Today I will bring our understanding that law is spiritual and covenantal into our day-to-day thinking about law and politics. It will take this week and perhaps next to do it well, but to get us into today’s topic, let me repeat what I said last week. There were two points.
First, “[t]he objectives of those involved in legal and public policy advocacy must be informed by what God the Father and God the Son are doing toward the consummation of their everlasting covenant of grace.”
Second, pursuit of those objectives “must be done by faith, not by grasping after power as if we can confess God while embracing the cosmology of Machiavelli’s Prince and Nietzsche’s Übermensch. To embrace that cosmology to ‘win’ is to dig the hole we are in deeper.”
The context for today is the approach taken to defend Tennessee’s law prohibiting the use of medical interventions to treat minors suffering from gender dysphoria, a belief that a person’s true identity is subjective and does not correspond to his or he body. Last month the U.S. Supreme Court ruled favorably on the approach Tennessee took.
The First Real-World Approach
The first prong of the approach consistently take by Christian legal and policy organizations and Christian legislators was to treat the issue as a debate on whether medical science demonstrates that medical interventions are the best way to treat gender dysphoria.
The second prong to the argument, building on the first, was that states have historically been allowed to regulate medical practices within their borders.
Consequently, the issue was framed in terms of the empirical sciences and whether states have the jurisdictional authority to evaluate that science with respect to its residents.
What the Supreme Court Said and What Supportive Christian Lawyers Said
Based on the foregoing, it was not surprising to me that the Court said the Equal Protection Clause left “the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field . . . to the people, their elected representatives, and the democratic process.”
In fact, a Christian lawyer on a recent broadcast of Breakpoint by the Chuck Colson Center for Christian Worldview said “the Court ultimately says the state can take sides in, frankly, what is still a kind of medical debate.” And he said Tennessee’s attorney general Jonathan Skrmetti, a Christian, “isn’t doing Christian worldview” and Chief Justice Roberts, a Catholic “is not doing Christian worldview.”
I will get to the lawyer’s first observation, but as to the second, the larger point I’ve been trying to make is that a Christian lawyer is always “doing” a Christian worldview of law or he is doing an unchristian one.
Moreover, I believe part of a Christian view of law would be asking how we got to the point that the only acceptable approach in law is an admittedly un-Christian one, especially when that is contrary to centuries of common law history. That history is Christian lawyers working out in law a Christian metaphysic and cosmology. So I must ask:
Does the Christian view of law just accept what now is, a disconnect between Christian thinking and law? I think not.
An Interpretation of the First Approach
Certainly Christians would agree that sex is a biological reality. But the Court saying it was a “scientific and policy debate” to be resolved by “the democratic process” means the approach taken by legal and policy advocates and accepted by the Court did not get at anything that would point to a givenness about human nature that could lead to restoration of the image of God as part of a legal and policy analysis.
And, of course, the ruling means states are free to reach a different scientific and policy conclusion, and they are. And law says either approach is equally good, equally lawful.
Why Would Christians Now Take This Approach?
Several reason may come into play, but for one of them, let me turn to theologian Herman Bavinck. I think he explains why this first approach is problematic if the goal of a Christian view of law is to conform our thinking to God’s covenantal goal of restoring the image of God in man and for our larger society to again think of human beings in that way. In the early 1900s, he wrote (God and Creation, p. 414):
Natural science, to which the materialist always makes his appeal, has to do as such with the finite, the relative, with nature and its phenomena; . . . it cannot penetrate to what lies behind it. The moment it does this it ceases to be physics and becomes metaphysics.
In other words, the approach taken by the overwhelming majority of Christian legal and policy advocates is the same as the materialist’s.
This approach proceeds on the basis of a Kantian cosmology. That cosmology divides knowledge between the empirical phenomenal world, which would be mere biology, and a possible, but unknowable world beyond that phenomenon, which, of course, would include the image of God. It may or may not be true; we just can’t know. However, it is worse than that now.
Kant’s cosmology has been replaced with Nietzsche’s, which produced philosophical nihilism. It goes beyond Kant’s cosmology to deny there are any realities beyond mere phenomenon—beyond what is physical and empirical. There can be no such thing as an image of God. It was an idea made up by Christians to use to control other people.
Ironically, the transgender person is, in a sense, saying there is something to personality beyond mere biology. In that sense, he or she is closer to a metaphysical Christian view of the person than a Christian view that seems to reduce everything to mere biology. What happens is Christians lose the opportunity for witness when we reduce the issue to mere conduct or a need for mental health treatment, the later being what Christians offer instead of Christ.
Questions a Christian View of Law Would Ask About “Transgender Care”
I submit that the Christian view of law would ask: How can we use the kind of logic and principles historically applied to legal reasoning to begin to break through a Nietzschean cosmology and re-establish in law a Christian cosmology?
The problem with Christians not asking this question and resting their arguments on what medical experts say about the efficacy of these treatments vis-a-vis those of other medical experts is the unbelieving world will naturally assume that anything about being human beyond biology is not relevant.
Why Are These Questions Not Asked?
Again I turn to Bavinck to help us understand what happened within Christianity that made an empirical and democratic approach to the issue of male and female seem correct. He wrote that theology began “disregarding all so-called metaphysical questions” in favor of simply wanting to “know” God’s will “and to do it.” In other words, mere biology and conduct became the issue.
Of course, that can lead to a legalism that says so long as the Christian can stop the bad conduct we have done the good. Stopping evil is worthwhile, and maybe that is why Christians frame the issue with winning as the goal.
But I submit that a Christian view of law that seeks to conform to God’s purpose in the covenant of grace would ask an additional, more fundamental question: What can be done in the field of law with the historic tools of legal knowledge and reasoning that would begin to restore the good that was lost and that led to a proliferation of the bad in the first place?
To this point, gender confusion is surely not new. So, should Christians in this field not ask what view of law and categories of thought in law might once have been in place that kept the lid on the proliferation of the bad we now have? There are reasons we don’t, and I’ll have to get to them next week.
The Second Real-World Approach:
I submit that a Christian view of law would seek to inject into this issue a Biblical conception of what it means to be human. It would move toward a “restitution of all things” (Acts 3:21) in relation to what it means to be human, and as male and female.
To that end, I offer three quotes from the brief I filed with the Supreme Court in the Skrmetti case. They present the issue differently and in a form of logic once employed in law. The first is:
The contest in this case . . . raises questions as to whether there is a human nature, whether male and female are objective conditions of identity that State law may recognize, and whether the State may protect vulnerable children within its borders from the medical manipulation of persons’ sexed bodies in furtherance of a denial of any given human nature.
In other words, the brief says “the fundamental issue” in this kind of case is not the regulation of medicine as democratically evaluated. In fact, the brief says,
The medical interventions being proffered to confused children and anxious parents that the Tennessee statute forbids are not properly evaluated as a mere question of “medical care” administered to a child.
Add to that statement, the third quote:
The concept of health itself vanishes from the law’s apprehension of health if it can no longer recognize a pre-existing and given human nature by which conformity to or deviation from wholeness and integrity can be judged.”
An Interpretation of the Second Approach
The second approach says that if we don’t objectively know what it means to be human in sexed bodies—that the body is not “accidental” to mere physical laws of nature that have shaped them in various ways—we can’t objectively know what it means for a human being to be healthy; we can’t judge the truth or the justice to be accorded to any medical treatment!
This brief was pushing the Court toward a position in which it would have to say, as a matter of law, that these treatments are harmful, whether in Tennessee or California.
That opportunity was lost for the sake of a win. As is now happening with abortion, it will be up to each state to reject the transgender conception of persons and decide whether medical interventions are suitable treatments.
Overall Summation
The first approach left the states free to democratically define what human nature is under their state’s law and evaluate the medical approaches accordingly. The second says there is something universally true by which the medical laws in every state can be judged.
I submit that the only the second approach conforms to purposes found in covenant of grace and is couched within the historical categories of human meaning that common law addressed. The first, as a law professor friend once quipped, is about judicial politics, i.e. getting five votes to win in court, not about law.
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