Every Catholic, Christian, and man of good will should have recognized, as soon as the decision came down, that Obergefell, the so-called “Law of the Land” regarding same-sex marriage, is no law at all, but the enshrining of pure lawlessness and the will-to-power. And this not because the Supreme Court does not have the constitutional right to interpret law, but because it was a tendentious, ideological, and, it must be said, evil interpretation of constitutional law. And we know this with certainty because it made legal the violation of the natural and divine law on the nature and purpose and sanctity of marriage. And it should also be obvious, at least to anyone unwilling to live under tyranny, that the Supreme Court itself, insofar as it accepts no higher law than itself (however much it may make deceptive references to the authorities of the Constitution, precedent, scientific consensus, rights to privacy, ad nauseum), is itself a highly questionable political and legal authority.
The empty “law of the land”
With this in mind, what are we to make of otherwise conservative and traditional Christians, highly educated ones at that, implicitly defending Obergefell and the authority of the Supreme Court, Christians who long ago were criticizing both unequivocally? In short, why have we been hearing from Christian public intellectuals solemnly uttered declamations about “the law of the land,” and “the rule of law” in defense of the legal authority of Obergefell?
Well, it has something to do with a quite ordinary and not highly educated woman belonging to an obscure Christian sect with a history of divorce and remarriage, who is now trying her best to obey in a public way whatever grasp of the Catholic Church’s teachings on sexuality she possesses—in her case, a quite accurate grasp of its condemnation of sodomy and sodomite marriage. This same woman has been discredited and undermined and, indeed, persecuted by these same conservative Christian intellectuals and their followers. Just look at the comments on this article. Now, these criticisms of her and her refusal to sign same-sex marriage licenses are not even remotely as malicious and vitriolic as are those from the secularist left, and they are careful to make distinctions, qualify their condemnation of her defiant act, and otherwise pad and couch their criticism. Yet, they show no solidarity with Kim Davis whatsoever. “She should have resigned” is the new shibboleth.
That Christians, and especially Catholics, have been engaged in attacking, ridiculing, undermining, and, it must be said, scapegoating Kim Davis, someone, whatever real faults one may find in her tactics and character, who is actively resisting the tyranny of liberalism that is the Justice Kennedy/President Obama Regime in its programmatic attack on Christianity and the natural law, is, it must be said, scandalous. I would have thought for sure that conservative, orthodox Christians, especially Catholics, would have responded to the Kim Davis event, not with statements, such as, “She took an oath and needs to do her job, or resign,” but with arguments more along these lines:
1) The present Kentucky law states unequivocally that marriage is between a man and a woman. Thus Kim Davis was upholding that law, the law on the books at the time she was sworn in and made her oath.
2) Pace Obergefell and its pious interpreters, there is no “Law of the Land” mandating that marriage is not uniquely and exclusively between a man and a woman, and that all civil authorities must secure, facilitate, or preside over same-sex marriage. And even if there were such a law, no one is obligated to obey or enforce or facilitate an unjust law, which is precisely what any law is that promotes same-sax marriage or sodomy.
3) Obergefell is a blatant attack on the natural and divine positive law, and so can be disobeyed by citizens, and treated, not as legitimate law, but as a tyrannical act of force, the imposition of elite ideology on, aong other things, majority rule, states’ rights, the Constitution, the authority of the natural law, and the Christian religion.
4) Since the arbitrary will of a small ideological minority has been and is now being imposed on due-processed majority rule, on sacred custom, on state laws in good standing, on the citizens’ freedom of religion (which is not absolute, excepting the Catholic Church, as I explain here), on the freedom of institutions to act in accordance with the dictates of their beliefs (again, not absolute save the Church), public resistance to this tyranny is surely a live and legitimate option, when, where, and to what extent dictated by prudence.
5) No American can be forced to enforce, cooperate with, or facilitate the application of an unjust law, and the present status of her moral character and the precision of her grasp of Christian ecclesiology and dogma is not relevant. Kim Davis has every right, and perhaps the duty, to disobey any order that she put her name to licenses for sodomite marriage. She could have resigned, yes, one can debate whether that would have been the better move, strategically. But she had every right not to resign, and there is a good case to be made that active civil disobedience, not passive resignation, is what needs to happen now. As David French at National Review Online has argued, resigning one’s job under pressure to do wrong, instead of fighting back, is a kind of unconditional surrender that only feeds the Leviathan.
Pace all the sophisticated mental gymnastics displayed by many public, conservative Christian intellectuals, Kim Davis was imprisoned unjustly for acting in accordance with her Christian faith. She has been recently released and is permitted to go back to her job. However, it would seem that her name is still going to be stamped on all marriage licenses, something, Davis claims, she in good conscience cannot accept. She may very well end up back in jail. It’s all quite arbitrary. Anyone who denies that Kim Davis has been persecuted by the government, and denies that it was because she displayed a principled opposition to the homosexual agenda is living in an unreality of legal positivist ideology, state idolatry, subterfuge, scapegoating, sophistry, or all of these at once. She was not jailed primarily because she “broke the law”—for of course, if one is on the right side of the new “higher law” of the anti-logos zeitgeist, breaking the law is no problem.
Why have Catholics and orthodox-minded Christians, such as Rod Dreher, characterized Davis as essentially a criminal deserving jail? I would never have predicted that this would be the way otherwise upstanding public Christian intellectuals would respond to the beginnings of the active, “hard” persecution of Christians in America. What accounts for the emergence of such a strange group-mind among certain Christian conservatives? And what accounts for the fact that there are also many Christians who support her?
Incoherence and corruption
I think the answer is the radical incoherency and corruption of moral and political discourse and practice in America, something Alasdair MacIntyre has been talking about for decades. We do not have (and never had, in anything but fits and starts, and primarily on the local level in America) rational and widespread political deliberation, ensuing in actual laws as the deliverances of such deliberation. Rather, we now have, and have had for some time, the rule of arbitrary, fallen human wills, the wills of “experts” imposed on the rest of us with no deliberation, protest, or resistance permitted, unless it be merely private or otherwise sterile and harmless. And such cannot be otherwise when theological and moral and metaphysical considerations are shunned in public discussion, when legal positivism is the mandated ideology for public officials, and when subsidiarity is systematically violated by a centralized, Leviathanian state ruling as an unimpeachable bureaucratic technocracy in which domestically, as James Kalb has shown, the equal satisfaction of individual preferences is the exclusive and uncontestable criterion for the use of coercive state power.
And ad extra, in foreign policy, we have something just as irrational and dehumanizing—the security and growth of a world empire of “creative destruction” as the primary and unquestioned desideratum. What fills the vacuum when logos is banned from the public square and as the foundation of law is arbitrary human will, the human will of ruling-class elites masking as “public reason”, “the will of the people” or the “rule of law.” What we have is disordered, revolutionary, and logos-averse technocrats and professional liars ruling for their own self-serving desires and the desires of the true rulers in the Deep State, all of which falls under the definition that Aristotle gives of tyranny in his Politics.
Of course, we know that the sexual revolutionaries on the left are lying when they now talk incessantly about the need to obey “the rule of law.” They wax pious now about the Constitution when only yesterday they decried it as “a product of elite, rich, white Christian, male slave owners.” All this hypocrisy, as they work to overthrow any remnants of traditional order to hasten the imposition of their utopian, Rousseauian, lawless totalitarian schemes. These are revolutionaries mendaciously using the conservative rhetoric of “oaths” and “law of the land” and the like simply because that ploy can further the perversion, undermining, and destruction of the true rule of law, the law of truth and goodness, the logos, the moral law and those human laws that correspond with it, ultimately all reflecting and supporting the loving rule of a God of both infinite justice and mercy. If human law explicitly reflects in any way the natural law, as it does still in Kentucky, they are all for disobeying it and telling others to do so. However, if it is an evil law imposed on the majority tyrannically, as in Obergefell, then suddenly they are pious and solemn and constitutional.
But that some conservative Christians on the right are employing their own version of this shell game, indicating the same deference to the Hobbesian conception of the legally positivist secularist state as those they purportedly oppose, is telling. Do they really hope to be able to carve out a safe space, a “Benedict Option” in which to practice their orthodox Christianity—right inside of the very Leviathan they are supporting and enabling and feeding by counseling resignation instead of active resistance? They can disassociate themselves from the Kim Davises of the world all they want, but if the Masters of the Deep State suspect they are doing more than Christian play-acting—that is, if they become a real threat to the Regime’s authority—they are not going to be tolerated, one way or another. Already, outspoken pro-lifers, as well as anyone who publicly casts doubt or questions official government narratives, no matter how preposterous, are being named and surveilled as “domestic terrorists” by Homeland Security. But then again, it is so easy for intellectuals to define and condemn any action or speech that causes the ruling powers to oppress an individual or group as “against the rule of law” or “un-American” or “imprudent.”
The persecution is coming, and it is being shown to us now in the form of a spiritually and morally wounded, theologically unsophisticated woman, one who, surely, has shown herself capable of flouting the Bible and the moral law in her past divorces and remarriages. But what she has done and is now doing by continuing to resist the state’s injustice is heroic, perhaps even motivated supernaturally as a penance for her past transgressions. In any event, God likes to humble the proud with such as these, as Flannery O’Connor has taught us. Anyone who scapegoats or ridicules this woman in public is going to have to answer for it before Our Lord. Again, one is in his rights to question the prudence of her act, but whenever anyone has the guts actively and publicly to flout the agenda of the totalitarian gay-mafia, and any other anti-logos political force, one simply must give credit where credit is due. No, we are not all Charlie Hebdo, but we, Christians and especially Catholics, are all Kim Davis, now.
So, do we simply accept with fortitude the persecution that seems inevitable? Is there anything we can do to stop it? I don’t know, but what I do know is that when the vast majority of Catholics, that is, those who have access to and purportedly believe Magisterial teaching on the proper ordering of Church and state, defer to and promote principles and practices that contradict or undermine this teaching, America is doomed. As Orestes Brownson maintained in the 19th century, the American project cannot succeed in the absence of a majority of Catholic citizens. But I would go a step further than Brownson and claim that the American project cannot succeed unless Catholicism, or at least a generic theism based upon a true overlapping consensus that includes the natural law as an authority (as a start) replace the incoherent liberalism we have now and have had ab initio as the ultimate source of moral and political authority in the state.
In this, I am saying no more than what Aidan Nichols has argued with regard to the moral bankruptcy of English political culture. Without some sort of integrally implemented confessional state Christian model, England, or America, cannot be saved from its continual fall into decadence. We can move towards this by establishing some measure of legal and political autonomy for small-scale tradition-constituted communities, little polises, as it were, that can be held together by a federal alliance based upon a consensus on practical, natural-law based norms, something I articulate in more detail at the end of my book The Political Problem of Religious Pluralism: And Why Philosophy Can’t Solve It. Any confessional political order would, of course, have to emerge organically and by steps, and it would, of course, presuppose a widespread conversion to traditional Christianity. One might call this utopian, but the proper end must be seen and loved in order for us to act prudently and effectively, not to mention righteously.
As Brad Gregory has so magnificently recounted in his The Unintended Reformation, the Protestant Revolutionaries denied fundamental truths declared by the infallible teaching authority of the Magisterium of the Catholic Church, and they denied the capacity of her custodians and all faithful Christians to be certain of her possession of the truth. They supplanted this ecclesial and magisterial authority and certainty with sola scriptura, an inexorably subjective, “from the inside,” and thus incoherent conduit to definitive and saving knowledge about Christ. The Enlightenment liberals, stuck in ecclesial subjectivism, epistemological reductionism, and ontological nominalism, then attempted to build something objective on this subjectivist sand, and supplanted the Bible with “reason.” The post-modernists then supplanted reason with “irony,” and “narrative,” in short, the authoritative “truth” that there is no access to universal truth about reality, let alone the will of God, or at least no way to know that one has access to it.
And at the end of this line of revolutionaries, we find ideologues like the Catholic Anthony Kennedy, as well as those Catholics and Christians who, though explicitly renouncing ecclesial subjectivism, nominalism, and liberalism, speak and act in practice as though the Catholic Church were just, politically speaking, a private sect, that the truths of the natural and Divine Positive law should never have any privileged authority in guiding and justifying law, and that the American experiment would be a success if only Catholics, Christians, and other men of good were virtuous, active, and sufficiently educated, that is, with no need for any restructuring of the regime in light of Catholic social teaching, the philosophia perennis, and the natural law.
Solutions to separation of Church and state?
But as the Nietzschean Stanley Fish has demonstrated, the proper separation of Church and state is, in a word, impossible—if it is to be accomplished within and according to liberalism and the liberal nation state, and this includes, as Michael Hanby has shown, the classical liberalism of the American Founders, however much better this form of liberalism was than what we have now. And if this is true, it would explain why there is no good and rationally coherent solution to the Kim Davis issue. Within the intellectual, moral, legal, and political constraints of the contemporary American regime, a regime that is and cannot help not being utterly incoherent on the relations of Church and state, the just separation of Church and state is, as it were, mission impossible. Either Davis goes to jail, or she is permitted to abstain from signing the licenses with her name, or some compromise is made. But whichever is determined by official coercive power, it is not, and cannot be, a rational determination.
Insofar as the American regime, both on the federal and local levels, constitutionally and legally prescinds in its legal and political deliberations from any consideration of the moral and political and theological claims of the Catholic Church, as well as of the authority of the natural law, of which she is the unique and authoritative custodian; and precludes other citizens from considering these authorities in those arguments and debates in the public square, in Congress, in the Senate, in the Supreme Court, and in any other forum where argument and debate can ensue in law, it renders itself incapable of resolving fundamental political issues, let alone ones that bear upon the supernatural realm, the Church’s rights and privileges, and the authority of God.
And this is so because, ultimately, only Jesus Christ has the authority to settle the just bounds between Church and state—because he is the author of both. By the fact of his Incarnation, he brought together Church and state, heaven and earth, divinity and humanity for the first time. And after bringing them together, he commanded their proper separation: “Render to Caesar what is Caesar’s, and to God what is God’s.” Therefore, in order to know we owe Caesar and God today, we must listen to his authentic and infallible mouthpiece—which isn’t the Supreme Court or conservative court sophists. Unless we have access to the voice of Christ, Fish is right—there is no way of solving the problem. It is mission impossible.
Yet, there must be a solution because Christ commanded us to solve the problem. In short, Christ must have given us a sure and “from the outside” way of determining his will regarding the proper ordering of Church and state. Anything but a living, visible, unified, universal, hierarchical, concrete, corporal institution whose unity, holiness, universality, and apostolicity is recognizable by all “from the outside” cannot afford humans the clear determination of Christ’s will in matters of political, as well as any other matter. Anything less would inevitably perpetuate both the denial of access, and the subjective uncertainty of that access to the definitive truth regarding Christ’s will for the proper ordering of the political order vis-à-vis religion in general, and the Church in particular, a denial and uncertainty that would make the just separation of the prerogatives of Church and state impossible, and would thus make a just resolution to particular conflicts between Church and state impossible, such as the Kim Davis conflict. What we would have is either outright civil war, or what we have now, the Procrustean attempt to make the message of the Gospel fit into the arbitrary will of whoever happens to be ruling in the state. In short, chaos or a hopelessly compromised Christianity, or both. And this is indeed what we have.
No one but God can define his Church and her relationship with the state; no man is God but Christ; and no one can authoritatively speak for Christ other than his One, Holy, Catholic, and Apostolic Church. Only she has absolute freedom of conscience and religion; only she has been authorized to speak for God on what belongs to him, but all baptized Christians in communion with her participate in this right. Kim Davis doesn’t know any of this, but she does know that what belongs to God—and not the state—is her immortal soul, and she has acted accordingly. Would that those who know better than she about matters theological and spiritual would do the same.