And loved it!
Somewhere a few months ago I had read an article about how roller derby was growing in the US and how the resurgence of roller derby has been connected to third-wave feminism--a sport organized by women for women athletes, and a sport that combines toughness, athleticism and femininity. I found that link--roller derby and feminism--to be interesting. But for my part, I mainly love anything having to do with the '50s and '60s. Roller derby was at its cultural peak during those decades, so I was interested in its resurgence. I love anything retro.
So last week while visiting my family in Pennsylvania Jana was reading the paper about local events coming up. And she noted that the Eerie Roller Girls where having a double-header bout in a few days and would I like to go? You bet, I said. And so it was that Jana and I, along with my two sons and three nephews, all went to our first roller derby.
It was a double-header. In the first match the Eerie Roller Girls took on the Queen City Roller Girls from Buffalo, NY. The second match had the B-squad from the Eerie Roller Girls going against the J-Town Roller Girls from Johnstown, PA.
Prior to the bouts we took the time to familiarize ourselves with the rules. But it took us awhile to understand everything that was going on, the various rules and strategies involved. But by the second bout we started to really get the hang of it. I found myself, at one point, screaming at the lead jammer to call the jam before the other jammer reached the pack. You know, the stuff you yell at a roller derby match.
I can't say how much our teenage sons and nephews liked the event. The main word they used to describe the evening was "interesting." Jana and I loved it. We're officially roller derby fans.
Now the burning questions you are probably wanting to ask is was event a show or a sport? And were the women scantily or provocatively clothed?
Regarding being a show, when some people think of roller derby they think of something like professional wrestling. And I think some roller derbies are like that.
But what we saw was a sport, associated with the Women's Flat Track Derby Association.
Regarding clothing, while there were some feminine flourishes to the basic team uniform it wasn't, speaking as a man, an ogling sort of experience. The whole thing was very different and unique and had a campy, theatrical flair, but we experienced it as a sporting event. Those women were competing as athletes. There was an injury (and emergency medical people were on hand like you see at a football game). And beyond skating ability, strength and cardiovascular stamina were really, really important. If a jammer was too fatigued to get through blocks that team was in deep trouble.
As for roller derby being the quintessential feminist sport I don't know, as a man, if I can say. But we do know this: roller derby is a full contact sport (like football) that is also a female sport. Roller derby isn't a female version (and therefore a lesser version in the eyes of some) of what was originally a male sport. Roller derby is a female contact sport. Roller derby doesn't imitate the guys. So if men want to play roller derby, and male roller derby leagues are starting up, they are going to have to follow the lead of the roller girls.
If a guy wants to play roller derby, and it looks like a ton of fun, he's going to have to learn to block and jam like a roller derby girl.
At one point during the double-header I looked at some of the little girls in attendance cheering on their favorite roller girl.
I leaned over to Jana and said, "If I were a little girl I bet this would be pretty empowering and inspiring."
And if you looked at the faces of those little girls, they seemed to agree.
|Eerie Roller Girls taking on the Queen City Rollers|
The song in question is "A Boy Named Sue," popularized by Johnny Cash and first sung by Cash on the At San Quentin album.
Now while it seems foolish for a psychologist to correct a Pulitzer-prize winning historian on a matter of history, I do want to comment on the history Ed gave about the song "A Boy Named Sue." I know a bit about Cash in light of the research I did for my recent The Theology of Johnny Cash series.
Here are the lyrics to the story-song "A Boy Named Sue":
Well, my daddy left home when I was three,You can watch Cash performing the song at San Quentin here.
and he didn't leave much to Ma and me,
just this old guitar and a bottle of booze.
Now I don't blame him because he run and hid,
but the meanest thing that he ever did was
before he left he went and named me Sue.
Well, he must have thought it was quite a joke,
and it got lots of laughs from a lot of folks,
it seems I had to fight my whole life through.
Some gal would giggle and I'd get red
and some guy would laugh and I'd bust his head,
I tell you, life ain't easy for a boy named Sue.
Well, I grew up quick and I grew up mean.
My fist got hard and my wits got keen.
Roamed from town to town to hide my shame,
but I made me a vow to the moon and the stars,
I'd search the honky-tonks and bars and kill
that man that gave me that awful name.
But it was Gatlinburg in mid July and I had
just hit town and my throat was dry.
I'd thought I'd stop and have myself a brew.
At an old saloon in a street of mud
and at a table dealing stud sat the dirty,
mangy dog that named me Sue.
Well, I knew that snake was my own sweet dad
from a worn-out picture that my mother had
and I knew the scar on his cheek and his evil eye.
He was big and bent and gray and old
and I looked at him and my blood ran cold,
and I said, "My name is Sue. How do you do?
Now you're gonna die." Yeah, that's what I told him.
Well, I hit him right between the eyes and he went down
but to my surprise he came up with a knife
and cut off a piece of my ear. But I busted a chair
right across his teeth. And we crashed through
the wall and into the street kicking and a-gouging
in the mud and the blood and the beer.
I tell you I've fought tougher men but I really can't remember when.
He kicked like a mule and bit like a crocodile.
I heard him laughin' and then I heard him cussin',
he went for his gun and I pulled mine first.
He stood there looking at me and I saw him smile.
And he said, "Son, this world is rough and if
a man's gonna make it, he's gotta be tough
and I knew I wouldn't be there to help you along.
So I gave you that name and I said 'Goodbye'.
I knew you'd have to get tough or die. And it's
that name that helped to make you strong."
Yeah, he said, "Now you have just fought one
helluva fight, and I know you hate me and you've
got the right to kill me now and I wouldn't blame you
if you do. But you ought to thank me
before I die for the gravel in your guts and the spit
in your eye because I'm the nut that named you Sue."
Yeah, what could I do? What could I do?
I got all choked up and I threw down my gun,
called him pa and he called me a son,
and I came away with a different point of view
and I think about him now and then.
Every time I tried, every time I win and if I
ever have a son I think I am gonna name him
Bill or George - anything but Sue.
During the show Ed said that "A Boy Named Sue" was written by Johnny Cash, and was inspired by his association with Sue K. Hicks, an attorney who was a friend of John Scopes and who agreed to be a prosecutor in the Scopes Monkey Trial. Sue Hicks was named after his mother who died after giving birth to him.
However, "A Boy Named Sue" wasn't written by Johnny Cash.
"A Boy Named Sue" was a poem written by Shel Silverstein, and was also released in 1969 (the same year as Cash's At San Quentin) on Silverstein's album Boy Named Sue (and His Other Country Songs).
Who inspired Shel Silverstein's poem? Eugene Bergmann argues that the song was inspired by humorist Jean Shepherd, who was a close friend of Silverstein's. In an interview in 1965 Jean Shepherd shared this about how this feminine-sounding name affected his development in life:
You know how it felt to grow up all of your life, with the name Jean? Spelled with a J? Listen, I fist-fought my way through every grade in school. How do you think I go so aggressive?If the song wasn't written by Cash or inspired by Cash's association with the Sue Hicks from the Scopes Monkey Trial how did Cash come across the song?
According to Robert Hilburn's recent biography, Cash was told about the song lyrics by Don Davis, a music producer and family friend (Davis was married to Anita Carter, sister of June Carter Cash). Don felt the lyrics would make a great song for the upcoming San Quentin concert as Cash had had previous success using lyrics from a Silverstein poem at the prior Folsom prison concert. This was "25 Minutes to Go," a Silverstein poem that became the lyrics for a highlight song on the At Folsom Prison album.
Like with Folsom, maybe some lyrics from Silverstein could make another hit for the San Quentin concert?
But Cash didn't take the lyrics with him to San Quentin. Cash liked the quirky story of the song but left it behind to record later when he got back from San Quentin.
But June Carter threw the lyrics onto a stack of material that Johnny was taking with him to the prison concert. During rehearsals Cash pulled out the lyrics and decided to add the song to the show. The musicians worked out a simple and rough accompaniment, playing the song live for the first time before before the inmates of San Quentin.
And the result?
"A Boy Named Sue" became one of Cash's biggest hits.
Home of the famous Scopes Monkey Trial.
And the home of our dear friend Rachel Held Evans, best-selling author of Evolving in Monkey Town (now Faith Unraveled), A Year of Biblical Womanhood and the forthcoming Searching for Sunday.
If you follow Rachel's blog or Twitter account you'll have noted that Jana and I were in Dayton last week to visit Rachel and Dan and to take in the Tokens Show being held in the historic Rhea County Courthouse where the Scopes Trial was held.
The Tokens Show is a theologically-themed radio variety show, similar to A Prairie Home Companion with Garrison Keillor. Tokens is hosted by Lee Camp, author and theologian at Lipscomb University. Musically, the show is built around country, blue grass and gospel music. Comedy sketches focus on religious and Southern characters, our favorite being Brother Preacher. Theologically, the show is built around a theme woven together by music, comedy, Lee's narration and interviews with authors.
The Dayton show was built around the theme "Breaking Down False Dichotomies" with a focus on the tensions between science and religion, especially the debates about evolution. Using the famous Scopes Monkey Trial as the focal point the Dayton show was filmed in the Rhea County courthouse where the trial was held. The authors interviewed for the show were Rachel and Ed Larson, author of the Pulitzer-prize winning book Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion.
Getting to visit Rachel and attend this show (given its historical location and focus on the intersections of science and religion) was too good to pass up. So Jana and I drove to Dayton from Pennsylvania (where we've been visiting my family).
Also, the show was filmed and may appear on your local PBS station. I'll try to keep abreast of those details and let you know when the show is set to appear on TV.
After watching Inherit the Wind the night before to get into the mood, Jana and I arrived in Dayton early enough the day before the show to eat at Jacob Myers, recommended by Rachel. Jana and I had a delightful dinner on the balcony looking out over the river. The next morning Jana and I walked up and down the main street of downtown Dayton visiting the antique shops. Score! Jana found all sorts of things she had looking for all summer in antique and thrift shops. For my own part, I found a vintage suitcase that I'm going to start using on overnight speaking trips.
The show itself was awesome. Though it was a struggle for the tech people and the performers. The Rhea County courthouse, despite its historical stature, is still a working courthouse. And the day of the show the court was in session. The court was supposed to be out by noon but didn't end until two. That put all the Tokens people under the gun. Especially since this show was being filmed. And given that the show was being filmed some of the segments of the show had to be re-taped if something glitchy happened. That often disrupted the flow of the performers, who had to be repeatedly started and stopped by the film crew. But it all worked for me. You got to hear songs twice and it made the audience feel like we were participants working hard with the performers to get the show on film so that others could enjoy it later.
Enough about our visit. You're here for theological conversation. So, three theological reflections about the show.
The Tokens show in Dayton was an illustration of this divide and how within the ecumenical Churches of Christ the conversation is so much more vibrant, intellectual and interesting than what is happening in evangelicalism. True, there are difficult cross-pressures being negotiated between the work of our intellectuals and the university administrations who are trying make our schools attractive to evangelical families. So Kudos to Lipscomb and Lee for hosting the conversation about evolution and faith at the Dayton Tokens show. The show represented the best of the (ecumenical) Church of the Christ tradition.
Second, this conversation about faith and evolution is important as highlighted in Rachel's interview with Lee during the show. It goes to the show theme of "false dichotomies." Specifically, as Rachel recounts in her poignant memoir Evolving in Monkey Town, conservative, fundamentalist and evangelical churches are putting the best and brightest of each generation in an untenable position by claiming that you can't be a Christian while believing in evolution. So you have to choose: Creation or Evolution.
Listen, I know there are complex issues here and slippery slopes to avoid. But to allow zero middle ground here is crazy. There are many very smart and honest Christians who will be persuaded by the scientific evidence regarding the age of the earth and the evolution of the species. To force these Christians to make a choice or to simply force them out is not a good long-term strategy. The better way forward is to extend the right-hand of fellowship to everyone, agree to disagree, and keep the conversation energized. I don't mind sharp theological disagreement so long as we share the Eucharist as brothers and sisters afterwards.
My last theological reflection about false dichotomies related to the show has to do with Lee's conversation with Ed regarding the political and theological paradox that was William Jennings Bryan.
Our understanding of history often reduces to simplistic black and white narratives. And that's how we've come to understand the Scopes trial. Especially if you watch a film like Inherit the Wind. On the one side is William Jennings Bryan, religious fundamentalist defending a literal reading of the bible. On the other side is Clarance Darrow, courageous defender of intellectual liberty and free thinking. These two titans go head to head in the Scopes trial, in Darrow's famous cross-examination of Bryan about the bible, with Darrow the clear victor. Reason trumps religious fundamentalism!
(And yet, even in Inherit the Wind we see this sort of dichotomy undermined. My favorite scene in Inherit the Wind is the final one. The courtroom is empty, Darrow is alone and packing his briefcase. He picks up the bible in one hand and The Origin of Species in the other. Darrow weighs them back and forth, looking like he's pondering which one to take with him and which one to leave behind. In the end, with a smile, he tucks both the bible and The Origin under his arm and walks out of the courtroom. Darrow refuses to choose. Or, rather, he chooses both.)
Back to the paradox of Bryan. Why was Bryan in Dayton crusading against evolution? The issue for Bryan wasn't really about a literal interpretation of the bible, the concern of so many evangelicals today. The important issue for Bryan was the moral direction of American society.
Specifically, as both Lee and Ed pointed out, in the wake of the bloodshed of World War I Bryan felt that evolution undermined both Christianity and democracy, replacing each with a "might makes right" ethic, where Nietzschean "supermen" would justify their domination of the weak with an appeal to "the survival of the fittest." And Bryan had a point here. As Lee mentioned during the show, Hitler's Mein Kampf was published on July 18, 1925 while the Scopes trial was taking place in Dayton.
Relatedly, at the time of the Scopes trial Bryan was a vocal critic of American imperialism and militarism. Which is interesting. Today, how many evangelical Christians who reject evolution are also sharp critics of American imperialism and militarism? Not many. Which goes to the paradox of Bryan and how he is a lesson for our own time.
Specifically, if I had to choose I'd be happy to trade evangelicals a belief in evolution for a vigorous prophetic witness against American imperialism and militarism. I'd happily shift to a belief in a literal seven day creation if evangelicals collectively raged and protested against foreign wars, drone strikes and imperialistic policies.
Biblical literalism isn't the boogie man here, it's Empire.
Add to this the fact that Bryan was also an outspoken critic of capitalism and a defender of labor. Bryan argued for an income tax in which the rich pay more than the poor along with the creation of the U.S. Department of Labor. How many evangelicals today align with those sorts of policies? Bryan was also a supporter of the woman's suffrage movement.
My point here that Bryan doesn't fit into the "fundamentalist" box we've created for him. It's another example of the false dichotomies we are living with. William Jennings Bryan was a religious fundamentalist who was also a social progressive.
Which makes you wonder, maybe we need more William Jennings Bryans in the world rather than fewer of them. Because the modern heirs of William Jennings Bryan--Bryan, the defender of labor and critic of American imperialism and militarism--look little like their ancestor.
And let me end with this, how in thinking about Bryan during the show, maybe for the first time, I started to re-think my easy endorsement of evolution.
An answer Ed gave to Lee about Bryan prompted this reflection. Specifically, how did Bryan's religious conservative fuel is social progressivism?
According to Ed it was Bryan's belief in the Imago Dei, that we are all created in the image of God. That belief--that all humans have divine dignity and worth--fueled Bryan's work for women's suffrage and his defense of the working man in the face of capitalistic exploitation. Belief in the Imago Dei also drove Bryan's criticisms of imperialism and militarism.
And this was also why Bryan was so alarmed about evolution. According to Bryan, evolution undermined the Imago Dei, leaving behind a social-Darwinian ethic of survival of the fittest--Hitler's vision where the weak, deformed, defective, handicapped and retarded would be removed from society. A world where the strong could dominate the weak.
Where is human dignity to be grounded if Darwin was right?
Secular humanists, of course, have a suite of responses to Bryan's worry. Bryan's concern, that evolution would unmoor ethics, has often been refuted.
And yet, many intellectuals have noted a curious gap in arguments like those offered by the New Atheists. Specifically, people like Richard Dawkins, Sam Harris and the late Christopher Hitchens seem to simply assume a foundation of liberal democracy without pondering very much where that foundation comes from or the basis for its warrants. Why should we assume that liberal democracy or the values of humanism will be the necessary and "natural" default of human society or the telos of human development? Why isn't tyranny or social-Darwinism, with the strong dominating over the weak, a perfectly legitimate and warranted alternative? Why shouldn't the victors get to write history and say what is right vs. wrong?
Such questions have led thinkers like Nicholas Wolterstorff in his book Justice: Rights and Wrongs to argue that an account of universal human rights can only be made coherent within a religious framework, similar to the Christian confession regarding the Imago Dei at work in the thought of William Jennings Bryan.
Let me be clear, I am not well-versed enough in the debates regarding ethical foundations to say if such arguments are correct, but I do think that, at the end of the day, a universal commitment to human flourishing and/or rights can only be grounded in an account that takes the value, dignity and worth of every human person as sacred and inviolable. Which makes human dignity, for the purposes of ethical and political reflection, confessional and metaphysical in nature. Or axiomatic--an irreducible given--if you are looking for a less religious word.
Which is to say that belief in universal human dignity is religious in nature. Human dignity is not a matter of science, data or evidence. It is something that we confess. It is simply something we believe in. The most important thing, in fact, that we can believe in.
As Thomas Merton said, "guard the image of man for it is the image of God."
Which is to say, while I accept the scientific account of evolution the ghost of William Jennings Bryan began to haunt me in the middle of the Tokens show.
I accept evolution. But I also believe in the Imago Dei. And those two things, upon reflection, aren't so easily or simply reconciled...
But late in the day Jana found me the perfect gift. It was a vintage cast iron monkey bank (pictured here). I'll be taking it home and proudly displaying it on my office desk.
What a wonderful memento to remind us of the day we visited Rachel and went to the Tokens Show, sitting in the very same courtroom where William Jennings Bryan and Clarance Darrow faced off in 1925.
The day we visited and evolved in Monkey Town.
In that post I point out that the phrase "seventy times seven" was not initially associated with forgiveness but was, rather, rooted in a song of vengeance.
Consequently, I suggest that Jesus's reference to forgiving "seventy times seven" is reaching way back into the Old Testament in order to undo something that went wrong a long time ago and affects us still:
The very first mention of "seventy times seven" is not Jesus's instruction on forgiveness. The first reference of "seventy times seven" or "seventy seven" in the bible is found in Lamech's Song of the Sword.
The Song is found very early in Genesis--right at the dawn of the biblical story--after the sin of Cain and Cain's exile. From there the descendents of Cain are named and among them is Lamech. In the middle of this, without any real context, Lamech gives what has been called the Song of the Sword:
Genesis 4.23-24Again, we don't know any of the background here. We don't know who the young man was or why Lamech killed him. But what we do know is that this is a song of vengeance. More, it's a song of "shock and awe" vengeance.
Lamech said to his wives, “Adah and Zillah, listen to me; wives of Lamech, hear my words:
I have killed a man for wounding me,
a young man for injuring me.
If Cain is avenged seven times,
then Lamech seventy-seven times. ”
There's the normal tit for tat vengeance.
Then there's Cain-level vengeance--vengeance times seven.
And then there is Lamech-level vengeance--vengeance seventy-seven times.
Again, this is the very first reference in the bible to seventy-seven (or seventy times seven). And we note here that this number is associated with vengeance, with a Song of the Sword.
In light of that, I wonder if Jesus's teachings on forgiveness are not directly addressing the ethic of Lamech and the hold it has upon our imaginations. Is not Jesus explicitly rejecting the Song of the Sword and the world it creates?
Matthew 18. 21-22Also note the sword-theme in the arrest at Gethsemane. Swords are everywhere:
Then Peter came to Jesus and asked, “Lord, how many times shall I forgive my brother or sister who sins against me? Up to seven times?”
Jesus answered, “I tell you, not seven times, but seventy-seven times."
Matthew 26.47-56Everyone in this scene is working with the imagination of Lamech. The Song of the Sword is the ethic of everyone in the scene. Everyone, that is, but Jesus.
While he was still speaking, Judas, one of the Twelve, arrived. With him was a large crowd armed with swords and clubs, sent from the chief priests and the elders of the people. Now the betrayer had arranged a signal with them: “The one I kiss is the man; arrest him.” Going at once to Jesus, Judas said, “Greetings, Rabbi!” and kissed him.
Jesus replied, “Do what you came for, friend.”
Then the men stepped forward, seized Jesus and arrested him. With that, one of Jesus’ companions reached for his sword, drew it out and struck the servant of the high priest, cutting off his ear.
“Put your sword back in its place,” Jesus said to him, “for all who draw the sword will die by the sword. Do you think I cannot call on my Father, and he will at once put at my disposal more than twelve legions of angels? But how then would the Scriptures be fulfilled that say it must happen in this way?”
In that hour Jesus said to the crowd, “Am I leading a rebellion, that you have come out with swords and clubs to capture me? Every day I sat in the temple courts teaching, and you did not arrest me. But this has all taken place that the writings of the prophets might be fulfilled.” Then all the disciples deserted him and fled.
The men coming for Jesus are carrying swords. And Jesus chides them for their mistake. He basically says, "What ever gave you the idea that you'd need a sword to arrest me? When did I ever carry or call for swords?"
Jesus is in effect saying, "When did you ever hear me sing the song of Lamech?"
And Jesus's followers are just as confused. They are still singing the song of Lamech. The swords are met with swords.
But Jesus says, put your sword away.
We have a new understanding of seventy-seven.
The Song of Lamech is not the Song of the Lamb.
It was like a church to me.
I entered it on soft foot,
Breath held like a cap in the hand.
It was quiet.
What God was there made himself felt,
Not listened to, in clean colours
That brought a moistening of the eye,
In movement of the wind over grass.
There were no prayers said. But stillness
Of the heart's passions -- that was praise
Enough; and the mind's cession
Of its kingdom. I walked on,
Simple and poor, while the air crumbled
And broke on me generously as bread.
In this post I want to suggest that Goldsworthy's art might also be a way of thinking about how God exercises "power" and influence in the world.
The idea I have is that God acts in the world in a way that is non-coercive but ordering and creative. I'm thinking here of the Spirit of God hovering over the deep in Genesis and bringing order out of the chaos. God is creator here in an artistic sense, working on rough, disordered raw material. God is that creative, artistic Spirit at work bringing beauty into existence. Goldsworthy's art seems to be a perfect metaphor for this.
The idea I have in mind is that God's power and activity in the world is this creative, ordering, nourishing force that swims against the tides of entropy, death, decay and disorder.
And because the force is loving, non-coercive, non-rivalrous, non-competitive, and non-violent it is ever vulnerable to the dark tides of life. Consequently, this loving, creative force is fragile, episodic and transient.
But this force is always present, always working, always inserting itself, always interrupting, always haunting, always calling, always healing, always whispering, always nourishing, always mending, always enchanting, always singing, always knitting, always soothing, always caressing, always weeping, always laughing, always composing, always painting, always nursing, always creating.
It is that Divine Spirit hovering over the face of the chaotic deep calling life and goodness into existence.
He wanders out into the nature and, initially, spends time familiarizing himself with the space, its rhythms and the materials that are available to him. After this period of familiarization, which can take years and repeated visits (the best of Goldsworthy's work is around his own home because he knows the place so well), Goldsworthy then begins to work. He may find autumn leaves on the ground and arrange them, making a striking strip of color or fading yellows gradually into reds. He may impose some order upon the scene. This order might be geometrical, a circle or a line of flowers or stones. These sharp, precise Euclidean shapes jump out from the background of a world dominated by a chaotic and fractal geometry. But some of the order Goldsworthy creates might be more whimsical, like purple flower pedals threaded with a vine playing among the branches and green leaves of a tree. Or Goldsworthy may grind up stones to gather red pigment, then using that color to paint rocks or turn a waterfall red.
When I encountered Goldsworthy's work my first thought was this: That is what the Christan life should be like. This artform is the perfect metaphor for how we should move and act in the world.
Here's what I mean. Today each of us will wander out into the world. And around us we'll find all sorts people and all sorts of situations. It's a fractal, messy, and chaotic world out there.
And it's not all bad. There are beautiful things, like flowers, out there. But there is also sadness and brokenness, conflict and deadness. And what we'll try to do today (or what we should be doing today) is very similar to what Goldsworthy does.
We will try, given what we find out there, to bring grace and beauty into the world.
And to do this, like Goldsworthy, we'll need to take the time to listen and learn about the people around us. Who are they? What are their dreams? Where do they hurt? And then, once we know the materials and rhythms of their experience, we'll try to move and act in a way to bring beauty and grace into their lives.
And into the world. We might bring grace and beauty to a dead patch of urban ruin. Or a bit of color into an expanse of grey.
We might, simply, pick up some trash as we pass, leaving the world cleaner rather than dirtier because we cared and loved.
Ever nudging the world closer to Eden.
And we'll try do this in a way very similar to how Goldsworthy goes about his art. We won't carry hammers, saws, bulldozers, and nails into people's lives with the goal of cutting everything down and building something artificial, imposed, and unnatural. Something we'd like to see but might not fit the person or environment. We won't try to use force to make "good" happen. Our touch shall be light. We will not dominate, own, or control. We will specialize in improvisation and creativity.
And, importantly, we know we won't be able to control the outcome. Like Goldsworthy, once we've done our "work" for the day, trying to bring a little bit of beauty, peace, truth and grace into the world, we'll relinquish control. We'll have to let it go. Just as Goldsworthy releases his art to the forces of time, wind, rain, and sun. We can't, by ourselves, hold all the brokeness together. All we can do is try, for a moment in time, to hold two broken pieces together in a way that is beautiful, redemptive, and hopeful.
Like Goldsworthy's artwork the fruits of our fragile, transient and gracious labors will rarely last beyond the moment, which brings a sense of sadness and loss, but it hints and gestures at what is possible, at that Beauty that sits behind all things.
Which brings me to the idea of sacrament. In the face of hebel, the fleetingness of life, our goal isn't to build lasting monuments to the ego, to somehow "fix" everything.
We are, rather, to live sacramentally. We are to live as signs and portents of the grace that is at hand in any given moment, even in the ruin, the boredom, the loss and the trauma. The Kingdom of God, Jesus said, is in our midst.
Living sacramently, then, is making that Kingdom visible, here and now, in the midst of us.
We are to live beautifully, hopefully, redemptively, and graciously. We must, in the words of Wendell Berry, be a people who practice resurrection.
Because life is hebel our attempts to extract "gain," "advantage" or "profit" from life--to treat life capitalistically we might say--are revealed to be "vain," even "meaningless." Rather than "chasing the wind" in this way the recommendation from Ecclesiastes is resting into the simple gifts of the day. Food, drink, relationships and good work.
Ecclesiastes 9.7-10aIn addition to these themes of enjoying simple, daily pleasures Ecclesiastes also encourages us to strive for a "fit" between ourselves and the created order. We are to match ourselves to the rhythms of Creation. "For everything a season."
Go, eat your bread with enjoyment, and drink your wine with a merry heart; for God has long ago approved what you do. Let your garments always be white; do not let oil be lacking on your head. Enjoy life with the wife whom you love, all the days of your fleeting life that are given you under the sun, because that is your portion in life and in your toil at which you toil under the sun. Whatever your hand finds to do, do with your might.
As I reflected on these themes I kept coming back to some old posts I wrote about the art of Andy Goldsworthy. My feeling is that the art of Andy Goldsworthy is a wonderful metaphor for all these themes in Ecclesiastes, how to live life given that it is hebel and how to humbly "fit" ourselves to the rhythms of creation.
So what I'd like to do is rework those three old posts making connections with Ecclesiastes.
A large part of Goldsworthy's art, and what he is most notable for, is simply wandering out into the natural world and using natural materials--stones, thorns, leaves, flowers, branches, ice--to create a piece of art. Sometimes the artwork is a structure or sculpture. Often the art is a pattern, a bit of order imposed upon the randomness of nature. For example:
An arrangement of autumn leaves:
Whimsical threads of color:
What is amazing about Goldsworthy's work is that he uses no tools and brings no materials with him into nature. To make an ice sculpture he just collects icicles or cracks up the ice on a pond and, using the heat from his hands, melts the ice where he wants the ice to connect. Soon the cold air refreezes the ice and the joint is formed.
If Goldsworthy creates a string of flower pedals he will use thorn and vine as his needle and thread. If he wants color he will smash up and grind rocks to get pigment. All the materials he uses are lying around him and, as a consequence, each piece of artwork is tied to its physical location (space) and season of the year (time). Some of the simplest art Goldsworthy does, practically childlike in quality, is lying on the ground as a light rain or snow begins. After a few moments he'll get up, leaving his outline behind:
Again, this is artwork and pattern that, to use Goldsworthy's word, "collaborates" with nature.
Obviously, this art is fragile and temporary. To preserve it Goldsworthy has to take pictures. And that is one of the most poignant aspects of his artform. Goldsworthy steps into the natural world, creates something, steps out, and then allows natural forces--time, wind, rain, sun, tide--to slowly erase his creation.
To experience more of Goldworthy's art and methods watch the documentary about him entitled Rivers and Tides. As of this writing Rivers and Tides can be streamed on Netflix and the whole film can be viewed on Youtube.
To conclude this introductory post, I hope you can see some connections between Goldsworthy's art the theme of hebel in Ecclesiastes and the refrain to live into the moment.
Goldsworthy's creations are radically transitory. The art is itself hebel, it makes no claim that it will last beyond the moment. The sun will melt, the wind will blow, the tide will roll in. As Ecclesiastes says, "The race is not to the swift or the battle to the strong...but time and chance happen to them all."
In light of the ideas of Ernest Becker, the art of Andy Goldsworthy is not an immortality project trying to deny or outlast death. Death is woven into the very fabric of the art.
And yet, even in the midst of death, the art brings beauty, grace and enchantment.
And this, it seems to me, is a metaphor for how to live your life.
Recently, one such search term brought someone to a playful post of mine where I developed diagnostic criteria for doubt based upon the sorts of diagnoses you'd find in the Diagnostic and Statistical Manual of Mental Disorders, which just came out in its 5th edition.
So here it is, from 2010, the diagnostic criteria for doubt:
Doubt is diagnosed when one or more of the following symptoms have been present during the same 2-week period and represent a change from previous religious experience; at least one of the symptoms is either (1) skepticism about the existence of God or (2) emotional distress associated with the "loss of God."
(1) Skepticism about the existence of God. The doubt is expressed intellectually as an ontological concern.Given the diversity of clinical presentations, a diagnosis of Doubt is given one of the following Type specifiers:
(2) Emotional distress associated with the "loss of God." The doubt experience is predominately emotional, a distress associated with the experience of Divine "absence."
(3) Apathy toward the faith (its beliefs and practices) often characterized by an experience of indifference or "deadness."
(4) A skeptical stance regarding the central claims of the faith. Doubts about the truthfulness of Scripture, founding events (generally those associated with the "miraculous" ), or metaphysical claims.
(5) Loss of an evangelistic zeal often replaced by a curiosity or acceptance of outgroup members.
(6) Feelings of distance and separateness during worship or rituals, a sense of "observing" the proceedings.
(7) Expressions of lament, frequently similar to grief or bereavement responses.
(8) A reappraisal of God's defining characteristics (e.g., benevolence, omnipotence). For example, God's benevolence might be replaced by judgments that God is indifferent or malevolent.
- Intellectual Type: Cognitive and intellectual features are predominant, often in the form of intellectual objections or skepticism
- Emotional Type: Emotional distress is predominant, similar to a grief response
- Apathetic Type: Features of indifference are predominant, a loss of zeal or interest in religious belief and/or practice
- Undifferentiated Type: A mixed presentation, where no one feature is predominant
Onset/Course Specifiers:Examples of various Doubt diagnoses illustrating the use of the Type and Onset/Course specifiers are as follows:
- Episodic (Single Episode/Reoccurring): Doubt manifests as a discrete temporal episode, often with alternating periods of "remission." Additional specifiers for a diagnosis of Episodic Doubt are Single Episode or Reoccurring. Single Episode Doubt is diagnosed when there have been no other discernible episodes of Doubt in the past. Reoccurring Doubt is diagnosed if the individual has met diagnostic criteria for Doubt in the past.
- Chronic: Chronic doubt has no discrete temporal onset and periods of "remission," if they occur at all, are short lived. Chronic doubt emerges slowly and can persist for years, often throughout the lifespan.
- Doubt-Intellectual Type-Chronic
- Doubt-Emotional Type-Episodic, Single Episode
- Doubt-Undifferentiated Type-Episodic, Recurring
- Doubt-Apathetic Type-Chronic
Prevalence and Occurrence Data:
Epidemiological research suggests that 30% to 50% of persons in religious populations have met diagnostic criteria for Doubt at least once in their lifetime. Some research has found incidence rates has high as 90% in certain populations.
Causes and Risk Factors:
Doubt has a variety of known causes. Some research has indicated that doubt may be influenced by personality suggesting that doubt may have heritable components. Traumatic life events are frequently implicated in the onset of doubt, particularly Episodic Doubt. Chronic doubt has also been linked to advanced education or intellectual exposure to ideas, information, or ways of knowing that create epistemological pressures upon religious belief.
Doubt can occur at any time during the lifespan. Generally, the first episodes of Doubt occur in late adolescence and early adulthood. However, there are many documented cases of late onset doubt.
There are no known demographic risk factors associated with Doubt. Doubt is equally prevalent across gender, ethnic groups, and socioeconomic groups.
There are no known treatments for Doubt. Consequently, most treatments for doubt are palliative rather than curative.
And in his notes for what would have been Chapter Two Bonhoeffer sketched out some thoughts about the nature of "authentic transcendence":
Our relation to God is not a "religious" relationship to the highest, most powerful, and best Being imaginable--that is not authentic transcendence--but our relation to God is a new life in "existence for others," through participation in the being of Jesus. The transcendental is not infinite and unattainable tasks, but the neighbor who is within reach in any given situation...Authentic transcendence is existence for others.
Authentic transcendence is the neighbor who is within reach in any given situation.
Jana saw this on our friend Matt's Facebook feed. Too good not to share. Resonates with why I practice my own faith.
What does he get in return for doing this everyday?
He gets nothing.
He won't be richer.
He won't appear on TV.
Still anonymous and not a bit more famous.
What he does receive are emotions.
He witnesses happiness.
Reaches a deeper understanding.
Feels the love.
Receives what money can't buy.
A world made more beautiful.
And in your life?
What is it that you desire most?
The phrase "he gets emotions" reminds me of the argument made by Francis Spufford in his book Unapologetic: Why, Despite Everything, Christianity Can Still Make Surprising Emotional Sense, one of the best books I've read in a long time. It's the "emotional sense" that sits behind my religious sensibilities.
I also resonate with the aesthetic frame of "a world made more beautiful."
Finally, I love the connection of how a religiously disciplined life of kenostic self-giving, in this case Buddhism, allows us to "witness happiness."
I sit and look out upon all the sorrows of the world, and upon all oppression and shame;
I hear secret convulsive sobs from young men, at anguish with themselves, remorseful after deeds done;
I see, in low life, the mother misused by her children, dying, neglected, gaunt, desperate;
I see the wife misused by her husband—I see the treacherous seducer of young women;
I mark the ranklings of jealousy and unrequited love, attempted to be hid—I see these sights on the earth;
I see the workings of battle, pestilence, tyranny—I see martyrs and prisoners;
I observe a famine at sea—I observe the sailors casting lots who shall be kill’d, to preserve the lives of the rest;
I observe the slights and degradations cast by arrogant persons upon laborers, the poor, and upon negroes, and the like;
All these—All the meanness and agony without end, I sitting, look out upon,
See, hear, and am silent.
A powerful poem. And I'm curious. How do you read that final line?
Since I grew up singing hymns I know a bunch of hymns that the guys don't know. So just about every week I'm introducing and teaching them a new hymn. And sometimes these new hymns become favorites that they request week after week.
Would you like to know what new hymn has become their favorite?
It's a hymn that has long been one of my own favorites because of its simple, haunting, almost lullaby-like melody. I introduced it early on and it's been requested over and over. We sing in almost every week.
The hymn is "There is a Balm in Gilead." The lyrics:
There is a balm in Gilead"There is a Balm in Gilead" is a well-known African-American spiritual. As I said, I've always found the song haunting. Not sure why, I just always have.
To make the wounded whole;
There is a balm in Gilead
To heal the sin-sick soul.
Some times I feel discouraged,
And think my work’s in vain,
But then the Holy Spirit
Revives my soul again.
There is a balm in Gilead
To make the wounded whole;
There is a balm in Gilead
To heal the sin-sick soul.
If you cannot sing like angels,
If you can’t preach like Paul,
You can tell the love of Jesus,
And say He died for all.
There is a balm in Gilead
To make the wounded whole;
There is a balm in Gilead
To heal the sin-sick soul.
The balm in question is a resinous gum from the tree Commiphora gileadensis that grew in ancient Judea. The gum was used to make medicine. The balm of Gilead is mentioned three times in the Old Testament, in Genesis 37.25 and in Jeremiah 46.11 and 8.22. The reference in Jeremiah 8.22 goes to the hymn:
Is there no balm in Gilead? Is there no physician there? Why then has the health of the daughter of my people not been restored?In the Christian tradition Jesus is understood to be the prophetic answer to Jeremiah.
Jesus is the physician and the medicine for our healing.
Yes, the hymn confesses, there is a balm in Gilead.
jesus hufflepuffWhy does the search term "hufflepuff" bring people to this blog?
Because of a post I wrote in 2011 making a guess as to which house of Hogwarts Jesus would haven been in:
Which Hogwarts house would Jesus be in?
Slytherin? Gryffindor? Hufflepuff? Ravenclaw?
As all the cool people know (Muggles and conservative evangelicals will have to catch up), the Hogwarts students are sorted into their houses by the Sorting Hat based upon the personality match between the student and the House.
Gryffindor values courage and bravery. Slytherin values ambition, cunning, and pure blood status. Ravenclaw values intelligence and learning. And Hufflepuff values...
Well, what does Hufflepuff value?
According to the song the Sorting Hat sings in The Order of the Phoenix (H/T to Andrea for helping me find this), the first three founders of Hogwarts were looking for very particular students. Here's the relevant part of the song:
Sorting Hat Song (from The Order of the Phoenix)As observed, Slytherin, Gryffindor and Ravenclaw pick very particular students. So who does Helga Hufflepuff pick? The song continues:
In times of old when I was new
And Hogwarts barely started
The Founders of our noble school
Thought never to be parted:
united by a common goal,
They had the selfsame yearning
To make the world's best magic school
And pass along their learning.
"Together we will build and teach!"
The Four good friends decided
And never did they dream that they
Might someday be divided,
For were there such friends anywhere
As Slytherin and Gryffindor?
Unless it was the second pair
Of Hufflepuff and Ravenclaw?
So how could it have gone so wrong?
How could such friendships fail?
Why, I was there and so can tell
The whole sad, sorry tale.
Said Slytherin, "We'll teach just those
Whose ancestry is purest."
Said Ravenclaw, "We'll teach those whose
Intelligence is surest."
Said Gryffindor, "We'll teach all those
With brave deeds to their name"
Said Hufflepuff, "I'll teach the lot,Hufflepuff takes the leftovers. The kids who don't fit into the other houses. This impression is strengthened as the song continues:
And treat them just the same."
These differences caused little strifeThat's that theological point I'd like to hit on: "She took the rest." Hufflepuff took the misfits, castoffs and rejects. This isn't to say that Jesus lacked courage, intelligence, or cunning ("Be as shrewd as serpents!"). Just that, theologically speaking, I think Jesus' life and ministry identifies him more as a Hufflepuff, the willingness to hang out with and embrace the misfits, rejects, and castoffs.
When first they came to light,
For each of the four founders had
A House in which they might
Take only those they wanted, so,
For instance, Slytherin
Took only pure-blood wizards
Of great cunning, just like him,
And only those of sharpest mind
Were taught by Ravenclaw
While the bravest and the boldest
Went to daring Gryffindor,
Good Hufflepuff, she took the rest,
And taught them all she knew...
So that's what I think.
Jesus would be in Hufflepuff House.
There is divine meaning in the life of the world, of man, of human persons, of you and of me.
Creation happens to us, burns itself into us, recasts us in burning — we tremble and are faint, we submit. We take part in creation, meet the Creator, reach out to Him, helpers and companions.
Debates about Creationism and evolution continue to spark. Recently, as a part of some personal conversations on this subject, I had cause to revisit a 2009 book review discussion regarding the role slavery and abolitionism played in the thought of Charles Darwin and his moral agendas in writing The Origin of Species.
This is a story I wish more Christians knew about. So let me remind you:
The story is told in the remarkable book Darwin's Sacred Cause, by Adrian Desmond and James Moore. Desmond and Moore are the authors of what many critics believe to be the best modern biography of Darwin and they don't disappoint in their follow-up book.
One way of approaching Moore and Desmond's book is to contrast the bland and quiet personality of Darwin with the revolutionary audacity of his theory of natural selection published in The Origin of Species. How could such a mild-mannered, reclusive and non-confrontational person produce the most revolutionary scientific theory in the history of the world? Where did the creative fires burn within Darwin? So little was shown on the surface of his life. What was going on inside him as he penned the Origin? What drove Darwin?
Desmond and Moore's claim is that Darwin inherited a fierce anti-slavery abolitionism from his family, on both his side and his wife's. Both the Darwin and the Wedgwood families (Emma Wedgwood was Darwin's wife and the Darwin's and Wedgwood's frequently intermarried) were active participants in the movement to end English participation in the slave trade and ending slavery in the English colonies. For example, Josiah Wedgwood, the famous English pottery manufacturer, was Emma Darwin's grandfather. Josiah mass produced a famous cameo of the seal for the Society for the Abolition of the Slave Trade. Here is the seal:
It shows a slave in chains with the words in the banner reading, "Am I not a man and a brother?" Here was the cameo Josiah produced:
This, then, was the moral climate Darwin was raised in. This was Darwin's "sacred cause," the ending of slavery. In Darwin's own words, in a letter to the anti-slavery activist Richard Hill:
I was quite delighted...to hear of all your varied accomplishments and knowledge, and of your higher attributes in the sacred cause of humanity.Eventually, Darwin began to have personal experiences as a young man that solidified the moral commitments he imbibed as a child, where hot abolitionist conversation was daily fare. Specifically, during his years in medical school (which he eventually aborted, having no stomach for the surgery room) Darwin took taxidermy lessons from an ex-slave named John. The sixteen-year-old Darwin spent many hours with John learning to stuff birds, a skill that would, fortuitously, come in handy years later on his Beagle journeys. One can imagine this young white boy learning a skill from this older black man, sitting together hour after hour. How could such an experience not affect the moral sensibilities of a young man on the question of slavery? Eventually, Darwin and John became, in Darwin's words, "intimate."
What is striking about this early adolescent experience is that the memory of John remained with Darwin as kind of defining moral lesson. Forty-five years later, when Darwin published his definitive take on race in The Descent of Man, those lessons with John make a poignant reappearance. In the thick of describing how the mental abilities of the races are equivalent Darwin initially appeals to his observations during his travels on the Beagle. But the crowning piece of evidence is more personal and biographical. At the end of this argument about the intellectual equivalency of the races Darwin writes: so "it was with a full-blooded negro with whom I happened once to be intimate." Desmond and Moore comment: "That was the 'blackamoor' John, now a warm, distant memory for Darwin: the ex-slave bird-stuffer who taught the boy week in, week out, during those lonely, frosty days in Edinburgh."
The other defining moral experience upon Darwin's attitudes concerning slavery occurred during his HMS Beagle journey. During the journey Darwin stayed in many slave nations and was able to observe the experience of slavery firsthand. The most poignant passage of Darwin's Beagle Journal comes toward the end and captures how his contact with slavery affected him:
I thank God, I shall never again visit a slave country. To this day, if I hear a distant scream, it recalls with painful vividness my feelings, when passing a house near Pernamabuco, I heard the most pitiful moans, and could not but suspect that some poor slave was being tortured, yet knew that I was as powerless as a child even to remonstrate. I suspected that these moans were from a tortured slave, for I was told that this was a case in another instance. Near Rio de Janeiro I lived opposite an old lady, who kept screws to crush the fingers of her female slaves. I have staid in a house were a young household mulatto, daily and hourly was reviled, beaten, and persecuted enough to break the spirit of the lowest animal. I have seen a boy, six or seven years old, struck thrice with a horse-whip (before I could interfere) on his naked head, for having handed me a glass that was not quite clean; I saw his father tremble at a mere glance from his master’s eye…It is claimed that self-interest will prevent excessive cruelty; as if self-interest protected our domestic animals, which are far less likely than degraded slaves, to stir up the rage of their savage masters. It is an argument long since protested against with noble feeling, and strikingly exemplified by the illustrious Humboldt. It is often attempted to palliate slavery by comparing the state of slaves to our poorer countrymen: If the misery of the poor be caused not by the laws of nature, but by our institutions, great is our sin…When Darwin returned home from the Beagle the tides were shifting in the race debates. Suddenly, science, and not religion, was becoming the authoritative voice on the subject of racial origins.
Those who look tenderly at the slave-owner, and with a cold heart at the slave, never seem to put themselves into the position of the latter; -- what a cheerless prospect, with not even a hope for change! Picture to yourself the chance, ever hanging over you, of your wife and your little children--those objects which nature urges even the slave to call his own--being torn from you and sold like beasts to the first bidder! And these deeds are done and palliated by men, who profess to love their neighbors as themselves, who believe in God, and pray His will be done on earth! It makes one’s blood boil, yet heart tremble, to think that we Englishmen and our American descendants, with their boastful cry of liberty, have been and are so guilty: but it is a consolation to reflect, that we at least have made a greater sacrifice, than ever made by any other nation to expiate our sin.
There had always been two schools of thought on the issue of racial origins. Specifically, there were the monogenists and the polygenists. The monogenists believed in a single (mono) origin (genesis) of racial descent. By contrast, the polygenists believed in multiple (poly) origins. Polygenesis was the racist theory, contending that the white and black races were separate biological species. Blacks were not fully human. They were an intermediate species between apes and Europeans. Generally speaking, slave traders and owners preferred polygenist theories as they provided justification for slavery.
In the generations before Darwin the monogenist versus polygenist debate was waged biblically and exegetically. Monogenist theologians argued for a "common descent" from Adam and Eve. In this view, all of humanity was the same species. We all shared a "common ancestor." By contrast, polygenist theologians pointed to biblical texts suggesting that humans (and human-like) species had multiple, distinct origins.
Waged on biblical grounds, the monogenist camp tended to come out on top. A plain reading of the bible suggested that all humans were decedents of Adam and Eve.
But the rise of biological science was beginning to shift this debate in the other direction. Specifically, influential biologists were beginning to argue that Negroes and Europeans were, indeed, separate biological species. Most of these scientists were working in America, namely Louis Agassiz and Samuel Morton. Morton's infamous Crania Americana cognitively ranked races based upon cranial measurements, with whites on top and black on the bottom. (For a penetrating analysis of the racial bias at work in Morton's data collection see the late Stephen J. Gould's masterful book The Mismeasure of Man.)
In short, when Darwin began his Notebooks on the origin of species it appeared that the racial debates were going to be won by the polygenist camp, with the help of science. The only arguments in favor of "common descent" were from the bible. But the bible was no longer credible in the Age of Science. Appeals to a mythical Adam and Eve were just not persuasive to scientists waving tables of hard data on cranial measurements. Polygenesis was scientific and empirical. Monogenesis was superstitious and mythical.
Given this situation, was it possible to provide a persuasive scientific account of "common descent"? Could science fight science in the race debates?
Desmond and Moore argue that one of Darwin's prime motivations in exploring the origin of species was to provide a scientific account of "common descent" to combat the scientific racism of the increasingly popular polygenist theories, theories that were supporting the institution of slavery.
In short, the motivations behind The Origin of Species were moral. The Origin was published during a time when scientific racism was on the rise and Origin was the work that decisively demolished polygenist thinking in favor of "common descent." All through Darwin's Notebooks, where he hatched the basic ideas in the Origin, his guiding idea was the genealogical tree, where all of humanity was seen as one, big branching family.
The breakthrough moment in the Notebooks occurs when Darwin sketches a genealogical tree to show the relationship between the species. Over one of the most influential doodles in world history Darwin wrote the words "I think":
In short, Darwin's thinking about shared human relationships, a shared family tree with common grandparents, inspired both his thoughts about race and provided him with the perfect metaphor to think about the Tree of Life. Darwin's "sacred cause" both pushed and pulled his thinking about the origin of species. Each fueled the other.
Darwin's Sacred Cause is a fascinating book because, I think, it decisively reshape how Christians should approach Charles Darwin. Properly understood, The Origin of Species was a moral document. A document that, more than any other, ended the era of scientific racism and helped bring global slavery to an end.
Further, The Origin of Species came to the aid of bible, lending scientific support to the growingly defunct biblical notion of "common descent."
All of this should give Christians pause before they attack Darwin. A reevaluation is in order in Christian circles given the moral impulses within Darwin's work. I encourage thoughtful Christians to pick up Darwin's Sacred Cause and reconsider the man that many Christians have come to demonize.
In that post didn't comment much on the third paper given by Rob McFarland from the Jones School of Law at Faulkner University. Rob's paper focused on the legal issues that have been swirling around gay marriage in recent years. In this post I want to highlight Rob's paper in light of the decision last week from the 9th Circuit Court of Appeals in the case Smithkline Beecham Corp. v. Abbott Laboratories.
Rob's paper at the CSC was enlightening for many of us in attendance. Basically, Rob educated us on the legal basis that had been used in court cases where plaintiffs were seeking legal recognition for same-sex marriages. Many of us, Rob pointed out, had been misunderstanding these cases. But things just might have changed with the 9th Circuit ruling last week.
Specifically, many in the public (me included) had been assuming that the cases regarding same-sex marriage, cases like Windsor v. U.S. which triggered a wave of rulings over the last year striking down same-sex marriage bans in various states, had been based upon Constitutional protections for certain classes of citizens. Similar to the way discrimination is prohibited in the case of gender or race.
To understand this we need to describe the two different ways the government might address discrimination. Legislatively, the government might pass an anti-discrimination law creating a "protected class." Such laws protect certain persons from particular forms of discrimination. The most sweeping and significant example of this in modern times is the 1964 Civil Rights Act which outlawed discrimination based on race, color, religion, sex, or national origin.
Consider job discrimination against gay or transgendered persons. Currently, in 29 states across the US you can fire someone on the basis of sexual or gender orientation. In most states it remains perfectly legal to fire someone simply because of sexual or gender orientation. Consequently, across much of the US gay and transgendered persons must remain closeted in the workplace.
However, the US Senate has tried to fix this problem. Last year the Senate passed the Employment Non-Discrimination Act which prohibits discrimination in hiring and employment on the basis of sexual orientation or gender identity.
However, the Employment Non-Discrimination Act has died in the House.
That's how legislatures address discrimination, by passing laws to protect classes of people from certain forms of discrimination. But the courts don't pass laws. Courts interpret existing laws in light of the Constitution. And when it comes to discrimination courts have to evaluate if a particular law violates the Equal Protection Clause of the 14th Amendment that no state shall deny to any person within its jurisdiction "the equal protection of the laws."
But while the courts don't pass laws creating "protected classes" they do something similar, what is called "levels of scrutiny."
Simplifying greatly, you can think of levels of scrutiny as raising the legal bar you have to clear before the government can discriminate against someone.
The lowest bar the government (federal, state, or local) has to clear to discriminate is called rational basis review. Under this level of scrutiny if the government has any "rational basis" for discriminating then the law is deemed constitutional. That sounds bad, but the government has to discriminate against all sorts of people. For example, six year olds aren't allowed to drive. But given that the government has a "rational basis" for restricting six year olds from driving this law doesn't violate the Equal Protection Clause. Under rational basis review all the government has to show is that it has a good reason--a "rational basis"--for the discrimination involved in the law. And under rational basis review the government is given the benefit of the doubt. The burden of proof is on the plaintiff.
Above rational basis review is what is called "heightened scrutiny" or "intermediate scrutiny." The stakes are raised here. The government has to have more than a "rational basis"--a good reason--for discrimination under "heightened scrutiny." You have to show that the discrimination serves an important government objective. Plus, unlike in rational basis review, under heightened scrutiny the burden of proof shifts toward the government. The court adopts a more skeptical and critical posture toward the discriminating law.
From a judiciary perspective the critical posture of the court used in heightened scrutiny is a form of protection toward certain classes. Heightened scrutiny is used in cases involving gender or racial discrimination.
Summarizing, while the courts don't create protected classes they do recognize classes of persons who, when they face government discrimination, get special judicial attention and protections. Specifically, the bar gets raised. If the government wants to discriminate, say, on the basis of gender or race, the reasons for the discrimination have to be much compelling along with being directly related to the functions of government. Plus, the burden of proof shifts to the government to makes this case.
As Rob described in his CSC paper, most of us following the same-sex marriage courts cases had been assuming that the courts had been extending this "heightened scrutiny" to same-sex persons. That is, we had been assuming that same-sex persons were being given the special protections used by the courts when they address cases involving gender and racial discrimination.
But as Rob pointed out, that's not what has been going on. Most of the same-sex marriage cases in the wake of Windsor were being decided under rational basis review. As Rob pointed out, the courts have been very wary of applying heightened scrutiny to same-sex discrimination cases as that would bring sexual orientation into the same protected space as gender and race.
According to Rob, the reason the courts have been reluctant to do this is that there remains some debate as to whether sexual orientation is analogous to biological classes such as gender and race. Consequently, when the courts have examined same-sex marriage they have tended to focus less on biology than upon liberty. Specifically, the courts have tended to frame the issues in same-sex marriage as less a violation less of the 14th Amendment than of the 5th Amendment. The 5th Amendment speaks to governmental interference in the exercise of liberty. And while both the 14th and 5th Amendments are relevant, courts have tended to see same-sex marriage bans as governmental interference in the pursuit of liberty, in this case the liberty to marry the person you love. And using rational basis review many courts have decided, following Windsor, that the government has no "rational basis" for interfering in this way. Same-sex couples should be able to engage in the "pursuit of happiness" without governmental interference.
The good news about applying rational basis review and focusing on liberty is that, since Windsor, many courts have argued that the state can't even meet this lowest level of scrutiny. The state can't even clear the lowest bar. That is, after Windsor many courts have decided that the state cannot articulate a coherent reason beyond prejudice--provide a simple "rational basis"--for interfering with the liberty of same-sex couples who want to marry.
That's heartening to see for same-sex marriage advocates. And it has lead to many state marriage bans being struck down since Windsor. But the downside is this. The trend of keeping these cases at the level of rational basis review means that courts in some states will continue to conclude that a particular state does have a "rational basis" for discrimination, for example, the protection of traditional marriage.
Recall, at the level of rational basis review the government's reason doesn't have to be all that strong or compelling. The bar for what counts as "reasonable" isn't all that high. The skepticism is directed at the plaintiff, not at the government. True, many courts, as we've just noted, don't think the state can even meet this low threshold, but other courts disagree. Again, this not a very high a bar to clear. Consequently, if the trend of rational review holds same-sex marriage bans could persist for a very long time across much of the US.
But if things were to kick up to "heightened scrutiny" review that would be a whole new ballgame. The burden would shift to the state to make a much more compelling case, one that must show a direct governmental interest. Under "heightened scrutiny" sexual orientation would get the same judicial protections as gender and race. But to date, this hasn't happened.
Until last week's ruling by the 9th Circuit.
To understand what happened with the 9th Circuit we need to revisit Windsor. The ruling in Windsor was vague about which level of scrutiny was being used. Was it rational basis or heightened scrutiny? Or both? It was unclear. But as we've noted, the decisions that followed Windsor have tended to assume that Windsor used rational basis review, arguing that states have no "rational basis" for infringing upon the liberty of same-sex couples wanting to marry.
But that understanding of Windsor is a matter of interpretation. You could argue that, beyond the issues related to the infringement upon liberty, that Windsor was protecting a socially despised group from targeted acts discrimination. If so, heightened scrutiny should be applied.
Before last week's ruling by the 9th Court no court had read Windsor as creating that sort of precedent. Rulings since Windsor, as we've noted, have tended to stay away from discussing targeted acts of social discrimination against same-sex persons in American society and have, rather, focused upon governmental infringement upon liberty. But last week's ruling by the 9th Circuit took a different approach and argued that Windsor actually had set the precedent for "heightened scrutiny" in cases where same-sex persons are being discriminated against. That is to say, when it comes to same-sex persons the issue isn't just about the exercise of liberty, it is also about protecting a particular class of people from targeted acts of discrimination. And this use of Windsor by the 9th Circuit, as setting the precedent for heightened scrutiny in cases of same-sex discrimination, is potentially a game-changer.
Interestingly, Smithkline Beecham Corp. v. Abbott Laboratories, the case decided by the 9th Circuit, has nothing to do with gay rights. The case was an antitrust suit between two pharmaceutical companies with one company accusing the other of price-gouging HIV medications. During the jury selection process a potential member of the jury was excluded by Abbott because he was suspected of being gay. After the verdict the losing company appealed citing, among a list of things, that Abbott violated protections about improperly discriminating against certain classes of people in jury selection. Basically, as you know, you can't discriminate in jury selection based upon things like gender or race. And according to the company filing the appeal you shouldn't be able to kick someone off a jury because they are gay.
And the 9th Circuit agreed. And they agreed by citing Windsor in a new way. Specifically, unlike other courts which took Windsor to be using a rational basis review, the 9th Circuit read Windsor as setting the precedent for applying heightened scrutiny to cases where same-sex persons are being discriminated against. This effectively includes same-sex persons, in the eyes of the court, among other classes, such as gender and race, that deserve special attention and protection under the law because they are targets of ongoing social discrimination in American society.
The reason this is significant is that if the ruling of 9th Circuit is upheld it sets the precedent for applying heightened scrutiny to cases of same-sex discrimination. This is what many had assumed was happening as various marriages bans were being struck down since Windsor, that same-sex persons were being specially protected by the courts from ongoing social discrimination. But that's not what was happening. But with the 9th Court's ruling, that may now start becoming the case.
And if it does, if heightened scrutiny is applied across the courts, it will be very difficult to uphold marriage bans even in states where bans remain because the courts currently deem the government as having a "rational basis" for such bans. The introduction of heightened scrutiny as a precedent might radically change the game even in the most conservative of states.