Category Archives: Law

Get mad and do something

Ferguson police shooting

A wise friend–John Inazu–who teaches criminal law at Washington University in St. Louis has written an insightful piece about race and criminal law in St. Louis. I encourage you to pick up and read and consider how you might do likewise where you are:

John D. Inazu

“You spent too much time talking about race in this class.” Of all the student evaluations I’ve received over the years, this one rankled me the most. I teach criminal law. In St. Louis. It’s not possible to talk too much about race in that context.

In past years, our class discussions on race have centered on Trayvon Martin, or before that, on the kids shot up by Bernie Goetz on a New York City subway. From now on, the example will come from much closer to home.

In the coming weeks, we will have much to say about the tragedy, chaos and anger surrounding the death of Michael Brown. Among the most important issues will be the connection between law enforcement and race. That is not to say that all police officers are evil or that all black youths are innocent. But it is to insist that criminal justice and racial injustice are intrinsically linked in this city and its surrounding communities. And the injustices that manifest in handcuffs and bullets flow out of the injustices of neighborhoods, schools and shopping malls — all linked to issues of race that nobody in this city likes to talk about.

Read the rest here.

Jesus, the church, and non-violence (Part 1)

I recently saw a movie that was powerful in the way it dealt with some of these issues. Steven Spielberg’s Munich is a retelling of the events of the 1972 Olympic Games held in Munich, Germany. It was during these games that members of Black September, a Palestinian terrorist organization, took hostage members of the Jewish Olympic team. One or two were killed during the initial hostage-taking when they resisted the terrorists.

Within 24 hours all of the hostages and all save three of the terrorists would be dead. Long story short, the German police attempted a rescue, which went badly wrong largely because it was poorly planned. When the hijackers realized the trap, they killed the hostages.

Within a month, the remaining captured terrorists were released after other members of Black September hijacked a Lufthansa airliner and demanded their release. They were released to Libya where they were treated like celebrities.

The movie itself deals with the Israeli response to the attacks. Golda Meir, the Israeli Prime Minister decided that the response ought to be swift and large enough in scope to serve as a deterrent to future attacks. Over the next several years Israeli assassination units killed dozens of high profile Palestinians and Arabs across Europe.

The movie follows the leader of one of these squads. It chronicles the toll that on-going vengeance took on one person. One man who killed to avenge the deaths of his fellow Israelis. By the end of the movie he is barely functioning in normal life as a result of the on-going stress and pressure of functioning covertly in a high stakes games of assassinations.

Interestingly, one scene frames the underlying conflict. The Mossad bomb-maker finally gives expression to his feeling that all of this killing is somehow in conflic with the values of Judaism. He notes that Jews are called to be holy and righteous. “We are not like the other nations.” Their actions as warriors seem to be in stark contrast with their values of Torah. A couple of scenes later, he is killed presumably by Palestinian terrorists who are now seeking the Israeli assassins. As Jesus said, “Those who live by the sword shall die by the sword.”

Image

The role of the Christian church in the world is to be a counter-culture, a new society that is based on the values of the kingdom and shaped by the teaching of Scripture and headed by Christ himself, a new Israel. It’s important to note that the role of the church and of the state is not the same. The function of the state is to restrain evil and to promote good.

Nowhere is the vision of this new counter-culture more compellingly communicated than in the Sermon on the Mount.

This is especially true when it comes to enemies and war. I’d like for us to explore these topics by looking at two passages of scripture from The Sermon on the Mount.

In Matthew 5:38-42 Jesus talks about retribution. Since Jesus doesn’t talk that much about war and since our enemies are mostly enemies since they’ve done something to us that we think is unjust, we’ll use this passage to think a little about how we respond to people who wrong us.

We will also look at Matthew 5:43-48 where Jesus talks about how we relate to our enemies. 

War and Violence: When to resist (Matthew 5:38-42)

38 “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ 39 But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. 40 And if anyone wants to sue you and take your shirt, hand over your coat as well. 41 If anyone forces you to go one mile, go with them two miles. 42 Give to the one who asks you, and do not turn away from the one who wants to borrow from you. (TNIV)

Jesus offers a response to the culture of the day (part 1). An “eye for eye, tooth for tooth” (v. 38) was a principle of limiting retribution to what is a just amount (the punishment must fit the crime). The purpose was to avoid the sort of blood feud that could embroil multiple communities in generations of senseless violence.[1] By the time Jesus spoke these words, it was common practice to impose financial sanctions rather than physical punishment.[2]

Jesus is speaking to Jews who have come to view him as Messiah. It seems that his words are aimed at reforming and renewing Jewish society through this new movement of Christ-followers. They are a grass-roots source of influence that will bring change about outside of the normal structures of power and influence.

Jesus was not opposing brutality or physical retribution since these weren’t the common responses to injustices in the ancient world of Jesus’ time. Instead, it seems that He is opposing the principle of insisting on legitimate retribution, specifically using legal means to settle a score with another individual.[3]

Jesus says, “do not resist…” (v. 39). This is wider, however, than simply insisting on not getting even. It is really, in the affirmative, a willingness to accept ill treatment and even to participate in it (by turning the other cheek, or giving your coat away, or walking a second mile). And it is not limited to simply physical nonviolence. Instead, what is said here also refers to the use of legal means to “resist” an unjust action.[4]

The cases in point are all cases in which an individual comes into contact with another individual who does something wrong or unjust. Jesus is not outlining responses to evil in the abstract. These are concrete responses to concrete examples of wrongdoing. As a result, they’re not really verses that are meant to be applied to society as a collective. Many Christians have traditionally made a distinction between the actions of individuals and the actions of the state. Elsewhere in the NT we are told that the state has the power of the sword. That power, however, is never vested in individuals.

Jesus was not attempting to reform the legal code, but is suggesting an attitude that is loose on rights and entitlements. As I mentioned before, it is an attempt at changing attitudes and subverting the dominant values of a society.

Concrete examples:

  1.  “…turn the other cheek” (v. 39b) A backhanded slap to the face was an expression of contempt and extreme abuse…punishable by a fine.[5] Jesus’ disciples are asked to accept the contempt and abuse without recourse to their legal rights in the situation.
  2. “…hand over your coat as well” (v. 40) The OT Law forbade the confiscation of the coat on humanitarian grounds (Ex 22:25-7). If it was taken as collateral, it had to be returned by sundown so its owner could sleep in it.
  3. “…go two miles” (v. 41) The reference is specifically to the practice of Roman soldiers commandeering local citizens to serve as porters to carry cargo, etc. Instead of telling his disciples to resist members of an occupying force, he tells them to do more than required. This would have been very controversial and set Jesus apart from the Zealots who attempted to drive Rome out of Israel.
  4. “…give to those who ask…” (v. 42) Matthew’s retelling has in mind a specific instance. The verb he uses refers to a single act. The principle is that we ought to place the needs of others before our own convenience or our own rights.

R. T. France notes, “A willingness to forgo ones personal rights, and to allow oneself to be insulted and imposed upon, is not incompatible with a firm stand for matters of principle and for the rights of others. Indeed the principle of just retribution is not so much abrogated here as bypassed, in favor of an attitude which refuses to insist on one’s rights, however legitimate.”[6]

There will be times when we as followers of Christ are entitled to use legal means to compel someone else to stop doing something to us that is wrong. However, Christ here suggests that we shouldn’t consider our entitlements and our legal rights as supreme. There will be times when we are called on essentially give up our rights in an instance and give to the other person something they don’t deserve. 

 

[1] R. T. France. Matthew. TNTC. 125

[2] Ibid.

[3] Ibid, 126.

[4] Ibid.

[5] Jonas, NTT, 239.

[6] Ibid.

Are there really two marriages? (Part Two)

In his brief anthology of blog posts entitled, There are Two Marriages: A Manifesto on Marriage (2011), Tony Jones argues that the church ought to seek the strict separation of what he calls “legal marriage” and “sacramental marriage.” A result of this change would be the removal of much of the church’s resistance to same sex marriage.

Yesterday I rehearsed Jones’s historical and theological objections to the connivance of state and in marriage. I will argue today that Jones fails to recognize that marriage is, for the Christian, necessarily the union of religious belief with the physical world:

tony-jones

….Marriage matters because we are embodied and what we do with our body matters.

The church has affirmed over the centuries—almost with no exception—that marriage exists not only for the mutual aid and comfort of husband and wife, but also for the procreation of children.

“The union of husband and wife in heart, body, and mind is intended by God for their mutual joy; for the help and comfort given one another in prosperity and adversity; and, when it is God’s will, for the procreation of children and their nurture in the knowledge and love of the Lord. Therefore marriage is not to be entered into unadvisedly or lightly, but reverently, deliberately, and in accordance with the purposes for which it was instituted by God.”[1]

We’d likely all agree that a marriage may be legitimate without children being born to the couple—having children does not a marriage make. However, it is a relatively recent innovation to believe that childbearing and marriage are totally unrelated.

Jones seeks to trace the changing nature of matrimony as grounds for a continued development of marriage to include same-sex couples. For example, in the ancient world marriage was simply the exchange of property with the consequent production of progeny.

Today marriage has become simply, “formalizing and cementing a romantic attraction.” It is emphatically not about having children. If it were, we would not allow “celibate, infertile, post-menopausal, non-producing” people to be legally married.

The reference is to restrictions on marriage, principally state laws that forbid consanguinity but that fail to forbid marriage between people unable to conceive. To derive a mandate for the church simply by the absence of state law on the matter is not a terribly good way to do affirmative theology.

As a pastor, were a couple to ask me to marry them and state up front that they would not be sexually intimate with one another nor would they even consider attempting to conceive, I would likely not marry them. Marriage is intrinsically linked with both sexual intimacy and with procreation. That some are unable to conceive doesn’t invalidate the rule, rather it’s the exception that proves it.

In all, Jones fails to build a compelling case for changing the nature and definition of marriage either in the state or in the church. He assumes that since people will always be gay—which is true—we should incentivize gay monogamy in the context of marriage. On the surface this may appear sound. However, Jones’s contention fails to consider that in the Christian view it is not simply that homosexual polyamory is wrong, but that all homosexual practice is not only inconsistent with Christian holiness, and is detrimental to human wholeness. To change marriage means more than “live and let live,” it necessarily encourages destructive behavior and, moreover, will inevitably lead to restrictions on religious groups that fail to recognize the appropriateness of same sex marriage.

[1] Book of Common Prayer

Are there really two marriages?

[This is part one of two discussing Tony Jones’s series of blog posts compiled as, There are Two Marriages: A Manifesto on Marriage (2011) and available on Kindle.]

In his brief anthology of blog posts entitled, There are Two Marriages: A Manifesto on Marriage (2011), Tony Jones argues that the church ought to seek the strict separation of what he calls “legal marriage” and “sacramental marriage.” A result of this change would be the removal of much of the church’s resistance to same sex marriage. The church would conduct a rite that refers exclusively to the religious or sacramental nature of marriage, and the state would ratify a legal agreement between two people, known as civil marriage.

Image

Jones builds his case on the basis of what might be a called a strict separationist—even Anabaptist—view of the relationship of the church to the state. Jones’s argument is plausible, but is relies in places on a view of both the church and of the state that is problematic.

A central pillar in Jones’s argument is his discomfort at clergy acting as agents of the state in the case of marriage. This is an objection I am hearing with increased frequency, even outside anabaptist churches. He writes, “…almost all of them [pastors and priests] express extreme discomfort at this situation, for it actually requires the clergyperson to act as an extension of the state.”  Further, “…that conflicts with the theology held by many pastors, Calvinist and Arminian, Protestant and Catholic.”

At first glance, Jones’s argument seems compelling. On further examination, we’re forced to ask whether Jones has, in fact, gotten it backwards. Is the cleric really an agent of the state or is it the other way round? Is the state an agent of the church or at least offering sanction for a rite of the church that the state finds beneficial? In reality, neither is fully the case and perhaps that’s why marriage is often something of a mystery to modern and postmodern people—it presupposes that the spheres of religious belief and law can peacefully coexist and together accomplish a societal good.

Moderns and post-moderns—really, hyper-moderns—presuppose what Richard John Neuhaus referred to as the “naked public square.” That is to say, they presuppose a sharp division between religion and public life. Religious considerations ought not to shape public policy since religious knowledge is not universal and is questionable as a legitimate type of knowledge. Public policy is empirical and verifiable, religious knowledge is simply internal and subjective.

In arguing for the separation of religious and civil marriage, Jones appeals to the “two kingdom” view: “Jesus said his kingdom was not of this world. And the Apostle Paul expands this idea in the book of Ephesians, writing about the spiritual realm as opposed to the physical.” Jones’s reading of Jesus and Paul is, perhaps, a bit over the top. That the kingdom of God is not something currently apprehensible to the senses is not the same thing as saying that God is unconcerned with this world. It is surprising that Jones reaches this conclusion since later in the book he reveals himself as a panentheist. That is, Jones believes that “God indwells all of creation.”

Jones further claims that Augustine, Luther, Calvin, and Locke all follow in the steps of Jesus and Paul by making a distinction between the church and the civil magistrate. Clearly blog posts are not the best context for discussing precisely what this differentiation means, but suffice it to say that Jones is clearly here unable to give a cogent rationale for his sharp division of the two. He fails to realize that marriage is necessarily the union of religious belief with the physical world.

…To be continued…

Trayvon Martin, an anglo reflection

The recent jury verdict in Florida v. Zimmerman has served as a magnifying glass that has focused the rays of racial reality in the United States and caused a fire. My own thought life around the case has been something of a roller coaster ride. Facebook has allowed me to listen in to the pain of others with an immediacy often not afforded across cultures. It has also afforded me the chance to realize how tone deaf those of us in the majority can be to the pain of those who are not.

As I’ve read various blog posts, articles, columns, and the like I’ve noticed something of a trend. Many of the reflections by people of color focus on their first person experiences of profiling or of some other form of injustice. Many of the reflections by anglos have focused on a defense of the judicial system as a reasonably fair arbiter of an approximate truth. In some ways, we’ve been talking past each other.

As a white American, the Martin case has been difficult to interpret both in itself and in how it sheds light on race in America. I don’t have much to offer in this regard.

At the risk of raising the ire of some readers, I’d like to offer a brief reflection on encountering this discussion as a white man. Much has been written using words like “privilege” and “oppression.” I don’t dispute that those are appropriate words in many respects.

It’s curious to me that many who have written about white privilege should be so apparently taken aback when Anglos resist the notion or, at least, seek to minimize it.

Consider what is really being said.

Those words are used to describe a reality that is said to affect all of life, sort of like a filter that is set between a camera lens and the subject of the photo. The filter is prior to the actual scene being shot and yet it silently affects the final photograph. It could also be like the floors in my old house. They have a gentle slope to them–place a ball in the center of the room and it will begin to roll, always in the same direction.

Ironically, despite having cultural privilege and power I have experienced in the Trayvon Martin case a sense of profound powerlessness:

  • I am told that there is something of a cultural law (an uneven floor, if you like) in place that conspires, despite my objections, to automatically favor people like me (though not all equally) over others who are unlike me.
  • That law exists in a space that is unconscious (and imperceptible) to most all of us. In the discharge of their normal duties, many are operating with unconscious reference to this law.
  • It affects everything–employment decisions, subjective feelings of safety, traffic stops, etc.
  • There seems to be precious little that can be done about it in the normal ways we seek to remedy ills. Do we require that juries in certain instances have a fixed number of jurors of the same ethnicity as the defendant? Does this bias the jury or counter-bias it?
  • It renders decisions of even the most sacrosanct institutions of our society–the jury–as open to question. This is no small thing for whites to swallow since we’re generally confidant that our courts will deliver something closely approximating justice.

To someone generally used to being able to solve problems, this powerlessness is profoundly frustrating.

This may sound whiney and I certainly don’t wish to make myself out as suffering in anything close to the same degree as my black friends, but this experience is real. It is a real grieving in the face of something wrong that is bigger than me–even though it benefits me. I’m not sure, but I think this grief undergirds the silence of many in white America.