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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

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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/.

The Spiritual Chymist, Meditation LV

21 Wednesday Mar 2018

Posted by in Exegeting the Heart, law, Scripture, Uncategorized, William Spurstowe, William Spurstowe

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MEDITATION LV
Upon a Looking Glass

mirror

 

What is that which commends this glass? Is it the pearl and other precious stones that the frame is set in, is richly decked and enameled? Or is the impartial and just representation that it makes according to the face everyone who beholds himself bring unto it? Surely the ornaments are wholly foreign and contributing no more to its real worth than the case does onto the goodness of the wine into which it is put; or the richness of the plate [silver] to the cordial in which it is administered?

That for which the glass is to be esteemed is the true and genuine resemblance it makes of the object which is seen in it, when it neither flatters the face by giving any false beauty to it, nor yet injures it by detract ought [anything] from it.

To slight [think less than proper of] then or neglect the glass for the meanness [lowliness, lack of ornaments] of its case, and to value it only for its gaiety [beauty, appearance] is no better than the folly of children or the brutish ignorance of those who judge a book by its cover and not by the learning that is in it.

For quarreling with a glass for its returning a most exact and absolute likeness of the face that is seen in it is to despise it for its excellency and come from no other ground than a conscious of some guilt [here, a fault, not necessarily a moral failing].

Is it not for this very respect that beautiful persons both prize it and use it happily too much? It being the only means whereby they come to be acquainted with their own comeliness [beauty] and to understand what it is that allures the hearts and eyes of all toward them.

Who then but those who features nature has drawn with a coal rather than a pencil, or whom age and sickness have robbed them of what they formerly prided themselves in, shun the familiar use of it [use a mirror regularly]. Or be angry when they look into it, as if it upbraided them [rebuked them], rather than resemble them.

Phyrnethe famous harlot throws passionately away her glass saying, As I am, I will not; as I was, I cannot behold myself. And yet is this not anger against the glass causeless [without a reason]? Does it make gray hears upon the head? Or the pock-marks and wrinkles upon the face? Or does it discovery only what age and disease have done? And let them see what they cannot conceal from others?

Now what does all this argue but an averseness in men to understood the truth of their condition and a willingness through self-flattery to deceive themselves in thinking of what ever they have above what is meet [appropriate, fitting]? Great must be the impatience against truth, when the silent elections of the glass that vanish as soon as it is turned from, kindle such dislikes in the breast as to make it cast them from them [one anger throwing the mirror] for doing only the same to them which it does to others.

Here methinks [I think] we may find the ground that carnal men [one who is in the flesh, and does not have the Spirit of God] are offended at the Word, both in putting scorn and contempt upon it by the low and mean [base, foul] thoughts they have of it; or else by the anger they express against it, in throwing this blessed mirror from them in as great, though not so good, a heat as Moses did the tables which he brake beneath [at the foot of] the Mount [Ex. 32:19].

Some pick a quarrel with the plainness of the Word, as if it wholly wanted [lacked] those embroideries of wit and art that other writings and discourses abound with, and had none of those quaint expressions that might win the affections of them that converse [here, read] with it.

But is not this to make such use of the Word as young children do the glass, more to behold the babies in their own eyes, than to make any observance of themselves.

Is the Word writ or preached to have its reflections upon the fancy [vain imagination] or upon the conscience? Is it to inform only the head or reform the heart? If the inward man be the proper subject of it, the simplicity of conduces to that great end than the contemperation [accommodation] of it with humane mixtures [adding or mixing in something which would make it accommodating to “polite” speech].

It is not the painted but crystal glass by which the object is best discerned.

Others again are not a little displeased with the Law or the Word of God, because when they look into it both their persons and their sins are represented in a far differing manner from those conceptions they ever had of one or the other. In their own eyes, they are as Absaloms without any blemish; but in this glass they are as deformed lepers and spread with a uniform uncleanness: and who can bear it to see himself thus suddenly transformed into a monster?

Now their sins which they judged to be as little as the motes [a mote is a speck of dust] in sunbeams, appear in amazing dimensions, and it is to them not a looking glass but a magnifying glass. Thoughts of the heart, glances of the eye, words of the lips, irruptions of the passions are all censured by it as deserving death, and there is nothing can escape it, which as a rule it will not guide or as a judge condemn.

O how irksome this must needs be to carnal and unregenerate men who abound with self-flattery and presumptions of their own innocence and righteousness who can as with little patience endure the convincing power of the Word as sore eyes the severe searchings of the light.

We need not wonder that the Word has so many adversaries who take part with Nature against Grace, setting their works on wits by distinctions and blended interpretations to make it as a glass breathed and blown upon, which yields nothing but dim and imperfect reflections.

Is there anything that the Word does more clearly assert than the loathsome condition of Man’s nature with which comes into the world? Is it not expressed by the filthiness of the birth every child is encompassed with when it breaks forth from the womb? Is it not resembled to the rottenness and stench of the grave into which Man is resolved when he is said to be dead in sins and trespasses?

And yet how many when they view themselves in this glass give out to the world that they can see no such thing?

Celestius of old [a follower of the heretic Pelagius, 5th century] thought the original sin was matter [of the substance] of dispute rather than faith. And some have been so bold of late as to call it [original sin] Austin’s figment [a figment of Augustine’s imagination].

But the more injurious to this divine mirror of truth, the more it behooves every good Christian to be studious in vindicating it from the scorns of such as despise it for its simplicity [clarity] and from the impieties of others that seek to corrupt its purity; and to show for what cause others hate it, he [the Christian] most affectionately loves and prizes it.

Thy Word is very pure, says David, therefore thy servant loves it. [Ps. 119:140]. Can you do God better service, while you honor his Word which he has magnified above all his Name? [Ps. 138:2] Or can you do yourselves more right than to judge yourselves by that which is so pure that it can neither deceived nor be deceived.

What though it present you with sad spectacle of your sins, which may justly fill you with shame and self-abhorrence; does it not also show you your Savior, who is made unto us wisdom, and righteousness, and sanctification, and redemption. And cannot this joyful sight raise you more than the other sight can cast you down?

O fear not to see your sin, when you may at the same time behold your Savior. A mourning heart is the best preparation for a spiritual joy, and serves to intend the height of it, as dark colors do set off the gold that is laid upon them.

Give me, therefore, O Lord a broken and relenting heart
That sin may be my sorrow
And Christ may be my joy;
Let my tears drop from the eyes of faith
That I may not mourn without hope
Nor yet rejoice without trembling.
Let me see my sins in the glass of the Law
To humble me,
And my Savior in the glass of the Gospel
To comfort me
Yea, let me with open so behold his glory
As to be changed into the same image
From glory to glory.

20 Saturday May 2017

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When people speak about separation of religion and politics, particularly “legislating morality” as improper, they display a stupendous ignorance. 

For example, why is it wrong to lie to get someone’s money? Well, that is fraud. Why is fraud wrong? Because it is lying? Why is lying wrong? The answer to that question is itself a moral proposition. 

Morality is either a type of aesthetics or is based upon some sort of transcendent proposition: some morals may be more functional than others (everyone lying would soon destroy all commerce), but even caring about the effects is a moral decision.

The basic premises of Western law have a theological basis – a legislative morality: Consider this proposition:

God has ordained contracts of various kinds, Melanchthon wrote, to facilitate tate the sale, lease, or exchange of property, the procurement of labor and employment, and the lending of money and extension of credit.” God has called his political officials to promulgate general contract laws that prescribe “fair, equal, and equitable” agreements, that invalidate contracts based on fraud, duress, mistake, or coercion, and that proscribe contracts that are unconscionable, conscionable, immoral, or offensive to the public good. Melanchthon was content, for the most part, to state these general principles of contract law in categorical form. Occasionally he applied these general principles to specific cases. He condemned with particular vehemence loan contracts that obligated debtors to pay excessive rates of interest or entitled creditors to secure the loan with property whose value far exceeded the amount of the loan, unilateral labor and employment contracts that conditioned a master’s obligation to pay on full performance from the servant, and contracts of purchase and sale that were based on inequality of the exchange.

Law and Revolution II

Howard J. Berman

Harvard University Press 2003