David Gushee’s “Evil” of Seeking Legal Counsel

on March 24, 2014

by Keith Pavlischek

One would have thought it difficult to top Jonathan Merritt’s reflections  on the right of Christians to refuse to participate in Gay, Lesbian, Bisexual, Transgender, (and so forth) marriage and wedding ceremonies. (Find our critique of Merritt herehere here here) But David Gushee, Distinguished Professor of Christian Ethics at Mercer University, managed to pull it off with his own jaw-dropping contribution to Christian moral and political philosophy in Religious Liberty and Gay Rights: Who Would Jesus Sue?

Mr. Merritt, you may recall, seems to believe that since Jesus hung around with sinners, it would be an evil, disobedient, Pharisaical, wrong, unChristlike (pick your favorite term of denunciation) act of invidious discrimination  for a Christian photographer, florist or baker to refuse participate in a gay or lesbian wedding, or a bi-sexual threesome ceremony.   Since refusing to do so is an act of injustice or invidious “discrimination” akin to Jim Crow era racist discrimination, and since Jesus is always for justice, so the line of the argument goes, Jesus would side with Caesar in forcing his disciples to participate in such ceremonies under penalty of law.  This is what you get these days when progressive Christians commence to doing moral and political theory and public policy by asking “what would Jesus do.”  It was said of the nineteenth-century  theological “quest for the historical Jesus” that when they finally found the “historical Jesus” it turned out  he looked remarkably like a 19th century, liberal, European theologian. We now know that he really looks like a 21st century American progressive Evangelical, former Fundamentalist.

But Gushee will not be outdone by his pupil.  Professor Gushee proves that he too can play the “what would Jesus do?” game, but he takes it all a step further. Not only does Professor Gushee seem to agree with Merritt that Christians ought, as a matter of social justice, participate in these ceremonies , not only does he side with Caesar over against Christian  conscientious objectors  who refuse to participate in these ceremonies, not only does he too believe Jesus would have his disciples participate in such ceremonies, but he now tells us that, when confronted with fines, imprisonment and the loss of their livelihood,  it would be wrong, immoral, unethical and otherwise against the teachings of Jesus for Christians  to seek legal counsel.  Gushee thus does Merritt one better. He tells us it is immoral and unethical and generally unChristian for these Christian conscientious objectors to “lawyer up.”  Professor Gushee is, mind you, a “Distinguished University Professor of Christian Ethics.”

Gushee’s article has already been justly mocked , and the derision is well-deserved. Wheaton College political theorist, Bryan McGraw opened his short reflection  Gushee and the Civil Order,  by saying “This is just embarrassing.  There’s really no other word for it.”  He’s wrong about that, of course. Not that the article isn’t embarrassing, for it is surely that. It is just that there are a lot of other words for it, and they aren’t complimentary. Joe Carter tweeted  that he was “surprised to see [Gushee] imply that Dred Scott shouldn’t have sued to get his freedom.” One guy responded by calling that a cheap shot because Gushee never mentioned Dred Scott. But, of course, that’s not the point. As Carter responded, Gushee offered up a general principle–roughly” it is wrong to lawyer-up”– and he simply pointed out its implications.  Alan Jacobs quipped that Gushee evidently deplores Martin Luther King and the civil rights movement. McGraw suggests that were we  to take Professor Gushee seriously  the possibilities are endless. “Why not say that women who are abused shouldn’t use the law to stop the abuse?  Or nurses coerced into participating in  abortions should just submit?”  One is tempted to ask if Gushee would have advised Rosa Parks to shut up, stand up and get to the back of the bus?  Or whether Christian pacifists and other conscientious objectors to military service should forgo legal counsel as well?

I concluded my piece Gay Weddings and Conscientious Objection by noting that while I would fight for the right of Mr. Merritt’s children to be exempt from military service, he can’t muster up  enough Christian charity to fight for the right of my son or daughter to refuse to photograph a gay wedding. Gushee ups the ante. Not only would he not fight for the rights of my children, he would refuse them  legal counsel, or at the very least would condemn them for being disobedient to Jesus for seeking it.  This is what “progressive Evangelicals” call “social justice.”

One suspects, of course, that Professor Gushee doesn’t really object to Dred Scott’s seeking legal redress before the Supreme Court, or to civil rights leaders seeking legal counsel and taking legal actions against Jim Crow laws, or with abused woman seeking legal redress, or with Christian pacifists who seek legal counsel secure their right to be exempt from the draft. And I suspect he would be hesitant to advise Rosa Parks that she should head to the back of the bus or criticize her for seeking legal counsel to fight for her right to sit in the front.  No, Mr. Gushee, one suspects, is all for Christians seeking legal counsel on issues that he finds himself in agreement.  One suspect that when facing an unjust law, Mr. Gushee would lift his voice in prophetic outrage, would proclaim with Martin Luther King and Thomas Aquinas that an unjust law is no law at all, that  would pray that “justice roll down like a mighty river” (Amos 5:24), that he would praise lawyers who “speak truth to power” and fight for justice in the courts of the land.  And you can bet your bottom dollar that he wouldn’t take to the pages of his blog to denounce those who are “speaking truth to power” for seeking legal counsel or legal redress  counsel from the Christian Legal Society or the lawyers at the Becket Fund.

So how do we explain Gushee’s preferential option for Caesar in this instance?  The only way to make sense of Gushee’s advice to Christian believers who conscientiously object to being forced by law to participate in GLBT weddings is that they are the unjust oppressors and that when the state compels them to act against their conscience in this instance the state is acting justly. Mr. Gushee still believes that “justice should roll down like a mighty river,” he just thinks that forcing a Christian to serve at a GLBT “wedding” is an act of justice.  Gushee believes that social justice requires the state to force them to participate, such that seeking legal redress is simply wrong. That is the only way to make sense of his recommendation that Christians preemptively capitulate, legally speaking,  to the will of Caesar.

But that still leaves us with another issue, one that, quite frankly, I find perplexing.  Even if Gushee believes that his fellow Christian believers are wrong to refuse to serve at gay weddings, even if he believes that Jesus would happily participate in a bi-sexual threesome commitment ceremony and such, and therefore his disciples should as well, even if he believes that the conscience of those Christian photographers, bakers and florists are objectively mistaken, one wonders why Gushee doesn’t at least make mention the Baptist doctrine of “soul freedom”?  Baptists have appealed to that doctrine in defense of Christian dissenters since at least the time of  Roger Williams.

Gushee, after all, is a Baptist, a “progressive” Baptist to be sure, a Baptist who is anxious to prove he is not a “fundamentalist” like those bad conservative Baptists at, say, Southern Baptist Theological Seminary and the Ethics and Religious Liberty Commission. To be sure, he’s the type of  Baptist who is ever so anxious to be admired by the young cool Emergent, hipster Evangelicals. But he is still a Baptist and on matters of Christian conscientious objection Baptists, especially “progressive Baptists” always have recourse to the doctrine of   “soul freedom.”  On the  Baptist doctrine of “soul freedom” alone you might expect Gushee to defend the right of Christian photographers, journalists, and florists to be free from coercion on matters of conscience. You might expend that a Baptist would be vigorously and unequivocally opposed to forcing them to participate in ceremonies that would violate their conscience.

But on this issue,  “soul freedom”  is nowhere to be found.  These dissenters, it appears, must bow before the new progressive orthodoxy.  For Gushee, as Professor Francis Beckwith has quipped,  it is  “soul freedom for me, but not for thee.”  Which leads us to conclude that Professor Bryan McGraw is wrong. It is not true that “embarrassing” is the only word for Gushee’s article.  Here’s another: hypocritical.

Keith Pavlischek is a retired U.S. marine colonel living in Annapolis, Maryland.  He was an assistant professor in the Department of Philosophy and Religion at Truman State University from 1989 to 1993, then serving as Program Director for the Crossroads Program and the Civitas Program on Faith and Public Life. Later he was a senior fellow at the Ethics and Public Policy Center.  He is the author of John Courtney Murray and the Dilemma of Religious Toleration (Thomas Jefferson University Press, 1994), and of many articles on ethics, political theory, and public policy.

  1. Comment by David Gushee on March 25, 2014 at 1:28 pm

    My article intended to offer a scenario in which the serious conservative Christian might imaginatively consider something other than a legal response to this particular issue of conscience. It did not claim to do anything more than that. It did not say that all legal or policy responses are always wrong. Some readers were able to figure this out. Others, apparently, were not.

  2. Comment by KEITH PAVLISCHEK on March 26, 2014 at 3:32 pm

    Professor Gushee’s response is simply disingenuous. He wrote an article titled “On Religious Liberty and Gay Rights: Who Would Jesus Sue?” with a subtitle, “Christians today are all too ready to lawyer up. They should remember the way of Jesus instead.” The way of Jesus instead?

    Here is the first indication that Professor Gushee was advocating something more than an “imaginative” response to “this particular issue of conscience.” In fact, there is nothing “imaginative” about his advice. Cut through the rhetoric and the bottom line is this: Gushee is telling pious Christian florists and photographers that they have a moral obligation to participate in the gay wedding, or the bi-sexual threesome affirmation ceremony or whatever because that would be “the more radically devout step of looking to the way of Jesus instead.” This is another variation on the “Jesus-hung-around-with-sinners-therefore-we-should-celebrate-gay,-lesbian,-bi-sexual-threesome-wedding-ceremonies” argument.

    Professor Gushee is telling us that while those pious Christian florists, bakers, and photographers may have a sincere conscience, their conscience is nevertheless false. He is telling us that the pious Christian photographer, or florist, or baker is wrong, is being disobedient, is not properly following Jesus if they seek legal or public policy redress when the government seeks to force them to participate in these ceremonies against their conscience. There is nothing “imaginative” about this.

    Professor Gushee protests that the article “did not say that all legal or policy responses are always wrong.” But, of course, I explicitly conceded that point in my article. He obviously believes that seeking legal redress would not violate “the way of Jesus,” on other matters. Just in this one. Being forced by law to participate in GLBT marriage ceremonies are, for some reason, different, although Professor Gushee doesn’t tell us why.

    Hence the question: Why could a Christian “lawyer-up” and still “follow in the way of Jesus” in some matters of conscience, but not this one? Why should the law trump a sincere religious conscience in this case, but not others. Even if Professor Gushee believes that these pious Christians ought as a matter of Christian ethics, to participate in the GLBT ceremony, why would he not defend their right not to participate. Why, as a Baptist, would he not appeal to their “soul freedom.” Why, one wonders, will not Professor Gushee speak up for their religious freedom?

    I suspect the answer to that question is that Professor Gushee has his finger in the wind and he knows which way the zeitgeist is blowing. Soul freedom for me, but not for thee.

  3. Comment by Joe Carter on March 26, 2014 at 3:58 pm

    It did not claim to do anything more than that.

    I think the point of confusion, Dr. Gushee, is this section:

    That certainly appears that you are saying that the principles applies to all lawsuits and that Jesus himself would not have defended his rights. Are you saying we misunderstood you on that point? If so, then what is the principle we can use to determine when we should sue for our rights and when we shouldn’t?

  4. Comment by Paul W. on March 26, 2014 at 9:48 pm

    If David Gushee thinks the author here has “misinterpreted” his column, he is mistaken. Read it for yourself at the link provided. If David meant something different than what he wrote then he should take the immediate step of modifying his article to make it say whatever it is he claims he meant to say.

    First, he writes an intellectually embarrassing article taking conservative Christians to task for supposedly not following Christ’s teachings, then argues that he is being maligned when he is called out on the hypocrisy of his arguments.

    As it stands, the point of his article remains crystal clear: If a Christian stands up for his rights, David thinks that they are not following the way of the Jesus.

  5. Comment by Francis Beckwith on March 26, 2014 at 4:23 pm

    My Papist contribution to the conversation:

  6. Comment by Bryan McGraw on March 27, 2014 at 10:32 am

    Well, I’m certainly sorry if I misinterpreted Professor Gushee’s article. It did not read as an “imaginative” reflection on what Christians “might” do *aside* from pressing for their legal and political rights. But suppose that’s true and that all Professor Gushee meant to suggest is that there might be a variety of ways Christians *could* respond. Fine. I’d be interested, then, in hearing what he thinks we *should* do with respect to the political order.

The work of IRD is made possible by your generous contributions.

Receive expert analysis in your inbox.