A critique of Thoughts on the Minnesota Marriage Amendment
I am a big John Piper fan. I first read Desiring God when I was around 20 years old and it revolutionized the way I think about love and my relationship with God. I appreciate Piper’s God-centered approach to everything and the way he applies his passion for God in his private and public life. In the culture war over ethical issues in the public square, I appreciate the stand Piper has made for the life of the unborn and the definition of marriage. His boldness, especially on the abortion issue, is commendable. Today, Piper posted an article on the Desiring God blog in support of the Minnesota marriage amendment. As a public policy major who spent much of my senior year doing research on the best public policy for ethical issues, I was keenly interested in reading his defense of marriage policy.
My appreciation for Piper also includes a love for his communication style and reasoning abilities. In just about every sermon I have heard him give, he has a list of carefully-selected, succinct, but profound statements that communicate the essence of his message. These statements are always well-reasoned, clear, and biblical. I look forward to hearing from his sermons and reading his works primarily because of their effect on my soul, but secondarily because of their positive effect on my mind. So when opening this article on the marriage amendment, I was expecting a bold, clear defense of the role civil law can play in supporting and upholding the natural law of God.
Unfortunately, I have to say that I was disappointed. My problem is not with the overall message of the article – I wholeheartedly agree that enshrining homosexual behavior into the law by redefining marriage must not happen. But I was shocked to read a nuanced, almost timid defense of the status quo. It was probably about a year ago that I read his article on marijuana and was surprised to find him at least open to the use of this drug for medicinal use. I agree with him on that issue, but his views on that subject combined with this week’s article make me wonder whether he has been somehow influenced by libertarian philosophy. My critique of this article will be mainly focused on his third statement: “Not all sins should be proscribed by human law, but some should be.” I agree with this sentence, but disagree with the example and reasons he uses to support it.
The issue of what behavior may and may not be regulated by the government is at the heart of many of my conversations with libertarian-leaning friends. They will often say things to me like “if you cannot easily enforce the law, it should not be a law,” “a victimless crime is no crime at all,” and “what consenting adults do with their own bodies in the privacy of their own homes should not be interfered with.” All of these sentiments express politically-correct ideas that I would argue have no basis in reason, Scripture, or natural law. Thus, I was disturbed to read Piper using very similar arguments in his explanation of the distinction between sins that should and should not be against the law.
In the second paragraph under the third statement, Piper describes the status quo in the American system of government whereby elected officials get to draw the line between bad behavior that is tolerated by law and crimes. He calls it a “pretty good system” which I generally agree with, but it concerns me that his defense of the status quo implies no disagreement with where our current legislators have drawn that line. I am confident that Piper does in fact disagree with some of the current decisions, on the issue of abortion for example, but he does not state that here.
He goes on to use the example of “looking at pornography” as an example of behavior that “should not be proscribed by human law.” I disagree with the reasons he gives for this example. If Piper were simply making a policy argument for why he would not favor making pornography viewing illegal, I would not have as much of an issue. But he seems to be using this example to express general principles that he would use to distinguish between sins that should and should not be against the law. In the rest of this post, I will critique the three reasons he gives for why this behavior should not be illegal.
The first reason Piper cites for not making the sin of viewing pornography illegal is
1) without a common ground of biblical holiness, the precise definition of what’s acceptable to look at would entangle our lawmakers in hopeless disputes
This is untrue for the following reasons:
A. Precise definition is not required for effective lawmaking.
Piper seems to be arguing that defining what constitutes “pornography” is hard to do, which I would not dispute. But defining and interpreting words is one of the most common functions of our legal system. Legislators use words and concepts that are tough to define all the time, and courts have to interpret those words when adjudicating cases. Though mistakes are made, this difficulty is not uncommon in law.
B. The difficulty of passing legislation is not a reason not to pass laws.
Just because something is difficult does not make it wrong. The difficulty of defining a crime does not mean that the effort to do so is “hopeless” or would “entangle lawmakers.” This is the lawmaker’s job. Furthermore, a law may be difficult to pass in a particular time and place but that does not mean that it is categorically wrong to ever make it a law at any time in any place.
C. Pornography and obscenity laws have been on the books for many years, and courts have already defined what is illegal.
The sale and distribution of pornography is already illegal under federal law. Title 18, Section 1465 uses terms like “obscene, lewd, lascivious, or filthy” and “any other matter of indecent or immoral character” in defining the material that it is illegal to produce. Violators are guilty of Class E felony and subject to up to a five-year prison sentence and $250,000 fine. This law is an example of the ability of lawmakers to define what is acceptable without getting entangled in hopeless disputes.
D. The Supreme Court has defined what obscenity means and has upheld restrictions on it as an exception to free speech.
In Miller v. California (1973), the Supreme Court set up a famous three-part test to determine whether something is obscene. I will not go into the specifics here, but I would simply point out that this is an example of the court’s ability to define concepts in the process of adjudicating cases.
E. The possession of child pornography is illegal.
Federal law goes even further when it comes to child pornography. Using language similar to that of the Miller case, Congress has banned producing, distributing, receiving and possessing (with the intent to distribute) child pornography. At the state level, the mere possession of “visual depictions of the sexual exploitation of a minor” is a class 2 felony, at least in Arizona. If the difficulty of defining what is acceptable were really a barrier to lawmaking, then these kinds of laws could not exist.
In summary, the ability of legislatures and courts to tackle subjects that are controversial or tough to define has been clearly established over and over again, and the difficulty of creating a law to address a particular sin should not be a reason that that sin could not be regulated by law.
The second reason Piper cites for not making the sin of viewing pornography illegal is
2) the privacy of the act would make the law virtually unenforceable
This is untrue for the following reasons:
A. The privacy of an act does not make it out of the bounds of the law.
It is at this point that Piper’s reasons really start to sound libertarian to me. What people do in the privacy of their homes should generally not be restricted, according to libertarians. But privacy is not a constitutional right, Roe v. Wade notwithstanding. And there are many times when private actions must be restricted. Most crimes are committed in private, because humans have naturally deal with guilt by hiding since Adam and Eve. If privacy were an ultimate standard, we could not have laws against child abuse, rape, or many other horrible actions that happen in private. Clearly, the location where a sin is most commonly committed cannot be a factor in determining whether or not it should be a law.
B. The difficulty of enforcing a law does not make the law worthless.
The topic of enforcement is one of the most common in my discussions with libertarians. In the minds of many, a law that cannot be enforced easily should not be a law. But how can this be so? Is it easy to enforce laws against rape, murder, and child abuse? Certainly not. Because of human limitation, our legal system is inherently flawed and thus we require things like “due process” in the enforcement of our laws. Essentially, the concept of due process is to purposely make enforcement more difficult, so that people are considered innocent until proven guilty. Some laws are easier to enforce than others, but this cannot be a criteria for whether or not to have a law.
C. Law has an educational effect even if it is not enforced.
Historical laws against adultery, fornication, and sodomy were rarely enforced, but they still had value because of their educational effect on the citizens. This effect is especially present in people who do not acknowledge another moral standard, such as the Bible, by which to judge right and wrong. Even Christians will tend to see actions that are illegal as bad and actions that are legal as good, if the Bible is silent on the matter. Wayne Grudem points this out in his book, Politics According to the Bible, in which he describes the difference he has experienced between the opinion of Christians toward guns in Arizona, where gun laws are very lax, and that of Christians in the United Kingdom, where guns are more tightly controlled. Simply because laws exist, citizens tend to see actions as morally right or wrong.
Other examples of this educational effect on law are found in the areas of slavery, abortion, and alcohol. Slavery was considered by many in America to be acceptable behavior at the founding of this country, but now it is almost universally denounced as evil. It is hard to ignore the role that the Thirteenth Amendment had on the opinion of people. Similarly, abortion was considered by most Americans as wrong prior to the Roe v. Wade decision that made it legal. Since it has been legalized, many more people are open to it.
Finally, the prohibition of alcohol is often used by my libertarian friends as what they consider to be a strong argument against ethics-based legislation. However, despite the lack of enforcement of prohibition, consumption statistics prove that prohibition actually worked in the sense that the per-capita consumption of alcohol in the United States was substantially reduced when prohibition went into effect and did not return to pre-prohibition levels until the 1960s, long after prohibition ended. This is strong evidence that the prohibition of alcohol influenced people to drink less, and their drinking habits were affected even after it was made legal again.
D. Receiving and possessing child pornography is already illegal, even though this happens in private.
As mentioned earlier, we already have laws against child pornography which is most of the time viewed in private. The Supreme Court has upheld these laws because of the government’s compelling interest in safeguarding the physical and psychological well-being of minors. I certainly hope John Piper wouldn’t argue that we throw these laws out as too hard to enforce.
E. Laws against the viewing of pornography would be no harder to enforce than laws against the use of drugs.
Along similar lines, there are many actions that happen in private that are already illegal and hard to enforce. Would Piper suggest that we legalize all drugs since they are used in private and it is difficult to enforce laws against them? This is the type of law that libertarians would love to repeal, and their reasons sound frighteningly similar to Piper’s.
The final reason Piper cites for not making the sin of viewing pornography illegal is
3) the indirect way that people are hurt make it unfeasible for the law to be handled with proper proportion
This is untrue for the following reasons:
A. Actions that only indirectly hurt people still hurt people.
It is ironic to me that Piper would use this argument in the middle of an article upholding the importance of laws that define marriage. The clearest effect of marriage that makes it legally important is children, according to Piper’s fourth statement. And yet children are only indirectly affected by marriage laws, through the actions of their parents. Indirect effects are extremely important to our society, especially when it comes to children. When a sin is committed, there are usually negative consequences not only for the person committing the sin, but also for all the people who live and/or interact with them. These negative consequences can greatly affect society as a whole when major sin is left unchecked over time. It is the responsibility of rulers to “carry out God’s wrath on the wrongdoer.” Why should wrongdoing that only hurts people indirectly be excluded from this?
B. Proportionality can be properly handled by classifications in law or left to the judicial system.
Piper seems to be saying that since the use of pornography has different consequences for some people than others, it would be impossible to setup a legal framework to proscribe this behavior in a fair manner. But our legal system is rife with complex behaviors that have differing effects in different situations. This is why we sometimes classify a behavior as a misdemeanor and sometimes a felony. First degree murder is distinguished from second degree. And our legal system gives judges and juries the latitude to determine the proper punishment for individual cases. The possession of pornography could be classified as a misdemeanor and could be enforced as a separate count in a case of rape or sexual abuse. I do not see how this is unfeasible.
C. Many actions that hurt people only indirectly are illegal and should remain so.
Taking drugs like cocaine or heroin has harmful effects not only on the person taking them, but also on the people around them. If a father takes drugs, his family suffers untold consequences. This is one of the reasons that these drugs are illegal. Other illegal actions such as gambling and assisted suicide are similar in that their harmful effects are often indirect, and yet we consider them bad enough to make laws against them.
There are sins, such as pride, that should not be illegal, but not for the reasons that Piper gives. The clearest reason I see that these sins cannot be made illegal is that they are by definition purely internal to the mind, not external actions of the body. Civil laws are instituted to maintain order in society, but they cannot extend to the affairs of the heart. Dealing with sinful thoughts is best left to the spheres of the family and church, rather than the state. But when sinful thoughts become sinful actions that have harmful effects on society, it is the prerogative of human law to proscribe those actions.
Obviously, the current political reality makes laws against viewing pornography or fornication highly unlikely, but there could come a day in the future (as in the past) when a large majority of a society determines these kinds of sins to be worthy of legal proscription. In that day, will John Piper be protesting along with the libertarians that these laws would be too difficult to define, enforce, and prosecute fairly? Or does he have better, more Biblically-based reasons that we should not have these kinds of laws? I hope that his reasons for excluding these sins from law in this article were hastily produced and that he will modify them where necessary.
 Grudem, Wayne. Politics According to the Bible, page 98.
Geisler, Norman and Turek, Frank. Legislating Morality: Is It Wise?
Is It Legal? Is It Possible.
Stats available at http://en.wikipedia.org/wiki/Prohibition_in_the_United_States