Journal of Christian Legal Thought Post-Postmodernism 1 THADDEUS WILLIAMS Arthur Leff’s God-Haunted World 5 DOUGLAS GROOTHUIS Rousseau’s Bargain 12 P. ANDREW SANDLIN Public Morality and Allegedly Private Vice 15 ROBERT P. GEORGE Bigots or Pro-Lifers? 17 RYAN T. ANDERSON Equipped to Defend Religious Freedom 22 KIMBERLEE WOOD COLBY VOL. 6, NO. 1 FALL 2016 STATEMENT OF PURPOSE The mission of theJournal of Christian Legal Thought is to equip Journal of and encourage legal professionals to seek and study biblical truth as it relates to law, the practice of law, and legal institu- tions. Christian Legal Theological reflection on the law, a lawyer’s work, and legal institutions is central to a lawyer’s calling; therefore, all Chris- Thought tian lawyers and law students have an obligation to consider the nature and purpose of human law, its sources and develop- ment, and its relationship to the revealed will of God, as well VOL. 6, NO. 1 | FALL 2016 as the practical implications of the Christian faith for their daily work. The Journal exists to help practicing lawyers, law students, judges, and legal scholars engage in this theological PUBLISHED BY and practical reflection, both as a professional community and The Institute for Christian Legal Studies (ICLS), as individuals. a Cooperative Ministry of Regent University School of Law The Journal seeks, first, to provide practitioners and stu- and Christian Legal Society. dents a vehicle through which to engage Christian legal schol- arship that will enhance this reflection as it relates to their daily The Mission of ICLS is to train and encourage Christian work, and, second, to provide legal scholars a peer-reviewed law students, law professors, pre-law advisors, and practicing medium through which to explore the law in light of Scripture, lawyers to seek and study Biblical truth, including the natural under the broad influence of the doctrines and creeds of the law tradition, as it relates to law and legal institutions, and to Christian faith, and on the shoulders of the communion of encourage them in their spiritual formation and growth, their saints across the ages. compassionate outreach to the poor and needy, and the inte- Given the depth and sophistication of so much of the gration of Christian faith and practice with their study, teach- best Christian legal scholarship today, the Journal recognizes ing, and practice of law. that sometimes these two purposes will be at odds. While the Journal of Christian Legal Thought will maintain a relatively EDITORIAL ADVISORY BOARD consistent point of contact with the concerns of practitioners, William S. Brewbaker, III it will also seek to engage intra-scholarly debates, welcome Associate Dean and inter-disciplinary scholarship, and encourage innovative schol- William Alfred Rose Professor of Law arly theological debate. The Journal seeks to be a forum where University of Alabama School of Law complex issues may be discussed and debated. Kevin P. Lee EDITORIAL POLICY Professor, Campbell University School of Law The Journal seeks original scholarly articles addressing the C. Scott Pryor integration of the Christian faith and legal study or practice, Professor, Campbell University, Norman Adrian Wiggins broadly understood, including the influence of Christianity School of Law on law, the relationship between law and Christianity, and Bradley P. Jacob the role of faith in the lawyer’s work. Articles should reflect Regent University School of Law a Christian perspective and consider Scripture an authorita- tive source of revealed truth. Protestant, Roman Catholic, Robert K. Vischer and Orthodox perspectives are welcome as within the broad Dean and Professor, University of St. Thomas School of Law stream of Christianity. However, articles and essays do not necessarily reflect the Editor in Chief: views of the Institute for Christian Legal Studies, Christian Michael P. Schutt Legal Society, Regent University School of Law, or other spon- Associate Professor, Regent University School of Law soring institutions or individuals. Director, Institute for Christian Legal Studies To submit articles or suggestions for the Journal, send a query or suggestion to Mike Schutt at [email protected]. Fall 2016 Journal of Christian Legal Thought POST-POSTMODERNISM Engaging the New Spirit of the Age with Clarity, Conviction, and Compassion By Thaddeus Williams ifteen years ago in Paris, I had a conversation has been a long-standing tactic of public persuasion for at with a young existentialist who said something as least a generation. Painting any legislation you might op- unflattering as it was memorable: “Whatever the pose in a moral light, showing its supporters to be mor- Fworld does the church does ten years later and worse.” alistic zealots seeking to impose their ethical framework My new friend was talking about Christian music, de- on the rest of us (perhaps even equating it with the ever- scribing a decade lag factor, a slowness to recognize and dreaded “theocracy” for maximum effect), was a winning adapt to cultural changes that, in his estimation, ren- strategy for swaying public opinion. It became standard dered the church musically irrelevant. fare in politics during the heyday of postmodernism. It is obvious to even the most casual observer that After all, one of the axioms of the postmodern ethos culture is undergoing seismic shifts, shifts that are dras- is unfettered individual freedom, including moral free- tically altering the landscape of law, politics, religion, dom from any power, including the power of govern- family, sexuality, and more. If it takes ten years for us to ment, to cast moral judgment on the self-defining “I.” reckon seriously with the reality of these shifts, we will This was enshrined inPlanned Parenthood v. Casey with find ourselves culturally irrelevant (as some would argue Justice Kennedy’s famous redefinition of freedom as we already are). Redemptive Christian engagement with “the right to define one’s own concept of existence, of public life—to “seek the welfare of the city” in Jeremiah’s meaning, of the universe, and of the mystery of human words—requires that we gain clarity on the new spirit life.” Ronald Dworkin, one of the most articulate and in- of the age, that we understand the emerging metanarra- fluential champions of this new freedom, branded it the tives that are reshaping our national consciousness and “right to moral independence,” which entails that the law legal institutions. must treat competing moral visions with “equal concern and respect.”1 D.A.J. Richards likewise defended “the THE NEW MORAL LEGISLATORS fundamental liberal imperative of moral neutrality with 2 One way to describe the shifting landscape is as a tran- regard to the many disparate visions of the good life.” sition from a postmodern outlook to what we might This is no longer the case. In the wake ofWindsor and call “post-postmodernity.” Just as postmodernism was Obergefell, “keep morality out of law” style arguments both a coming to fruition of modern thought, as well as can no longer be made with a straight face, either in the a discernible break from it, so there are both continu- public sphere, the courtrooms, or in the halls of legisla- ities and breaks between postmodernism and what we tion. The Supreme Court majority did not issue these now find sweeping through American law and culture. rulings because they were economically efficient or the My focus here is on the breaks, two in particular. formal deductions of existing law, but because they be- The first can be seen in the way that “legislating mo- lieved they were the right thing to do, “right” in an ex- rality” has moved from being strictly verboten in the plicitly and unapologetically moral sense of the word. postmodern mileau (at least in principle) to becoming Those who celebrate the Court’s decision and activist the “new normal.” In my Fall 2014 piece “Beyond Capes judges who have extrapolated on its precedent are not and Cowbells” I argued that the notion of moral neutral- merely celebrating legal or political victories, but also ity in law is a ruse, that the claim “Keep morality out of moral victories, the triumph, as they see it from within law” is really a euphemism for “I want to keep your moral- their own plausibility structure, of equality over discrim- ity out of law so I can get mine in.” I was speaking to what ination, love over hate, etc. 1 See Dworkin’s Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978) and Sovereign Virtue: The Practice of Equality (Cambridge, MA: Harvard University Press, 2002). 2 D.A.J. Richards, Sex, Drugs, Death, and the Law, 9 (Totowa, NJ: Rowman and Littlefield, 1982). Emphasis in original. 1 Journal of Christian Legal Thought Vol. 6, No. 1 This represents a clear and decisive break from post- FROM “TRASHING” TO THE modern style legal reasoning. You can no longer live TRIUMPH OF METANARRATIVE under the legal protection of Kennedy’s “right to define With this shift toward “moralistically legislating moral- one’s own concept of existence” if your concept happens ity” and away from “legislating morality while pretend- to include the notion that male and female represent ing not to” comes another significant break from post- beautiful distinctions that should be celebrated rather modernism. It is a related shift from “trashing” to the than erased, or if you happen to believe that mother and triumph of metanarrative. Postmodern theorists (I am father cannot be made interchangeable or optional cat- thinking here especially of Foucault) were adept at ex- egories without something precious being lost. The law posing metanarratives as power-plays. This postmodern should no longer embody Richards’ “moral neutrality impulse took shape in American Jurisprudence as the with regard to…. disparate visions of the good life” or Critical Legal Studies movement.