Wednesday, September 30, 2015

Pope Francis Addresses the U.N.: A Religious Rationale for Reducing Carbon Emissions

Pope Francis declared to more than 100 world leaders and diplomats at the United Nations in late September 2015 that a "right of the environment" exists and that our species has no authority to abuse it or render it unfit for human habitation.[1]  In stressing that urgent action is needed to halt the destruction of God's creation, he made explicit reference to a religious basis for his moral claim. He said the universe is the result of a "loving decision by the creator, who permits man respectfully to use creation for the good of his fellow men and for the glory of the creator: He is not authorized to abuse it, much less destroy it."[2] This statement may overplay both the religious nature of the basis and the destruction. I turn now to parsing the statement in three parts, after which I will supply the basis of the pope’s religious rationale, which is narrower than he suggested in his speech.

Pope Francis admonishing the U.N. delegates not to injure themselves slipping on a banana outside after his address. "Gases from the exposed puss can warm the sidewalk," he explained as many delegates checked their earphones. (Bryan Thomas/Getty)

First, the claim that the universe itself is the result of the creator—a divine decree creating the material realm out of nothing (i.e., ex nihilo)—goes beyond the Hebrew word, bara’, which is translated as “to create” in the Bible. The Hebrew word’s definition is “to shape, fashion, create (always with God as subject),  . . . heaven and earth, individual man, new conditions and circumstances, and transformations.[3] Crucially, bara’ is not used in the Hebrew Bible “with a preposition governing the material out of which God created.”[4] God’s creating does not include bringing the stuff of the universe into being, at least in what the Book of Genesis covers. “When God began to create heaven and earth—the earth being unformed and void, with darkness over the surface of the deep and a wind from God sweeping over the water—God said, ‘Let there be light.’”[5] When God began to create heaven and earth, the water already existed! So too, presumably, did the materials of land. “God said, ‘Let the water below the sky be gathered into one area, that the dry land may appear.’ And it was so. God called the dry land Earth, and the gathering of waters He called Seas.”[6] The uncovering of land presupposes that the stuff of land (or land itself) already exists. At least as genesis is described in the Bible, the material making up the universe is not a result of God’s decision (or God’s creating, more generally).

To be sure, the Hebrew expression that translates into English as “before creation” is Tohu wa bohu (תֹ֙הוּ֙ וָבֹ֔הוּ). This typically translates as "waste and void," "formless and empty," or "chaos and desolation.” [7] Waste can be interpreted as a feature of a void, and formlessness of emptiness. In this sense, the material of the universe is entailed in God’s decision to create the cosmos. Alternatively, waste and chaos may refer to the formless  stuff and the empty void is that which lies outside of the soupy blob. Hence the expression can be translated to mean “a formless waste or chaos.”[8] Of these two interpretations, only the second is congruent with “the surface of the deep and a wind from God sweeping over the water.” Were there only an empty void, no water, or even surface, would exist. Also, the Septuagint uses the Greek, ἀόρατος καὶ ἀκατα-σκεύαστος, which translates as "shapeless and formless” rather than void and empty.[9] To assert that a property of nothingness is a lack of shape or form strikes me as a bizarre thing to say. Something is formless—until God decides to create order for forming that something by separating it into parts.

Therefore, we can conclude that God does not create “chaos or formless pre-existent matter. . . . ‘God created’ means God created order. . . . The problem of creatio ex nihilo, creation out of nothing, is not a problem here.”[10] I submit that we misunderstand the creating in God’s decision as meaning more than one to order the stuff of Earth by forming (via separating) different kinds of stuff. We assume the very existence of the stuff came about as part of God’s creating; hence, Creation.“’The heavens and the earth’ are the equivalent of the cosmos, for which Hebrew has no single word.”[11] But “cosmos” in a religious sense or in the empirical sense as that which astrophysicists study?

Treating the two senses as identical or even just in assuming that one impacts the other involves  a category mistake in treating myth as if it were also natural science rather than recognizing that they refer to two qualitatively different phenomena or categories. Merely in writing “God created” rather than “God creates,” I imply that empirical history and the story in the Book of Genesis match up or at least refer to the same thing. Mythic time, in other words, is not in the past even if the past tense is used in the story-time. Such time may tend to get reduced to empirical or historical time (rather than understood as time within a story) when the past tense is used to describe both God’s act (i.e., decision) to create and the history of the Israelites.[12] In his assertion that the universe, including all its material stuff, is the result of a divine decree, the pope may have been “gilding the lily” (i.e., adorning it with gold edges) with respect to the religious basis of his moral claim (i.e., that we are not authorized to extract more fossil fuels from the ground). Put another way, the stuff that we use in our dominion, as well as any responsibility we might have in our dominant usage from the religious standpoint, does not hinge on HWYH’s role as Creator.

Responsibility is curiously absent in the Biblical basis of our dominion over stuff (including animals) on the planet. “And God said, ‘Let us make man in our image, after our likeness. They shall rule the fish of the sea, the birds of the sky, the cattle, the whole earth, and all the creeping things that creep on earth.’ And God created man in His image, in the image of God. He created him; male and female He created them. God blessed them and God said to them, ‘Be fertile and increase, fill the earth and master it; and rule the fish of the sea, the birds of the sky, and all the living things that creep on earth.’”[13] God formed, or separated us into two genders—and presumably hermaphrodites too (i.e., having both male and female genitalia), and ordered or formed (i.e., created) us moreover in His own image. As a species, we are to be fruitful and multiply, “fill the earth and master it,” even though over population can be said to be the root cause of the increase in carbon-emissions that are trapping heat in the atmosphere. In short, we have a responsibility to reproduce and have dominion on Earth—two actions that have played a large role in the human contribution to global warming.

Nevertheless, one scholar asserts, “Dominion is not a license to caprice and tyranny but, in the best sense, a challenge to responsibility and the duty to make right prevail.”[14] The Anchor Dictionary assumes this view, providing as support: “Ha’adam stands over God’s ordered creation (Psalm 8), but with God, the creator of all, as humankind’s point of reference.”[15] Yet that Psalm has nothing in it about a challenge to responsibility. In fact, human tyranny over other animals and even nature itself may be implied. “(W)hat is man that You have been mindful of him, mortal man that you have taken note of him, that You have made him little less than divine, and adorned him with glory and majesty; You have made him master over Your handiwork, laying the world at his feet.”[16] We are “little less than divine,” invested with great power with the world at our feet. This makes the species sound more like Hobbes’ Leviathan than God’s dutiful steward.

Another scholar points to Psalm 8 as stating that God gave mankind dominion because the earth, and thus everything on it, because God is the Creator.[17] However, a close reading of the Psalm does not support this inference.

“O LORD, our Lord, how glorious is Thy name in all the earth!
whose majesty is rehearsed above the heavens.
When I behold Thy heavens, the work of Thy fingers,
the moon and the stars, which Thou hast established; . . .
When I behold Thy heavens, the work of Thy fingers, the moon and the stars, which Thou hast established;
What is man, that Thou art mindful of him? and the son of man, that Thou thinkest of him?
Yet Thou hast made him but little lower than the angels, and hast crowned him with glory and honour.
Thou hast made him to have dominion over the works of Thy hands; Thou hast put all things under his feet:”[18]

In fact, the Psalmist is surprised that God gives the species dominion, as well as honor and glory, given God’s far greater majesty in forming the celestial orbs. Why should a god who formed the cosmos pay so much attention to mankind? What is the big deal about mankind? Why make the species just below angels, and give it dominion on the planet? Next to God’s majesty in forming the materials of the universe, our species pales in comparison. Therefore, we cannot infer that God gave our species dominion over the planet because God formed it. Rather than appointing us to administer for God the Earth that God formed, the dominion is one of several things, which also include honor and glory, that God gives mankind because God thinks so highly (and so much) of us. Gratitude, rather than the recognition of a sense of duty, a right of nature, and of not being authorized to extract more fossil fuels, seems the most fitting reaction. Put another way, what God gives our species is not characterized in the Psalm as conditional.

Why does God think so much of our squabbling species? Going back to the Book of Genesis, the religious basis of mankind’s dominion on Earth has to do God forming us in His image. I submit that the likeness is narrower than we typically assume, and furthermore that it is not conditional—meaning that it does not come with a responsibility on our part and thus that it dissolves should we act irresponsibly. 

I contend that the likeness pertains rather narrowly to our ability to order (or form) things by reason and physical force. If we exclude the possibility that God has a form and furthermore that it’s shape is roughly the same as the human body—an anthropomorphic claim to be sure—the human soul is left to be formed, or ordered, in the likeness of God. It is by virtue of how our souls are ordered—as being superior to our corporeal bodies, according to Plato and Augustine—that our species has dominion on the planet from a religious standpoint; other animals do not have such souls, and thus rightly are to submit to human rule.

Having an ordered or formed soul may simply mean that humans too can order things—having dominion being necessary to being able to implement formations. Having a soul in the likeness of God may also imply loving how God orders the world in the decision of creation—meaning including our species. Furthermore, such a soul may imply stewardship, or responsibility. These are inferences, however, at least in story in the Book of Genesis at the point in which we are formed in the image of God. To be sure, the Pope’s claim that we are obliged to use the stuff of Earth for the good of people and the glory of God as stewards has a Biblical basis; my point is merely that the duties of stewardship in our use of the environment so as to protect rather than destroy it are not explicit in the pope’s religious rationale—that God formed or ordered the world and gave us dominion because we are formed in God’s image.

Another problem subtly undermines the story in Genesis regarding Man being created in the image of God. In Genesis 1:26, “God creates [Adam] ha’adam ‘in our image’ (Heb selem) and ‘according to our likeness’ (demut).”[19] In Genesis 5:3 (also from the Priestly source), Adam begot a son “in his own likeness” (bidemuto) and “after his image” (kesalmo). Crucially, selem and kesalmo are the same word, as are demut and bidemuto. [20] The Anchor Dictionary concludes from these identities, “(J)ust as there is something of the father in the son, and there can be communication and response between the two, so there is something of God in ha’adam, and there can be communication and response between them.”[21] The likeness of God, the Father in heaven, to his human “sons” and “daughters” is as though parallel to the likeness a man and women have to their offspring. Augustine’s warning against thinking of the relation between the Father and Son of the Trinity by summoning images of the prototypical relationship between a human father and son is relevant. Thinking of Jesus’ line, “As the Father has taught me,” in terms of a father teaching a son, for example, would be to “fashion idols” in one’s heart.[22] To borrow an expression from Nietzsche, such idols would be human, all too human (i.e., self-idolatry). God being wholly other (i.e., transcendent rather than merely immanent),[23] Adam’s son is in Adam’s likeness not as Adam is in God’s likeness; rather than being parallel, Adam’s respective likenesses to his son and to God are qualitatively different, and yet the image or likeness of God is in both Adam and his son. It is important, therefore, to view being created (i.e., formed) in God’s image in a (narrowly) distinctively religious sense.

Thirdly, the pope’s statement that we are “not authorized to abuse [creation], much less destroy it” involves over-reaching in including destruction. Should mankind eventually put enough carbon in the atmosphere that the species itself goes extinct for want of a habitable climate, the planet would still exist; it would still have order. Ecosystems would doubtless regain equilibrium at some point, especially if the maximizing species is zerstört. This issue is not the destruction of the Earth; rather, the harm is much narrower, albeit central to an egocentric species. The pope did say a "selfish and boundless thirst for power and material prosperity leads . . . to the misuse of available natural resources.”[24] Ironically, the religious figure may have been on more solid ground were he to have used the selfish and boundless thirst for power and wealth as the basis of his moral position on climate change.

The Pope’s insistence that a "right of the environment" exists and that our species has no authority to abuse it or render it unfit for human habitation has no basis in the story of Creation. He is on more solid ground in asserting a specifically Christian duty to use our dominion on Earth for the good of our species (i.e., each other) and for the glory of God. The sense of responsibility, as in the expression, With great power comes great responsibility (from the first in a series of Spiderman movies), enters the picture with the Jesus of the Gospels, who maintains that we exercise dominion as stewards acting on God’s behalf and thus in God’s interest, rather than our own. The responsibility that comes with having dominion is put in terms of loving God by caring for each other and the species under our dominion. Hence we have no authority to abuse or destroy the environment, yet the religious rationale here does not extend to a “right of the environment.”

I turn now to the religious rationale in the Gospels. In the ancient Middle East, “steward” (oikonomos) most often applied to the position of household manager, where the household essentially is a small business.[25] According to one scholar, Jesus’ notion of stewardship is in line with this common usage.[26] Stewards in the New Testament, especially in Jesus’s parables, “are associated with the qualities of faithfulness, loyalty, business acumen, and the ability to provide for those under them.”[27] Jesus asks at the end of one of his parables, “Who then is the faithful and wise servant, whom his master has put in charge of the servants in his household to give them their portion of food at the proper time?”[28] The steward is God’s servant, charged with using the dominion to care for the other servants and ultimately for God. Such love, rather than God as Creator and mankind having God’s likeness, is the basis for the pope’s assertion of an obligation to use our power (and wealth) in caring for each other and in line with the glory of God. “Our position is that of stewards, not absolute rulers. The earth is God’s gracious provision to us as a dwelling-place, and should be treated with respect.”[29] 

The virtues of humility and compassion are of course of great value in Jesus’ eyes, and thus in how we are to properly use the delegated authority.[30] Jesus insists that to care for the least among us—whether other people or species—we love God. In the parable of the sheep and Goats, Jesus has the king say, “Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.[31] Efforts to keep the atmosphere suitable for human habitation are ultimately based on loving God by caring for the least among us—such as the people who are or will be most detrimentally impacted by the changing climate. Hence, we have finally found a religious duty and a limited authorization of dominion.

Concerning a natural right of nature ordained by divine decree and manifesting in natural law, the best I think we can do is summon the now-extinct Christian tradition of justice as love and benevolence, which ran from Augustine to Leibniz. The latter theorized that we are all owed love and benevolence from others because we exist. Leibniz characterizes God is perfect being.  God being love (from Augustine and the New Testament), the extent that we have being, we are due love; the extent that other people have being, they too have a just claim to being loved in terms of benevolence. In other words, we have a natural right to be loved by others, who are in turn duty bound to be benevolent universally (that is, to anyone, since everyone has some being). 

In Latin, Leibniz’s phrase is caritas sapientis seu benevolentia universalis. (“Love in so far as reason permits; that is, universal benevolence”). Caritas, from which we get the word “charity,” means love. More particularly, caritas is human love “from below” rather than divine love (agape) “from above.” Human love (Augustine), raised from lower to higher goods by reason (e.g., from garden-variety lust, or eros, to love oriented to God, the highest good) (from Plato), is the same (or manifests) as universal benevolence (i.e., “love thy neighbor”) ( from Augustine). This love is distinct from God’s own self-emptying love (i.e., agape), as evinced in the Crucifixion.

In his Codex Iuris Gentium (1693), Leibniz writes, “Charity [i.e., caritas: so love, not “charity”] is a universal benevolence, and benevolence the habit of loving or of willing the good. Love then signifies rejoicing in the happiness of another.” Having a comfortable habitat or environment that is at the very least habitable by humans is an example of a good conducive to the happiness of others. Therefore, we justly have a right to a world with adequate natural resources and an atmosphere that is suitable to our survival and that of our progeny (i.e., be fruitful and multiply). Yet we still haven’t reached a right of the environment, or nature, itself. 

Stretching Leibniz’s theory of justice further, I suppose it can be said that the environment has a right too—to be loved in a way that includes benevolence directed to nature’s good—because nature also has being. Less than that of the species formed in God’s image, to be sure, but the extent to which nature exists, it can be said to have a right to be loved benevolently, which is to say, with its good being willed by humans. Admittedly, the right justly enjoyed by the environment is weaker than the right that we have to be treated benevolently in furthering our good; we have more being, than does a tree, for instance,  because we are closer to perfect being—being formed in God’s image. Nature, in other words, does not have a soul. This religio-philosophical rationale is not explicit in Jesus’ rationale in the Gospels, however, so the pope’s religious rationale falls short of justifying the existence of a right of the environment.

In short, the pope’s speech at the U.N. may have included some hyperbole that plays on some common misconceptions regarding Creation and us being created in God’s image, as well as how these serve as a religious foundation for our species’ responsibility to prevent global warming from worsening. Additionally, I contend that he undercut his own religious rationale in that God urges our species to reproduce and have dominion. Furthermore, the verses are mute on responsibility toward the environment.

The pope might have also been subtly undermined from a Christian standpoint more generally due to the historical shift in the dominant theological attitude on whether wealth necessarily involves or implies greed from “yes” to “no”—which is to say, from anti- to pro-wealth.[32] In going “up-stream” against the mandate of wealth from a Christian standpoint, the pope doubtless had the heavy task of justifying his basis even to Christians ensconced in the pro-wealth Christian paradigm. For example, the Prosperity Gospel asserts that God rewards people having true belief with material wealth, in addition to salvation. God looks on the true belief that Jesus Christ is Lord and Savior with such favor as to bestow material blessings on the people who so believe. These Christians may resist the prospect of the prosperity bestowed by God being subsequently clipped back, even from a Christian rationale! 

Moreover, I submit that the use of a living myth (i.e., a religious narrative) as a rationale for changes in the domains of government (i.e., public policy), business, and empirical science (i.e., on the environment) is inherently problematic. Conflating the Creation story with astrophysics is itself an instance of a category mistake—treating two different categories as if they were the same, or at least interpenetrable. 

The larger issue here may thus be the propensity for our species to over-reach when it is in the domain of religion, as if religion must encompass everything or else be null and void. Even just within the religious domain, we may be liable to make erroneous inferences without an operative cognitive feedback loop of self-critique that could catch the over-reaches. 

I have pointed in this essay to two scholars whose inferences regarding the Book of Genesis and Psalm 8 are not supported by the respective texts. I also highlighted the matter of category mistakes, wherein the religious domain is conflated with another, qualitatively different (yet in some cases related) domain. Myth, historical accounts, and natural science, for existence, can be thought of as different languages with different purposes. 

For instance, the writers of the Gospels writing to record empirical history in writing their respective faith narratives; this is not to say that those writers could not have drawn on remembrances of historical events and personages—but the writers would have felt at liberty to invent or bend history to make a religious point. To subject the resulting faith narratives to criteria for empirical history would be erroneous. Nevertheless, the inference is commonly made—and with the assumption of not being able to be wrong in making it. This presumed entitlement tends to apply to religious beliefs, inferences, and assumptions in general. This phenomenon utterly astounds me and perplexes my intellectual curiosity into hyper-drive to explain it's sheer existence. 

Even just within the religious domain, we may be liable to make erroneous inferences without an operative cognitive feedback loop of self-critique that could catch the over-reaches. In this essay, I pointed to two scholars whose inferences regarding the Book of Genesis and Psalm 8 are not supported by the respective texts. I also highlighted the matter of category mistakes, wherein the religious domain is conflated with another, qualitatively different (yet in some cases related) domain. Myth, historical accounts, and natural science, for existence, can be thought of as different languages with different purposes. For instance, the writers of the Gospels were not intent on recording empirical history in writing their respective faith narratives. To subject these to historical criteria is therefore erroneous, and yet the inference is commonly made—and with the assumption that the person cannot be wrong in making it, or in regard to his or her religious beliefs, inferences, and assumptions generally. This phenomenon utterly astounds me and perplexes my intellectual curiosity.

In late September 2015, I read that the Mormon Church’s hierarchy felt it necessary to put out a statement warning their flock not to join the rising chorus of members who believed that the “blood moon” lunar eclipse would signal the end of the world. Imagine trying in exasperation to convince those members already convinced even just that they may be wrong. The following day, I spoke with a woman who believed firmly that her religious sect (or denomination) in Christianity is not a religion (i.e., in the domain of religion). I did not even try to suggest that a religious group is by definition a religion or a subset thereof. I suspect that cognitive denial is on overtime when it comes to the human brain applying itself to religion (or spirituality). Faulty assumptions and inferences were also in the mix as she presumed to know my religious faith and the related beliefs and experiences only on the basis that I’m a scholar.

As a scholar, I endeavor to go where the ideas lead me, rather than where I necessarily want to go ideologically, politically, or theologically. For example, it might surprise you to learn that I am very much in support of reducing carbon (and methane) emissions, so I would welcome justifications. Staying on the fixed tracks of logical reasoning and coupling idea to idea as if a theory were a train can easily mean diverging from the relatively curvy tracks of ideological and religious preferences, though of course not necessarily. Put another way, academic arguments face some rigid constraints that distinguish theories from mere opinions.

From my observations and study, I hypothesize that the brain may be structurally deficient when it comes to handling the phenomenon of religion (and perhaps only marginally better in entertaining political beliefs). Like our propensity (and perhaps biological necessity) to pollute, homo religiosis may be inherently vulnerable to going too far without realizing it. Specifically, the human brain’s cognitive and judgmental means of self-correction on religious matters may be seriously impaired, even as we presume we cannot be wrong. We are, after all, created in God’s image—or so we believe, perhaps all too conveniently.

In his bizarre existentialist “novel of ideas,” The Unbearable Lightness of Being, Milan Kundera pokes fun at our species' highly esteemed status in the Book of Genesis.

“The very beginning of Genesis tells us that God created man in order to give him dominion over fish and fowl and all creatures. Of course, Genesis was written by a man, not a horse. There is no certainty that God actually did grant man dominion over other creatures. What seems more likely, in fact, is that man invented God to sanctify the dominion that he had usurped for himself over the cow and the horse. . . . But let a third party enter the game—a visitor from another planet, for example, someone to whom God says, ‘Thou shalt have dominion over creatures of all other stars”—and all at once taking Genesis for granted becomes problematical.”[33]

If there be anyone suspecting that a horse wrote the Book of Genesis, the cognitive impairment triggered as the human brain partakes of the religious domain must be much more severe than even I suspect. As an example of the impairment I have in mind, the type of certainty implied by the word actually in the passage above may be empirical (or even metaphysical) rather than that which applies to religious myth. Kundera is questioning whether Yahweh is real outside of being a character in religious writings that include narratives (i.e., myth). In suggesting that the God in the Book of Genesis might not be “real,” Kundera is treating religious myth as if it were interchangeable with metaphysics and empirical science—the three domains being on the same “plane” and thus potentially conflictual. In other words, the author goes beyond religion’s native turf, overextending it into other domains, and thus commits category mistakes. With such a propensity of looking into other yards, he may not even recognize that which is native in religion’s own front yard. Nevertheless, his main point in the passage is that convenience (and the tiny related matter of self-interest) figures prominently in Genesis as it is written, and I would add interpreted.

We can extend the point to include how convenient it is for believers to swallow a faith narrative [i.e.,  mythic language] uncritically, even overreaching in giving it dominion in other domains extrinsic to but related to religion, and exaggerating the religious claims such that the embellishments become included as truth, and thereby being consecrated as sacred presumably (though problematically, according to Nietzsche) beyond the reach of reason. 

Ironically, the faulty inferences in religion are typically hidden under the religionist’s presumption of infallibility (i.e., not being able to be wrong in matters of religious interpretation and belief). These impairments in cognitive functioning may be the silent killers of religion, and the most difficult obstacle for a religious rationale as it seeks credibility in the public square. That is to say, as religious discourse seeks credibility in the secular realm, in domains such as politics, morality, metaphysics, astrophysics, and even economics. Treating such areas as vassals and obsessing on them (e.g., on abortion and gay marriage in morality) risks neglecting that which is in religion’s own domain. 

Pruning religion back may actually strengthen it, as its distinctive core will have room to breathe and come to the fore. I submit that religious experience, whether in worship, prayer, meditation, or communion with the divine via ritual preparation, is the central plant in the domain of religion. Ironically, religious symbol, myth, and even ritual can crowd out this sort of experience, which involves a yearning for beyond the limits of human cognition and perception.

If the native fauna in religion’s own back yard are indeed predominantly of the religious-experience genus, and if such transcendent-oriented experience goes beyond the limits of perception and cognition, then perhaps a focus on the experiencing itself—the reference point lying beyond—might not be vulnerable to the cognitive afflictions. Perhaps one of the self-defeating tendencies of religions has been the tendency to load attributes onto the transcendent referent point—a point properly having no area. In other words, transcendent experience may be more intense, and free of the cognitive trappings, if the focus is on the yearning, or transcending, itself rather than the nature of the object, which is by definition beyond the limits of human perception and cognition anyway, according to Plotinus. As Joseph Campbell said, the mask of eternity set in front of a person may be the final obstruction to his or her full, or pure, religious experience.

Furthermore, an experience that transcends our awareness of ourselves and our daily world may have as one of its byproducts an increased sensitivity to experience of simply existing in the world upon the person’s return to it. When the focus is on other people, such automatic (rather than intentioned) enhanced sensitivity is, I submit, none other than compassion—a desire to act to further another person’s good and happiness out of empathy and caring. An enriched inclination to be compassionate may be a natural result of regular “time outs” from even experiencing being (in the world). 

Jesus of the Gospels can be viewed as an example of the religious experience/compassion relationship, as he prays a lot and is very compassionate. The experience of distinctively religious yearning transcending the world is, I contend, a superior source of compassion than any others that rely on intention. Ironically, pruning the tree of religion back to within the domain of religion may be the path less travelled back to justice as love manifesting as universal benevolence for the good of each other as well as our species’ habitat on planet Earth.

[1] Nicole Winfield and Jennifer Peltz, “Pope Beseeches World Leaders to Protect the Environment,” Associated Press, September 25, 2015.
[2] Ibid.
[3] Old Testament Hebrew Lexicon (New American Standard). (accessed online on September 25, 2015).
[4] The Anchor Bible Dictionary, Vol. 2, David N. Freedman, ed. (New York: Doubleday, 1992), p. 942.
[5] Gen. 1:1-3. Tanakh: The Holy Scriptures (Philadelphia: The Jewish Publication Society, 1985), p. 3.
[6] Gen. 1:9-10. Tanakh, p. 3.
[7] Anchor Bible Dictionary, p. 943.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] In the first volume of Old Testament Theology, Gerhard von Rad distinguishes the attributions of divine intervention from the empirical history. Reading the text, I had the sense of the historical history being the bones and the faith history furnishing the flesh. See Gerhard von Rad, Old Testament Theology, Vol. 1 (New York: Harper, 1962).
[13] Gen. 1:26-28. Tanakh.
[14] Bruce Vawter, On Genesis: A new Reading (Garden City, NY: Doubleday, 1977), p. 59.
[15] Anchor Bible Dictionary, p. 944.
[16] Psalm 8:5-7, in Tanakh, p. 1115.
[17] Richard Higginson, Transforming Leadership: A Christian Approach to Management (SPEK: London, 1996), p. 7.
[18] Psalm 8:2,4-7.
[19] Anchor Bible Dictionary, p. 943.
[20] Ibid.
[21] Ibid.
[22]. Augustine, Tractates on John: Books 28-54, 40.4, trans. John W. Rettig, Fathers of the Church: A New Translation 88 (Washington, D.C.: Catholic University of America Press, 1993), p. 126.
[23] From Rudolf Otto, The Idea of the Holy: An Inquiry into the Non-Rational Factor in the Idea of the Divine and Its Relation to the Rational, John W. Harvey, trans. (New York: Oxford University Press, 1958).
[24] Nicole Winfield and Jennifer Peltz, “Pope Beseeches World Leaders to Protect the Environment.”
[25] Richard Higginson, Transforming Leadership, p. 50.
[26] Ibid.
[27] Ibid.
[28] Matt 24:45. 
[29] Higginson, Transforming Leadership, p. 7.
[30] Ibid. For a discussion of Jesus’ notion of stewardship applied to leadership generally (and particularly in the business context), see Skip Worden, Christianized Ethical Leadership in Business: The Servant, Shephard, and Steward (Seattle: Amazon, 2015). It is a short booklet.                
[31] Matt. 25:40.
[32] Skip Worden, God’s Gold: Beneath the Shifting Sands of Christian Thought on Profit-Seeking and Wealth (Seattle: Amazon, 2015). This text is oriented to the general educated reader, including laypersons, clergy, and business practitioners. The related book, Godliness and Greed, is an academic treatise oriented to scholars and their students. Ironically, God’s Gold is a better academic text as I had another chance to clear out errors and re-think and clarify my points.
[33] Milan Kundera, The Unbearable Lightness of Being, Michael H. Heim, trans. (New York: HarperPerennial, 1991), p. 286.

Friday, September 18, 2015

Pope Francis Puts Up A Syrian Refugee Family: An Opportunity to Clean House

During wars, houses of worship have become temporary hospitals meeting very practical needs. Caring for the suffering is particularly close to the message and example that Jesus provided. In response to Pope Francis’s call for each parish in Europe to take in at least one refugee family amid the tremendous influx of mostly Syrian refugees in 2015, the pope himself arranged to take in a family. Leading by example is certainly fitting for a follower of Jesus. I submit that the pope could have gone even further to drive home the message of what it means to be a Christian.

The pope put up a Christian family from Damascus in a Vatican apartment.[1] Given the tens of thousands of mostly Syrian refugees pouring into the E.U. at the time, the impact of the pope’s move is of course symbolic in nature. Given the tremendous power that symbols can have, I submit that the pope missed an opportunity to realize the symbolic potential in Christian terms.

Firstly, putting up a Christian rather than a Muslim family misses the opportunity to stand up for a more marginalized people in Europe. Just as Jesus tended to ritually unclean people of his day rather than to people who could worship at the Temple in Jerusalem, and more generally to social outcasts such as the poor and the sick, the pope could have taken in a Muslim family. The move would have been further out of his comfort zone, and thus even more Christian in terms of following Jesus’ preaching and example. Consider, for example, how Muslims in the Middle East would have thought of such a gesture. I submit that it would have been of much more importance than any official dialogue between Catholic and Islamic clerics.

Secondly, the pope could have housed the family in the papal apartment, while he continued to reside in a room in a relatively simple place for visiting priests. In the spiritual logic of the kingdom of God of which Jesus preached, the last are first and the first are last. Put another way, the kingdom upends societal logic. Putting a family in the papal apartment would have highlighted the status of the downtrodden and marginalized in the true Christian’s kingdom, as well as the servant quality of the pope and his subordinates. The gesture would dwarf that of the pope washing feet in the liturgy of Holy Thursday just before Easter.

Pope Francis washing the feet of men and women in a juvenile detention center on Holy Thursday in 2013. That he washed women's feet flustered some people in the Vatican who missed the main point of the ritual. 

Were the pope to have opened up the papal apartment to an “ordinary” family—Islamic no less!—surely a bureaucrat in the Vatican would have protested that the pope would be violating some rule or at least custom long held. To such a pedestrian mentality, the pope might conceivably have retorted, “Get behind me, Satan!” For anyone who puts a rule or custom ahead of a person following Christ cannot be reckoned as Christian. The pope would have sent the message in the Vatican that even its ensconced functionaries may not be Christian, after all—the matter of their creedal beliefs being nugatory in retrospect.

The first in human terms are bound to be reckoned as last, while most of the last are hopefully first in the eyes of God. To add greater certainty to the sentence would be impious for a mere mortal, and yet how many so-called religious people presume as much without even realizing the presumptuous that is implied. Were the pope to have opened up the regal apartment rather than one of many of the ordinary sort in the Vatican, a much larger project of house-cleaning might have ensued.

[1] Vincenzo Pinto, “Pope Francis Puts Up Syrian Refugee Family,” AFP, September 18, 2015.

Wednesday, September 16, 2015

Gay Marriage: God’s Law, Legal Reasoning, and Ideology

 Mixing religion, jurisprudence, and ideology together is one potent drink. Ingestion can cause palpable heart-burn as well as migraine headaches. In the case of gay marriage in the U.S., sorting out and evaluating the three elements can be rife with controversy and thus confusion. In this essay, I discuss the county clerk in Kentucky who refused to grant marriage licenses to gay couples because doing so would violate God’s law and thus betray Jesus. Her religious rationale makes for interesting legal reasoning. I then look at the U.S. Supreme Court’s gay-marriage decision. I contend that a natural-right (and thus human right) basis clashes with ideological anger. Human nature itself is on display throughout, particularly as it wades into religion, legal reasoning, and ideology.

Refusing to issue marriage licenses to gay couples, a rural county-clerk in Kentucky repeatedly said she was acting under God’s authority. She insisted that she “must be obedient to [Jesus] and to the Word of God.”[1] On this basis, she claimed that affixing her name to homosexual marriages would violate her Christian beliefs. “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience,” she said. She added, “I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s word.”[2] Yet the impact of her decision implies animosity, assuming she was aware of the harm reflected on the faces of the rejected gays. One gay woman turned away said, “Every time we go in there and we’re denied a license, it’s rejection, it’s marginalization. . . . We feel ostracized.”[3] This particular harm renders the clerk a hypocrite in Christian terms. I submit that she misunderstood the notion of abomination as used in both the Old and New Testaments, blowing it out of proportion without realizing it, or even that such an excess on her part might be possible. I turn now to an exegesis of “abomination.”

The Hebrew word to’avah is used for “abomination” in the verse on homosexuality in Leviticus. To’avah “refers to that which is repulsive, loathsome, or abhorrent to another person, usually Yahweh.”[4] The related verb, ta’av means “to abhor, loath, or detest”; “to commit abominable deeds”; “to be loathed, detestable”; or “to be abhorred.”[5] The term, which is usually translated as an abhorrence, “is used primarily to denote that which is repugnant to God. The term’s actual meaning is less severe than are the connotations that readily come to mind for abomination. Typically, an abomination is thought of as so severe that no other sin can be as dire; to commit an abomination is as though to be cast out into the dark emptiness of space from all that is good and happy in God’s eyes. I contend that we have heaped a lot of weight on the term that is not inherent to it.

Some of the abominations listed in the Hebrew Bible are actually rather light. “For example, shepherds are an abomination to the Egyptians (Gen 46:34); the psalmist is an abomination to his former friends (Ps 88:8 [Heb. 88:9]).”[6] Many instances deal with idolatry,” which of course is more severe inherently, though even here even incorrect ritual of Yahweh is an abomination.[7] Worshipping idols (Deut. 7:25), human sacrifice (Deut. 12:31; Ezek. 16:22), and cultic (i.e., ritualistic) prostitution (1 Kgs. 14:23-24) are abominations, as is incorrect worship of Yahweh, including defective sacrifices (Deut. 17:1) and invalid offerers (Deut. 23:19). Forbidden meats, such as from animals that creep on the ground, are labeled as abominations,” though the word sheqets, which also translates as abomination, is used in the case of food (Lev. 11).[8]

In addition, “(v)arious unethical attitudes and behavior are repugnant to God as well because they are incompatible with his character and values.”[9] False weights (Deut. 25:13-16), men dressing in women garb (and vice versa) (Deut. 22:5), and remarriage with a divorcee (Deut. 24:4) are instances of to’avah. In Leviticus, to’avah is applied to several sexual relations, including homosexuality. “Do not lie with a [man] as one lies with a woman; it is an abhorrence” (Lev. 18:22).[10] Lesbians apparently get a pass.

To’avah is “an abhorrence” in the English translation.[11] Interestingly, whereas sex between two men is merely “an abhorrence,” sex with animals is “perversion,” and thus qualitatively different from not only homosexuality, but also any of the other abhorrences (Lev. 18:23). Those others include uncovering until nude your mother, father, sister (or step-sister), a daughter of your son or daughter, your father’s or mother’s sister, your father’s brother or his wife, your daughter-in-law, your brother’s wife, and more generally a woman and her daughter; also included are marrying a woman as a rival to her sister, coming near a woman during her period, having sex with your neighbor’s wife, and sacrificing any of your children to Molech, another god (Lev. 18:7-21). In Lev. 26-30, all of these things are included in “those abhorrent things”—and thus are all abominations. Put another way, gay sex between two men and being in close proximity to a woman during her period are both abominations. Staying clear of abominations turns out to be rather difficult.

Indeed, if you are arrogant or you do not tell the truth, you are committing an abomination. “Proverbs lists seven abominations, including pride, lying, murder, evil plots, false testimony, and strife (Prov. 6:16-19).”[12] It may seem strange that such a variety of sins fall under the label of abomination, or to’avah.  Homosexual acts between two men are thus not especially abhorrent to God. Indeed, the listed detestable things, such as a woman putting on a man’s suit, sleeping with one’s wife during her period, and being prideful (i.e., arrogant) are suggestive of the actual meaning of to’avah as an abhorrence, which is defined as “a feeling of extreme repugnance or aversion or utter loathing,”[13] has little or nothing to do with the degree of severity of a practice.

To understand why something as innocuous as being arrogant, lying, putting on a dress (a man) or a suit (a woman), or uncovering a woman is an abomination, it is helpful to investigate why Yahweh is listing abominations. His concern, or focus, is on his will being violated, and thus ignored, by his chosen people. His “revulsion” is “toward practices counter to his expressed will.”[14] Hence Lev. 18 begins with the LORD telling Moses to tell the Israelite people, “You shall keep My laws and My rules, by the pursuit of which man shall live: I am the LORD” (Lev. 18:5) and ends with “You shall keep My charge not to engage in any of the abhorrent practices [i.e., abominations: to’avah] . . . I the LORD am your God” (Lev. 18:30).[15]

Fidelity to the covenants and divine decrees is the litmus test that Yahweh uses to assess whether the chosen people are indeed His. Ultimately, perhaps, being ignored may have an existential basis here—but can a deity cease to exist on being cast out of mind by the chosen people? At the very least, considering the people’s option to worship other gods such as Baal, a hint of jealousy may also be in the divine mix (even if the sordid quality discredits the concept of that deity, as Nietzsche suggested). If the crucial point to Yahweh is the fidelity of His chosen people, it follows that the question of the ethical or even religious severities of the abhorrent practices themselves is beside the point. In other words, severity cannot be inferred from the fact that the practices are detestable to Yahweh.

Plato’s Euthyphro can provide additional understanding here. Socrates asks whether the gods love piety because it is pious, or whether the pious is pious only because the gods love it. Socrates goes with the former rather than the latter. Leibniz, a Christian philosopher, put the question in monotheistic terms. "It is generally agreed that whatever God wills is good and just. But there remains the question whether it is good and just because God wills it or whether God wills it because it is good and just; in other words, whether justice and goodness are arbitrary or whether they belong to the necessary and eternal truths about the nature of things."[16] To Socrates (and thus Plato), justice and goodness are eternal moral verities, and thus cannot be subject to the whims of gods. The Abrahamic deity, however, cannot be other than good and just, for it is goodness itself and perfect justice—and, as Leibniz and Aquinas were wont to affirm, perfect being as well. Yahweh cannot but will the good and the just, for He is omnibenevolent and perfect justice. In other words, the question’s very dichotomy collapses.

Put in terms of the abominations, however, a similar dichotomy survives. Are the practices abhorrent to Yahweh simply because He declares them to be so, or are they intrinsically detestable? The abhorrence depends on being decreed as such because practices like eating the meat of animals that creep on the ground are not in themselves detestable apart from being decreed as such. Precisely because of the lack of inherent detestability of at the very least some of the practices, as well as Yahweh’s firm intent that His people obey rather than ignore Him, the detestability of abomination is dogmatic in the sense of being arbitrary rather than innate. I suspect that the Jesus of the Gospels understands this, and is therefore content to preach against only the practices whose substance he considers to be worthy of being denounced on its own demerits rather than to replicate Yahweh’s point on the importance of following God’s law. Before turning to the Gospels, a bit more on the relevant translations is in order.

The Greek word usually used in the Septuigint for to’avah is bdélygma “in the sense of abhorrence and repugnance.”[17]

Definitions of bdélygma:

1.That which emits a foul and odor and thus is disgustingly abhorrent (abominable, detestable);( figuratively) moral horror as a stench to God (like when people refuse to hear and obey His voice). (HELPS Word-studies)
2. Transliterated as bdélugma in Strong’s Concordance: a detestable thing, an abominable thing, an accursed thing).

Bdélygma comes from bdelýssō:

Technically, bdelýssō means to stink, or become foul (abhorrent), or detestable as in stench; "to strongly detest something on the basis that it is abominable–'to abhor, to abominate'.” Bdelýssō is in turn derived from bdeo, “to reek with stench” (HELP Word-Studies).

In the Gospels, Jesus does not take a position on homosexuality. Nor does he apply “abomination” in its ethical sense, which in itself is not distinctly or even fundamentally religious in nature. Especially in the Prophets, the Septuigint uses anomia (“lawlessness”) too—“a purely ethical concept”—for to’avah.[18] Although to’avah is translated in the Wisdom literature as bdélygma and sometimes even as akathartos or akatharsia (“impure”), “the emphasis nevertheless remains ethical rather than cultic.”[19] Although “abomination” is applied in the Bible beyond the distinctly religious terrain as “a purely ethical concept,” Jesus in the Gospels does not do so. Instead, he uses bdélygma in the same sense that it is used in the Book of Daniel—in terms of the end of the world. In particular, “Matthew and Mark use [bdélygma] in their parallel accounts of Jesus’ eschatological discourse” (Matt 24:15; Mark 13:14).[20] Because the Hebrew Bible applies to’avah ethically to certain sexual relations, including homosexuality and yet Jesus is silent on the issue and does not even use bdélygma for ethical matters even though he uses the term eschatologically, we cannot conclude that Jesus of the Gospels is opposed to homosexuality. At the very least, he does not view it as important enough in religious (or the related ethical) terms to include in his preaching, or the writers of the Gospels ascribed a lack of importance of the issue to Jesus.   

Whereas Jesus of the Gospels is mute on gay marriage, he does preach and act on including those who are marginalized societally. For example, he eats with the unclean. It seems, therefore, that the clerk’s Christian beliefs contradict those of the Jesus of the Gospels, or at least she was acting contrary to Jesus’ teaching and example in order to avoid a sin. Since Jesus does not speak on gay marriage itself, committing the sin would not be worth violating something that Jesus emphasizes. Therefore, we can question the clerk’s choice from a Christian standpoint—assuming that being Christian entails following his preachments and example.

That the clerk would decide to marginalize the marginalized and yet consider herself Christian suggests the presence of cognitive dissidence, especially given her stated explanation. “I own my life to Jesus Christ who loves me and gave His life for me.”[21] That she believed she owes her very life to Jesus makes her refusal to follow his preaching and example on how to regard and treat societal and even religious outsiders all the more perplexing. 

Furthermore, that the clerk believed that signing gay-marriage certificates “is not a light issue for me. It is a Heaven or Hell decision.” The condition of her soul after the death of her body hinged on one particular issue, and even more narrowly, on signing her name on a piece of paper.[22] One of the clerk’s lawyers told the U.S. Supreme Court, “This searing act of validation [of gay marriage] would forever echo in her conscience.”[23] Taking a step back, both the acting being searing and the unending echoing in her conscience—of which she was a prisoner to, according to her lawyers[24]may seem exaggerated, even blown out of proportion. Ironically, her soul and the matter of salvation (as well as heaven and hell) are effectively trivialized, as they can hinge on the signing of a name.

From The Creation of Adam, painted by Michelangelo between 1508 and 1512. The outstretched fingers do not touch. This could imply the "wholly other" aspect of the Abrahamic deity, as well as that humans fall short of having certitude regarding even that we take to be divine revelation. 

Generally speaking, the human brain may not be able to handle religious beliefs very well. The nature of the domain of religion, including spirituality outside of a formalized religion, may trigger cognitive and judgmental impairments that are protected by a wall of denial. Specifically, self-critical feedback loops may be inoperative—reasoning that would otherwise raise the mere possibilities of logical inconsistency, treating belief as knowledge, flawed judgment regarding something’s importance (i.e., making a mole hill into a mountain and not realizing it), and simply being wrong (i.e., not infallible) in terms of belief or impaired in judgment. To hold that divine revelation gets to our realm like sunshine through a window darkened by smoke, as Augustine held, and yet to treat a held interpretation of scripture as truth is but one case of the cognitive impairment. Perhaps the human brain is not able to relate different thoughts bearing on or being religious beliefs, such that the brain cannot essentially police (i.e., restrain) itself.

Of course, the assumption that the clerk refused on religious grounds may be wrong. Instead, ideological prejudice may have been her true motive. Circumstantially, a woman related to the clerk by marriage said, “She’s standing strong against the gays. And I agree with her. The Bible says husband and wife. Not two women, and not two stupid men. This world has become so sick that it is ruining our young generation.”[25] Opposing the gays can be distinguished from not wanting to go to hell. The expression “standing strong against” is not in itself religion. Calling gay men stupid is also not particularly religious. Tellingly, the woman does not refer to gay women as stupid, so anger toward men—the clerk having been divorced three times—could be the driving force behind the clerk’s refusal. A cynicism toward marriage may also have been in the mix, given that the clerk was then on her fourth marriage. Therefore, the inconsistency from a Christian criterion may be a function of ideology rather than religion being the underlying motives: blind anger and biased ideological vigor.

As for the legality of the clerk’s refusal to issue marriage licenses, the U.S. Court of Appeals concluded, “It cannot be defensibly argued that the holder of the Rowan County clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.”[26] The dubious legal ground of the clerk’s claim was not even sufficient for the court to issue a stay on appeal. An official at the Human Rights Campaign noted that the clerk “has the fundamental right to believe what she likes, but as a public servant, she does not have the right to pick and choose which laws she will follow or which services she will provide.”[27] For an elected official to refuse to enforce the law is tantamount to refusing to do the job. In the private sector, such a person would be fired. The clerk could have been removed by a judge.

The reasoning in the clerk’s legal defense is itself flawed. Before taking office as county clerk in 2015, she swore an oath to support the constitutions of the U.S. and the Commonwealth of Kentucky, “so help me God.”[28] Her lawyers wrote that she “understood this oath to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God, natural law, or her sincerely held religious beliefs and convictions.”[29] In other words, the lawyers interpreted “so help me God” as including additional content that she was swearing to support. I submit that the function of the phrase is to validate the oath rather than to add additional substance (i.e. material) to it. In effect, a person saying “so help me God” at the end of taking an oath is confirming an intent to be bound by the aforementioned (i.e., the oath’s content) obligations, rather than adding more. Put another way, the phrase is part of the process of oath-taking rather than content in the oath.

Turning now to the U.S. Supreme Court’s 5-4 ruling in Obergefell v. Hodges (June 2015) in favor of gay marriage, the majority provides a natural rights (and thus human rights) basis while two justices wrote dissents in which anger and ideology are salient. I contend that the legal argument that gay marriage is a human right is sound, whereas the basis in ideology is not—at least in regard to jurisprudence.

On the day of the decision, Texas Attorney General Ken Paxton lamented that "the United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist. In so doing, the court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live."[30] Deniers of a right newly recognized would of course view it as manufactured and thus as artificial. In recognizing same-sex marriage as a right under the U.S. Constitution, the high court followed in the tradition wherein rights presuppose government. Even so, the Court’s justification arguably implies that the right is natural in the fullest sense—that is, being valid even in the state of nature even if political, moral, or religious ideology objects under juridical garb.

Analysis of the court’s decision bears out the naturalness of the newly-enshrined right. “The first premise of this Court’s rel­evant precedents is that the right to personal choice regarding mar­riage is inherent in the concept of individual autonomy.”[31] Human beings are naturally autonomous.  We naturally bristle at being told what to do. Law is by its very nature a constraint. We are “hard-wired” by our very nature to be free. The problem is that one person’s innate sense of autonomy can result in conduct that harms other persons—the harm impairing their innate autonomy.  Hence, a just rationale is derived for government being able to limit the autonomy of people.

The Court goes on to note that “(d)ecisions about marriage are among the most intimate that an individual can make. Intimacy itself is natural, even if psychological defense-mechanisms get in the way in more than a few people not only in their own intimate associations, but also those of others. Yet even those people would doubtless agree that emotional intimacy is naturally something that should be respected, or at the very least that it is human.  Whether a person falls in love with someone of the same or the other gender, the falling in love is natural because it can neither be concocted nor the feeling ended simply by an act of will. The phenomenon of falling in love is therefore human, all too human, rather than being a mere whim of the human will.

Living together in a condition of emotional intimacy can be regarded as the natural telos of being in love. Two people in love naturally desire to be together. The desire may even be instinctual as long as both people are in love. Hence, the Court declares, “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The inti­mate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of mar­ried couples to use contraception. . . . Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extend­ing beyond mere freedom from laws making same-sex intimacy a criminal offense.”[32] The enjoyment of intimate association is so intrinsic to human nature that depriving persons of the experience violates a fundamental right—one that is natural in the sense that persons would naturally defend it in the state of nature. In other words, the right is a natural right, and thus a human right, rather than one to be granted (or taken away) by either a court or a majority of an electorate.

That an infertile man and women, or a couple of the same sex, cannot have children does not mean that the right to marry—to pledge to be together in a formal way and based on love—is not a natural right. Couples who are not able to have children together can feel deep emotional intimacy, which alone can make life worth living together. Accordingly, the Court declares, “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. . . . This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Prece­dent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate. “[33] No one would take seriously a county clerk refusing to marry a retired man and woman whose love is mature rather than oriented to having kids.

The Court’s grounding its decision on natural law surprised me; less remarkable is the predictable inclusion of the constitution’s equal-protection (under the law) clause. I contend that this basis for such a decision is not without drawbacks in terms of federalism. The Court bases its equal-protection argument on its natural right argument as follows:

The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. . . . The challenged laws burden the liber­ty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and con­tinuing harm, serving to disrespect and subordinate gays and lesbi­ans.”[34]

To be sure, Mississippi’s Governor, Phil Bryant, was on solid ground in claiming that the U.S. Supreme Court "usurped" each state's "authority to regulate marriage within their borders."[35] The recognition of a federal right reduces the existing and residual governmental sovereignty of the states. In other words, the transfer of power was at the expense of the Tenth Amendment. Given the extent of successive federal encroachments in the twentieth century, moreover, Bryant could argue that political consolidation in an empire-scale Union is weaker than federalism because with territorial scale comes cultural and related ideological differences. In other words, federalizing everything risks the loss of federalism itself, and thus restricts the ability of the “extended republic” (which in turn consists of republics) to breath.

Federalism is a juristically valid counter-principle in limiting the scope of equal protection to be applied at the federal level in the U.S. system. I submit that ideology is not a valid restraint on the reach of either natural law or equal-protection. Personal opinion grounded in a hierarchy of values and related emotions can get in the way of a court recognizing a natural right as a human right and in applying the equal-protection clause to a controversial topic.

Ideology under the guise of judicial opinion is evident in Justice’s Scalia’s dissent. Referring to the humiliation that comes with a fundamental right going unrecognized, the Court claims, “It is demeaning to lock same-sex couples out of a central institution of the Nation’s soci­ety, for they too may aspire to the transcendent purposes of marriage. . . . Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudi­ated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled.” Justice Scalia argues in contrast that “human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away."[36] The claim that slaves did not lose their dignity does not come out of the body of knowledge in jurisprudence; rather, psychology and sociology are the relevant disciplines. Unless Scalia holds an advanced degree in either of these fields, his claim is beyond his ken. His presumption to be well-versed in those fields and thus able to know from an empirical basis (e.g., history) that governments did not deprive slaves of their dignity in the U.S. is problematic rationally, and this in turn points to the presence of an underlying ideology impairing Scalia’s cognition.

To be sure, plenty of emotion was involved as well. This is prime facie evident in Scalia’s calling Kennedy’s opinion “often profoundly incoherent” and declared that its “style is as pretentious as its content is egotistic.”[37] At another juncture, Scalia ridicules Kennedy’s language as “sounding like an aphorism from a fortune cookie.”[38] Clearly, more is involved in Scalia’s “legal” opinion than jurisprudence. The reputation of the Court itself suffers because legal reasoning and judgment is the only basis of the Court’s authority. Put another way, if the “liberal” and “conservative” justices can be clustered because they tend write from the standpoint of their respective ideologies, then a more legitimate basis would be to have the people decide directly through referendums attached to ballots. Unfortunately, however, even fundamental rights can be blocked by majority rule.

The Court’s Chief Justice, John Roberts, wrote a dissent, but that he did not sign on to any of his colleagues’ dissents may suggest that he felt the need to buttress the Court’s reputation as per its legitimating foundation of legal reasoning. “I would be shocked if Roberts ever got near the invective that Scalia uses,” Lucus Powe, a lawyer who follows the Court, said.[39] Were Roberts to “go off” in his legal opinions, people would naturally wonder why we are leaving such important decisions up to nine people. Even supporters of gay marriage “appreciated Roberts’ restraint — and reasoning — in his dissent . . . , even though he ultimately rejected the notion of a constitutional right to marry for gays and lesbian couples.”[40] It might even be said that the U.S. Supreme Court is in the business of producing well-reasoned analyses based on jurisprudence. “The two best opinions Roberts has written on the court are his opinion in the Obamacare and gay marriage cases,” said Walter Dellinger, who served as acting solicitor general in the Clinton administration.[41] He added, “While I don’t agree with his bottom line in the same-sex marriage case, he wrote the most respectful and best-reasoned argument for allowing the democratic process to run its course. None of the advocates defending bans on same-sex marriage at the court came close to articulating as good an argument as Chief Justice Roberts.”[42] Dellinger said he was struck by the difference in tone between Alito and Roberts. “Alito could barely contain his anger and foresees people opposing gay rights being marginalized and discriminated against themselves, whereas Roberts speaks with great sympathy of the desire of gay people to be married.”[43] If Alito could barely contain his ideological anger in his legal opinion, it is not clear how much of his opinions for the Court is really judicial as distinct from his personal agendas—his jurisprudence serving as a subterfuge for his political ideology and emotions.

In the end, perhaps the overriding question is whether fundamental natural rights should be subject to the will of a majority having a certain political, moral, or religious ideology. Max Weber’s theory of bureaucracy maintains that the particulars or idiosyncrasies of an occupant of an office—whether in business or government—should make no difference in his or her carrying out of the office’s duties. Whether a county clerk is personally religious and has certain religious beliefs, or has a particular ideology or prejudice should make no indentation on how the person functions in that office; what the person believes and feels should not leave their mark on the output. Similarly, whether a justice is angry or very ideological should not affect his or her legal reasoning and judgment. Otherwise, the individual usurps the office and thus detracts from its public service. Human pride may be the underlying culprit—an abomination in its pedestrian usage. 

The desire to fashion a social reality as a projection of the self, as if what a person believes or feels is truth, may be so ingrained in us all that we scarcely recognize the pathology even though it is right under our noses. Hence, religious folks could do worse than regard religious ideas, beliefs, dogmas, and practices such as worship and even related domains such as ethics (as used by religions) as being especially subject to strict scrutiny within. In other words, a religious person leaves herself vulnerable to herself as long as she regards truth as she understands and practices it as sacred in the sense of being inherently beyond self-reproach or at least self-examination from the standpoint of cognitive and judgmental dysfunctions in the person's own mind. 

[1]Alan Blinder and Richard Perez-Pena, “Kentucky Clerk Defies Justices on Marriage,” The New York Times, September 2, 2015.
[2] Ibid.
[3] Ibid.
[4] The New Interpreter’s Dictionary of the Bible, Vol. 1, Katharine D. Sakenfeld, ed. (Nashville, TN: Abingdon Press, 2006), p. 15.
[5] Ibid.
[6] Ibid.
[7] Deut. 18:9, 1 Kgs. 14:31; 2 Kgs 16:3; 21:2; 2 Chr. 33:2; 36:14. The New Interpreter’s Dictionary of the Bible, p. 15.
[9] Ibid.
[10] Tanakh: The Holy Scriptures (New York: The Jewish Publication Society, 1988), p. 184.
[11] Ibid.
[12] The New Interpreter’s Dictionary of the Bible, p. 15.
[13] Random House Unabridged Dictionary, 2nd edition (New York: Random-House, 1993).
[14] The New Interpreter’s Dictionary of the Bible, p. 16.
[15] Tanakh, pp. 184-85.
[16] Gottfried Leibniz, "Reflections on the Common Concept of Justice," in Leroy Loemker. Leibniz: Philosophical Papers and Letters (Dordrecht: Klumer, 1702/1989), p. 516.
[17] The New Interpreter’s Dictionary of the Bible, p. 15.
[18] Ibid.
[19] Ibid.
[20] The Anchor Bible Dictionary, Vol. 1, David N. Freedman, ed. (New York: Doubleday, 1992), p. 29.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Cristian Farias, “Kentucky Clerk Kim Davis Suffers Yet Another Loss in Federal Court,” The Huffington Post, September 15, 2015.
[25] Ibid.
[26] Adam Liptak, “Justices Deny Bid to Resist Gay Marriage in Kentucky,” The New York Times, September 1, 2015..
[27] Ibid.
[28] Alan Blinder and Richard Fausset, “County Clerk, a Local Fixture, Suddenly Becomes a National Symbol,” The New York Times, September 2, 2015.
[29] Ibid.
[30] Ken Paxton, Opinion No. KP-0025, June 28, 2015.
[32] Ibid.
[33] Ibid.
[34] Ibid.
[35] Marina Fang, “Some States Are Still Trying to Resist Gay Marriage,” The Huffington Post, June 28, 2015.
[37] Josh Gerstein, “Supreme Court Justices Stop Playing Nice,” Politico, June 26, 2015.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Ibid.
[42] Ibid.
[43] Ibid.