Today, I want to do two things. First, encourage you by telling you about the kind of arguments made in two friend-of-the court briefs (amicus briefs) filed with the United States Supreme Court last year. Second, I want to discuss my thoughts about those arguments from the perspective of the Christian view of law I’ve been talking about.
Be Encouraged: The Relevance of Romans 7:14 Reaches the U.S. Supreme Court
The two briefs were filed in the case recently decided by the U.S. Supreme Court, United States v. Skrmetti. It addressed Tennessee’s law regarding the use of medical treatments to address a minor’s gender dysphoria. Both of these two briefs employed the word “metaphysics.”
Why should that be encouraging? Because it means the Christian view of law I’ve been expounding is relevant and practical, not abstract or academic only. You may recall my June 4 commentary on Romans 7:14 entitled “Is Law Metaphysical." In it I wrote:
[T]o say the law is spiritual (as that verse says) is to say it points to something beyond the physical, beyond “bare” nature—it is metaphysical. Moreover, to say the law “is” means it has an existence that is not dependent on anything we do.
A Quick Look at the Two Briefs
The first brief was filed on behalf of the United States Conference of Catholic Bishops and the Tennessee Catholic Conference. It opened with this statement:
Catholic teaching about the human body and the application of that teaching to transgender body manipulation is not based on animus or prejudice, but on anthropological and metaphysical principles that are both divinely revealed and accessible to reason.
The second brief was filed by the Ethics and Public Policy Center. According to its brief it seeks to “address today’s ethical, political, and cultural questions with firm commitment to human dignity, natural law, and our constitutional freedoms.” Their brief quotes from two cited authorities that contain the word “metaphysics” in their title.
While the EPPC’s brief did not employ the word metaphysic in the main text, its argument was metaphysical in nature. Two statements caught my attention:
The controversy over how best to treat individuals who identify as transgender is not understood best as a debate over science1 but more fundamentally a disagreement over the nature of the human person.
and
Throughout history, philosophers have taken seriously the physical experiences of men and women (and boys and girls), and the effects of these experiences on the human soul, as evidence of the unity of body and soul. . . . [A]s a human being, the person is born with a material, sexed body and an immaterial human soul, which are intimately united.
Talk about the nature of the human person and a “soul” invokes metaphysical considerations.
In support of the historicity of its metaphysical assertions about human meaning beyond the material body, the brief cites an assortment of works by Plato and Aristotle.
Evaluating the Catholic Brief’s Argument
I applaud the Catholic Church for the substantive content of its brief in relation to what it means to be human. It was clear and unapologetic.
But, its primary concern in laying out its anthropological and metaphysical beliefs seemed to be protection of the Catholic Church. The brief says that the Court, by holding for the Biden administration and transgender advocates, “will have declared that the Catholic Church is presumptively bigoted” and will “limit the presence of the Catholic faith in American life.” Moreover, the brief also says “a ruling in favor of Petitioner (transgender advocates) that was paired with clear protections for religious entities and individuals would be better than a ruling in favor of Petitioner without such protections.”
No doubt infusion of transgender ideology into the word “person” in the Fourteenth Amendment’s Equal Protection Clause would engender endless and expensive litigation against various Catholic social services. The same would be true for protestant-based service organizations. I appreciate that concern.
However, it would would have been my preference that the argument stop with an insistence that transgenderism is an ideology false to the meaning of the word person in the Constitution. Personally, I would not have made protection of the Catholic Church, or Protestant church ministries for that matter, a constitutional consideration as a matter of legal principle.
I know mine is a minority position today; it seems the goal of Christian legal advocates is to make whatever protective argument might win the day. But I would love to see Christian legal advocates litigate in instances like this by faith, namely, a faith in the authority and power of Christ as revealed in Scripture, particularly in Psalm 2, to protect His ekklesia “which he hath purchased with His own blood” (Acts 20:28) from those who rage against it. The Triune God may use a present loss to their rage to discipline us for our lack of faith, but He will not allow what Christ purchased at so high a price to be defeated.
Evaluating the EPPCs Brief: “Progressive” in a Good Way
The EPPC brief brought to mind two eschatological considerations. Christians believe history—time— is going somewhere, it has a telos, and that telos is the fulfillment of God’s covenant purposes. That covenant is the cosmological secret I’ve touched on previously.
My first eschatological thought was in relation to how far we have departed over the years from the understanding of law that Christians developed over centuries and that was bequeathed to the American colonies: common law informed by a Christian view of natural law and Divine law.
More specifically, I was reminded of C.S. Lewis’s eschatological statement in Mere Christianity about those who say there is no “turning back the clock.” I suspect that would be the view taken by many today, even by many Christian legal advocates I have spoken with. I suspect that’s why the arguments in these briefs are seldom made.
Lewis wrote:
[P]rogress (a good word for eschatological considerations) means getting nearer to the place where you want to be. And if you have taken a wrong turning (which our nation has), then to go forward does not get you any nearer. If you are on the wrong road, progress means doing an about-turn and walking back to the right road; and in that case the man who turns back soonest is the most progressive man. . . . Going back is the quickest way on.
I appreciated that the EPPC brief recognized and had the courage to say, in so many words, that we have taken a “wrong turning” on what it means to be human. And by referencing antiquity and philosophers like Plato and Aristotle, they are “walking back to the right road.” For that, I applaud them.
But, my second eschatological thought is that the turning back espoused by EPPC for the sake of progress is defective from a Christian standpoint. In fact, in my view, both briefs will have us take a road we’ve traveled before, and it will take us in a circle. For my thoughts on that eschatological consideration, I hope you will read what I publish next week.
How refreshing to see the rejection of science as the best way to understand the legal issue in this case. Sadly, all the legislators and actively practicing Christian litigators and policy advocates I have worked with tended to rely on science. Here is a 2 minute video clip of that kind of argument being made by the sponsor of the law in Tennessee, a professing Christian and the state House Majority Leader. The Leader is responding to the Democrat leader’s question as to why the law is not limited to surgeries but sweeps hormone treatments into its prohibition.
