In America today, we have very nearly reached the completion of a long process I can only describe as the systematic usurpation of ultimate political power by the American judiciary—a usurpation that compels evangelical Christians and, indeed, all believers to ask sobering questions about the moral legitimacy of the current political order and our allegiance to it. This is an inquiry undertaken reluctantly and, I hope, with due caution, for the stakes are very high. Among the questions we must address is whether millions of Americans are still part of the “We the People” from which democratic authority is presumably derived.
A little more than two hundred years into the American experiment, cultural conservatives stand convicted of unspeakable crimes in the eyes of most of America's media commentators. The opponents of abortion on demand, in particular, have felt the whip. Some columnists charge them with fostering a climate of hatred responsible for the Oklahoma City bombing and the Michigan militia. One claimed that “the main form of political terrorism in the United States is perpetuated by right wing opponents of abortion,” while another added that “most anti-abortion activists” are “religious fanatics who want to impose their version of God's word on the rest of us.”
The Congress seems for the most part to agree with the media, if passage of the Freedom of Access to Clinics' Entrance Act—the act that narrowed the First Amendment rights of abortion protestors as an entire class of citizens—is any indication. And the Supreme Court appears to agree as well. In Casey v. Planned Parenthood, which enshrined the right of abortion as a specifically protected Fourteenth Amendment liberty, the majority lectured pro-lifers for continuing to contest the abortion issue. They were, in Justice Scalia's words, to “be taught a lesson”—a lesson the Court forcefully applied in Madsen v. Women's Health Center, Inc., which created, around abortion clinics, a zone in which pro-choice advocates were free to demonstrate but even peaceful abortion protesters were subject to arrest.
Hostility against pro-lifers seems now to have spilled over into a distrust of any group of citizens seeking to connect public policy with a transcendent moral order. Writing the decision for the Ninth Circuit Court of Appeals in Compassion in Dying v. Washington, which overturned a state ban on euthanasia, Judge Reinhardt slammed the door on people “with strong moral or religious convictions,” as he put it. “They are not free,” he wrote, “to force their views, their religious convictions, or their philosophies on all the other members of a democratic society.”
That Circuit Court decision has been appealed, but the Supreme Court itself has expressed similar sentiments. In overturning Colorado's prohibition of local civil rights statutes based on sexual preference, the Court in Romer v. Evans effectively branded a bigot any citizen who considers homosexuality immoral. Writing for the majority, Justice Kennedy declared, “Laws of the kind before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Without any supporting testimony or findings of fact, Justice Kennedy managed to divine that the sponsors of the referendum and the voters who ratified it must have been motivated solely by bias.
Kennedy's decision, now the law of the land, forces us to ask a series of critically important questions: Are citizens—whether Protestants, Catholics, Jews, or Mormons—who seek to apply transcendent moral values to public life welcome in political, legal, and cultural debates? Are citizens free to “impose” such values by referendum or legislative means in their respective states, or are their efforts inherently unconstitutional? Does religion (equated by Justice Kennedy in an earlier case with the belief that “an ethic and a morality which transcends human invention” exists) have any role to play in the law?
The answers to these questions have ominous implications for cultural conservatives. Writing in the Baylor Law Review before the Romer decision, David Smolin of Samford University Law School argues that the present Court—rejecting “religiously based” claims as inherently particularistic—is increasingly dismissing “traditional theists” as too absolutist to join in public debate in a pluralistic society. This dismissal of religion (coupled with what he considers the Court's abandonment of the rule of law) helps explain the “frustrated religious patriotism” that drives much conservative political action. With political prospects increasingly out of reach, Smolin predicts traditional theists with political interests will be forced to abandon their religious beliefs and accommodate themselves to an amoral, libertarian regime. The only alternative seems to be an abandonment of their political interests, becoming what the theologian Stanley Hauerwas has called “resident aliens” in America—no longer concerned about the fortunes or misfortunes of a flawed republic, no longer considering this land their country.
As events at this summer's Republican National Convention in San Diego show, the putative alliance between the religious right and the Republican Party offers little solution; and the truth is that grave dangers exist regardless when the independence of a religious mission is married to a particular political party's agenda. But utter political despair, at least, may be premature. Believers may have been told that their convictions disqualify them from public debate, but the news is news they've heard before. During the parliamentary struggle to curtail the British slave trade in the late eighteenth century, Lord Melbourne sounded much like the U.S. Supreme Court today when he huffed on one occasion, “Things have come to a pretty pass when religion is allowed to invade public life.” Yet Christian reformers pressed on, rolling back, one by one, features of the slave trade until it was abolished in 1807 and slavery itself in 1833.
Unfortunately for us, however, events in America may have reached the point where the only political action believers can take is some kind of direct, extra-political confrontation of the judicially controlled regime. Following the logic in Romer, the Supreme Court can in time strike down state statutes barring polygamy, sodomy, and incest. Under the Romer logic, I believe, it will easily find no compelling state interest in confining marriage to a man and a woman, when the fallout from the case in Hawaii's state courts reaches the federal level.
A court empowered to judge a statute's constitutionality by that court's own inference of the animus of the statute's sponsors is a court set free from any limitations on its power—its power, on the one hand, to strike down any law enacted with the political aid of believers, and its power, on the other hand, to move directly against churches and denominations that display a perceived animus in their teaching toward certain behavior. The free exercise clause of the First Amendment poses no obstacle to a judge with any creativity, and—given the demonstrated animus of the current judicial regime against believers—a showdown between church and state may be inevitable. This is not something for which Christians should hope. But it is something for which they need to prepare.
When considering the relation of church and state, we must remember first, of course, that in the thirteenth chapter of his letter to the Romans, Paul has written what must remain for Christians the classic admonition of obedience to the governing regime. Most scholars and pastors, however, recognize that this admonition needs to be balanced with other biblical passages that suggest individuals will at times face a very clear choice between God and Caesar. The Old Testament prophet Daniel, rather than violate God's law, was granted permission not to partake of the king's food—though, we must acknowledge, he took the minimum resistance necessary, even seeking a pagan official's approval of an alternative action. His friends Shadrach, Meshach, and Abednego went further, risking their lives rather than worship pagan idols. In the New Testament Book of Acts, Peter and John refused to stop preaching the gospel even as they recognized the state's right to punish them. The biblical evidence suggests that where a state either demands what God prohibits or prohibits what God demands, the believer is to obey God and graciously accept the state's imposed consequences.
Not all Christian thinkers have applied these principles in exactly the same way. John Calvin, for instance, held a somewhat narrow line, stressing the responsibility of citizens to fear and honor whatever ruler is placed over them, even “the most wicked tyrant,” a Nebuchadnezzar or Belshazzar. Though he conceded that disobedience to the state under certain (biblically identified) circumstances was a Christian's responsibility—and allowed for lower magistrates to take issue with rulers on behalf of the people—Calvin remained confident that God providentially works His will in all sorts of people, good and bad.
Augustine and Thomas Aquinas, however, saw more circumstances than the Swiss Reformer where a Christian citizen may need to question or resist civil authority. Augustine's dictum remains the most famous formulation of the broader view of a Christian's relation to the state: “An unjust law is no law at all.” Aquinas argued that God's delegation of authority to civil authorities was linked to the fostering of virtue. When a ruler meets that test, when his laws and actions are in accord with the lex divina, and when human law promotes the tranquillitas ordinis, then human law is just; but if it “runs counter in any way to the law in us by nature, it is no longer law but a breakdown of law.” Martin Luther King, Jr. cited both these thinkers in defense of civil disobedience in his Letter from the Birmingham Jail in 1963: “A just law is man-made code that squares with the moral law of God. Unjust law is a code that is out of harmony with the moral law.” We must observe, however, that King did not call for general disobedience or resistance to the state; only the unjust law, he argued in an important qualification, can be disobeyed.
Among Protestant thinkers, the Scottish Reformer John Knox also saw more circumstances than Calvin under which civil powers might be disobeyed. He called on the nobility not simply to resist but to overthrow what he considered the tyranny of Catholic rule in Scotland. In addition, he believed that the common people could revolt if the nobility failed in an effort to bring Reformation to Scotland. A century later, the Scottish Covenanter Samuel Rutherford penned his classic work Lex Rex, arguing that the written law stands above the king, and when the king strays, his actions are unjust and may be resisted, indeed must be resisted. Rutherford was the inspiration for the twentieth-century theologian Francis Schaeffer, who claimed in his Christian Manifesto that “at a certain point there is not only the right, but the duty, to disobey the state.”
The Pauline passage in Romans recognizes two realms: Caesar's and God's. But Scripture in general, including Paul, recognizes that Caesar rules under God's authority, with delegated power to achieve certain ends: justice, domestic tranquillity, the restraint of evil. Christian thought throughout history has held that any government which perverts these ends is acting ultra vires, in violation of its delegated authority. Dietrich Bonhoeffer, the German Lutheran pastor who was martyred for resisting Hitler, gave what may be the clearest expression of the principle: “If government persistently and arbitrarily violates its assigned task, then the divine mandate lapses.”
This may be a sort of “preaching to the choir,” for it strikes me hardly anyone would deny that a government can become so corrupt that it is the positive duty of Christians to resist it. The real questions facing us are, rather, these: At what point does a government become sufficiently corrupt that Christians must actively resist it? and, Has the United States, under its current judicial regime, reached such a point?
Sometimes, to their shame, Christians have not roused themselves to resist evil government, and sometimes, to their credit, they have. In 1985, after President Marcos invalidated a freely held election in the Philippines, Christians began gathering in prayer groups. The Roman Catholic Jaime Cardinal Sin (who emerged as a dominant figure in the opposition to Marcos) publicly withdrew moral legitimation for a corrupt regime, holding the state morally accountable before God for its failings. Shortly thereafter, nuns left their convents, and lay Christians their homes, to flood the streets where they disarmed the tanks Marcos had ordered to maintain control.
Protestant churches have acted similarly. In 1934, representatives from eighteen provincial churches gathered in Barmen to create a “Confessing Synod” of the German Evangelical Church, declaring ecclesiastical independence from the Nazi regime. While the convocation was concerned more with saving the Church than the state, it indirectly questioned the moral legitimacy of the government and gave impetus to the German resistance movement. A more obscure but nonetheless interesting case is the Reformed Presbyterian Church of North America, a small denomination with roots in western Pennsylvania. Declaring early in American history that the Constitution was “godless” because it failed to acknowledge the authority of Jesus Christ, the church up until a generation ago practiced “political dissent,” not allowing members to vote, hold public office, or take oaths of allegiance to the flag or the Constitution.
The uniqueness of the American experiment provides an opportunity for a Christian critique of the legitimacy of the current regime. When the republic was founded, the biblical tradition and the Enlightenment—two distinct and often antagonistic understandings of the world—seemed to find a patch of common ground. God's authority was acknowledged (“All men are endowed by their Creator with certain inalienable rights”), but sovereignty was vested not in God but in the people who consented to be so governed. The subsequent experiment in “ordered liberty” was achieved because, while some saw their liberty secured by God and others by their status as human beings alone, all agreed to be bound together for the sake of that liberty.
To use a political term of the time, a “social contract” that included biblical believers and Enlightenment rationalists was the basis of the founding of the United States. Whether Christians ought to have agreed to that contract is an interesting historical and theological question, but not really of much significance in our present circumstances—for agree to it Christians did. Our pressing question is rather whether the successor parties—today's governed populace and their judicial governors—still recognize the essence of the contract. If one party no longer does, that party has breached what lawyers call a “condition precedent”: the essential promise by which the other party's agreement was secured.
If the terms of our contract have in fact been broken, Christian citizens may be compelled to force the government to return to its original understanding—as even Enlightenment rationalists have acknowledged. John Locke, a principal Enlightenment force behind the theory of a social contract, advocated the right of citizens' resistance to enforce the terms of the contract. The writings of Thomas Jefferson, who spoke openly of the necessity of revolution, could also be called upon for support.
It seems to me, however, that only the Church in some corporate capacity, not the individual Christian, has the authority to answer the question of our allegiance to the present regime. While the fragmentation of American churches poses obstacles to the kind of ecclesiastical consensus reached in Germany in the 1930s or the Philippines in the 1980s, some kind of convocation of theologically orthodox bodies could presumably join to consider the duty of Christians under the present order. (The statement “Evangelicals and Catholics Together,” published in [First Things—>www.firstthings.com] in May 1994, demonstrates that joint efforts are possible.) While such a convocation could not claim to speak with total authority as the Church, it could give voice to a consensus of opinion among Christians in America.
Only the Church collectively can decide at what point a government becomes sufficiently corrupt that a believer must resist it. But, with fear and trembling, I have begun to believe that, however Christians in America gather to reach their consensus, we are fast approaching this point. Most orthodox Christians are likely to find it impossible to support a political regime under which the judiciary—without any legislative license—sanctions abortion, euthanasia, and homosexual marriage. Few believers are likely to pledge their allegiance to a government under which the courts—in the name of “constitutional rights” they themselves have sole authority to read into the Constitution—can systematically close off any form of political opposition by declaring it to betray the “inevitable inference” of animus.
And if, after prayerful deliberation, Christians corporately determine that our present government has violated its God-given mandate, what then? After the pattern of the confessing German church, the Church would first have to separate herself and declare her independence, disavowing any moral legitimacy indirectly or unofficially provided for the state in the past. Through her teaching and preaching office, the Church would need to expose the nature of the state's rebellion against God—in effect, bringing the state under the transcendent judgment of God. Though clergy and ecclesiastical officers must refrain from partisan political activity, as I have cautioned elsewhere, condemning the taking of innocent lives is not partisan, whether through protesting abortion clinics or (as the British clergy did in World War II) denouncing a government for bombing civilian targets.
Churches and religious organizations in this country have already, in limited circumstances, asserted their independence at some cost. In the 1980s, when New York barred discrimination against the hiring of practicing homosexuals by private agencies with city contracts, the Salvation Army, Agudath Israel, and the Catholic archdiocese simply refused city funds; in the case of the archdiocese, that meant losing $72 million in funding.
But what if all these actions fail to deter the state? Churches must then consider a higher level of resistance. In the campaign against slavery in the nineteenth century, Protestant churches used internal discipline and external pressure. The revivalist Charles Finney refused communion to slaveholders. Others organized the Underground Railroad and rescued fugitive slaves from prison. Many ministers broke the law, were arrested, and some were imprisoned.
But would even active disobedience be effective against our current judicial state? When peaceable means and limited civil disobedience fail—at least according to the Protestant theologians Knox and Rutherford—revolution can be justified from a Christian viewpoint. While Knox called for the overthrow of a ruler in the interest of the Reformation, Rutherford advocated revolt in any instance when a king or ruler acted contrary to the written law. Apparently, many Christians in colonial times agreed with Rutherford. After dumping tea in the Boston harbor, one Boston pastor, Jonathan Mayhew, argued that for a people to “arise unanimously and resist their prince, even to dethrone him, is not criminal but a reasonable way of vindicating their liberties and just rights.”
Of course, the same standards Augustine used to evaluate the justice of a war apply to the justice of a revolution: no other alternative is feasible; the advantages outweigh the suffering caused; and the evil employed in the revolution prevents far greater evil. The churches would have to be convinced that our present government had become totally opposed to God's purposes and that there was no other solution to prevent massive evil. And this point, I believe, we have not yet reached.
Prudence requires greater understanding than most Christians presently have about the threat that recent and pending court decisions pose. In Compassion in Dying v. Washington, Ninth Circuit Judge Reinhardt literally dared the Supreme Court to reverse Hardwick v. Bowers (the five—to—four decision in 1986 that upheld Georgia's statute against sodomy). Three of the five justices in the Hardwick majority have been replaced, and the decision appears to be, as Judge Reinhardt eagerly pointed out, at odds with the rationale behind the Casey decision. If Hardwick falls, the Court may likely require states to recognize homosexual marriage. Christians therefore would be forced to live under a government whose actions violate the biblical ordering of social life and threaten the first institution ordained by God.
Reinhardt's decision in Compassion in Dying v. Washington itself prohibited states from preventing euthanasia—which, if upheld by the Supreme Court, means that the medical murder of the sick and elderly has become our government's national policy. Similarly, President Clinton's veto of the congressional bill banning the murder of babies when partially delivered is tantamount to affirmation of infanticide. It would be hard to imagine that a Christian in good conscience could swear to uphold the Constitution or laws of a nation that practices the horrendous offense against God of taking the defenseless lives of the weakest among us: babies, the elderly, and the sick.
The fervent and ceaseless prayer of every Christian should be that the discussion of resistance and revolution remains an academic exercise. We must continue for now to work relentlessly within the democratic process. Abhorring a confrontation, we should be engaged in a search for wisdom and a consensus to help us respond to the crisis of the time. Our discussions about the duty of Christians to the current American political order must be conducted with care, in a manner that is formal rather than intuitive, deliberative rather than spontaneous, regulative rather than pragmatic. Calmness and seriousness of demeanor is necessary both to prevent the media dismissing us as fanatics and to prevent individuals from taking matters into their own hands.
And, after all, the Supreme Court may possibly keep faith with the original contract that brought Christians into the republic; seeing what it unleashed with Roe and institutionalized with Casey, it may yet rediscover the principle of judicial restraint. Politicians may be persuaded of their error in supposing economic positions more important than moral positions. Perhaps some of our most vitriolic critics in the media may discover that Christianity has been historically a far more powerful force for common good than the reverse. God is sovereign, after all, and He is in the miracle business. And if the polls are right, believing Protestants and Roman Catholics, generally socially conservative, represent a viable political majority in this country.
We dare not at present despair of America and advocate open rebellion. But we must—slowly, prayerfully, and with great deliberation and serious debate—prepare ourselves for what the future seems likely to bring under a regime in which the courts have usurped the democratic process by reckless exercise of naked power.
Charles W. Colson is Chairman of Prison Fellowship and the 1993 recipient of the Templeton Prize for Progress in Religion. He is the author of fourteen books and coeditor of Toward a Common Mission: Evangelicals and Catholics Together (Word).