoral counseling. One question I have received has been the extent to which government may seek to regulate biblical counseling, whether by state mandate or by private lawsuit (which is in effect a petition to the government to exercise its power in a particular instance). Below, is a draft Preface to answer that question.

Yes. If you do not, you will not be able to minister well to others. Some counselees will be involved in legal disputes, divorces, criminal proceedings; you will need to understand their circumstance to help them.

But you also need to concern yourself with the law because the culture is changing: And as the culture changes, so does the law. The relatively amicable relationship Christian ministry in general and Christian counseling in particular had with the culture and law is changing: quickly and fundamentally. 

The first thing we need to understand about the law is that the law is an expression of culture. If we return a few decades in our history, homosexual conduct was a crime in the United States. In Bowers v. Hardwick, 478 U.S. 186 (1986), the United States Supreme Court upheld the constitutionality of a law prohibiting sodomy. Yet, less than 20 years later in Lawrence v. Texas, 539 U.S. 558 (2003), the same Court found such laws to be unconstitutional. 

The words of the Constitution did not change between 1986 and 2003, but the culture did change.  When we think about the law, we need to realize that the law is an expression of the culture. If the culture changes, the laws will change. 

So, when we think about the law, we need to think about the law as it relates to the broader culture. We need to understand where the law stands today, but we also need to be prepared for the where the law will be tomorrow. 

A detailed consideration of the culture and the legal system would be well-beyond the scope of this work. Yet, there are some things we must consider. In 2013, Albert Mohler wrote of “A Moral Revolution at Warp Speed.” (Albert Mohler, Jr., “A Moral Revolution at Warp Speed,” Albert Mohler, December 11, 2013, https://albertmohler.com/2013/12/11/a-moral-revolution-at-warp-speed-now-its-wedding-cakes.) That moral revolution has been moving steadily through the legislatures and courts. 

As this book is being finalized, decisions in the federal courts and decisions in legislatures are finding that “erotic liberty” (to use Dr. Mohler’s phrase) is of more social value than First Amendment rights to speech or religion. I have spoken with some of the most well-informed attorneys as to First Amendment law who are dumbstruck at what has been said and done. 

There are well-known cases of Christian wedding photographers who have asked to be exhibited from being coerced to participate in same-sex weddings. A wedding (as opposed to a bare marriage license) for a Christian is a religious rite which serious theological consequences. In the recent decision of 303 Creative LLC v. Elenis, et al, _____ F.3rd _____ (10th Cir. 2021) the appellate court found that the law which prohibited a Christian wedding photographer from refusing to photograph a same-sex wedding was a content-based restriction on speech and that compelled speech by the photographer.

Only in the most extraordinary circumstances have the courts permitted such laws to stand. Under the law, the most-vile racist speech and pornography is protected. But in this decision, the 10th Circuit held that erotic liberty of same-sex couples was such remarkable importance that the state could compel the speech of a Christian to approve of the marriage, “we hold that CADA satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.”

Think for a moment. We allow “conscientious objectors” to avoid war – which can entail the very existence of the nation – to refuse on the ground of a religious objection. We cannot compel a Nazi to speak well of Jews. But the government can compel someone to approve same-sex marriage. 

You may think, “Yes, but the government will not try to concern itself with what is done in a church.” In Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School (6th Cir. 2010) 597 F.3d 769, the appellate court found that an ordained minister had the right to make a complaint to the EEOC and the church which fired the plaintiff was not permitted to rely upon the “ministerial exception.” When the church appealed the decision, the United States government argued that the state had the power to determine whether there really was a proper basis to fire the minister. The Supreme Court overturned the Sixth Circuit, but the federal government was on the other side. 

There are well-publicized instances of the state taking a child away from a parent who wished to protect their child from what is called “transition,” but is sterilization and amputation of healthy body-parts, the poor child believes the body to not be who they “really” are.

You may think, “Yes, but I am a biblical counselor in a church, not a photographer at wedding, I’m not making a hiring decision, I’m not a parent who has lost her child to sterilization.”  If this begins to sound like Martin Niemöller’s famous lines, “First they came for the Communists …,” you should realize that they are not that-far from you.

Consider this: There are state laws which prohibit licensed therapists from counseling minors against same sex attraction and behavior.

As will be discussed below in chapter 2, the activity which you undertake in providing counsel is functionally identical to conduct of a licensed counselor. I want you to imagine that a high school student, the child of a family in the church is brought to you, unwillingly, by the parents of a child. The parents ask you to “fix” their child. You gently and patiently explain to child that the Scripture has very clear instructions on sexual behavior. You explain that a very strong desire to do something, even an inability to not understand how one could not desire to do a thing, does not make a thing right in the eyes of God. You sympathize with the difficulty this will be for them, but counsel against this sin.

This teenager, who already resents his parents, goes to the local “human rights” attorney, who then sues you for (1) practicing psychotherapy without a license, and (2) violating the fundamental policy of the state. You will be brought before a judge, who must be re-elected to maintain her pension, and a jury who belongs to the culture at large and which thinks you at best outdated. Your scriptural counsel will be called hate speech. 

Wait, you will say, the government will not concern itself with what a pastor says to his congregation! This would ignore instances, such as the mayor of Houston (through an outside group) subpoenaing the texts of sermons of local pastors to look for “troublesome” language.

And so, you lose at the trial court. You then bring your case to the 10th Circuit, say (who already believes Christians must be compelled to approve of same-sex marriage). 

We need to understand where the law is today, and where the law will likely be tomorrow. There are many fine attorneys who have advocated on behalf of the freedom of religion. Some of those attorneys have contributed to this book. We know that God is sovereign. 

However, we also know that God expects us to exercise wisdom. “The prudent sees danger and hides himself, but the simple go on and suffer for it.” (Prov. 22:3) This book is not meant to cause fear, but rather is a call for the exercise of wisdom. Since most biblical counselors will not have legal experience, we written this book to give what we have experience.

Analysis of the Decision in 303 Creative

11 Wednesday Aug 2021

Posted by in first amendment, law

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The decision of the 10th Circuit in 303 Creative LLC, et al. v. Elenis, et al. is a remarkable decision for its rejection what should be undisputed constitutional principles. As Ed Whelan wrote in Bonkers Tenth Circuit Ruling Against Free Speech, “It is difficult to imagine a ruling more hostile to free speech.”  The case involved a Christian web developer who said she was unwilling to make a webpage which celebrated a same-sex wedding.

This was not the case of someone who refused to serve a gay customer. The designer specifically stated that it was not the identity of the customer but the content of the message which was the issue: “303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will.”

The court found that the creation of the website was “speech,” “Appellants’ creation of wedding websites is pure speech.” This is important because in cases such those involving a baker or a florist, there was an issue as to whether the work itself (decorating a cake, arranging flowers) constitutes speech for purposes of the First Amendment. Thus, the speech clause of the First Amendment was unquestionably in play.

Second, the court found that speech at issue also entailed the plaintiff’s religious convictions,  “Ms. Smith holds a sincere religious belief that prevents her from creating websites that celebrate same-sex marriages.”

Free exercise of religion and freedom of speech are guaranteed in First Amendment. Having found speech and religion, it seems that the plaintiff should have easily prevailed. But here, the court found the government could compel speech (and also religious practice).

The 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, supra) 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).”])

Since this case involves compelled speech, it seems she should have won, but she did not.

The court found that the law was a content-based restriction on speech, meaning that it prohibited certain speech based upon the content of that speech. With few very narrow exceptions (such as a true threats), content based restrictions are simply struck down.

And yet, the 303 court found the State of Colorado could compel Ms. Smith to publicly approve same sex marriage (or be barred from being a web-designer in the state), “We hold that CADA [the law at issue] satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.” The decision also compels Ms. Smith to contradict her religious beliefs and participate in a religious rite if she wants to conduct any business in Colorado.

How did this happen? How could a court find that the government can compel speech, forbid other speech and compel religious practice as the cost of doing business in the State of Colorado?

First, Ms. Smith’s solo operation had to be designated as a “public accommodation.”  The statute defines a public accommodation as a business which is open to the public, “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Such a definition runs contrary to the history of the meaning of the phrase “public accommodation.” Public accommodations entail public carriers (like a bus line), public accommodations (like a hotel on the interstate). The concept has a long history in American law and then English common law before that. And it is only recently that solo operators have become “public accommodations.”

But the court did more than turn her into a public accommodation, it actually turned her into a special sort of public accommodation: the monopoly, which by virtue of being a monopoly must be open to the public.

The nature of “public accommodations” and the way in which Ms. Smith became a monopoly will be discussed next.

An argument for freedom of conscience (1661) part 2 (with comments)

28 Wednesday Jul 2021

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9. Because, to force, is inconsistent with the Belief of the Jews Conversion (and other false worshippers) which is prayed for by the Publick Teachers, and cannot be attained, if Persecution for Conscience be prosecuted.

Comment: The thrust of this argument seems to be as follows: You pray for actual conversion (such as prayer for the Jews to be converted). Yet, by forcing conscience you are not obtaining conversion (which is what you claim) but rather sin (which is what you should avoid). Thus, your conduct contradicts your prayers.

10. Because, they that impose upon men’s Consciences, exercise Dominion over men’s Faith, which the Apostles denied, saying, they had not Dominion over any men’s Faith.

Comment: This is based upon a passage from Paul in his second letter to Corinth: 2 Corinthians 1:24 (AV) “Not for that we have dominion over your faith, but are helpers of your joy: for by faith ye stand.” The argument thus runs, 

You do not have more authority in ecclesiastical matters than Paul.

Paul did not “lord over” the faith of others.

Therefore, you may not lord over the faith of others. 

Again the argument is that you are being the hypocrite in your supposed effort to be a good Christin.

11. Because, Imposition upon mens Consciences necessitates them to sin, in yeelding a Conformity contrary to their own faith: for whatsoever is not of a mans own faith, is sin.

Comment: This is from Paul’s letter to the Romans: Romans 14:23 (AV) “And he that doubteth is damned if he eat, because he eateth not of faith: for whatsoever is not of faith is sin.” Paul was writing about those who believed that eating meat would be a sin. Since the matter was an issue upon which there could be a difference of conscience, forcing the conscience of another man would be force that man to sin.

The response to this argument would be, Yes, but you hold opinions upon which there may be no difference of opinion.

12. Because, that Imposition and force wrestles with flesh and blood, and Carnal weapons, which is contrary to the Apostles Doctrine, who said, Our Weapons are not Carnal, but Spiritual, and mighty through God: and we wrestle not with flesh and bloud.

Comment: This argument draws on two separate passages from Paul. The first is from 2 Corinthians 10. In this passage, Paul explains that the resistance to his gospel is ultimately not a matter of other human beings but of spiritual conflict: it is a battle of spiritual matters, a battle of ideas, not a battle of “flesh and blood”:

2 Corinthians 10:1–6 (AV) 

1 Now I Paul myself beseech you by the meekness and gentleness of Christ, who in presence am base among you, but being absent am bold toward you: 2 But I beseech you, that I may not be bold when I am present with that confidence, wherewith I think to be bold against some, which think of us as if we walked according to the flesh. 3 For though we walk in the flesh, we do not war after the flesh: 4 (For the weapons of our warfare are not carnal, but mighty through God to the pulling down of strong holds;) 5 Casting down imaginations, and every high thing that exalteth itself against the knowledge of God, and bringing into captivity every thought to the obedience of Christ; 6 And having in a readiness to revenge all disobedience, when your obedience is fulfilled.

The second passage is from Ephesians 6 and concerns “spiritual warfare”:

Ephesians 6:10–12 (AV) 

10 Finally, my brethren, be strong in the Lord, and in the power of his might. 11 Put on the whole armour of God, that ye may be able to stand against the wiles of the devil. 12 For we wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in highplaces. 

The argument is thus, you claim to be concerned with a spiritual conflict, a spiritual matter. If this is so, then you are to use “spiritual weapons” (truth, faith, peace, et cetera).

Now the Court of Charles II was remarkably debauched.  The concern was not with true piety but rather political expedience. 

An argument for freedom of conscience, 1661 (part 1, with comments)

28 Wednesday Jul 2021

Posted by in law, Politics, Theology, Uncategorized

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The following is a remarkable document from 1661, which was presented onto Parliament in England and which seeks for religious tolerance for everyone. Moreover, it is supported in points by statements made by the Stuart kings (James & Charles) It was presented within one year of restoration of Charles II in May 1600. The men who published the document were Quakers. 

The document is written in the form of a series of short propositions. Following the propositions, I will provide a brief comment and try to follow the movement of their (often ingenious) argument. 

I have also modernized the spelling in places.

The title page reads:

Liberty of Conscience ASSERTED, And SEVERAL REASONS RENDRED, Why no Outward Force, nor Imposition, ought to be used in Matters of Faith and Religion: With several SAYINGS, Collected from the Speeches and Writings of KING JAMES, And KING CHARLES the First.

John Crook

Samuel Fisher

Francis Howgill

Richard Hubberthorne.


Acts 5. 38, 39.

Now I say unto you, Refrain from these men, and let them alone: for if this Counsel, or this Work, be of men, it will come to nought: But if it be of God, you cannot overthrow it; lest haply ye be found fighters against God.

This was delivered into the hands of the Members of both Houses of Parliament, the last day of the Third Month, 1661.

London, Printed for Robert Wilson, in Martins Le Grand, 1661.

Liberty of Conscience Asserted, &c.

LIBERTY of CONSCIENCE ought to be allowed in the days of the Gospel in the free Exercise of it to God-ward (without Compulsion) in all things relating to His Worship, for these Reasons following.

Comment:  The liberty asserted is liberty of conscience with respect to religious practice. The argument is premised upon specifically Christian considerations.  There is an interesting phrase, “in the days of the Gospel.” It is unclear whether the authors are referencing all of the time after Christ, or whether they mean a specific period within recent history. If so, the reference would be post-reformation, and likely post-Mary with a knowledge of the Marian suppression of Protestantism. 

1. Because the General and Universal Royal Law of Christ Commands it Matt. 7. 12. All things whatsoever ye would that men should do to you, do ye even so to them: for this is the Law and Prophets. That which every man would have and receive from another, he ought by Christ’s Rule to give and allow it to another. But every man is willing to have the Liberty of his own Conscience, Therefore ought to allow it to another.

Comment: Here they give a ground for freedom of conscience: (1) It is grounded in a command of Christ. They define this command as “general” and “royal”. By general, it is a law which would apply to all persons and all places. By being “royal” it would be supreme. In addition, the phrase “royal law” coupled to “liberty” is used in James 2:

James 2:8–13 (AV) 

8 If ye fulfil the royal law according to the scripture, Thou shalt love thy neighbour as thyself, ye do well: 9 But if ye have respect to persons, ye commit sin, and are convinced of the law as transgressors. 10 For whosoever shall keep the whole law, and yet offend in one point, he is guilty of all. 11 For he that said, Do not commit adultery, said also, Do not kill. Now if thou commit no adultery, yet if thou kill, thou art become a transgressor of the law. 12 So speak ye, and so do, as they that shall be judged by the law of liberty. 13 For he shall have judgment without mercy, that hath shewed no mercy; and mercy rejoiceth against judgment. 

While the text does deal specifically with the point raised, linguistically the combination of “royal law” and “law of liberty” is suggestive.

(2) This is an argument which goes to the moral weight of being a human being: You must be protected in your freedom of conscience because you are a human being. This remains true even if I believe you are wrong. 

This is remarkable change from what has been the case in much of human history. When it comes to religion, the belief has typically been that the religious coherence of everyone in the group is necessary to protect the group. If you antagonize a god, we all may be in danger. 

Notice also that your practice may be gravely offensive to me. 

2. Because, No man can persuade the Conscience of another, either what God is, or how he should be worshipped, but by the Spirit, which God hath given to instruct man in the ways of Truth.

Comment: The rationale here is again explicitly Christian. This one takes a somewhat different tack: Rather than argue from the dignity of a human being, this one argues from the work of God. Rather than seeing religion as merely the outward working of a rite, or a publicly approved confession, it is a primarily an inward matter. 

3. Because, All Obedience or Service that is obtained by force, is for fear of Wrath, and not from Love, nor for Conscience sake; and therefore will but continue so long as that fear or force abides upon them.

Comment: This again argues to the fact of subjective conversion: You can make someone engage in a behavior or say as word. What is the value of that? You have not really gained their heart or mind. As soon as they can escape the tyranny, they will. 

4. Because, That by forcing, No man can make a Hypocrite to be a true Believer; but on the contrary, many may be made Hypocrites.

Comment: This turns the religious conformity argument on its head. To be a hypocrite is to falsely profess a faith. You do not really believe X, you are mere pretender. Well then, if you goal is coerce conduct in public, you can do so. But, you cannot argue that you giving honor to God because such conduct can only have the effect of creating one is in greater rebellion against God.

This raises the stakes: Are you truly seeking to honor God or to obtain political power? You can get one, but not other by coercion.

5. Because, That in all forced Impositions upon men’s Consciences there is something of the Wrath of man exercised, which works not the Righteousness of God, but rather begets Enmity in the heart one towards another.

Comment: This argument takes up the argument of point 4 and then enlarges the sphere of sin. You not only make the man coerced a worse sinner, you are actually sinning yourself when you coerce another. This argument comes from James 1:20, “for the anger of man does not produce the righteousness of God.” You are provoking anger in another which is sinful in you. Thus, you cannot coerce religion in the name of God without becoming the enemy of God.

You are also increasing the sum-total of sin by creating enmity between men. 

6. Because, that by forcing any thing upon men’s Consciences, as to matters of Faith and Worship, many are hardened in their hearts against the things imposed; when as otherwise, through Love and gentle Instructionstheir hearts might be persuaded to willing Obedience.

Comment: Continuing in the line of argument that you are actually working against God in your attempt to force religious compliance, he uses the argument that forcing another results in their being unwilling to hear your case. Perhaps you are making a good point, but who will hear when your crushing their liberty?

This creates an interesting move in this overall argument. In point 2 above, he states that true faith will be ultimately a work of God. Therefore, being a work of God, how can someone be persuaded without compromising God’s sovereignty in the work? A resolution of this conflict can be seen by understanding that there are matters upon Christian must agree: those are matters determined by the Spirit of God that God is and is to be worshipped. But, there may be matters which are more open to variation. This will followed upon in point 8, below.

7. Because, That Persecution for Conscience contradicteth Christ’s Charge, Matt. 13. who bids, that the Tares(or false worshippers) be suffered to grow together in the Field(or World) till the Harvest (or End of the World.)

8. Because, Force is contrary to the End for which it is pretended to be used (viz.) the preservation and safety of the Wheat, which End is not answered by Persecution,because the Wheat is in danger to be plucked up thereby, as Christ saith.

Comment: These two points should be seen together. In Matthew 13, Jesus tells a parable of a farmer who planted his field in wheat. In the evening, an enemy also planted seeds of a plant which looked almost identical to wheat. As the plants grow, it can be difficult if not impossible to tell the difference.  The farmer forbids his servants from try to separate the wheat and the weeds so that they don’t accidentally destroy the crop. 

Jesus says this is the nature of the Church: it will contains wheat and weeds. It will be very difficult to tell them apart. Therefore, not until the end will there be a separation of the two. The Church will always involve this confusion. If you, even if you are right, seek to tear out every weed may find that you are also tearing out wheat. 

The argument is again: You cannot coerce another’s conscience as a Christian without contradicting your claim to be a Christian.

A Draft Brief on the Importance of the Court Protecting Freedom of Speech and Religion

16 Friday Jul 2021

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I am currently working on a brief in a federal case involving the Virginia Values Act. This is a law whose effect is to require some to photograph a same sex wedding or sell book which advocates a particular sexual morality even when it conflicts with their religion to do so. Since the refusal in this instance is certainly the unpopular position (the law was made by the elected officials, which makes this the majority position), and since it would be surprising that some (or all) of the judges or their clerks would think a religious objection to bigoted if not immoral, it is necessary first to explain the importance of protecting these people and their opinions, even if the majority of the public and even if the judge (or clerk) believes otherwise. The First Amendment is put in place specifically to protect that which “we” find abhorrent.

We should also remember that freedom of speech and freedom of religion function when it is protected for all of us. If the government, at my request, has the power to shut down your speech, tomorrow the government will have the power to shut down my speech.

(This is a draft, so there will typos, missing words, and such. If anyone is kind enough to offer criticism, such as I don’t understand this sentence, please do. This also is not the entire argument. It is merely a preface.)

IT IS THE DUTY OF THIS COURT TO PROTECT THE INTERESTS OF AMICI PRECISELY BECAUSE THEIR BELIEFS ARE NOT THE MAJORITY POSITION

         When any two human beings come together in any sort of society, there will be things upon which they disagree[1]. When those disagreements are trivial, a preference for chartreuse over forest green, the disagreement is tolerated if it is noted at all. 

         The trivial warrants no response and thus causes no conflict nor needs any protection. 

         However, when we move to matters of greater concern, matters of religion, of politics, those matters which make us human by which we define ourselves[2], we find the grace of overlooking a distinction or even civil toleration difficult.

         In matter of impiety, Socrates must be sentenced to death. When one’s dignity is assaulted, Hamilton must die at Burr’s gun. When tribes differ in religion, war erupts. When politics clash, the entire world can plunged into war on all sides. And should political distinctions arise within a country, dissidents are “disappeared.” 

         Matters of human sexuality touch upon all these points at once[3]. It is undisputed by anyone that human sexual plays a fundamental point in religions. Buddhist monks are monks[4]. A man in Mali may have multiple wives[5], and a Roman Catholic priest in Italy may have none. The male priests of Cybele in the Roman Empire castrated themselves and dressed as women[6]. The ancient Hebrews were forbidden to dress as the opposite sex[7]. Shakers lived in a communal life; but also lived celibate lives[8]. 

         That human beings choose among these variations and far more is undisputed. It is also undisputed that the human beings who make these determinations do so honestly and in good faith. They believe that their personal good and the good of the society in which they live in part depends upon their moral decisions in the matter of sexuality[9]. 

         Moreover, the belief held by various people seem to be undisputable and matters of common sense. Even matters upon which we all hold to abhorrent and criminal are matters upon which others have disagreed. Pedophilia was tolerated among the Roman aristocracy. Moreover, the glorious history of the city of Rome included the kidnap and rape of the Sabine women. In our recent history, the members of Isis under the guise religion approved kidnap, rape, and slavery of women. Slavery was shamefully tolerated in the United States for nearly 100 years of nation (and longer when we count it in the colonies). Aztecs worshipped their god by murdering parents before children so that they could murder the child while the child was weeping. 

         How then will we resolve these matters? Our options range between (enforced) conformity of opinion and conduct or civil toleration. All decisions will entail a combination of both: conformity here, toleration there.

         We in America demand conformity among everyone in agreeing that pedophilia, kidnapping, rape, slavery, murder are utterly abhorrent and not to be tolerated under any circumstances. (And rightly so.) Our civil tolerance turns upon the concept of consent: a child does not consent; the victim of rape does not consent. 

         And while consent is the moral boundary which marks our degree of civil toleration when it comes to conduct; there is no need for consent when it comes to opinion. Indeed we hold that one may advocate for these matters provided they do not result in the conduct.[10]

         When it comes to what I think, believe, hold dear, or despise; I do not need your consent, nor do you need mine. I will make my decision about such things; you will make yours. The government will not become involved unless you infringe upon my conduct and either coerce or prevent me from making my own decision in such matters. 

         Only where your belief results in violence to my body or property will the government will the government impose itself. As Thomas Jefferson stated the principle, which has been repeatedly found in the law:

The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subjects to the coercion of the laws. But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.

(Thomas Jefferson, Notes on the State of Virginia, Query XVII, “Religion”)

         It is the resolution which we have reached in matters of religion and politics. The European wars between Roman Catholics and Protestants during the Colonial Period of America and the religious wars which are taking place in our time in many places do not have a place in America. In some other country, the people may take up weapons over opinion and religion. In our country, these things cannot be matters of war. It the job of the government is to keep the peace and permit both sides to hold vigorously disputed and contradictory position. 

         This toleration does not mean that each individual feels happy about that toleration. We each, confirmed in the commonsense and moral goodness of our own position, think those who disagree to be either mad or immoral. Thus, the temptation always arises to seek an imposition of conformity to our position. 

         That desire for conformity and the rejection of that conformity is made in good faith; it is made honestly. Should you and I disagree, we will seek to rescue the other from error (and from the concomitant danger to our society)[11]. If enough agree with me or with you, we will go to the legislature and demand a law prohibiting the exhibition of this dangerous, offensive position. 

         That is the nature of the world. Laws prohibiting blasphemy and lese majeste are not uncommon in history. The State Department has published advisements about current laws prohibiting blasphemy[12] and lèse majesté[13] around the world. The laws are always popular: A majority constituency is always pleased[14].

         And if it were not for the independence of the judiciary, such laws would be promulgated and enforced throughout this country. But there are courts: these courts were put into place precisely because the temptation to maximize conformity to the general will always be the most popular to reach a psychological state of comfort for the greatest number of people. 

         This is not to deny that the psychological state is a good. The distress that an honest adherent feels by those who disagree may be profound. It does feel degrading to hear and see those who disagree do so publicly.[15]

         But, however important that psychological well-being, even the psychological well-being of the greatest number, and however much the individual judge in personal life sympathizes with one-side in the debate, the duty remains that the individual having donned a robe and taken an oath has the obligation to protect the speech and religion of those whom the judge personally finds repellant. 

         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.”])

         Moreover, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” (Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2593) That is not a liberty which ends merely because you do not like or approve my identity, or because you find my identity, my opinions, or beliefs wrong. And 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:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.

(Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2605.). The issues raised by the Virginia Values Act (the “VVA”) concern not merely speech and religion, but speech and religion which touches upon the most fundamental values as human beings and fundamental rights as those within the protection of the Constitution. As Justice Kennedy explained in arguing that same-sex marriage was protected by the constitution:

[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U.S., at 12, 87 S.Ct. 1817 ; see also Zablocki, supra, at 384, 98 S.Ct. 673 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574, 123 S.Ct. 2472. Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386, 98 S.Ct. 673.

(Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).) The VVA (as applied to Amici) seeks not merely to give space to one opinion but to foreclose all others. The constitutional privileges and obligations of the courts which led to Obergefell establishing a right to same-sex marriage, likewise give protection to those who disagree with the decision, whose religious beliefs or conscience conclude differently. Indeed, the very importance and sensitivity of the subject and the importance to all involved is precisely why this Court must protect those interests:

As Stromberg and Lovell demonstrate, there are some purported interests — such as a desire to suppress support for a minority party or an unpopular cause, or to exclude the expression of certain points of view from the marketplace of ideas — that are so plainly illegitimate that they would immediately invalidate the rule. The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 72 (1983); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 535-536 (1980); Carey v. Brown, 447 U.S. 455, 462-463 (1980); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972).

(City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)) In the act of protecting the minority position, the Court protects the dignity of those persons as human beings:  “our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. ” (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 769 [citation and internal quotation marks removed])

         This dignity is upheld by means of the Court prohibiting the political branches from forbidding certain opinions and dictating others. In fact, by forbidding restrictions on speech – even unpopular speech — the Court upholds the legitimacy of the political branches by maintaining the democratic and republican ideals. 

         First, where citizens conclude that they cannot speak, that they cannot influence, they will begin to conceive of the government not as representative of them but as a tyranny that rules over them. 

         Second, the presupposition of a democratic system is that you have the same moral value as me: we are “created equal” and have equal merit to voice our opinions and give our vote. To the extent we have the power to shut-up or shut-down our fellow citizens using the power of the government, we undermine the legitimacy of the government. 

         Third, it protects the right to hear ideas with which I currently disagree:

The constitutional guarantee of free speech “serves significant societal interests” wholly apart from the speaker’s interest in self-expression. F irst National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978). By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information. See Thornhill v. Alabama, 310 U.S. 88, 102 (1940); Saxbe v. Washington Post Co., 417 U.S. 843, 863-864 (1974) (POWELL, J., dissenting).

Pacific Gas Elec. Co. v. Public Util. Comm’n (1986) 475 U.S. 1, 8. It is because the issues raised by this appeal are of such importance to the people on all sides that the Court’s obligation is to make room for speech and religion (even if we will hear things which distress us):

If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint

Rosenberger v. Rector & Visitors of University of Virginia (1995) 515 U.S. 819, 831. The First Amendment is offended when anyone is kept from “marketplace”.

         It is that public marketplace, unregulated by the government (in almost all circumstances) that provides the response to those who readily support the law in question. Rather than obtaining government power to forbid my opponent to speak, the sides are to go to their fellow citizens (however much they think the other wrong) and persuade them. Likewise, they can both go to the public and persuade them: Do not patronize that photographer, do not buy books from that publisher, do not hire that painter, because they advocate things which should offend us all. 

         But the government may not do so. 

         The parties herein before the Court contend that the Virginia Values Act, however well meaning, however good for the greatest number, is also precisely the sort of law – when applied to these parties – which offends against the Constitution and which this Court has no choice but to strike down as applied to appellant and as applied to these amici of the Court. 

[1] The literature upon conflict, tolerance, social organization is immense. Plato and Aristotle, opined on the issue. Hammurabi and the Bible law out rules for what may and may not be done or thought. The issues at stake involve political theory, law, psychology (individual and social), et cetera. To provide an example of some contemporary overview of these issues as involved with legal one could perhaps start here: Pluralism and the Law, ed. Arend Soeteman and editor First Name editor Last Name or author special case (Dordrecht: Springer International Publishing, 2001), 1.

[2] “Finding oneself is a misnomer: a self is not found but made.” Jacques Barzun, From Dawn to Decadence(Harper Collins: New York 1972), 785 *****

[3] See, e.g., Carole M. Cusack, ed., Religion, Sexuality, and Spirituality: Critical Concepts in Religious Studies(New York: Routledge, 2016), 1; Mark Jordan, “Spiritual, Sexual—and Religious?,” Harvard Divinity Bulletin (Autumn/Winter 2019), https://bulletin.hds.harvard.edu/spiritual-sexual-and-religious/.

[4] Soko Morinaga, “Celibacy: The View of a Zen Monk from Japan,” Vatican, accessed July 15, 2021, https://www.vatican.va/roman_curia/congregations/cclergy/documents/rc_con_cclergy_doc_01011993_zen_en.html.

[5] Stephanie Kramer, “Polygamy Is Rare Around the World and Mostly Confined to a Few Regions,” Pew Research, December 7, 2020, https://www.pewresearch.org/fact-tank/2020/12/07/polygamy-is-rare-around-the-world-and-mostly-confined-to-a-few-regions/.

[6] Benedikt Eckhardt, “Meals in the Cults of Cybele and Attis,” in The Eucharist – Its Origins and Contexts, ed. David Hellholm and Dieter Sänger, vol. 3, Near Eastern and Graeco-Roman Traditions, Archeology (Tübingen: Mohr Siebeck, 2017), 1779-94.

[7] Deuteronomy 22:5.

[8] Erin Blakemore, “There Are Only Two Shakers Left in the World,” Smithsonian Magazine, January 6, 2017, https://www.smithsonianmag.com/smart-news/there-are-only-two-shakers-left-world-180961701/.

[9] “Decision” herein means one’s moral valuation of human sexuality. No inference is made that one chooses their sexual desires as one would choose a pair of shoes. Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2596 (“ Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”)

[10] See for example, The Atlantic at least obliquely raised a question about mandatory reporting laws for child pornography (Alice Dreger, “What Can Be Done About Pedophilia?” The Atlantic, August 26, 2013, https://www.theatlantic.com/health/archive/2013/08/what-can-be-done-about-pedophilia/279024/.) And the substance of the article was responded to by The National Review (Wesley Smith, “Normalizing Pedophila 2,” The National Review, August 27, 2013, https://www.nationalreview.com/human-exceptionalism/normalizing-pedophilia-2-wesley-j-smith/) The government permitted speech which would be at troubling to many and perhaps overwhelmingly unthinkable to others. The government then permitted a response. We could provide examples pertaining to slavery and racism.

[11] “We see this in the fact that things which were borne for centuries are now declared to be unbearable ….It is tempting for those out of sympathy with this turn to see it simply in the light of illusions; to see authenticity, or the affirmation of sensuality, as simply egoism and the pursuit of pleasure, for example; or to see the aspiration to self-expression exclusively in the light of consumer choice. It is tempting on the other side for proponents of the turn to affirm the values of the new ideal as though they were unproblematic, cost-free and could never be trivialized. Both see the turn as a move within a stable, perennial game. For the critics, it involves the embracing of vices which were and are the main threats to virtue; for the boosters, we have reversed age-old forms which were and are mode of oppression.” Charles Taylor, A Secular Age (Cambridge, Mass.: Belknap Press of Harvard University Press, 2007), 480.

[12] https://www.osac.gov/Content/Report/8a3d7716-5743-4f14-b430-195206ddb577

Security Alert: Peshawar (Pakistan), Online Threats Against Religious Minorities, ‘Blasphemers’

8/2/2020

[13] “Lèse Majesté: Watching what you say (and type) abroad” 8/29/2019 | Report  OSAC Analysis

https://www.osac.gov/Content/Report/e48a9599-9258-483c-9cd4-169f9c8946f5

[14] Rousseau, general will

[15]  It must be noted that such psychological distress is mutual. The sides have each issued an anathema upon the other. Each side sincerely believes the other benighted. And each side can justify the infliction of psychological distress upon the other with the justification that the other “deserves” to feel bad. 

The limits of judicial interpretation

30 Wednesday Jun 2021

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The majority’s statement that it has resolved the “linguistic problem” with a “straightforward, common-sense approach” is, however, certainly true. The attempt is earnest and well-intentioned. It makes the statute less illogical and more sensible. But we are not modern-day alchemists with a roving commission to turn legislative lead into judicial gold. We cannot, in the name of common sense, redefine the word party to include the word agent ; that is a task for the Legislature to undertake if it chooses. The response to the Supreme Court’s remand should not be to undertake the legislative task of amending the statute but rather to give the plain and ordinary meaning to the undefined statutory term “party.” If one does so, then I believe the resolution to the problem at hand is to hold that Nippa, while required to file an affidavit of merit signed by a physician, was not required, when she sued only Botsford, to file an affidavit signed by a board-certified specialist. This is not, by any stretch of the imagination, an absurd result and it applies the law as the Legislature enacted it.

Nippa v. Botsford General Hospital (Mich. Ct. App. 2003) 257 Mich. App. 387, 410-11

Legal Proof that the Word “Filed” is Past-Tense

25 Thursday Feb 2021

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Some lawyers are willing to say anything. Lest you think this an exaggeration, I submit to you a section from a brief I am filing today. The background is as follows: the parties are arguing over the application of a particular rule. At issue is the ordering of specific events: Is B supposed to happen after document A has been filed or at the same as A is filed? The verb is the rule is “filed”. We noted that the “filed” is the past-tense of “to file.” The opposing party argued in response, “the word ‘filed’ is present tense.” Below is our legal argument that “filed” is past tense:

On page 5, line 22 through page 6, line 11 of the Opposition, the Trustee advances the novel argument that “filed” is not a past tense of the verb “to file”. This argument is both bizarre and frankly illiterate. In fact, she actually writes this sentence, “the word ‘filed’ is present tense.” 

The Trustee is simply wrong. In English, the simple past is most often formed by the addition of the letters “-ed” to the end of the base form of the verb.[1] “The simple past. Generally, this tense refers to events, habitual activities, and states in the past.”  (“Tense,” in The Oxford Companion to the English Language, ed. Tom McArthur (Oxford: Oxford University Press, 1992), 1031.)

And just to make the point clear, the courts have weighed in and stated the obvious: the simple past of “to file” is “filed.” Petitioners cited two decisions in the moving papers[2]; but so that there is no doubt, here are a few additional cases from other jursidcitions: In re Lehman Bros. Securities & Erisa Litigation (S.D.N.Y. 2015) 131 F. Supp. 3d 241, 267 (“Note that “filed in” is a past-tense modifier”); Krys v. Sugrue (S.D.N.Y. 2012) 859 F. Supp. 2d 644, 653 (“Congress’ clear use of the present tense for “pending” cases and past tense for “filed” cases forecloses defendants’ argument.”); Pope v. Gordon (Ala. 2005) 922 So. 2d 893, 898 (“Additionally, the use of the past tense in the phrase “and filed in the circuit court” ”).

The Trustee’s “argument” is based upon the assertion that since the Rules of Court contain uses of the perfect tense (the addition of “have been” for English verbs), the past tense/preterite “filed” is not past tense: which makes absolutely no sense. The perfect and preterite involve different aktionsart of the verbs (the lexical aspect used to emphasize different aspects of the relationship of the present to the past): “The non-progressive perfect refers to an event in the past with current relevance: I’ve broken the window indicates that I broke [note: the preterite of to break] the window and that the window is probably still broken.” (“Tense,” in The Oxford Companion to the English Language, ed. Tom McArthur (Oxford: Oxford University Press, 1992), 1031.) 

[1] “[J]umped is the past tense of jump.” “Preterite,” in The New Fowler’s Modern English Usage, 3rd ed., ed. R.W. Burchfield (Oxford: Oxford University Press, 1996), 621. For the convenience all, here is a link to all of the various conjugations of the verb “to file”: https://conjugator.reverso.net/conjugation-english-verb-file.html

[2] In the moving papers, citation was made to a couple of cases which explained that “filed” is a past-tense use of the verb to file. In an inexplicable attempt to “distinguish” these cases, the Trustee notes that those cases did not involve a trust petition – which is irrelevant to the question of grammar. 

The State Cannot Give Lesser Protection to Religious Speech than it does to Political Speech

09 Friday Oct 2020

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Freedom of speech “is essential to our democratic form of government.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464 (2018). That freedom prohibits the government from “regulat[ing] speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). And as a corollary, it ensures that the government “may not favor one speaker over another.” Id.

Introduction to Amicus brief filed by 34 Senators in favor of the petition of Capital Hill Baptist Church.

Why Would the State Seek to Regulate Biblical Soul Care?

04 Saturday Apr 2020

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This is the introduction to a lecture which I will be giving at the ACBC Conference this fall . Since this is an early draft, some or all of this may be rewritten, revised, or simply rejected. But I often think things through by writing them out. Since this is a draft, if you do happen to have an opinion, I would be happy to hear it so that I can make the necessary changes. 

 

The answer to this question will be a bit complex, for two reasons. First, the question concerns the interaction of law and religious practice. Second, the culture as a whole is the process of a fundamental shift; and, as the culture shifts so does the law. Therefore, to answer this question I will need to build an argument in sections, block-by-block.

The Quick Answer

There is an easy answer to this question; it is unpacking the elements which will take time. The State seeks to regulate Biblical Soul Care, because we look like Cognitive Behavioral Psychologists who use religious language for certain predetermined ends.  We are just scoff-laws who simply refuse to take the licensing examination and abide by the agreed-upon ethical standards.

The State is completely unconcerned with the fact that we use the Bible, call ourselves Christian, ask people to pray or any similar aspect of our counsel. As I was preparing for this lecture, I read a blog entry on Scientific American concerning the use of tarot cards and astrology as the basis for psychotherapy.

The author plainly favors what he labeled “evidence based” therapies of the more traditional form. And yet ended with the following observation:

Research into the brain and mind, I have argued on this blog and elsewhere, has yet to produce truly persuasive theories of and treatments for mental illness. As a recent essay in a British psychiatric journal argues, “it is still not possible to cite a single neuroscience or genetic finding that has been of use to the practicing psychiatrist in managing [mental]  illnesses despite attempts to suggest the contrary.”

This failure helps explains why people still turn to Freudian psychoanalysis, although it does not stand up to scientific scrutiny, and to an even older mind-therapy, Buddhism. And it explains why many people in distress turn to astrology, tarot cards and other pseudoscientific methods. May they find the solace they seek.[1]

But rather than dunk on our psychiatrist friends, I wish rather to make another point. A perfectly reputable psychiatric source is willing to accept – at least tolerate – the use of pseudoscience in the practice of psychotherapy. If you read the post yourself, you can find citations to other reputable practitioners who are willing to permit the use of admittedly unscientific methods because merely being convinced that it will help is usually enough to bring some relief.

Therefore, if you want to talk about Jesus and prescribe a course of prayer, you are free to do so. But, we only ask that you get a license first.

And in a world where hairdressers need official training and an occupational license, we should not be surprised that something as significant as dealing the human heart requires some standard.

Thus, we should not be surprised that the State would seek to regulate therapists no matter what they use as the basis for their therapy. And so, if a pastor wants to preach and pray and engage in rituals, he may. But -as the representative of the State will say -if that same man wants to start engaging in therapy, he should be regulated. He can engage in his religion without a license; but therapy, that is for the State to regulate.

[1] John Horgan, “Astrology, Tarot Cards and Psychotherapy,” Scientific American (blog), February 24, 2020, https://blogs.scientificamerican.com/cross-check/astrology-tarot-cards-and-psychotherapy/.