By Jacob Phillips
For this next post I have a guest writer, Jacob (Jake) Phillips, arguing for the adage that law follows culture. He recently graduated from UF Levin School of Law with a doctorate of jurisprudence, he clerked for Judge Eric Melgren of the Federal District Court of Kansas, and researched and contributed to the writing of model reform legislation regarding the provision of education in Florida’s juvenile detention facilities, which was submitted to Governor Rick Scott.
Before his pursuits in law, Jake received a B.A. in History from UCF in Orlando, FL (the place he calls home.) Him and his wife Sarah, a first grade teacher at Vista Lakes Elementary School, currently attend Redeemer Church at Lake Nona, where Jake oversees and writes the Redeemer Blog.
On Friday of last week a conference was held in my hometown or Orlando, FL. It was designed to equip evangelical pastors to learn how to enter into public office. The goal of the man behind the event, David Lane, is to create “pastor-politicians” who will influence government at all levels with biblical and conservative values. Of course, the fact that those two terms are assumed to be synonymous is probably itself problematic. But it also ignores a pretty important point: law (and politics) follows culture.
Roe v. Wade
In 1973 the Supreme Court handed down a decision in the case of Roe v. Wade, and effectively legalized abortion on demand. The decision is popularly (and wrongly) credited with being the catalyst for the Moral Majority. Because of that myth-making, it is often assumed by certain segments of evangelicalism that our highest court dictated a progressive agenda. In reality, the attorney who filed the plaintiff’s claim in Roe v. Wade was a born-again Christian who regularly attended his local church.
The Southern Baptist’s initial report on the Court’s opinion (while noting, parenthetically, that the denomination had no official position on abortion) heralded as an advancement of “religious liberty, justice, and human equality.” Roe v. Wade was not forced on a mostly-resistant center-right country, but it was the natural result of the sexual revolution, the capitulation of the church, and a Supreme Court that is constantly cognizant of its tenuous legitimacy. The law was merely following culture.
Of course, after a while, and the reality of legalized abortion became clear, evangelicalism (and eventually, conservatism more generally) hardened around a pro-life position. For two decades, they fought abortion in the legal system, and were almost entirely unsuccessful. A conservative court upheld Roe v. Wade in 1992.
In the past decade, however, we’ve seen the first signs of a legal system that is restricting abortion rights and limiting its access. But, importantly, this is not because a new generation of lawyers and politicians have come up with cleverer arguments than those that came before them. Laws regarding the right and access to abortion are changing because culture is changing. Because of scientific advancement, the tireless efforts of pro-life advocates, and changing demographics (Hispanics are generally more pro-life than non-Hispanics), a majority of Americans self-identify as pro-life for the first time since pre-Roe v. Wade. In other words, culture is changing; the law is merely following culture.
Brown v. Board of Education
The counterargument that most people use is Brown v. Board of Education. Before the Civil Rights movement even began, the Supreme Court declared that “separate but equal” did not apply to schools, and thus ordered them to be desegregated. In doing so, they struck a blow to the heart of the concept itself. Some say that this is an example of the law influences culture, rather than following it. But that counterargument actually points out the very reason why the adage is, in fact, true. The reason that law follows culture is tied up in the concept of legitimacy.
After Brown v. Board of Education, very little desegregation actually occurred. Because culture, or at least Southern culture, was diametrically opposed to desegregation, the inevitable result of Brown was that it was mostly ignored. It was not until years later, after a second Brown decision, the birth of the Civil Rights, the backing of a Republican president, and a shift in cultural values, that schools actually began to desegregate. The legitimacy of laws requires some level of cultural acceptance.
That’s also why the popular conservative criticism of the recent Supreme Court decision is misguided. Complaining about the decision because it is constitutionally indefensible (i.e. Chief Justice Roberts’ dissent) is one thing. But most of the criticism has centered on the fact that “nine lawyers in a robe” just dictated the law of the land. That criticism, I think, is misguided. Evangelicals didn’t lose this battle when Justice Kennedy read his opinion. They lost this battle long before that.
The “law follows culture” adage is not only historically accurate, it’s also the natural (and probably preferable) result of living in a representative democracy. In other words, our laws are supposed to reflect the people they are meant to serve. Notions of self-government require that cultural norms be, to at least some degree, reflected in our political and legal spheres (with protection for the rights of minorities, of course).
If Christians are saddened by the shifting ethical norms reflected in culture, the proper and best response is probably not to seek to craft laws that reflect our own values. It’s not to try to “win” the legal and political spheres. The proper and best response is to, like we have in the abortion debate, change culture. That’s not to say that we shouldn’t “legislate morality,” because that’s impossible. Everyone legislates morality. But it is to say that we should not legislate morality to an unwilling populace, not because it’s wrong, but because it’s impossible.
That’s why I think the efforts of David Lane, Mike Huckabee, and those like them are misguided. They are responding to shifts in cultural norms by encouraging pastors to use their influence in the political and legal sphere, rather than the cultural sphere. In doing so, they are putting the cart before the horse. If pastors want politics and the laws to reflect their own values, the best way they can do so is to convince others that their own values are preferable. In other words, they should continue to do what they do best — tell others about a King who gave up a throne to carry a cross.
Christ, Culture, and Politics
None of this should be taken to mean that I don’t think Christians should want to be lawyers, judges or politicians; after all, I just graduated from law school. But it should be taken to mean that we should re-think how we approach some of the value-driven cultural conversations. Too often, Christians have attempted to wed political influence with cultural disengagement. If we think we can get Christ into politics without telling culture about Christ, we are kidding ourselves. And if we think we can tell culture about Christ without understanding culture, Paul has a few words for us (I Corinthians 9:19-23).
If you want laws to better reflect your values, fine. We all should, after all. I’m a lawyer predominantly because I want to see a society that is fairer and more just, and I know no better example of justice and fairness than the one who is both just and Justifier. But if you want to change the law, change culture first; the law follows culture. God issued the Ten Commandments after he had already made a people of His own.