If all human law and government are subordinate to the word of God, the government school should be as well.
21 So the Lord God caused a deep sleep to fall upon the man, and while he slept took one of his ribs and closed up its place with flesh. 22 And the rib that the Lord God had taken from the man he made into a woman and brought her to the man. 23 Then the man said,
“This at last is bone of my bones
and flesh of my flesh;
she shall be called Woman,
because she was taken out of Man.”[i]
24 Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh. 25 And the man and his wife were both naked and were not ashamed. Genesis 2.
The U.S. Supreme Court has written much on the institution of marriage in its recent case United States v. Windsor. Justice Alito, in his dissenting opinion, observed that, “The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects.” The majority opinion, written by Justice Kennedy, observed that, “It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” In light of these pronouncements, it would be wise to reflect upon our legal heritage, and for that we turn to Blackstone.
Blackstone covers the law “Of Husband and Wife” in Chapter 15 of Book 1. He covers three major topics regarding marriage: its formation, its dissolution, and the legal effects and consequences of marriage. For purposes of this post, I will focus solely on Blackstone’s description of its formation, since that is the topic that concerns the present issue.
Regarding the formation of marriage, Blackstone observes, “our law considers marriage in no other light than as a civil contract.” He leaves the holiness of the state of matrimony to the ecclesiastical law. Since marriage is a civil contract, there must be, as with any other contract, a willingness to contract on the part of the parties. Secondly, they must be able to contract, i.e. there must be no disabilities in the parties contracting. Finally, the parties must enter into the contract according to the proper legal form.
According to Blackstone, the common law had two sorts of disabilities. First were the canonical disabilities, so declared by ecclesiastical law. Such disabilities are declared by divine law or by plain deductions therefrom. A declaration of a disability by a spiritual court made the marriage voidable under common law but not void ab initio.
The second sort of disabilities were those created by the common law. And these disabilities did make the contract void ab initio. Blackstone points out that some of these disabilities were grounded on natural law, but they were recognized not so much for the moral offense as on account of civil inconvenience. Blackstone lists four disabilities in particular.
- A prior marriage with a living spouse. The basis for this disqualification was that polygamy is condemned by the New Testament and the policy of all prudent states.
- Want of age. Just as with any other contract, the parties to a marriage contract must be of sufficient age.
- Want of consent of the parents. Reaching an age of consent by a contracting party set by common law or by statute in various jurisdiction eliminated this disability.
- Want of reason. Again, as with any other contract, a party must have adequate competency to enter into a marriage contract.
Regarding the legal form of the contract, the most ancient rule was that there were no additional formalities other than the formalities of any other contract. Subsequent acts of Parliament imposed additional formalities. “Neither is any marriage at present valid, that is not celebrated in some parish-church or public chapel, unless by dispensation from the archbishop of Canterbury. It must also be preceded by publication of banns, or by license from the spiritual judge.”
Blackstone does not treat same sex marriage for obvious reasons. In the words of Justice Kennedy, the law “had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” That assumption is in Blackstone’s very title, “Of Husband and Wife.”
However, Blackstone has put forth enough of a legal standard to allow us to discern how the common law would have handled the issue. Of the three elements in the formation of a marriage, the only one at issue is whether there is a disability. The question is, would there be a disability similar to the disability based on the Scripture’s condemnation of polygamy for a person marrying another person of the same sex. The simple answer is yes, but the more interesting discussion is how the common law would come to that conclusion.
It may be hard for a modern reader to understand the distinctions Blackstone is making in his discussion of marriage between how the ecclesiastical and the common law treated marriage. Blackstone clearly distinguishes the common law treatment of marriage from the ecclesiastical law treatment of marriage. The two laws treated marriage differently. The common law recognized the ecclesiastical law and the spiritual courts but did not necessarily give them full effect. He observes that the common law took no interest in the moral offense, but based a common law disability on God’s natural law against polygamy. The common law took no notice of moral offense but it did base a disqualification upon certain statements in the New Testament. How are these positions to be reconciled?
In order to understand our legal ancestors, we must understand their conception of law. Blackstone made clear as a first principle of common law that the natural law, or God’s law, discerned from Scripture or plain reason, was supreme. We moderns look at the Bible as a book intended only for individual spiritual enlightenment. This was not the understanding of our ancestors. God’s Word was binding on all creation. The only question was what was the correct application of that Word to the culture?
When the English common law disclaimed an interest in the “moral offense,” it disclaimed a participation in ministering to the particular human sin and the particular human soul. It rightly avoided interfering with the individual spiritual lives of its citizens. That was rightly left to the Church. The common law left the spiritual ministry to the individual to the Church.
However, the English common law recognized that Scripture was binding on all of life, not just the spiritual life of the soul. It had things to say regarding the good of a society. And the common law ministered for the good of the society. The English common law, in a sense, heard the words of Moses from Deuteronomy 4,
5 See, I have taught you statutes and rules, as the Lord my God commanded me, that you should do them in the land that you are entering to take possession of it. 6 Keep them and do them, for that will be your wisdom and your understanding in the sight of the peoples, who, when they hear all these statutes, will say, ‘Surely this great nation is a wise and understanding people.’ 7 For what great nation is there that has a god so near to it as the Lord our God is to us, whenever we call upon him? 8 And what great nation is there, that has statutes and rules so righteous as all this law that I set before you today?
The common law ministered for the good of society in listening to the wise words of Scripture. But it was more than that. Our ancestors understood that God ordained immutable laws in creation, such as the immutable law of gravity. They understood that fire burns. They also understood that violating God’s wise societal laws would have a negative effect on society. Justice Alito caught this concept when he wrote in his dissent,
Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage— have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
We can expect something similar to take place if same sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.
From here the natural law on same sex marriage is pretty straight forward. Scripture of both the Old and New Testaments rejects the idea. The wise words of Scripture say that same sex marriage is not good for a society. The long-term consequences are known and ascertainable now. Justice Alito would have an answer to his question if he would only look to the common law. We should heed the insights of our ancestors and Scripture.
In two prior posts I outline the reasons why the Church must return to one of its primary callings, the education of its children. In the most recent post, I set forth the foundation for godly education as embodied in the fourth and fifth commandments. In this post, I would like to elaborate on that thought. In my last post, I pointed out that the fourth and fifth commandments are unique, in that they are reciprocal, they are about all of life and there is a promise appended to them that it would go well with the people to the extent they are faithful to the fourth and fifth commandments. It is the concept that the fourth and fifth commandments encompass all of life, particularly as it relates to educating our children, that needs a little more elaboration.
The fourth commandment clearly establishes a cycle of life of six days labor and one day of rest and worship. In a sense, it is a liturgical dance between generations. If we keep in mind, as James K. A. Smith points out, that liturgies create loves, we should see where this is going. But what kind of loves should this liturgical dance be creating?
The reader of the book of Deuteronomy need not go very far, for in the next chapter, chapter 6, Moses commands,
4 Hear, O Israel: The Lord our God, the Lord is one. 5 You shall love the Lord your God with all your heart and with all your soul and with all your might. 6 And these words that I command you today shall be on your heart. 7 You shall teach them diligently to your children, and shall talk of them when you sit in your house, and when you walk by the way, and when you lie down, and when you rise. 8 You shall bind them as a sign on your hand, and they shall be as frontlets between your eyes. 9 You shall write them on the doorposts of your house and on your gates.
This passage outlines the conduct of the six days of the liturgical dance. The reader should note the words used: love, teach, talk of them, bind. All of these words describe a loving dialogue and discourse between generations. This is education. It is a process of transferring a culture from one generation to the next. It is a process of transferring a love for truth and beauty, a love for sound logic, and a love for useful rhetoric. It is for a healthy exchange of ideas, but all within an established system of truth. In the parlance of the old classical schools, we are talking about grammar, logic and rhetoric. In the language Proverbs, we are talking about knowledge, truth and wisdom. Do we think this is what is going on in our government school system on a daily basis? I would dare say not. What we get from our government schools is a “race to the top” and a “common core” of “outcomes.”
- The Good in Common Core II (blackstoneinitiative.com)
In a prior post, I outlined a more proactive response to the federal government’s most recent unconstitutional actions to permit leftists to take our children under the guise of Common Core. I would like in this post to flesh the idea out in a little greater detail.
One thing we must first establish is that education is not about the head; it is about the heart. As James K. A. Smith, so beautifully describes in his book,
The core claim of this book is that liturgies—whether “sacred” or “secular”—shape and constitute our identities by forming our most fundamental desires and our most basic attunement to the world. In short, liturgies make us certain kinds of people, and what defines us is what we love. They do this because we are the sorts of animals whose orientation to the world is shaped from the body up more than from the head down. http://www.amazon.com/Desiring-Kingdom-Cultural-Liturgies-ebook/dp/B00997YMOK/ref=sr_1_1?s=books&ie=UTF8&qid=1374867219&sr=1-1&keywords=desiring+the+kingdom
Smith then proceeds to take his reader through the liturgy of the shopping mall, football game and college dorm life. The descriptions are chilling in showing the dreams and loves implanted by these liturgies.
For Christians, Smith’s wisdom should be old wisdom. In Deuteronomy 5, Moses gives God’s people God’s law. Two of the ten – the fourth and fifth commandments – have a unique arrangement.
12 “‘Observe the Sabbath day, to keep it holy, as the Lord your God commanded you. 13 Six days you shall labor and do all your work, 14 but the seventh day is a Sabbath to the Lord your God. On it you shall not do any work, you or your son or your daughter or your male servant or your female servant, or your ox or your donkey or any of your livestock, or the sojourner who is within your gates, that your male servant and your female servant may rest as well as you.
. . . . . .
16 “‘Honor your father and your mother, as the Lord your God commanded you, that your days may be long, and that it may go well with you in the land that the Lord your God is giving you.
The reader should note several things about this passage. First, the commandments are reciprocal. The fourth commandment is imposed on the older generation for the sake of the younger generation. The fifth commandment is imposed on the younger generation as an honor and respect to the older generation as they keep the fourth commandment. Second, the fourth commandment is not simply about the seventh day. It also encompasses the other six. The fourth commandment encompasses all of life, including the education of our children. Third and finally, there is a promise that goes along with the fifth commandment. To the extent the people are faithful to these two commandments, it will go well with the people.
Why is the present education system failing? Because we have given the responsibility for the fourth commandment over to the secular state. Why is the secular state failing in educating our children? Because the secular state is simply that: secular. The secular state has no loves and it can pass on no loves higher than the secular passions of the day, i.e. getting a job. If education is about getting a job, education by definition is socialist. It is designed to make the student a suitable tool of the state. And every effort to reform that system is driven by a desire to remove a higher love from the content of education.
This must change. The Church has a higher love. Families have higher loves. Only by returning education to the two institutions driven by love will education be made right.
- The Good in Common Core (blackstoneinitiative.com)
The Wisdom of Reagan