Thursday, May 25, 2006

The Enron Verdicts, Oppostion to Immigration Reform, Gay Marriage, and God: The Growing Legitimacy God's Law Over U.S. Law

Over the last several weeks there has been tremendous amount of media attention to a series of what seem to be completely unrelated events.

First, Congress has been working on the formulation of a proposed amendment to the American Federal Constitution to interdict marriage as a legally recognized institution when attempted by more than two people or by two people of the same sex. Many (though by no means all) of the people holding authoritative positions in the American religious establishment have greeted this movement with great joy. There is a sense that at last the state will do its duty by aligning its coercive power with the requirements of God's law. All discussion of opponents are dismissed as the whining of people or groups worthy of marginalization, and the expectation is that the state will use the full force of the civil and criminal law to see to it that this amendment, if adopted, is vigorous enforced.

Second, in response to the proposed criminalization of undocumented immigrants to this country, and the proposed sanctions on those who aid them in the United States, Cardinal Mahoney of Los Angeles publicly stated that the proposed reforms would put serious limits on the Church's ability to serve illegal immigrants. He called for priests to defy the law if it passes.
He is quoted as saying: "The church is not in a position of negotiating the spiritual and the corporal works of mercy," Mahony said during a Mass at the Cathedral of Our Lady of Angels marking the start of the 40-day season of Lent."We must be able to minister to people, regardless of how they got here," he said." See Mahoney Calls on Priests to Ignore Proposed Immigration Law.

Third, on May 25, 2006, a Texas jury returned a guilty verdict in the criminal trials of Jeff Skilling and Kenneth Lay for their part in the fraudulent activities of the Enron corporation that ultimately resulted in the ruin of that company and the passage of the Sarbanes Oxley Act (see my article The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior . In reacting to news of the verdict, Mr. Lay invoked God. "“God’s got another plan right now,” Lay, the son of a preacher, said without tears. “We’ll all come through this stronger and more reliant on God (Lay, Skilling Guilty on All Counts). . . . Then Lay walked outside the federal courthouse and declared himself blessed because “we believe that God in fact is in control, and indeed he does work all things for good for those who love the lord.” See Lay, Skilling Guilty on All Counts (

What do the three events have in common? God and the invocation of the absolute law of God.

Each represents a different way in which God, and Divine law, is increasingly invoked in the United States. It suggests a complex interweaving of human and divine law, and a problematizing of the relationship and hierarchy of law as between these systems. Each also suggests the way in which religious discourse, and the absolutism of Divine law, can be used to promote, resist, or overcome human law.

In the first instance, God is used to affirm the value of a political choice made by Congress. And it is then invoked to marginalize--and demonize--opponents. Opposition to the Marriage Amendment is transformed from political, ethical or moral disagreement, to heresy, opposition to religion, or the thwarting of the religious will of the majority of Americans. The duty of all Americans is to obey, and by obeying to comply with the requirements of both secular and divine law. There is an echo here of the sort of religious approach to law that one finds somewhat troubling in places like Iran, or Afghanistan.

In the second instance, Divine Law is used as a means of trumping secular law deemed in opposition to religious law. Congress can pass whatever secular law it likes, but it has no jurisdiction to interfere with the obligation of institutions to adhere to higher law. In this case, the institution is the Catholic Church--but it could be any institution, from Satanists to Masons. All that is required is a bona fide belief grounded in the demands of a being beyond the control of humankind, institutionalized within a religious system with a well developed legal (or rule codex). The critical assumption, though, is the necessary hierarchy of human law: divine law as received by the keepers of God's word on earth is supreme (this can include theology and increasingly also morals transposed into legal norms), secular law is subordinate to the divine law. In the event of a conflict among the keepers of divine law, a sort of majority rule of divine law operates (an ironically American republican solution to the difficulty of fostering dialog among absolutist systems that deny the legitimacy of competitor systems).

In the third instance, divine will and secular law are joined. God's plan is primary; human justice is flawed, or, at best, the means through which God manipulates lessons, justice, punishment, trial, and redemption in accordance with the Divine (and not secular) plan. As instruments of the Divine plan, each person must play their part "though they know not what they do." Secular law is the means to a divinely inspired end.

What is remarkable about the three events is the way in which each, in turn, elevates divine law above that of the secular law of the state. And this is not just a theoretical proposition. In the first instance, divine law shapes secular law in the way that was accepted before the Enlightenment as natural and required. In the second, the doctors of faith communities acquire a veto over the application of secular law, tot he extent they opine that divine and secular law conflict. In the third, secular law is understood as incoherent and merely a pathway toward a higher truth and a higher judgment. Justice is the Lord's and religion trumps that state and its governance apparatus.

None of this would be particularly noteworthy in 1500 in Europe--or in Saudi Arabia today. All of this would be perfectly reasonable in a society in which virtually all of the people fervently, and voluntarily belonged to the same faith community. But the United States is not that place--not since the leaders of this land, early in the colonial period, acquiesced in the reality that this would be a land of many faith communities--for good or ill. Now the problem--through whose religious institution will God speak to the political community? The leaders of every faith community will volunteer their interpretation of Gods word (expressed as theology, ethics, morals and derivative norms) as the authoritative speech of God. The legislature in Missouri would legislate the authority of a particular manifestation of God in the United States and privilege one set of His messengers over others. John Mills, State Bill Proposes Christianity to be Missouri's Official Religion (Missouri legislators in Jefferson City considered a bill that would name Christianity the state's official "majority" religion).

In a multi-religious society in which all religions are entitled to equal respect, then the thrust of the three impulses illustrated above can lead to some interesting results. Take the proposed Constitutional Amendment to prohibit gay marriage, for example. For the Catholic or evangelical Christian, the measure is a necessary means to the implementation of divine law within the polity. For the Unitarian, the measure could represent a secular abomination that must be resisted by resort to compliance with a higher law--the law of a God that would sanction and embrace marital unions between people of the same sex. And for gay men or lesbians, the measure would represent a Divine plan for testing--for a necessary sacrifice to evidence an adherence to God's plan for Humankind.

Poetic. Divinely inspired. But where does that leave the state? Fractured, for the most part. The territorial state, unified within a geography but internally divided by the inconsistent and absolute requirements of different Gods, would recede before the power of the greater community--the community of faith. And thus the state suffers, and withers. All in the service of a Divinity that has chosen to convince communities of faith that a Divine Babel is the highest form of state organization.

The traditional solution to this difficulty--that religion maintain its supremacy within its faith community, by operation of a strong and voluntary moral and communal will evidenced by the sound habits of its members--does not appear to be good enough. And the reason perhaps is that traditionally dominant religious communities must now share the political community with other religious establishments whose morals and ethics constitute acts of abomination within the traditional religious communities (polygamy, abortion, same sex marriage, etc.). And sharing is hard to do. See, Larry Catá Backer, Religion as Object and the Grammar of Law, 81 Marquette Law Review 229 (1998).

But don´t get me wrong. I am not suggesting that these patterns of invocation are bad, or aberrational, or out of character in our Republic. Quite the reverse. These sorts of patterns of invocation have been with us since the Founding. They were crucial in the great moral battle over slvery (giving us, for example, John Brown´s ultimately pivotal raid on Harper´s Ferry), and the equally great battle over alcohol leading first to Prohibition, and then to its repeal. The American constitution is silent with respect to the question of the existence of a hierarchy of law in which some sort of law might be deemed superior to federal Constitutional law--be it divine law or international norms, or whatever. And the complete or effective suppression of this strain of American legal perspective would produce far too much government of the totalitarian sort. There is something to the notion that dispersals of power, in this case away from the state and into the hands of independent religious communities (along with dispersal to independent economic, social, and other communities, in turn) produce a dispersal of power that makes it more difficult for any government to assert the power of a tyrant. And that is in keeping with one of the greatest findamental understanding of the Founders. On the other hand--too much dispersal, too much Divine command and control over the apparatus of government, is equally bad, and for the same reason. This sort of balancing, at least on a political level, has been crucial to the success of the European Union´s experiment in hybrid governance. Americans have managed to maintain a rough balance more or less over the course of the last coupole of centuries. Whether they can keep that balance into the future remains to be seen.

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