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Constitutional Morass

May 7th, 2010 | 3 min read

By Andrew Walker

Aaron Weaver, The Big Daddy Weave, in a recent post, accused Southern Seminary President Albert Mohler of peddling a false bill of goods to his readers: “selling fear and actively pushing this persecuted Christian identity,” as Weaver puts it.

How does Mohler supposedly do so? According to Weaver’s interpretation, by confusing British and American notions of religious liberty.

In a recent post, Mohler shared the experience of Dale McAlpine, a British street preacher arrested for preaching against homosexuality. As he concludes, Mohler warns of a day when similar actions might occur in America: “Do not think for a moment that this troubling development is of consequence only for street preachers in Britain. The signal sent by this kind of arrest reaches right into every church in every nation where a similar logic takes hold.”

In Weaver’s view, Mohler’s presentation does not present the full truth and by doing so, only serves to further the evangelical martyrdom complex.

For Weaver, American and England represent two entirely different fields of religious liberty.

Weaver is correct in his analysis of the two countries:

England does not have a codified constitution. There is no equivalent in England to the First Amendment of the U.S. Constitution. Freedoms are found in statutory laws passed by Parliament. Religious freedom in England has always been treated as a right subject to legislative restrictions… Our First Amendment provides protections unparalleled in other nations including England. Congress cannot strip away our freedoms. We have a Constitution that protects Mohler’s right to speak out against homosexuality. The English do not . . . We’re talking about Apples and Oranges. Mohler would have his readers believe we’re talking Apples and Apples. Mohler is not ignorant of the fact that England has a different (and liberty limiting) church-state model than the United States.

Weaver assumes all along that it is the Constitution (particularly, the First Amendment) and the Constitution alone that will protect individuals like Mohler to speak out against homosexuality. I wish I had the belief in Constitutional purity like Weaver.

Weaver and I would agree on the concept of religious liberty or one’s right to speak out against homosexuality. Where we would disagree, I believe, is where incrimination is derived. Weaver believes that the American Constitution, in its unique form of liberty, protects individuals like Mohler. Mohler, if I am interpreting him correctly, believes that the Constitution can be and has been subtly eroded under the pretense of “protected classes”—though he never directly states such in his article.

The real coming tension in America is between cultural pressure, protected classes and Constitutional liberty. As American becomes increasingly post-Christian, there will be increased pressure to acquiesce on the issue of homosexuality.

Though religious liberty is allowed, there may come the day when religious liberty exists with the exception of speaking out against protected classes. And such, as Mohler argues, is implicitly evidenced by what occurred in England. Whatever pretense allowed for the incarceration of McAlpine—England's Public Order Act—rest assured, where there is motive to silence dissent, legal positivism will rear its ugly head. As Mohler mentions, "The law allows the arrest and prosecution of anyone who, with intent to harass or cause harm, uses 'threatening, abusive or insulting words or behaviour.'"

The issue boils downs to the ebb and flow of infringing upon “protected classes” within the purview of the Constitution.

Weaver thinks of these simply in Constitutional terms. I wish that were the case. But, as we’re all aware—especially over the debates surrounding judicial nominees—interpretation of Constitution is now a litmus test and different interpretations bring with it different exceptions.

Weaver is right when parsing the difference between English and American religious liberty legislation. But, to propose that Mohler is talking “Apples and Apples” when the real issue is “Apple and Oranges” is simply incorrect.

To blithely assert that America and her (Constitutional) interpreters will continue to maintain tolerance on this issue is naĂŻve.

Andrew Walker

Andrew T. Walker is an Associate Professor of Christian Ethics at The Southern Baptist Theological Seminary.