Staver and Fournier: Time for Civil Resistance
Prior to the Supreme Court opinion about marriage, we (an Evangelical and a Catholic) co-drafted the Pledge in Solidarity to Defend Marriage, which was signed by tens of thousands of people across Christian confessional lines. The Pledge became the basis for major advertisements in the Washington Post and USA Today newspapers.
In that declaration we asserted that, “a decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.”
As constitutional lawyers we anticipated this abysmal opinion. Aware that the Supreme Court has made wrong decisions in the past, we pointed to the Dred Scott and Buck v Bell decisions as examples. We also point to the Roe and Doe opinions which, in legalizing procured abortion, left close to 6o million children dead in its bloody trail
In Roe and Doe, the Supreme Court rejected the Natural Law human right to life as enshrined in the birth certificate of our Nation, the Declaration of Independence. The majority manufactured out of some “penumbra” a profane counterfeit “right” to take the life of our youngest neighbors in the womb. They also unleashed division in the Nation which still injure the common good.
Justice Kennedy had already tipped his hand. In both the Lawrence and Casey opinions he wrote that liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This is not only bad metaphysics, it has led to the worst kind of legal positivism; a philosophy which says, in effect, that the law is what the court says it is.
Writing for the majority, Kennedy engaged in judicial alchemy, attempting to make what can never be the moral or legal equivalent of marriage to be a marriage by judicial fiat. In effect, he abolished marriage by redefining this unique institution out of existence.
The Obergefell opinion ignored the constitutional role of the Court, violated the separation of powers, ignored the cross cultural witness of human history, jettisoned the Natural Moral Law, ignored past precedent and failed to even consider the common good.
In rejecting marriage as a unique institution which preceded civil government and institutional religion, the Supreme Court has become a willing ally of a cultural revolution. In the scathing dissent written by Chief Justice Roberts he referred to the majority as “five lawyers”, noting that “the majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”
As we wrote in the Marriage pledge, “The Supreme Court acknowledged in the 1992 decision of Planned Parenthood v. Casey, its power rests solely upon the legitimacy of its decisions in the eyes of the people. If the decisions of the Court are not based on the Constitution and reason, and especially if they are contrary to the natural created order, then the people will lose confidence in the Court as an objective arbiter of the law.”
A New Alliance
Some press reports on the pledge noted the uniqueness of our working together in its drafting because one of us is an evangelical Protestant Christian and the other is a Catholic Christian. The implication was that such collaboration was rare. Not any longer. The action of the Supreme Court majority is giving rise to a movement which will grow in its impact and influence.
Those who have signed the declaration represent the full array of the Christian community. There are evangelical Protestants, mainline Protestants, Catholics, Orthodox Christians, Free Church and charismatic Christians. Additionally, we are joined by faithful Jewish signatories.
We stand together in affirming that marriage is between one man and one woman, intended for life, open to new life and formative of the family. The family is the first cell of civil society and must be protected from governmental abuse and interference. No Court, Legislature or Executive has any authority to change that objective and unchangeable truth.
In the Pledge we affirmed that “marriage and family have been inscribed by the Divine Architect into the order of Creation. Marriage is ontologically between one man and one woman, ordered toward the union of the spouses, open to children and formative of family. Family is the first vital cell of society, the first government, and the first mediating institution of our social order. The future of a free and healthy society passes through marriage and the family.”
We also clearly set forth that our position is not simply a religious position. “Marriage as existing solely between one man and one woman precedes civil government. Though affirmed, fulfilled, and elevated by faith, the truth that marriage can exist only between one man and one woman is not based on religion or revelation alone, but on the Natural Law, written on the human heart and discernible through the exercise of reason. It is part of the natural created order.”
This is Opinion Not Law
We pledged that if the Supreme Court rejected the objective truth, stepped outside of its lawful authority, and ruled against marriage, we would not comply. We knew the seriousness of such an assertion. However, we also knew that we stood in a long tradition of men and women who have opposed unjust laws in the past. We wrote that “the Natural Law is what Dr. Martin Luther King, Jr., referred to as a higher law or a just law in his famous Letter from Birmingham Jail.”
Some pundits seemed surprised we used Dr. King as an example. They have accepted a politicized version of his heroic life and death put forth by those who seek to misappropriate him for their own political agenda. Dr. King was, first and foremost, a Christian. He was morally coherent and did not separate faith and life.
Along with him, we rely upon Augustine and Aquinas. Their eloquent affirmation of the Natural Law is both timely and timeless. Dr. King had to explain to some within the Christian community of his day who opposed his methods, why he engaged in civil resistance. From a jail cell he wrote,
I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their “thus saith the Lord” far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.
Standing on the shoulders of the Old Testament Prophets and under the Shadow of the Cross where the final Prophetic voice, the Word made Flesh, hung in selfless love for all men and women, Dr. King addressed unjust civil or positive laws with crystal clarity and prophetic conviction:
How does one determine whether a law is just or unjust? A just law is a manmade code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.
He had to confront some well-intended fellow Christians who accused him of being extreme when he called some positive laws unjust — and insisted that they were not law at all. He gives us insights and direction if we have to do the same in this hour,
“One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”
He reminds us that civil disobedience is sometimes the only proper response to unjust laws, noting “there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake.”
“It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.
“We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s anti-religious laws.”
Law as an Act of Violence
Thomas Aquinas, upon whom Dr. King relied, further explained that “human law is law insofar as it corresponds to right reason and therefore is derived from the eternal law. When however, a law is contrary to reason, it is called an unjust law; in such a case it ceases to be law and becomes instead and act of violence.”
The natural law is the basis for the positive or civil law of every Nation. It also places limits upon the civil or positive law. It is the foundation for our position defending marriage as solely between one man and one woman, intended for life, open to new life, and formative of family. The natural law is also the basis for civil resistance to unjust laws.
We will be addressing this whole subject of civil resistance further together. We know that what we write may be controversial to some. We do not know what the future holds. However, we know who holds that future. We must stand up to unjust authority and openly declare that the Supreme Court is not the Supreme Being. As Christians together, we rely upon the grace of God to give us the strength that we will need.
We conclude with words from a sermon given by Dr. Martin Luther King Jr. entitled “Our God is Able”
“In our sometimes difficult and often lonesome walk up freedom’s road, we do not walk alone. God walks with us. He has placed within the very structure of this universe certain absolute moral laws. We can neither defy nor break them. If we disobey them, they will break us. The forces of evil may temporarily conquer truth, but truth will ultimately conquer its conqueror. Our God is able.”
Mathew D. Staver is the Founder and Chairman of Liberty Counsel, Chairman of Liberty Counsel Action, Chairman of Freedom Federation, Chairman of Salt & Light Council, and Chief Counsel & Vice President of the National Hispanic Christian Leadership Conference/CONELA, representing over 500,000 churches in America and Latin America. He has argued two landmark cases before the United States Supreme Court as lead counsel and written numerous briefs before the High Court. Mat has argued in numerous state and federal courts across the country and has written more than 230 published legal opinions.
Deacon Keith Fournier is the Founder and Chairman of Common Good Foundation and Common Good Alliance. A member of the Catholic clergy, he is a married Deacon of the Roman Catholic Diocese of Richmond, Virginia. He is a human rights lawyer and public policy advocate who served as the first and founding Executive Director of the American Center for Law and Justice in the 1990’s. He appeared as co-counsel in several major cases before the U.S. Supreme Court. He has long been active at the intersection of faith and culture and now serves as Special Counsel to Liberty Counsel.
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