On Abortion: A Discussion Prompted by the Pending Overruling of Roe v. Wade

On Abortion: A Discussion Prompted by the Pending Overruling of Roe v. Wade

May 4, 2022

 

On Monday, May 2, 2022, the online news source Politico published what it said was a draft opinion of the United States Supreme Court in the case of Dobbs V. Jackson Women’s Health Organization, written by Justice Samuel Alito, that overturns Roe v. Wade, the 1973 Supreme Court case that established a woman’s constitutional right to an abortion within certain limits and the case of Casey v. Planned Parenthood, a later case that affirmed Roe while changing its standard for when abortion was constitutionally protected.[1] In his draft opinion Alito says:

 

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty. [Cites omitted.]

 

Alito doesn’t think the right to abortion meets that standard for unspecified rights, and he ignores the Ninth Amendment’s statement that the specification of certain rights in the Constitution doesn’t mean that the people don’t have other ones as well.

The day after Politico published Alito’s draft the Supreme Court confirmed the authenticity of the document as a true Supreme Court draft opinion. Chief Justice Roberts stressed that the draft was not the decision of the Court. He started an investigation into the leak of the document as though the leak were more important than the appalling result Alito has reached. We now know that the document Politico released is indeed something Justice Alito actually wrote and said was the opinion of the court. That Alito called his draft the opinion of the court strongly suggests that a majority of the court’s justices has voted to overrule Roe. It seems that it will take a miracle to stop the court from abolishing a well-established constitutional right when it issues its final decision in the Dobbs case, which should happen next month. I am not presently a lawyer, I do however have a legal education and practiced law for more than twenty years before I resigned from the bar when I changed professions. I hope I can here shed some light on issues that abound around an overruling of Roe. Some of my discussion here is a bit technical; but we are dealing with law here, and law can be nothing if not technical.

First, it appears that Justice Alito’s draft opinion is wrong from its very first sentence. The opinion begins, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” That statement is factually correct, but it completely misconstrues the function of any court. A court is a public institution the function of which is to decide questions of law not questions of morality.[2] Law may be grounded in certain fundamental moral concepts. For example, society believes that unjustified killing of a human being is immoral, so the law makes murder a crime. In a murder case it is not the court’s job to decide the morality of unjustified killing. Its job is to see that the law against murder is properly interpreted and applied in the case before it.

Justice Alito gets his opinion off to a very bad start when he raises the issue of morals not of law in his very first sentence. Yet that sentence is quite telling. The conservative majority on the US Supreme Court clearly sees abortion first of all as a moral issue not a legal one. Of course each Supreme Court justice is entitled to her or his personal opinion about the morality of abortion or any other issue as is any other American. What no judge may do, however, is decide legal questions solely on the basis of that opinion. In theory at least, no judge is permitted to decide a case merely because they agree or disagree with some moral principle. This legal precept may be observed more in the breach than in observance. Nonetheless, it remains part of the foundation of the entire American legal system. Unfortunately, the first line of Alito’s opinion at least hints that the Court is prepared to decide Dobbs precisely on moral rather than legal grounds—their moral grounds not mine nor I hope yours.

Another, perhaps more obscure, legal concept that is just as foundational for our legal system is in play in Dobbs. It is the issue of stare decisis. Stare decisis states that subsequent cases involving a legal issue that was involved in an earlier case should be decided on the same legal basis as the previous case that involved that issue. It is the reason the law looks to the precedent of earlier cases when determining what the law applicable to the case before it actually is. American law includes the idea that a law or court interpretation of a law that has been in effect for a long time should remain in effect unless circumstances have changed since the law came into effect in a way that dictates that the law be changed not to be moral but to be legally correct in the case’s actual context. Stare decisis does not mean that the Supreme Court cannot override one of its prior decisions, but it does so rarely. It is more likely to distinguish the case before it from the earlier case on the basis of the facts of the case if it wishes to avoid the effect of the earlier decision. The Supreme Court has however overruled earlier decisions in the past.

The classic case of the US Supreme Court overruling a prior decision, if actually only by implication, is the case of Brown v. Board of Education, the 1954 case that found racial discrimination in public education to be unconstitutional. In 1896 the court decided the case of Plessy v. Ferguson. In that case a man who was actually 7/8 white and only 1/8 Black had been convicted of a crime under a Louisiana law that mandated separate cars on public rail systems for “Colored” and white passengers. Mr. Plessy, despite his genetic heritage being mostly white, was considered Black under Louisiana law.[3] He sat in a whites only car and refused to leave when ordered to do so. He defended the case brought against him on the grounds that the Louisiana law in question violated the equal protection clause of the Fourteenth Amendment. He was asking the Supreme Court, in effect, to overturn all of the country’s Jim Crow laws as unconstitutional.[4] Respondent Ferguson, who had been the trial judge in the trial in which Plessy was convicted and who had thus ruled against Plessy’s constitutional defense, argued that the Louisiana law in question did not violate the Fourteenth Amendment because it expressly stated that the racially segregated rail cars had to be “equal.” In a 7-1 decision (with one justice not participating), the Supreme Court upheld Plessy’s conviction. It expressly held that racially segregated public facilities did not violate the US Constitution if they were separate but equal. People familiar with Plessy today consider it to be perhaps the worse decision the US Supreme Court has ever made (though I would put the earlier Dred Scott case, which held that Black people, whether enslaved or free, could not be citizens of the United States right there with it for that dubious distinction). The Supreme Court case known as Citizens United that opened the floodgates for private money to determine the outcome of elections is another example of the court getting an issue of vital importance just flat wrong.

By the late 1940s and early 1950s civil rights organizations, including the NAACP, were filing numerous cases around the country attacking the doctrine of separate but equal in public education. This noble effort to end racial segregation in public schools led eventually to the 1954 US Supreme Court case of Brown v. Board of Education. In its opinion, the Court reviewed sociological and other evidence of the harm supposedly separate but equal education was doing to Black schoolchildren. Quite correctly, it found that harm to be substantial, leading to among other things a sense of racial inferiority among those children. The Court ruled in favor of the plaintiffs. It held separate but equal public school systems to be unconstitutional.[5] Somewhat oddly, Brown ignores Plessy and does not expressly overrule it. Nonetheless, Brown overrules Plessy in effect, and Plessy has not been the law of the land since the Brown decision.

It is a serious legal question whether a court should consider the consequences of its decisions for real people or only the legal soundness of the decision. In theory the answer is that it should only be concerned with the legal soundness of the decision. That’s why former Chief Justice Rehnquist could say that innocence is no reason to overturn a legally sound conviction for capital murder, with legally sound meaning that the law was properly interpreted and applied in the case though the jury reached the wrong verdict. (Yes, he really did say and imply that.) In practice, courts do and really should consider how their decisions will impact real people in the real world. That’s what the Brown court did when it considered the harm separate but supposedly equal public school districts were doing to Black schoolchildren. In considering whether or not to overrule Roe, should the Supreme Court consider only purely legal abstractions? Or should it consider what overruling Roe would mean for real people in real life? The answer seems quite obviously to be the latter.

So could today’s Supreme Court overrule Roe in the current Dobbs case? Yes, as a matter of law it could (and of course there’s no one with the authority to stop the Supreme Court from doing whatever it wants). American conservatives, most passing as Christians, have been trying to get the Supreme Court to overrule Roe since the day that decision was first issued. Republican politicians have been promising their conservative base for years that they would get it done, but so far they haven’t delivered. One of the great tragedies of American history is that the would-be dictator Donald Trump, in his one term in office, got to appoint three Supreme Court justices (with the acquiescence of the rubber stamp Republican controlled Senate of course). In their Senate confirmation hearings, none of those nominees said they would vote to overrule Roe. Some suggested, at least in private discussions with senators, that they considered Roe and Casey to be settled precedent. Clearly they believed exactly the opposite.

So the Supreme Court can overrule Roe v. Wade. The next question is whether or not it should. Perhaps unfortunately, I must begin my discussion of that issue by conceding a point to Justice Alito. Roe is a miserably written decision. I read it when I was in law school between 1978 and 1981, and I still remember how disjointed and illogical it is. It could have been written much more directly and clearly. Justice Blackmun, who wrote for the seven justice majority in the case, could simply have said Griswold v. Connecticut, a 1965 case that I will discuss further below, established a constitutional right of privacy, abortion is an intimately personal and private decision that the government has no business getting involved in, so abortion is a constitutional right. Instead he wandered all over the place with facts and arguments that just don’t hang together. Still, Roe reached the right result if only because, as I believe, abortion truly is a private matter and that the only thing worse than legal abortion is illegal abortion.

So, is the fact that a Supreme Court decision that reached the right conclusion but was miserably written grounds for overruling it? Hardly. Consider again the cases of Plessy and Brown. The problem with Plessy wasn’t that it was badly written. The problem was that it had become clear that the holding in that case was profoundly unjust. The justices of the Supreme Court in Brown knew in a way the justices in Plessy did not just how damaging the doctrine of separate but equal was. If we accept the legal and moral equality of all people as the law, common experience, and simple human decency say we must, the falsity of Plessy is obvious on its face. Plessy was just wrongly decided, and the Brown court was perfectly right in overruling it in fact if not in so many words.

Is Roe false on its face the way Plessy was? To answer that question we must begin by looking at the case on which Roe is (or at least should have been) primarily based. That case is Griswold v. Connecticut, a case decided in 1965, eight years before Roe. Griswold involved a constitutional challenge to a Connecticut state law that prohibited any person from using “any drug, medicinal article or instrument for the purpose of preventing conception.” By our standards today a more absurd, invasive law can hardly be imagined. The case, however, was decided in 1965, and our considering a law to have been absurd and invasive was not at that time grounds for ruling it unconstitutional.

So how did the Griswold court reach its conclusion that the Connecticut law before it was unconstitutional? The several different justices who wrote in support of that ruling found a “right to privacy” in the US Constitution. They had to concede that the Constitution does not expressly create or guarantee a right to privacy. The word privacy does not appear in it. Nonetheless, different justices found a right to privacy necessarily implied variously in the Fourth, Ninth, and Fourteenth Amendments to the Constitution. Justice Douglas, writing for the majority, asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” The court found, some would say created, a constitutional right to privacy, a right which the Connecticut anti-contraception law obviously violated.

The legal question at issue in Roe was, or at least should have been, whether or not the right to privacy the Supreme Court established in Griswold with regard to contraception applied to a woman’s decision to terminate a pregnancy. The answer to that question appears to me to be an obvious yes. First of all, pregnancy is of course a possible result of sexual intercourse. Griswold found in effect that contraception is also a matter directly connected with sexual intercourse, and sexual intercourse, at least within the bounds of marriage, is none of the state’s business. If it’s none of the state’s business with regard to contraception, how can it be the state’s business with regard to abortion?

The opponents of abortion assert that fertilized embryos and non-vital fetuses are human beings entitled to legal protection. This claim is ultimately completely untenable, but opponents of abortion assert it so often that we cannot simply ignore it. Abortion opponents often express this contention by saying that the potential for life is the same as life. Yet it is simply obvious on the face of the matter that potential is not the same as being. We humans are all born with the potential to become or do anything that is possible for humans and for our particular way of being. When I was born I had the potential to become a famous concert violinist or president of the United States (not that I would ever want to be president of the United States in today’s world). I assume that you did too. Yet I am not a famous concert violinist. I assume that you aren’t either. I know that unless you are Joe Biden neither of us is president of the United States either. A person’s potential simply is not who a person is. It is only what a person may become.

Embryos and un-vital fetuses in a woman’s body do indeed have the potential to become human beings given the right circumstances of their gestation and birth. Development from a fertilized egg is after all how we all became human beings. Yet the same thing can be said of an unfertilized egg cell in a woman’s body. Should medicine stop ovulation and menstruation because they result in the loss of an egg that had the potential, under the right circumstances, to become a human being? Of course not. Should all men be required to have vasectomies because their ejaculation results in the deaths of thousands of sperm cells, each of which had the potential, under the right circumstances, to become a human being? Of course not. It is of course true that something specific has to happen for an egg or a sperm cell to become a human being. A sperm must fertilize an egg. That reality, however, just adds one preliminary step to the process of an embryo developing through a myriad of other necessary conditions into an actual human being.

So, is an embryo a human being? Of course not. An embryo is a collection of cells developing in a certain way. They are human cells, but they are not a human being. Precisely when in gestation a fetus becomes a human being is hard to determine. We simply cannot deny that truth. Roe dealt with this issue by using a trimester standard. Casey affirmed Roe but changed the standard for when a fetus becomes a human being to fetal viability, the ability of fetus to survive outside the womb. Abortion law must include some such standard for determining when, in a majority of but not all cases, abortion is no longer permitted or at least is not constitutionally protected. Fetal viability is probably the best we can do for such a standard. Perhaps anti-abortion zealots can take some comfort from the way medical science keeps setting the time of fetal viability earlier and earlier in the process of gestation.

In any event, neither an embryo nor a non-vital fetus is a human being. That truth seems so obvious to me that I did not include this response to the claim that they are in the first draft of this post.[6] The assertion that embryos and non-vital fetuses are human beings would be laughable were the forces of the American right so vigorous in proclaiming that falsehood as true in their attempts to assert governmental control over women’s bodies and their decisions about sex and pregnancy. They are not worth considering further here.

What, after all, could be more personal, more private, than a woman’s decision of whether or not to carry a pregnancy to term and deliver a baby? I can think of nothing that is. The question of pregnancy involves the most personal, private parts of a woman’s being. It’s her body, her mental health, and her financial wellbeing, among other things, that we’re talking about here. It seems to me obvious that the state has no right to tell a woman what she must and may not do with regard to the internal, private functionality of her own person.

There is another important consideration here. As noted above, in Brown the Supreme Court considered the harm separate but (supposedly but not really) equal public education was doing to Black schoolchildren. It was perfectly appropriate that it do so. The court’s finding that the harm was substantial played perhaps a decisive role in the Court’s finding separate but equal public school systems to be unconstitutional. There is a parallel issue in Roe. What, the court must ask, are the negative consequences for women from a ban on all or most abortions? Tragically, the answer to that question is not hard to find in our nation’s history before Roe. The illegality of abortion in many states before Roe did not stop abortions. It only stopped legal abortions. Illegal abortions were common. They may on occasion have been performed by qualified medical professionals. In a great many cases, however, they were performed by con artists who had no business or right to perform any medical procedure on anyone. Many, many women who had such abortions became seriously ill with infection and bleeding. Some needed surgery from a qualified physician to repair damage the hack who performed the abortion had done to them. Some lost the ability to bear children altogether. Some died. Some women tried to induce abortion themselves, an inherently very dangerous thing to do. A metal coat hanger became a symbol of the harm illegal and self-attempted abortions could do and far too often did to desperate women.

Only the woman who is pregnant can know what it would mean to her to bear and carefore a child. So many things go into answering that question. The woman must consider: Am I psychologically able to raise a child? Do I want to be a parent at all? Of if she already is one, which many women who get abortions are, what would adding a new child to her family mean for her and the family? She must ask: Can I afford a child? Or another child? Those are all private questions with private answers that only the pregnant woman can give. The state, it seems obvious to me, has no business or right to interfere with anyone’s answers to them for herself and the conclusions she draws from them.

Pregnancy of course often occurs between two people who love each other and want to have a child together. Many of us have been blessed to have that situation in our lives. Yet pregnancy also occurs in far, far less ideal circumstances. It is often unintended. No contraceptive device or product is one hundred percent effective. Sometimes the circumstances leading to an unwanted pregnancy are far worse than a failed contraceptive. Unwanted pregnancies occur as the result of rape and incest. Some state statutes have exceptions to a ban on abortion for those tragic cases, but many, including many created very recently in anticipation of Roe being overruled, do not. What business or right does the state have to tell a fourteen year old girl raped by her uncle and therefore pregnant that she must carry the fetus to term and become a mother while she is still a child herself? Absolutely none that I can see. It would very likely damage a female body that is too young to bear the strains of pregnancy. Forcing this young victim of rape and incest to carry a fetus to birth would be cruel and inhumane in the extreme.

So we see that there is a plethora of reasons for keeping abortion legal. Yet it appears that the Supreme Court is about to allow states to ban it by overruling Roe. What would repealing the case that found a constitutional right to an abortion do to our country’s legal landscape with regard to abortion? The answer to that question is a bit more complex than one might expect. First of all, overruling Roe would not make abortion illegal everywhere. It would leave the question of the legality of abortion up to the states. As I understand it, something like twenty-two or twenty-three states currently have on their books either a law that bans abortion or that would be triggered to come into effect and ban abortion the minute Roe is overruled. A few other states may pass laws banning or severely restricting abortion once Roe no longer prohibits such laws.

Other states, including my home state of Washington, have laws in place that protect a woman’s right to choose. Overruling Roe would not by itself invalidate those laws. Women in states with such laws would still have a right to abortion. Women from states that did not give them that right could travel to states that do to obtain an abortion. We must recognize, however, that many women who have abortions today are quite poor, their poverty probably being one of the main reasons they do not want to carry the pregnancy to term. Overruling Roe would leave open the possibility of women in states that do not permit abortion going to states that do. As a practical matter, however, doing so would be financially or otherwise impossible for a great many women. Leaving home and traveling sometimes hundreds of miles each way to have an abortion is theoretically possible, but it hardly solves the problems created for many women when their state prohibits or severely restricts abortion.

Unfortunately, there is another legal issue we must consider. There are two sides to it. I have recently heard that that anti-abortion extremists are working on having Congress pass and the president sign a law banning abortion nationwide. They won’t try to get such a law enacted until the Republicans again control both houses of Congress and the White House, but who is to say that couldn’t be the result of the 2024 election? When someone proposes such a law, the question immediately arises of whether or not the federal government has the legal authority to enact it. Many Americans do not know that the US Constitution was drafted in considerable part to limit the power of the federal government. Every federal law must be based on some constitutional provision that authorizes the federal government to enact and enforce it.

The constitutional provision very frequently used as the constitutional authorization for federal laws meant to apply nationwide to private individuals and businesses is Article 1, Section 8, Clause 3 of the Constitution known as the Interstate Commerce Clause. That provision gives Congress the power to regulate commerce “among the several States,” among other things. Court rulings have interpreted the Interstate Commerce Clause very broadly. Essentially everyone in this county is engaged in interstate commerce within the meaning the courts have given to that phrase. Unless you have never purchased or used anything made in or having traveled across a state other than the one in which you reside, you are engaged in interstate commerce. Laws like the 1964 Civil Rights Act rest upon the Interstate Commerce Clause. Without that clause the federal government would be powerless to prohibit racial or other forms of discrimination in non-governmental employment, housing, public accommodations, and other aspects of life the way the Civil Rights Act does.

The federal government could probably use the Interstate Commerce Clause as the basis for a law prohibiting any person or organization engaged in interstate commerce from performing or receiving an abortion, though doing so might possibly be a constitutional stretch. Surely the framers of the Constitution never intended the Interstate Commerce Clause to apply to medical procedures. The courts could possibly rule that the clause is not a constitutional basis for a law banning abortion. Courts however are impossibly unpredictable when it comes to deciding previously undecided legal issues. My fear is that a federal law banning abortion nationwide based on the Interstate Commerce Clause would survive constitutional scrutiny. The Senate filibuster rule, which requires sixty votes rather than a mere majority of fifty for most bills to pass, might be our best hope for stopping any such law from coming into force.

There is also the matter of sexual discrimination when it comes to banning abortion. Patriarchy and androcentrism abound in this country, and they are very much at play in the movement to prohibit all abortion. Yes, some women support abortion bans or at least say that they do. Nonetheless, the efforts to outlaw abortion come mostly from men. Sadly, many of those men are clergymen in churches that themselves discriminate grossly against women. To many women, it feels like efforts to ban abortion are efforts by men to assert male control over female bodies. They are quite right to feel that way. A state telling a woman that she has no right to control her own body is telling her that she is less than a fully equal human being. It says we men know better than you do what it is moral and permissible for you to do even with regard to your most private decisions. It says to women you don’t control your body, we do. No one is trying to stop men from taking medical steps to avoid impregnating a women like have a vasectomy. Damn it, women are every bit the equals of us men. They have every right we have whether the law recognizes that legal and moral right or not. It is way past time for all Americans and American law to recognize the foundational, inalienable equality of women and to let them make their own sexual and reproductive decisions.

The repeal of Roe could well be the start of a very bad legal trend in this country. The Rev. Dr. Martin Luther King, Jr., famously said, quoting an earlier source, that the arc of the universe bends slowly, but it bends toward justice. Over the long haul that claim has been true of the United States as well. Our country was founded on slavery and racism. It took far too long and far too much blood, but we ended slavery. In 1857 the Supreme Court said Black people could not be US citizens. In 1868 we passed the Fourteenth Amendment to the US Constitution that says that all persons born or naturalized in the United States are citizens of the United States and of the state in which they reside. In 1896 the Supreme Court said so-called racially separate but supposedly equal public facilities are constitutional. In 1954 the Supreme Court said they aren’t. We passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. For most of our history LGBTQ+ people had to hide in the closet because it wasn’t safe to be out. In 2015 the Supreme Court said they have a constitutional right to same-gender marriage. In 2020 the Supreme Court said that the 1964 Civil Rights Act protects LGBTQ+ people from workplace discrimination. From its inception that Act has also protected women from workplace discrimination. We’ve still got a very long way to go to make this country actually be what it has always claimed to be. We have, however, mostly been moving in that direction.

Overruling Roe could well be the beginning of a reversal of that progress. Supreme Court cases like most of those mentioned above expanded civil rights. I am unaware of any Supreme Court case from Brown onward (or ever actually) that has taken an existing constitutional right away from American citizens. That is precisely what overruling Roe would do. So we have to ask: What constitutional right will our zealous reactionaries and their compliant Supreme Court take away from us next? Perhaps freedom of religion so they can impose an ignorant, bigoted form on Christianity on our nation? Or perhaps freedom of assembly because they hate protesters, especially Black protesters, demonstrating against racist cops killing innocent Black people? They’ve already begun to attack freedom of the press in some states with their ban the books campaigns. Will they revoke freedom of the press so only tracts supporting their ignorance and bigotry will be published just like only tracts supporting the Communist Party were printed in the Soviet Union? I wish I could say it isn’t possible, but it is.

The rights I just mentioned are of course specifically mentioned in the Constitution, so perhaps all a reactionary Supreme Court would let the zealots do is restrict those rights until they are essentially meaningless though they still appear in the Constitution. The situation is probably more serious with regard to constitutional rights recognized by Supreme Court cases that stand on the right to privacy established by Griswold. Two years after Griswold the Supreme Court issued its decision in Loving v. Virginia. That case ruled laws against mixed-race marriages to be unconstitutional. The case that creates a right to same-gender marriage could very much be at risk. Indeed, there is no guarantee that the Supreme Court might not overrule Griswold itself. Some commentators in the past two days have mentioned that as a possibility given the language in Alito’s draft opinion. Our country’s right-wing fanatics and their friends on the Supreme Court and in Congress are making this a scary time indeed.

So what are we Americans who support a woman’s right to control her own body to do? Those of us who, like me, live in states that authorize abortion must begin by defending their state’s abortion rights statutes with everything they’ve got against all challenges. We must vote only for candidates for state office who support women’s rights, including the right to an abortion. If a bill is introduced in such a state’s legislature to repeal the state’s abortion law, we must hound our elected representatives until they agree to vote against the bill. If the bill passes, we must hound our governors until they agree to veto it. Sadly, none of that will matter if there comes to be a valid federal law banning all abortion. Such a federal law would take precedence over a conflicting state law. Until that tragic law arrives, if it ever does, states that protect the right to an abortion will be the only hope women deciding to terminate a pregnancy will have. I’ll suggest this too, though I know of course that it won’t be possible for many. If you live in a state that prohibits or unreasonably restricts abortion, move out. Move to a state that recognizes that women are human beings with the right and the ability to make their own decisions about their own bodies.

Those of us who support a woman’s right to make her own reproductive decisions must boycott the states that don’t to the greatest extent that we can. If you don’t live in one of those states, don’t go there for any reason. Give that state none of your business or tourist dollars. To the extent you’re able to identify them, buy no products made in a no choice state or by a company headquartered in such a state. Economic pressure might be able to cause some business interests to pressure their state to admit that women are people and repeal their state’s anti-abortion laws.

The future for abortion rights and the equality of women does not look bright in this country. It is virtually certain that the Supreme Court will soon overrule Roe v. Wade and Casey and permit the states to outlaw or severely restrict a woman’s right to control her own body and make her own reproductive decisions. It is virtually certain that anti-abortion zealots will try to have abortion outlawed nationwide through action both in individual states and at the national level. We must all work, hope, and pray that somehow, one day, the tide of discrimination we are now seeing in our country will turn back toward justice. May it be so.

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[1] For the sake of simplicity I will mostly refer only to Roe.

[2] There’s a famous story about a crusty old law professor who said to a bunch of first year law students, “You say you’re here because you want to work for justice. This is a law school not a justice school! If you want to work for justice go to seminary!”, which some of us have actually done. The same thing could be said about working for morality.

[3] The similarity between that provision of Jim Crow law and the laws on who was Jewish in Nazi Germany is striking and terrifying.

[4] Plessy also argued that the Louisiana law violated the Thirteenth Amendment, which outlaws slavery in the United States. I consider that part of Plessy’s defense to be, frankly, frivolous. I will not consider it further here.

[5] One of the attorneys for the plaintiffs in Brown was Thurgood Marshall, who later became the first Black justice on the US Supreme Court.

[6] This is a second draft of this post. In my first draft, which I did post, I did just ignore this claim. My wife Jane suggested that address it in this draft. As usual, she was right.

Address by Rev. Mike Denton

 

This is the text of a talk the Rev. Mike Denton, Conference Minister of the Pacific Northwest Conference of the United Church of Christ, gave at the online annual meeting of the Conference on Saturday, April 30, 2022. I think it's magnificent--thought, wise, insightful. I hope it means something to you too.

Rev. Mike Denton PNCUCC Annual Meeting Address April 30th, 2022 I've struggled more with this particular message than any other I've ever shared with you. When developing the theme for this meeting, the idea that emerged was around hope, recognizing the exhaustion of almost everyone. It's entirely the right theme, and I was looking forward to hearing from someone else about it. I'm struggling with staying hopeful, too. On the one hand, the idea that I might have anything to say about hope feels almost ludicrous when I'm feeling a lot of what can best be described as despair. As I told it to a friend during one of the days I was struggling with this message, me speaking about hope today almost feels like inviting Eeyore to be your motivational speaker. On the other hand, writing this has forced me to stop simply ruminating about the general sense of despair and fight my way towards a slightly better place. Maybe it will do that for you, too. I don't know how else o start this off, honestly, but to say that, these days, what hope there is frequently seems trapped under the rubble of a collapsing world. It doesn't help that, in some ways, it seems like every single day brings some new horror or atrocity. War with threats of nuclear weapons. Violent political acts. Climate collapse. The pandemic. Inflation. Continued individual, institutional, and systemic actions that deny the humanity of others through denigration, deprivation, and violence. Racism, heterosexism, sexism, ableism, classism, ageism, cissexism, and other forms of oppression spread and even seem to multiply. We tend to look at these as separate issues or problems, but they are not. They are all part of a system of domination and control that consumes and consumes and consumes until there is nothing left to consume. Although we have beautifully diverse experiences and ways of living in the world, the means of oppressing people, exploiting the earth, and minimizing the value of life reflect a unity of oppression that include methods such as: 1. Naming a difference as separation and beginning the process of "othering." 2. Asserting the innate superiority of those with similar characteristics and the innate inferiority of those with "other" features. 3. Devaluing the gifts of the "other." 4. Suggesting the dependency and irresponsibility of the "other." 5. Naming "the other" as dangerous and needing to be “tamed” or “controlled.” 6. Building systems that reinforce, protect, promote, and rationalize these practices. 7. Eliminating any evidence to the contrary, whether present in a person, movement, science, religion, art, or other ways of knowing. 8. Continuing to feed the system of domination and consumption by othering new groups of people, new pieces of the earth, and naming new differences as separations. 2 Systems of domination corrupt everything, including good intentions. Even the intent to counter this system with inclusion sometimes gets corrupted by unintentionally reinforcing the legitimacy of this system to include and exclude. What seems like a win against parts of this system sometimes sustains and protects other parts of the system. The initial value of good intentions is quickly degraded by this system's practiced means of defense and deflection. However, even though these means of othering and consumption are pervasive, they are not sustainable. They never were. This system always takes more than it gives. It is content with consuming a potentially better future in exchange for a more glutonness present. My Siblings in Christ, we are not at the precipice. We are not near it. We are over it. Now, maybe we can hear the phrase "We are all in this together" not just as words of hope but also as words of warning. The "other" was a false idea made real, an idea so weak that it is requiring all the world's resources to sustain it. Even with the separations demanded by the pandemic, we are seeing each other face-to-face in a way that we have at few other moments. We know more about ourselves than we might like as our facades - our armor - falls away in this time of collapse. The system of domination continues to try and consume its way out of its death by having us turn on and consume each other on its behalf instead of turning towards each other. A house divided cannot stand, and this house we all live in is falling. ….. As accurate as I believe this to be, there is also this from 1 Corinthians: "For now we see in a mirror, dimly, but then we will see face to face. Now I know only in part; then I will know fully, even as I have been fully known. And now faith, hope, and love abide, these three; and the greatest of these is love." Despite what sometimes seems like evidence to the contrary, I've seen the truth of these words, too. These three things are a trinity of rootedness that will be the spiritual grounding that helps us make it through to something new if there is life on the other side of the precipice. We've heard these words from this scripture so often that it's easy to take them for granted, and we can't. These ideas have been intentionally co-opted as weak, sentimentalized ideals - minimized to only apply to romantic love - because systems of domination can not survive their persistent practice. Faith, hope, and love damn systems of domination because tapping into them 3 makes us less dependent, less afraid, and less able to see the differences between us, the earth, and all creation. Where faith, hope, and love abide, life blooms. As much as systems of domination may try to sentimentalize and diminish them, faith, hope, and love can overwhelm systems of domination. They can help us turn towards each other instead of on each other. They can help us participate in systems of liberation and recovery with a wisely-reckless, spirit-led, faithful abandon. These three things are all connected like a vine, its fruits, and its roots. To talk about one is to talk about all of them. Within the UCC, specifically, there is a wide breadth of belief among our members, and people are free to participate as little or as much as they'd like. This was part of what attracted me to the UCC in the first place. However, there are significant vulnerabilities in this, too, because faith isn't just about what we believe but also about our practices and disciplines that are separate and interwoven with corporate life. All too often, I can say that I've become a consumer of a faith that I expect to come from others instead of recognizing my responsibility to practice faith. I have sometimes fallen into the trap of looking for others to provide spiritual "products" instead of building that relationship of faith with a community in a mutual, challenging, and authentic way. I can say that, personally, this COVID Lenten period has been a time of personal faith deconstruction centered in prayer, journaling, and being open to the movement and conviction of the Spirit so that I can be a better participant in communities of faith. When I participate in worship as a leader, I have the capacity to recognize that my responsibility is to bring something to the service. I’ve struggled, recently, to attend worship as a fellow worshipper and participant; not just expecting to receive something but also bringing what I have and who I am. In my visits with people or conversations about their church, it's not unusual for people to talk about not "being fed" by a pastor's sermons or worship leadership. At the same time, there is not always the self-reflective work that asks, "What am I bringing to the potluck?" I'm not saying there aren't times we need help and that there aren't times we genuinely have nothing to bring because we're in pain or grief. Those are the moments we carry each other and share with one another. However, we have to resist the powers or domination that suggest that we're entitled to be fed all the time without nurturing our spiritual gardens. Even when we try, we also have to resist the powers of domination that whisper in our ear that what we might grow there is unworthy of being shared. Nurturing our faith gives ourselves and our communities access to the abundance of God, a practice we co-create through the experience of prayer, study, service, repentance, deconstruction, reconciliation, and action. When faith is a consumerist or 4 consumptive expectation, it collapses in on itself. When it taps into the abundance of God, it becomes a celebration of hope and a feast overflowing with love. Love, as only a sentimental idea, is not love. I get that whole fluttery, beautiful part, but that is a benefit of love. It's not necessarily love in and of itself. To interact with love is to interact with a powerful and untameable force. Many have talked about love as the most powerful force in the universe. Others have suggested that God's power must surely be love if God is all-powerful. Love is not something we control but a force we are shaped by and learn to flow with as it is present in the world. When we serve Love, it blossoms within us. The systems of domination seek to prevent our access to love. Instead of the mutually beneficial rewards of the give and take that comes with abundant love, we are promised to be rewarded with the gifts of being independent and self-sufficient. It's a false, unsustainable promise exposed at this moment in time more than any other. Seeking out to be wholly independent creates a redundant, deepening pit of need and want that, now, is collapsing in on itself. We're all hearing stories of congregations, non-profits, businesses, and governments in collapse. The planet itself is collapsing under the unstainable weight of our expectations and desire for more and more power and independence. Only the power of love can confront and diminish the system of domination's love of power. I am not so naive as to believe it will ever disappear, but I believe it can be diminished with practice, vigilance, and all the tools that love provides. This brings me back to hope. I am sure that many of you were inspired by this year's Lenten devotional that Courtney coordinated, focusing on sharing stories about those moments that provided hope. When we tap into the idea of seeing hope and looking for hope, there are ways and places we end up finding it, discovering it, and uncovering it. But, I think we’re doing something else, too. I'm also coming to understand that depending on hope as solely an external force that someone else provides has its limits. It gets us right into the consumer mindset. At its worst, hope is doled out by the systems of domination like a drug that builds a dependence on the system. At its worst, what is called hope by systems of domination becomes the carrot at the end of a stick that is always out of reach yet manipulatively sets our direction and choices. What looks like a promise becomes a taunt. I'm becoming convinced that, somewhere along the way, we were taught to consume some product dressed up to look like hope and slowly forgot that Hope. Is built. ….. 5 The New Century Hymnal's version of the old hymn is, "My hope is built on nothing less, than Jesus' love and righteousness, on Jesus' love and righteousness…." Hope. Is. Built. And maybe not in the way we expect. In Rebecca Solnit's 2009 book "A Paradise Built in Hell," she writes about communities that emerge during natural and human-made disasters. One of the quotes from this book I have shared before is this: "The possibility of paradise hovers on the cusp of coming into being, so much so that it takes powerful forces to keep such a paradise at bay. If paradise now arises in hell, it's because, in the suspension of the usual order and the failure of most systems, we are free to live and act another way."1 Within the communities she writes about, leadership and structure emerges but only in so much as it serves the community. Instead of being seen as a class of people who somehow have innate leadership skills, leaders are empowered as the community needs them. Instead of being a product of leadership, a mutual, co-equal community becomes the nurtured norm. Leadership emerges from the consent of the community members as a temporary role to serve a function. I know this idea runs contrary to a lot of what is shared as common sense, but I believe that leadership is not essential except as a situational form of service based on the needs of the community. Before the pandemic, the US spent around 45 billion dollars a year on leadership development work. In the five years before the pandemic, this amount had increased by about 39%. However, it's not working. Trust of those in institutional leadership is crashing. Trust in religious, business, and government leaders is below, and in some cases well below, 50%. It's interesting that leadership training took off in the 80s at about the same moment as the resurgence of overt movements to reinforce family values, white values, male-centered hierarchical systems, and the defunding of social programs. It's interesting that, at the same time, funding for civics courses started to decline, and, in the church, we actively began to look toward customer service models to attract members. As part of those customer service models, it's interesting that we started to drop membership classes, diminish community responsibilities, and began, more and more, to talk about the services we provide for members. 1 Solnit, Rebecca. A Paradise Built in Hell: The Extraordinary Communities that Arise in Disaster. Penguin Books, 2009. 6 I recognize that the idea of membership has its challenges but replacing it with a more business-based consumer model or a corporate democracy model, or a non-profit client model has also been problematic. Just because Amazon, Netflix, or Costco call the fees we might pay them "memberships" doesn't mean we are actually members. The influence we have is as customers or consumers, not as members. However, some of these same expectations have become ingrained into church life. In these cases, leadership does not emerge from the members as part of a transformative movement of a community but functions only to sustain the product's life and expand its use. When we commodify the church, our souls become the commodity. Do we need to identify and train those the community calls to leadership roles? Absolutely. Do we need to help prepare the whole community for being called into leadership roles? Yes. And, do we desperately need to figure out how to build community in a way that is mutual, and fair, and honest, and able to resist the systems of domination when they remerge in the post-collapse world? Please God, yes. Hope. Is. Built. Yes, we are in a time of collapse, but sometimes, a breakdown can lead to a breakthrough. Hope. Is. Built. I don't see any way that the coming days aren't going to get more challenging, but on the other side of it - and I do believe there will be another side - there might be better days if we remember that Hope. Is. Built. When we make promises now to the generations that will follow us. Hope. Is. Built. No one is going to deliver us hope, provide us with hope, because Hope. Is. Built. On the foundation of the love of God and with the tools of faith. Hope. Is. Built. Amen.

On Being Challenged

 

On Being Challenged

May 2, 2022

 

The Scripture quotations contained here are from the New Revised Standard Version Bible, copyright © 1989 by the Division of Christian Education of the National Council of the Churches of Christ in the U.S.A., and are used with permission. All rights reserved.

 

All four canonical Gospels have near their beginning some kind of statement, either by Jesus himself or by the author of the text, about who Jesus is and what his mission is all about. They aren’t all the same. Mark has Jesus begin by repeating John the Baptist’s proclamation almost word for word. Matthew has him start saying essentially the same thing. I’ll get to Luke in a moment. John begins with the powerful prologue that is the Bible’s best confession of the Incarnation: “In the beginning was the Word, and the Word was with God, and the Word was God….And the Word became flesh and lived among us.” John 1:1, 14a.

Then there’s Luke. Luke’s opening statement is actually a whole scene. Jesus, “filled with the power of the Spirit,” returns to Galilee from Judah, where John the Baptist has baptized him. People begin to hear about him. He teaches them in their synagogues and is praised by everyone. Luke 4:14-15. He comes to Nazareth, his hometown, and goes to the synagogue on the sabbath. A synagogue service of course includes reading scripture. So an attendant at the synagogue gives Jesus the scroll of the prophet Isaiah. He reads these words from it:

 

‘The Spirit of the Lord is upon me,

     because he has anointed me

          to bring good news to the poor.

He has sent me to proclaim release to

the captives

     and recovery of sight to the blind,

          to let the oppressed to free,

to proclaim the year of the Lord’s favor.’

 

And he rolled up the scroll, gave it back to the attendant, and sat down. Then he began to say to them, ‘Today this scripture has been fulfilled in your hearing.’ Luke 4:18-21.

 

These verses give us a good deal of what Jesus’ ministry was about. Notice. Luke’s Jesus says nothing about believing in him, which at times it seems is all John’s Jesus ever does talk about. Rather, he lays out a program of justice for the oppressed (“the year of the Lord’s favor” is about justice too) and physical healing for those who need it. We’re then told that, “All spoke well of him and were amazed at the gracious words that came from his mouth….” Luke 4:22a.

Surely it would have been surprising to people who had been told all their lives that obeying torah law was what faith in God was all about to hear one apparently full of the Holy Spirit talking not about torah law but about justice and healing. Yet the people who heard Jesus reacted positively not negatively to that part of what Jesus says to them (although why they may have done so is something I’ll address below). All would have been well and good had Jesus stopped there, but he didn’t. He went on:

 

‘But the truth is, there were many widows in Israel in the time of Elijah, when the heaven was shut up three years and six months, and there was a severe famine over all the land; yet Elijah was sent to none of them except to a widow at Zarephath in Sidon. There were also many lepers in the time of the prophet Elisha, and none of them was cleansed except Naaman the Syrian.’ Luke 4:25-27.[1]

 

Whereupon the people who had so liked him a moment earlier get so mad at him that they try to throw him off a cliff. Somehow he manages to get away from them and moves on. Luke 4:28-30.

Why did the people of Nazareth get so mad at Jesus for reminding them of two well-known stories from their own scripture? Well, who were the widow of Zarephath and Naaman the Syrian? They were both Gentiles not Jews. Jesus was using Jewish scripture to tell his Jewish listeners that their God cared for non-Jews as much or more than their God cared for Jews like them. Those listeners would have had to open their minds and change their view of what God wanted from them to grasp the first thing Jesus told them. The second thing he told them was too much for them. I can hear them saying things like, “What do you mean our God cares for Gentiles! That’s an outrage! God is our God not theirs! Get outta here with your heretical nonsense!” All that though all he did was remind them of a couple of their own stories.

Now, it is of course easy for us to sit here in our very different time, place, and culture and be most critical of those people back in first century CE Nazareth. They were too narrowminded. They held too hard onto beliefs that they really should have changed. They may have seemed to accept what Jesus said about the poor, the captives, the blind, and the oppressed; but did they really? Might they not have accepted the words Jesus read them from Isaiah because they begin with a promise of good news to the poor, and they were all poor? Maybe they just accepted those words out of self-interest. It’s possible to criticize them even for the reason they might have accepted that first thing Jesus told them.

It's a whole lot easier to criticize them for the way they reacted to the second thing Jesus told them. He reminded them of two stories, both from what in Judaism is just the book of Kings that we Christians split in two. The Nazarenes clung for dear life to a belief that they were God’s favorites, not those damned Gentiles. After all, they lived under the Roman yoke, and those cursed Romans were Gentiles too. They may also have known about the Greek, i.e., Gentile, king Antiochus IV Epiphanes, who more than a century earlier had tried to destroy their religion and impose Greek culture on them. They hated Gentiles, and they weren’t about to listen to some young, upstart preacher tell them their God didn’t hate Gentiles too. We may well think how unenlightened of them, how narrowminded, how bigoted.

Well, not so fast. What was going on here? Jesus was challenging some of their core beliefs. He was telling them your thinking is wrong. It’s too narrow. You see God wrong. You think God is as smallminded and bigoted as you are. Well, God isn’t. You may like what Isaiah and Jesus said about the poor because you’re all poor (which in a place like Nazareth they certainly were). But what about the other hurting people they mentioned? God cares as much about them as God cares about you. Open your eyes! Open your minds! Do the same with the Gentiles. You hate them, God doesn’t. Broaden your view! Get over your prejudices! See that God actually loves people you think God hates just because you hate them!

It's easy to be critical of the residents of Nazareth in this story, but we really shouldn’t be so quick to condemn them. All we’re seeing in them is the nearly universal human reaction to being challenged, especially being challenged to broaden our minds, stop hating, and stop making our God too small. The parallels to this story in our own country and its history are not hard to find. A great many Americans used to believe, and tragically some still do, that Black people aren’t really people at all, and God doesn’t think they are either. Christians with a broader view and a larger God challenged that diabolical belief, and some of those who held it fought a brutal civil was in a vain attempt to preserve the oppressive laws, policies, and actions they used that belief to justify.

More recently, most Americans believed that all LGBTQ+ people were perverts, that their sexuality was always and necessarily sinful, and that God thought so too. Then some Christians began to challenge those demonic views. We said why would God create people who by their very nature are more sinful than the rest of us? How can real love and the commitment of two people to care for one another and share their lives ever be sinful? Besides, in the Gospels Jesus says not one word about homosexuality. Yet Christians who held onto their bigotry against sexual minorities dug in their heels the way American racists did and do. They got their churches to declare all homosexual acts to be inconsistent with Christian values. They opposed efforts to extend to gay people legal protection of their civil rights, saying, horribly wrongly, that such laws create “special rights,” (which they definitely do not. Trust me on this one. I used to be a lawyer). They made a crusade of opposing same-gender marriage. Far too many of them still do.

These reactions by the defenders of prejudice were morally wrong, but these reactions are not hard to understand. No one likes having their core beliefs challenged. The people Jesus encountered in the first century didn’t. American racists didn’t and don’t. American homophobes didn’t and don’t. But here’s the thing. We humans are always making our God too small. We are always making our God too human, too much like us. Jesus proclaimed a God so much bigger than the God of the people of his time that it got him crucified (by Gentiles not Jews) as a threat to public order. And so many of us still don’t get it. When our core beliefs are challenged, especially our beliefs about God, we resist like crazy. We shout No! That’s not the God I’ve believed in all my life! That’s not who God is!

Well folks, that is who God is. God is bigger than we can ever get our heads around. God’s love is as vast as the universe. It is universal and unconditional. God extends it to you and to me whether we think we deserve or have earned it or not. It applies to everyone we’re so sure hasn’t earned it at all. With God we don’t earn love. We accept it. We live into it. We respond to God’s love with love. Not with hatred. Not with bigotry. With love. Love as close to God’s kind of live as we can come. We won’t ever do it perfectly. We are after all human not divine. Yet our being fallible humans doesn’t get us off the hook. Our only proper response to God’s love is love. It always has been. It always will be.

So if you’re finding some of your core beliefs being challenged, don’t just shout No! Of course don’t accept any challenge uncritically. Not all challenges by far can move us closer to God. Ask yourself, Am I being too narrow? Am I hating people God loves? (And of course God loves all people.) Am I projecting small human ways onto the vastness of God? If you are, don’t beat up on yourself. God loves you too. Don’t weep and moan, but don’t stay the same either. Open your mind. Broaden your view. Move closer to God. It is all we can do, and it is enough.

---

[1] For the story of the widow of Zarephath see 1 Kings 17:8-16. For the story of Naaman the Syrian see 2 Kings 5:1-19a.

On the Use of Religious Symbols

 

On the Use of Religious Symbols

April 22, 2022

 

The Scripture quotations contained here are from the New Revised Standard Version Bible, copyright © 1989 by the Division of Christian Education of the National Council of the Churches of Christ in the U.S.A., and are used with permission. All rights reserved.

 

I, and a lot of other people. have insisted for a long time that the language of faith is symbolic and mythic not factual. The language of the Bible itself is, for the most part, symbolic and mythic not factual. Though it does contain some accurate historical facts (and some inaccurate ones), its primary intent is to give us symbols and stories that function like symbols that point beyond themselves to the mystery of God, enable us to enter into that mystery, and discern something about God’s will and nature. I recently came across a discussion of a symbol in the Gospel of Mark that I have long understood to have one particular meaning. In that discussion, the Bible scholar John Dominic Crossan tells us that the Gospel of Mark, in which the symbol first appears, gives a different meaning to that symbol. It seems likely that rather than giving his own reading of the symbol, Crossan is here giving us what he takes to be Mark’s intended meaning of the symbol, or at least that’s what he says. I will here call that meaning the Markan meaning. Considering both that interpretation and mine will be a good exercise in how to read and use biblical symbols and myths.

The symbol I’m talking about appears at Mark 15:37-38: “Then Jesus gave a loud cry and breathed his last. And the curtain of the temple was torn in two, from top to bottom.” The symbol in question here is that torn curtain of the temple. To understand either my interpretation or what Crossan says is the Markan interpretation of that symbol, we have to start with an understanding of what that curtain of the temple was. The temple in Jerusalem in Jesus’ day was the center of the Jewish faith. It was constructed with a series of spaces most of which were called courts. The Court of the Gentiles was the first one you came to when you entered the temple. It was open to everyone. It is where vendors sold animals sufficient for sacrifice, animal sacrifice being the temple’s main activity. It is also where moneychangers changed unclean Roman money for clean temple money that people could give to the temple. I’ll have more to say about both of these activities below. There is then a progression of other courts deeper into the building. These included the Court of the Women, the Court of the Israelites, and the Court of the Priests. The Court of the Priests surrounded the most sacred part of the temple, which had only a small entrance on one side. It was a small space called the Holy of Holies. The curtain that is the object in the symbol we are considering hung across that small entrance. Only the high priest was allowed to enter the Holy of Holies, and he did it only on Yom Kippur, the Day of Atonement. The Holy of Holies was where Jews believed God dwelt in the temple.

Mark says that the curtain of the temple was torn in two at the moment of Jesus’ death. He means the curtain that hung in the entrance to the Holy of Holies. We must understand Mark’s statement symbolically not literally. The tearing of the curtain when Jesus died is a symbol not an historical fact. It is a symbol with truly powerful significance. Yet, at least according to Crossan, Mark and I understand the meaning of the symbol differently. I will consider both interpretations, but I’ll give you my understanding of the symbol first. The curtain in question hung between the Holy of Holies and the Court of the Priests. The Court of the Priests wasn’t open to the general public, though we mustn’t let that detail derail our understanding of the symbol. No symbol is perfect. Anyone (except the high priest on Yom Kippur) would be stopped by that curtain. Not physically stopped but effectively stopped nonetheless. The curtain separated the people from God. God was in the Holy of Holies, the people weren’t.[1]

So what is the meaning of its being torn in two when Jesus died? For me (and for many other Christians who have considered the matter), it is that with Jesus’ death any and everything that we believe separates us from God has vanished. In Jesus’ death on the cross we see God Incarnate in Jesus Christ experiencing human suffering and death. God has entered fully into human life. God has taken every aspect of human life into Godself. In doing so God shows us that God truly, always and everywhere, is with us people as we experience human life. With us not apart of us. The Gospel of Matthew (which repeats Mark’s curtain symbol) calls Jesus Emanuel, which means “God with us.” Matthew 1:23, citing Isaiah 7:14. Jesus is very much one of us as he suffers and dies. He didn’t die as an atoning sacrifice for sin. (As we’ll see below, Jesus rejected the whole idea of sacrifice as what God wanted from us. Jesus died to show us in the most dramatic way possible that God is present with us and sanctifies every aspect of human life. For me and for many, that is the meaning of Mark’s symbol of the tearing of the temple curtain. After Jesus’ death nothing separates us from God. If we think anything does, we’re just flat wrong.

No so for Mark’s meaning of the symbol as interpreted by John Dominic Crossan. Crossan ties the meaning of the symbol of the temple curtain to Jesus’ prophetic action in the temple the day after he rode into Jerusalem on a donkey. About Jesus the first thing Jesus did in Jerusalem we read, “Then they came to Jerusalem. And he entered the temple and began to drive out those who were selling and those who were buying in the temple, and he overturned the tables of the moneychangers and the seats of those who sold doves.” Mark 11:15. Jesus’ action here is usually called “the cleansing of the temple.” Crossan and I agree that cleansing the temple is absolutely not what Jesus was doing. In driving out the sellers of doves and overturning the tables of the moneychangers, Jesus was not ridding the temple of anything that wasn’t properly there. He was doing something far more radical than that.

To see how radical what Jesus did actually was, we need to understand that the sellers of doves and the moneychangers against whom Jesus acted were not doing anything wrong as far as the temple was concerned. Rather, they were essential to its operation. The main type of worship in the temple was, as I have said, animal sacrifice. Torah law specifies the animal sacrifices the people were to offer to God, and the temple was the only place where animal sacrifice was permitted. The people could not, however, bring with them the animals there were going to give to be sacrificed. The animals to be sacrificed had to be healthy, essentially perfect animals. In the book of the prophet Malachi we read, “When you offer blind animals in sacrifice, is that not wrong? And when you offer those that are lame or sick, is that not wrong?” Malachi 1:8. See also Leviticus 3:1. The people who were selling doves or other animals in the Court of the Gentiles were selling animals that met the law’s requirement of purity. The temple could not operate the way it was meant to operate without the buying and selling of animals that took place there.

The same is true of the moneychangers. The only money in circulation in Roman occupied Judea was Roman money. All money was coins, and Roman coins had images of the Roman emperor on them. Sometimes they also had the words “Divii Filius,” “Son of the Divine One,” on them. These features of the coins made them ritually unclean under Torah law. The temple could not accept them. So there were moneychangers in the temple who changed the people’s unclean Roman money for clean temple money that the people could then give to the temple. As with the sellers of animals, the moneychangers were not defiling the temple. The temple couldn’t operate the way it was meant to operate without them.

So if Jesus wasn’t cleansing the temple when he disrupted the business of both the sellers of animals and the moneychangers, what was he doing? Crossan and I agree the he was symbolically overthrowing the temple with its practice of animal sacrifice as its primary function. He did nothing less than symbolically destroy the temple and the legalistic religious system, including the practice of sacrifice as worship, that it represented. He couldn’t destroy the temple physically. He couldn’t actually stop people from basing their faith on law and practicing animal sacrifice. He could destroy both the temple and the law symbolically. So that’s what he did. Crossan interprets Mark’s symbol of the torn curtain in the light of Jesus’ symbolic overthrow of the temple. Mark, Crossan says, meant his symbol to mean that God confirmed Jesus’ action in the temple by abandoning the temple, that is, by leaving the Holy of Holies, tearing the curtain in the process.

So which interpretation of the symbol of the torn curtain is correct? To answer that question we have first to consider the nature of symbolic truth. Symbolic truth is different from factual truth. If two alleged facts contradict each other, one (or perhaps both) of them must be false. Not so with symbolic truth. True symbols can express powerful truth, but it takes discernment to draw meaning out of them. It is perfectly legitimate for discernment of the symbol by different people to come to different meanings for the symbol. Were that not true, the Bible, which consists largely of symbols and stories that function like symbols, would be of interest only to scholars studying ancient history. It is the way different people in different times and places can draw different meanings from the Bible’s symbols that have kept the Bible alive and meaningful for so many people in so many different times and places.

Taking Crossan’s reading of Mark at face value, Mark and I discern different meanings in the symbol of the curtain of the temple being torn in two at the moment of Jesus’ death. Our different meanings make two different assumptions about what happens with this symbol. I assume that the symbol includes the symbolic presence of God in the Holy of Holies both before and after the curtain is torn in two. Mark’s interpretation assumes that God leaves the Holy of Holies and is not present there after the tearing of the curtain. Were we talking about facts here, one of our assumptions would have to be false.[2] But we’re not talking about facts. We’re talking about symbols, and the text that gives us the symbol doesn’t explicitly address the question of God’s presence in the Holy of Holies after the tearing of the curtain. It is perfectly legitimate for us to make either of those assumptions about the symbol in question. Yet it is difficult if not impossible for us to hold both of those assumptions at the same time. So what are we to do? Choose one interpretation over the other? Or perhaps look for another meaning we can legitimately draw from the symbol that works better for us? Actually, any one of those three options can be legitimate. I haven’t come up with a third meaning of the symbol of the torn curtain, but if you find another one that is true to symbol itself and works better for you, fine. All I’ll do here is explain why I prefer my interpretation of this symbol to the interpretation Crossan ascribes to Mark.

First, the Markan interpretation of the symbol seems to me to have limited usefulness for us today. It says that it isn’t just Jesus who rejects the temple’s version of the Jewish faith. It says that God rejects that version of the faith too. The idea that God rejected the temple’s version of the Jewish faith was radical and important in the early 70s of the first century CE when Mark was written. It is significantly less radical and important to us. The Jerusalem temple hasn’t existed since the year 70 CE when the Romans destroyed it. Judaism has long since transformed itself from a temple and sacrifice centered faith led by priests into a scripture based faith led by rabbis. That Jesus rejected the temple and the law based religion it embodies suggests at least that that sort of faith never was an option for Christians. That interpretation of the symbol surely was more important in the first century CE than it is today. The biggest issue in early Christianity was precisely whether one had to follow the Torah law to be a Christian. Whether or not we Christians have to follow Torah law just isn’t an issue for us, a fact that significantly reduces the value of this interpretation of symbol for us.

Moreover, this Markan interpretation of the symbol of the torn curtain has a distinctly anti-Jewish tone to it. It says that when Jesus died God abandoned what was at the time the center of Jewish faith. That Mark was anti-Jewish in the first century CE probably wasn’t terribly significant. The very few Christians  of the first century world were utterly powerless and unable to inflict any sort of harm at all on the much more numerous Jews. Not so today. Today Christianity is the largest religion in the world; and while Judaism remains a faith of world importance, there are today far fewer Jews than Christians. Add to that fact the reality that Christianity has a history nearly two millennia long of virulent, often violent anti-Judaism. There is a direct line historically from the anti-Judaism of the New Testament to the gas chambers and crematoria of Auschwitz and other Nazi death camps. Today we Christians must live down and atone for our history of murderous violence toward the Jews. It is utterly inappropriate for us today to take the anti-Judaism of the New Testament as God’s own truth. It isn’t. It never was. The anti-Jewish tone of the Markan interpretation of the symbol of the torn curtain that Crossan gives us is in itself sufficient reason to reject it.

Does the interpretation of the symbol that I advocate here work better for us Christians today? Recall that the function of the temple curtain was to mark off the only entrance to the Holy of Holies. It marked the nearest to the symbolic presence of God in the temple most people could ever reach. Only the chief priest could enter it, and he did so only once a year. The curtain functioned to separate the people from God. So what does it mean that the curtain was torn in two at the moment of Jesus’ death? It means, symbolically and powerfully, that anything that we think separates us from God is destroyed through the life and death of Jesus. Whatever it was, or is, that we think separates us from God is gone. There never actually was anything separating us from God, for symbols do not mean that God somehow changed with the advent of the symbol. The symbol reveals something that was always true. Yet, as I’ll discuss further below, we humans are so amazingly creative in coming up with things that we think separate at least some people from God. The most important, indeed salvific, meaning of Jesus Christ is that God stands always in total solidarity with every human being there ever was, is, or ever will be. The symbol of the torn temple curtain works perfectly with that understanding of the significance of Jesus Christ.

So what do we learn about how to interpret the symbols of faith? We learn that we must first of all understand a symbol in the historical-cultural context in which it was first created. We ask: What would the people of that time and place have understood the symbol to mean? To get to any kind of legitimate  answer to that question we must consider the cultural, linguistic, and religious knowledge and understandings the person creating the symbol could assume people to have. All of these things help us first of all to understand the symbol in its original context. They may also give us information that is important for our finding a meaning in the symbol for us. For example, how many of you have just ignored that little bit of the story of Jesus’ death because it didn’t mean much to you? That’s what I did with this symbol for decades. I trust that my explanation of what that curtain was helps you as much as it once helped me to understand the symbol of the torn curtain. That explanation comes from the symbol’s original context, and we cannot understand the symbol without it.

Once we have gained an understanding of the symbol’s original context we can consider what the symbol can mean for us. One step in that process is to consider whether some change between the symbol’s original context and our context makes some possible meaning for the symbol unacceptably harmful in ours. The anti-Jewish implications of Mark's meaning for the curtain symbol that we discussed above is a good example of how that can happen.

Then, after we have taken those preliminary steps, and only then, we can consider what the symbol can mean for us. I and others read the symbol of the torn curtain as meaning that upon Jesus’ death everything that we think stands between all people, or even just some people, and God is gone. Is that important to us? If it is, how is it important? I am certain that the symbol of the torn curtain is powerfully important to us. Religions, including Christianity, seem to see as one of their main tasks the erection of barriers between the people and God. In Christianity, those barriers appear in two basic forms. One is institutional, the other dogmatic.

The Roman Catholic Church is the best example of an institutional barrier to God. Many enlightened Catholics today, including the Catholic teachers at the seminary I attended, have moved away from this doctrine.[3] However, the doctrine “extra Ecclesiam nulla salus,” which means outside the church (the Roman Catholic Church of course) there is no salvation, remains an official dogma of the Catholic Church. That doctrine really does say that in order to be saved you have to be Roman Catholic. The entire, massive institutional structure of the Roman Catholic Church stands between the people and God. The Church makes it a barrier between God and people like me who, despite the Catholic Church’s wonderful spiritual traditions and practices, cannot accept some aspects of that Church and therefore are not Catholics.

The dogmatic barrier that Christians put between the people and God has to do with right belief. Sadly, most Christian churches put “right belief” between the people and God. The Christian hang up on right belief goes back to the very beginnings of the faith. The earliest Christian documents we have are the authentic letters of Paul. Those letters are mostly about right belief. The most common issue in them is whether or not one had to comply with Jewish Torah law in order to be Christian. That issue was all about what you believed God wanted from God’s people. Did God want Torah legalism or the freedom of faith? By the fourth century CE Christianity had become fractured over issues of right belief concerning Jesus Christ. The Roman Emperor Constantine wanted to use the Christian churches of the time to help him reunify the divided Roman Empire. Problem was, Christians were so split up into different factions that he really couldn’t do that. So he called a convocation of Christian bishops in an effort to get them to reconcile their differences and get unified. This convocation came to be known as the First Ecumenical Council. It didn’t work. Christianity never came together the way Constantine wanted it to. The important point for us is that the divisions within the faith had mostly to do with right belief, wrong belief being seen as a barrier between the person with the wrong belief and God.

Fast forward more than one thousand years from the First Ecumenical Council, and we come to the Protestant Reformation. Martin Luther believed differently about God, the church, and salvation than did the Roman Catholic Church of his day and the Roman Catholic Church was essentially the only Christian church there was in western Europe at the time. Luther’s objections to the Catholic Church led eventually to the creation of a new kind of Christianity. It’s called Protestantism. The differences between Protestantism and Roman Catholicism are in part about ecclesial structure, but mostly they’re about differences in belief.

Fast forward another 375 years or so, and you find today’s conservative Evangelical Christians. A little bit more recently you find the first true Christian Fundamentalists. Conservative Evangelical and Fundamentalist Christians all insist that salvation depends on right beliefs, especially beliefs about Jesus Christ. They, along with some other Christians, make right belief a barrier between the people and God. Believe the right things, they say, and you have access to God and God’s salvation. Believe the wrong things, and you don’t.

The notion that one must have the right beliefs about Jesus in order to be right with God is deeply engrained in many Christians. The symbol of the torn curtain in the temple, however, says no to belief as a barrier between God and the people as strongly as it says no to any other barrier between God and the people. God may or may not care about what God’s people think as opposed to how they act. Either way, the symbol we’re considering tells us that neither wrong belief nor wrong action separates us from God. There simply is no prerequisite to benefitting from God’s grace. That’s what the symbol of the torn temple curtain means to me today. I hope it means that to you too.

I also hope that this rather lengthy exercise in how to handle religious symbols has been helpful to you. Symbol and myth (that is, stories that act like symbols) are the language of faith. We can pretend that the Bible and other sources of our faith give us indisputable facts. A great many Christians today somehow manage to cling to the belief that they do. They don’t, and the belief that they do is ultimately unsustainable. We must learn how to use symbols and stories that act like symbols if we are to understand our faith at all. I wish you God’s help and good success as you learn how to use them.

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[1] We must understand the claim that God was in the Holy of Holies as being a symbol not an historical fact every bit as much as Mark’s tearing of the curtain was a symbol not an historical fact. In our consideration here we are dealing only with symbolic meaning, not that symbolic meaning isn’t far more powerful than mere factual meaning. It is.

[2] They could both be false if you don’t accept the symbol of God’s presence in the Holy of Holies in the first place.

[3] While I was a student at the Seattle University School of Theology and Ministry, Josef Ratzinger, not yet Pope Benedict XIV, wrote, and Pope John Paul II issued, a statement reaffirming the exclusivity doctrine I discuss here. One of my professors, a Catholic priest and a brilliant theologian and teacher, said well, let’s just put that away in a drawer and leave it there. It doesn’t say anything new. Seattle University is a Jesuit university. At the university’s School of Theology and Ministry (sadly soon no longer to exist) the Catholic staff and students fully accepted Protestant students and teachers from many different denominations. My time at STM was one of the best times of my life.