Homosexuality in Legal Perspective (Part II): Revisiting Due Process, Equal Protection, and Privacy
In last week’s article, we began considering homosexuality in legal perspective. We summarized America’s present state of affairs, and the constitutional arguments advanced by LGBT (lesbian, gay, bisexual, transgender) and religious liberty proponents. In this article, we’re going to revisit LGBT rights arguments in greater detail: namely, due process, equal protection, and privacy.
Due Process & Equal Protection
a. Basic Positions
Based primarily in the Fourteenth Amendment, LGBT proponents interpret due process and equal protection to mean this: that American law will apply to all citizens, including homosexuals, in a manner that is just, fair, consistent, and reasonable. Accordingly this includes marriage.
However, others critique this interpretation. The Fourteenth Amendment was not passed in the heyday of the LGBT movement, they maintain, but in the tattered aftermath of a blood-filled Civil War.[1] Consequently the Amendment’s framers had former slaves in mind primarily.
LGBT proponents seeking to rebut this argument point to the Amendment’s text, which uses phrases such as “all persons,” “any person,” and “no person.” Even so, the others insist, this all-encompassing language must be interpreted with the framers’ understanding of it in mind. Critics of the LGBT interpretation are not necessarily suggesting that homosexuals should be denied due process, equal protection, and other rights. So what is at stake for them?
b. The Rule of Law
Instead, they are seeking to guard against a dangerous precedent wherein certain parties would accomplish their goals by threatening the rule of law. This is one of the most important principles upon which America was founded. As Samuel Rutherford (c. 1600-1661) put it in Lex Rex (1644), it means that the law is king. It means that no one, whether monarch, aristocracy, oligarchy, or representatives, may stand above the law. Fundamentally, this protects citizens from arbitrary uses of power. Thus, laws, policies, and rights should be passed through processes that protect the rule of law. America’s founders strongly emphasized this principle because they had served under a king who had not respected it, and had experienced firsthand the abuses that follow such a disregard of it.
By not establishing the law or determining protections through the proper channels, or by arbitrarily imposing an unintended meaning onto a preexisting law, we offend basic notions of the rule of law. Therefore, to the extent that homosexuals should enjoy certain legal protections, they should be specified through proper channels, which are appropriate for a federal republic animated by democratic elections. They should not be prescribed by imposing a foreign meaning upon a law that did not presume this prescription, as this offends the rule of law.
Privacy
a. Basic Positions
LGBT proponents also point to privacy arguments. This, they contend, means that all citizens have a right to privacy against unwarranted governmental intrusion. Accordingly, this also means that homosexuals have a constitutional right to perform certain activities within the context of their own homes.
Those who critique this position hold that it misinterprets this right and misunderstands the role of morality in law and society. Of course the government can (and does) interfere in our private lives if our conduct violates the law and public policy, they assert. After all, law and policy is nothing more than a reflection of the morality that society values most. Even a society, which maintains that it does not hold to a morality because it allows its citizens to live as they please, still reflects a moral code: one of toleration.
b. Transforming Law & Policy
What does this mean for Christians? Because privacy rights are simply a reflection of a society’s moral code as manifested in law and policy, we have the right to work to transform the society into one that reflects our values. This takes place in the context of the home, church, workplace, and public square. In fact, all public square participants enjoy this right, and exercise it, working to transform the society into one that reflects their values.
This is warranted by Scripture and by our Constitution. With regards to Scripture, if Biblical figures such as Joseph, Moses, Daniel, Esther, and Paul are any indication, God works in and through governments and political processes. Thus, in a manner consistent with Christian virtue and human rights, we should follow their examples. In fact, as Free Will Baptists, our Church Covenant encourages this very course:
We will everywhere hold Christian principle sacred and Christian obligations and enterprises supreme; counting it our chief business in life to extend the influence of Christ in society, constantly praying and toiling that the kingdom of God may come, and His will be done on earth as it is in heaven.[2]
As we work to transform the society in which we live, other public square participants will disagree with us, as we will them. But we can expect this when two parties, who disagree with one another, each believe themselves to be standing for truth.
c. The Separation of Church & State?
With regards to the Constitution, some will object: “We can’t legislate morality,” they’ll say. “We have a strict separation of Church and State.” Morally and historically, this is a misnomer. As we’ve seen, all legislation evinces a morality, be it Christian, Secular Humanist, or something else. All public square participants, therefore, are necessarily working to legislate their morality. We should not be bullied into believing that we can’t “vote our consciences” by some misguided separationist rhetoric. In fact, history reveals that the whole notion of strict separationism is inaccurate.
In 1802, Thomas Jefferson penned a letter to the Danbury Baptists, writing, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ [First Amendment], thus building a wall of separation between Church & State.” Does Jefferson then mean that the First Amendment has thus built such a wall? Does he mean that the Constitution does not permit us to work to transform law and policy? Justice Hugo Black believed so.
In a divided, 5-4 decision in Everson v. Board of Education (1947), Black wrote for the majority, in which he interpreted Jefferson’s statement: “The First Amendment has erected a wall between Church and State. That wall must be kept high and impregnable. We could not approve the slightest breach.” Modern interpretations of separationism stem from Black’s explanation. Did Black interpret Jefferson correctly? When considering Jefferson himself, we discover that he did not.
By stating that the First Amendment has built a wall of separation between the Church and State, Jefferson did not mean that the Church and its morality couldn’t inform the State’s laws and policies, as modern interpretations have supposed. Instead, he meant that the State should not interfere in the Church’s business. We can see Jefferson’s position illustrated well some sixteen years after he penned the Danbury letter.
One year before founding the University of Virginia, he presented his “Report to the Commissioners.” Also known as “The Rockfish Gap Report,” Jefferson explained his desire that the university’s curriculum allow students to learn the proofs for God’s existence. This is significant because the university was founded as a public university.
In this report, he explicitly states that this would not violate the Constitution, “In conformity with the principles of our Constitution . . . the proofs of the being of a God . . . will be within the province of the professor of ethics,” and again, “Proceeding thus far without offence to the Constitution.”[3] Thus, Jefferson’s wall of separation does not refer to the Church’s separation from the State (quite the opposite in fact), but to the State’s separation from the Church. In other words, the State should stay out of the Church, but not the Church out of the State.
The founders were entirely comfortable with the Church and its morality informing the State’s law and policy. This is fairly obvious when we consider America’s earliest laws, which have Christian morality laced throughout them.[4] In addition, the founders believed that a federal republic requires such a moral center to function at its best.
It’s not that they were confused about the First Amendment’s implications upon law and policy. In fact, much of what is done in the name of the separation of Church and State in today’s legal environment would actually violate what Jefferson meant by the phrase, as the State increasingly locates itself in the Church’s business, and increasingly strips the Church’s ability to influence law and policy.
Whether we’re talking about the legalization of abortion, marijuana, same-sex marriage, or some other moral issue in the public square, we mustn’t allow ourselves to be quieted. We mustn’t be silenced by separationist rhetoric, which is based on an inaccurate interpretation of Jefferson, and we mustn’t be silenced by some mistaken notion of libertarianism, which serves to produce a syncretistic society. Instead, we should lovingly stand for those Christian positions we hold. This is warranted and expected, both Biblically and constitutionally.
In our next post, we’ll revisit the important doctrine of religious liberty and its relevance on the subject of homosexuality and same-sex marriage. This will conclude our emphasis month on homosexuality.
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[1] This war claimed the lives of about 620,000 American soldiers, which is nearly half the total number of lives that American soldiers have lost in the nation’s various wars.
[2] http://nafwb.org/files/images/treatise09.pdf, italics added.
[3] In full, the statement reads, “In conformity with the principles of our Constitution, which places all sects of religion on an equal footing, with the jealousies of the different sects in guarding that equality from encroachment and surprise, and with the sentiments of the Legislature in favor of freedom of religion, manifested on former occasions, we have proposed no professor of divinity; and the rather as the proofs of the being of a God, the creator, preserver, and supreme ruler of the universe, the author of all the relations of morality, and of the laws and obligations these infer, will be within the province of the professor of ethics to which adding the developments of these moral obligations, of those in which all sects agree, with a knowledge of the languages, Hebrew, Greek, and Latin, a basis will be formed common to all sects. Proceeding thus far without offence to the Constitution, we have thought it proper at this point to leave every sect to provide, as they think fittest, the means of further instruction in their own peculiar tenets.”
Jefferson proposed that the professor of ethics, rather than the professor of divinity, teach this subject so that denominational distinctives be left to others. In this way, the University of Virginia was founded similar to an interdemoninational school.
[4] We see this in their constitutions, laws, decrees, and declarations, which clearly evince Christian morality. For example, consider the 1620 Mayflower Compact, 1642 Old Deluder Satan Act, 1663 Charter of Rhode Island, 1776 Virginia Declaration of Rights (Article 16), 1776 Declaration of Independence, 1778 South Carolina State Constitution (Article 38), the blue laws, and countless others.
December 1, 2014
I think the issue of gay marriage illustrates the problems that arise without clear separation between church and state. Marriage is fundamentally a religious/spiritual institution. Society in America has supported our religious views on marriage since the founding (with the exception of Utah who was forced to essentially change the Mormon religion to gain statehood).
As public opinion has shifted on gay marriage, we cry foul. The problem is we ceded control of marriage to the government a long time ago. With no clear separation of church and state, we allow the government to set religious policy. The catholic church, perhaps, had the right idea by recognizing only those ceremonies performed in the church.
Secular government is needed now more than ever. America as the melting pot draws many faiths from around the world, as we see with the rise of Islam here. I think we will look to a secular govt as a protector rather than our enemy in the future. Minorities (religious or racial) typically do. I hope that sounded more pragmatic than fatalistic.
December 2, 2014
Rob:
Thanks for taking the time to read the Helwys Society Forum, and for reading and commenting on my article in particular.
As you stated, problems can arise when there is no clear distinction between church and state. In our Christian and American heritage, we have stood strong on the doctrine of religious freedom or liberty, which means that the State should not concern itself with the Church’s business. In fact, the namesake of our site, Thomas Helwys, wrote about this very thing in The Mystery of Iniquity in the early 1600s. Tomorrow, I will post a final article entitled, “Homosexuality in Legal Perspective (Part III): Reclaiming Religious Liberty,” which I will explore this topic more.
With all due respect, I’m not sure that I agree that we need Secular Government now more than ever, and that it would be more of a protector rather than an enemy. Secular Government is a reflection of a secular society’s values; and a secular society’s values can be antagonistic to God’s people. In fact, assuming that we’re seeing Secular Government in action now (I’m not entirely sure how you define Secular Government, for the record.), I believe that we’re seeing the early stages of this antagonism even now.
When cities deny church groups equal access to rent public properties; or when universities decline to recognize Christian, student groups with traditional, religious views; or when federal healthcare mandates attempt to require corporations to cover contraceptives and abortion; or when city mayors attempt to compel pastors to submit sermons that make reference to homosexuals—when these types of circumstances are occurring, I believe we’re seeing an increasingly Secular Government be antagonistic toward Christians.
To be clear, I am not advocating for some theocracy—far from it. What I am advocating for (as I think we all are) is a society that most respects person’s inherent God-given dignity and their basic, human, fundamental rights—to get to your point about religious and racial minorities. I agree by the way that the law should protect minorities. After all, this is one of the reasons that we have a Bill of Rights. But again, I explore this further in my religious liberty post.
Rob, you didn’t sound fatalistic. If anything, I appreciate your candor and realism, and the opportunity to dialogue. I think we can all agree that there are problems, even if we have different ideas as to what might be the best solution.
God bless.