The Doctrine of Lesser Magistrates: Why Federal and State Authorities Ought to Ignore Same-Sex Marriage.

newsphotos-supremecourt-100614

What should a biblical Christian do when the State commands that which God forbids or forbids that which God commands? Having recently written about principled Christian disobedience (PCCD), we now turn to the doctrine of lesser magistrates for some guidance in this present darkness where, increasingly, good is called “evil,” and evil is called “good.” I humbly submit that we have a duty to obey God rather than man.

Relying on scripture, the protestant reformers developed a political theory to address how Christians may appropriately respond when faced with the tyranny of a rogue emperor or despotic king.  A “lesser magistrate” is a lower government authority, relative to the king or other ultimate authority, charged with guarding the God-given liberties of the people under his care.  The concept here is that the lesser magistrate is imbued with the responsibility and authority to shield citizens by resisting, and when necessary, rebelling against the tyranny of a higher authority.

John Calvin wrote in his Institutes of the Christian Religion that while individual Christians are generally commanded to submit to ruling authorities (See Romans 13:1-6), “popular magistrates” have “been appointed to curb the tyranny of kings”  when higher authority exceeds its limits and issues decrees that are against God’s instructions. The Lutheran Magdeburg Confession of 1550, argued that “subordinate powers” in a state, faced with a scenario where the “supreme power” is working to destroy true religion, may exceed non-cooperation with the supreme power and actually help the faithful to resist.

John Locke, a committed Christian, explicitly wrote in his Two Treatise on Government that the people had a right of revolution as a check on statist tyranny.  Sir William Blackstone, the eminent English jurist, whose Commentaries on the Laws of England were studied by many of our founders including Thomas Jefferson, wrote “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. No enactment of man can be considered law unless it conforms to the law of God.” As the Declaration of Independence in 1776 expressed it, natural law taught that the people were “endowed by their Creator with certain unalienable Rights” and could alter or abolish government when the State becomes “destructive” of those rights. Thus, the authority of the lesser magistrate (i.e. colonial governments) to resist tyranny and the power of the people themselves to rise up in revolution when their inalienable rights are trampled by despotic supreme rulers, were the twin philosophical foundations that merged in the American Revolution.

And, just when you may think that the spirit of 1776 is dead and buried, some thought leaders have begun to roar like bold lions against the megalomaniacal tyranny of the freedom-pilfering U.S. Supreme Court.  Earlier this month, a document was crafted and signed by more than 60 constitutional attorneys and legal experts, including Robert George (Princeton University), John Eastman (Fowler School of Law, Chapman University),  Jeffrey Ventrella (Alliance Defending Freedom, Sr. Counsel), and Steven D. Smith (University of San Diego School of Law).

Steven Smith, with whom I participated in a panel discussion regarding religious liberty in the public square in 2014 at USD, and the other signatories, confirmed the line of reasoning embodied in the article I wrote last month titled The Constitution is the Law of the Land, Not Same-Sex Marriage.  After confirming that the U.S. Constitution does not give the federal judiciary the power to redefine marriage, the scholars urged government officials to refuse to acknowledge or enforce Obergefell v. Hodges.  In other words, they are urging lesser magistrates to declare Obergefell a legal nullity and stand against the federal court’s constitutionally abusive power grab:

“Any decision…lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.

Therefore….We call on all federal and state officeholders: To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case. To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions. To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.”

Last month, Tennessee legislators introduced a bill seeking to nullify Obergefell, declaring that marriage between one man and one woman “remains the law in Tennessee, regardless of any court decision to the contrary. Any court decision purporting to strike down natural marriage, including Obergefell v. Hodges, is unauthoritative, void and of no effect.”  The bill instructs that the state attorney general “shall defend any state or local government official from any lawsuit regarding the official’s recognition of natural marriage.”

By making these courageous stands in the face of strong cultural headwinds, the Tennessee lawmakers and legal scholars do not advocate general legal anarchy; rather they are actually affirming the U.S. Constitution and the rule of law.  They have issued a clarion call to all magistrates, both state and federal, to interpose themselves as a buffer between a lawless U.S. Supreme Court, on one hand, and the states and citizens that Obergefell profoundly negatively impacts, on the other. When Kentucky Clerk Kim Davis refused to same-sex “marriage” licenses, I believe that she was exercising principled Christian Civil Disobedience (PCCD) and was acting in the tradition of the doctrine of lesser magistrates, attempting to shield citizens from Obergefell.

This is critically important because if the Obergefell ruling stands, it will decimate the right of the states and we the people to act democratically to define marriage, and by extension place any meaningful limits on absolutist supreme federal power. And, it destroys the right of individuals and religious organizations to freely live, act, and speak according to the dictates of their conscience.  The right to vote and religious freedom are fundamentally important civil liberties we simply cannot afford to lose in America.

Advertisements

The Kentucky Clerk & Principled Christian Civil Disobedience

newsphotos-courtmarriage-04.28.15-630x330

Under what conditions is it permissible for a Christian to disobey the government?  Romans 13 counsels believers, as a matter of witness and conscience, to obey the government as a servant of God.  When, if ever, are Christians permitted to say “no” and righteously disobey the state?

Here are the conditions and principles we can derive from the Bible and historical role models of peaceful civil disobedience like Dr. Martin Luther King, Jr.

  • An Unjust Law (man-made) exists that arguably violates a superior non-negotiable principle or moral law.
  • A Just Law (higher law) exists that is not in alignment with or contradicts the Unjust Law and/or the duties flowing from the Unjust Law.
  • An actual conflict exists between the Unjust Law (1) and the Higher Law (2).
  • The Christian facing this dilemma understands the nature of the conflict and is willing to faithfully obey God, pay the price and bear the consequences for disobeying the Unjust Law in favor of the Higher Law (including verbal and physical abuse, jail, and even death).

When the Sanhedrin ordered the apostles to not teach in Jesus’ name, Peter responded, “We must obey God rather than men” (Acts 5:29).  When the king threatened to throw Shadrach, Meshach and Abednego in the fiery furnace for refusing to bow to his idol, they responded, “we will not serve your gods or worship the image of gold you have set up” (Daniel 3:18).

As the Reverend Martin Luther King wrote in his Letter from a Birmingham Jail in the midst of his public opposition to the injustice of segregation:

“How does one determine whether a law is just or unjust? A just law is a man-made 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.”

Rowan County Kentucky Clerk Kim Davis was jailed because, as an evangelical Christian, she refused to issue marriage licenses to same-sex couples.  Based on the information available to us, I submit that Kim Davis is exercising principled Christian civil disobedience.

Indeed, the U.S. Supreme Court’s God-defying “constitutional right” to same-sex marriage (SSM) is an unjust man-made/human law that violates other non-negotiable principles or moral laws (See 1 above).  The coercive imposition of SSM on the states and “we the people” violates the U.S. Constitution in that the Supreme Court acted legislatively regarding marriage which is not a matter of the authority (jurisdiction, i.e. one of its limited enumerated powers) delegated by the states and people to the federal judiciary.  Marriage is rather an issue that our system of government commits to the states and to “we the people.”  Yet SSM is also out of harmony with the moral law because, by arrogantly presuming to redefine marriage, it’s edict directly conflicts with eternal law and natural law, reflected in scripture’s and 5,000 years of recorded history’s model of man-woman only marriage (MWM) (See 2 above).

An actual conflict clearly exists here for Kim Davis between the Unjust Law (SSM) and Higher Law (MWM) because SSM does not square with the moral law or the law of God (See 3 above). Thus, there is a real tangible conflict of interests faced by Kim Davis here between her duty to issue marriage licenses as a county clerk in light of the U.S. Supreme Court’s unjust law of SSM and her deeply held religious convictions regarding the biblical teachings of only MWM.  What is a Christian clerk to do?  Must she issue the SSM licenses or quit, as some have suggested? What is the answer?

I submit the answer is precisely what Mrs. Davis has done!  She has recognized the conflict between the U.S. Supreme Court’s issuance of an unjust edict and her superior obligations to a higher law and a higher authority.  She has been willing to live out her faith publicly and face and bear the consequences of her decision.  I applaud her principles and her courage.  And I pray that we are emboldened to display similar Christian “backbone” when we are faced with our personal moment of truth.  If you have not faced your moment already, you will soon have ample opportunities as Christianity is increasingly marginalized, demonized, and criminalized.  I pray that your steadfast response is, “as for me and my house, we serve the Lord” (Joshua 24:15).

Each American generation has its own “unjust” laws to face. Some of the serious challenges we face today are abortion, same-sex “marriage”, and the rapidly growing threat to religious freedom, among others.    And there are many who insist that the Church keep silent; who assert that we keep our biblical “morals” to ourselves.  I have observed the growing pressure on Christians to accept the “evolving” status quo—to be silent instead of speaking the truth in love (Eph. 4:15) in Jesus’ name.  But what if William Wilberforce had been silent about the evil of slavery in the British Empire?  And was not Abraham Lincoln right to ignore the U.S. Supreme Court’s evil Dred Scott ruling, or should he have been thrown in jail too?  In the face of today’s pernicious challenges, I submit that our response must be the same as Peter’s:  “We must obey God, rather than men” (Acts 5:29).