The early years of the Reformation were marked by sharp disagreement between Protestant proponents of the Lutheran notion of justification and Catholic reactionaries who, in their response to the threat of the reformers, accused their opponents of antinomianism and retreated to a casuistic notion of natural law that had dominated theology since the rise of nominalism. Protestants, stressing freedom, faith, and justification, were accused of moral laxity; Catholics, stressing the meritorious value of works and law, were accused of excessive moral rigidity and legalism. The former struggled with the role of law in the Christian life, the latter with the role of faith. In their over-reactions to each other, both Protestants and Catholics were guilty of reducing the Christian moral life either to faith or to law.
Carl Braaten, in his recent response to the ELCA’s Draft Social Statement on Human Sexuality, posits a divide on the question of homosexuality within the Lutheran Church that is remarkably reminiscent of this early debate between Protestants and Catholics. In his article, Braaten asserts that the ELCA has lost sight of the function of law for Christian ethics and has replaced it with a rather thin notion of the Gospel, the proper realm of faith. Recognizing, I think correctly, that “this document is worried about legalism,” Braaten forcefully argues that the real problem which should command the Church’s attention is not “legalism” but “antinomianism” (1). To defend against this risk, Braaten argues, both in his response here and in his earlier article in the Journal of Lutheran Ethics, for a recovery of the natural law for Lutheran sexual ethics (2). The difficulty, as I will argue below, is that Braaten’s understanding of the natural law is flawed in several respects and represents, to some extent, a return to manualist and Counter Reformation legalism, which displaced the role of conscience, optimistically reveled in the power of human reason, and misinterpreted the traditional concept of natural law.
To begin, I find it necessary to address one of Braaten’s early, though persistent, questions: why is the ELCA conducting a study on human sexuality with regards to homosexuality? Braaten’s response? “[M]odern cultural trends hold greater sway than two thousand years of Christian consensus on the matter” (3). The lack of consensus in the ELCA, it seems, is the result of outside cultural pressures impinging on the faithful and leading them down the path that begins with the “rejection of the natural moral law” and ends with “moral relativism” (4). Certainly, the Church universal stands in relation to cultural moral norms only indirectly; only through their correspondence (or at least lack of discontinuity) with faith and the Word of God do secular norms have validity for the Christian. But the problem here, which Braaten and many others fail to notice, is that we are not faced with a confrontation between “the world” and “the Church” but with the dilemma of the witness of believers within the Church. In other words, the impetus for this whole discussion of sexuality did not come from “outside,” from the proverbial barbarian hordes, as it were, threatening to tear down the fortress Braaten perceives Christianity to be. Rather, the call for dialogue is decidedly coming from within the Church, from Christian homosexuals and their brothers and sisters in the pew who, confronted by their witness, feel compelled to allow God-given faith in its concrete manifestations (that is, human persons) to challenge their interpretations of God’s will. This draft social statement is not a response to voices from without, but to voices from within that are pleading for direction.
I do not expect this fact to make much difference to Braaten. In his view of the natural law, God has willed within all of creation certain intentionalities that correspond to their materiality. Bodies (be they human, animal, vegetable, or what have you) are inscribed, in their very design, with purposes. These purposes, for the human with his/her rational ability to discern them, become normative inasmuch as a person seeks to align his/her will to that of God’s. The natural law thus represents a collection of discernible moral laws concerning the intentionality of creation which can be known with confidence and must be followed with obedience.
The first difficulty with this interpretation of the natural law is formative. Human experience is rejected by Braaten as a possible source for moral reflection since the law within the order of creation is prior to any subjectivity of the believer. Indeed, the law precedes the Gospel “both in the order of knowledge and in the order of reality” (5). Before even becoming a believer, the person is confronted by the law. Thus, any experience one might have as a believer comes after the knowledge of the law is grasped. Christian experience, then, can hardly stand as a source of moral reflection, much less as a tool of refinement of juridical interpretation. (Indeed, interpretation of the moral law, according to Braaten, does not even depend on one being a Christian .)The testimony of homosexual Lutherans, then, has no validity for moral reflection in Braaten’s system. Indeed, he unapologetically makes this clear in his response to the draft statement where he challenges the notion that “Lutheran historical teachings concerning homosexuality have been used to tear apart families with gay or lesbian members” (7) by asking the loaded question, “Has the church been wrong to teach that homosexual acts are sinful?” Clearly, Braaten does not think so, regardless of the human effects of teaching.
There are two responses to this position. The first is to eschew all prophetic critique of persons and institutions, thus tacitly propounding moral relativism, and I would stand with Braaten in condemning this response wholeheartedly. Certainly, the Church is called to critique both personal and social sin and to extend the call to repentance to those in error. The second response, however, is to take seriously the human experience of the imputation of a law and to reflect on the interpretation used to construct the moral injunction. In this response, the individual or institution positing the particular proscription remains open to the testimony of the person subjected to the injunction, returns to the law with a readiness to amend the conflicting interpretation, and trusts that the Holy Spirit, through the exchange, will serve as a guide to the truth of the interpretation. The human reason which deduced the application of the law is submitted, through mutual dialogue, to the inspiration of the Holy Spirit for direction and refinement. In short, trust and confidence is placed in God, rather than in human reason, and the tentativeness which must accompany the whole process testifies to the placement of trust in God alone and not in human reason.
The reason for this necessary component in moral deliberation points to the epistemological problem in Braaten’s natural law theory. The necessity of aiding priests as they sought to administer the sacrament of penance to their congregants required the Catholic centers of priestly formation in the 15th and 16th Centuries to develop manuals which addressed “cases of conscience,” that is, particular moral dilemmas in the lives of believers. As this period of “manualism” took shape, Catholic theologians turned to the natural law of Thomas Aquinas and used it to aid in the deduction of concrete, particular proscriptions and prescriptions for believers (though the emphasis was certainly more on proscriptions.) Though cases of doubt in regards to the appropriate law became rather problematic, the period was, nonetheless, marked by a certain confidence in the ability of human reason to discern with precision, even in the most circumstantial cases, the application of the natural law to be employed.
The trouble is, such an approach, deductive in method and overly confident in outcome, failed to account for the many failures of human reason. Though Braaten is eager to claim that “reason and conscience are not so depraved as to be incapable of grasping the universal morality expressed in the Decalogue,” this is not the full story of natural law, the “universal morality” to which he, and the manualists, refer (8). Aquinas, generally regarded as the principal exponent of traditional natural law, differentiated between two levels of precepts in the natural law, the universal “first principles” which are discernable by reason and always valid, and their applications, which are less certain. As to the first, Aquinas argued that these precepts included general principles knowable to all which conform with Eternal Law (the very source of natural and human law.) This would include, for example, the principle that good is to be done and evil avoided. The second group of precepts includes particular applications of general principles. In regards to these applications, Aquinas argued that “exceptions become more likely the more we come down to particulars” (9). Thus, for example, the repayment of a loan to one who would use the repayment for nefarious purposes is not required in that case, though in most cases (ut in pluribus) it is.
Aquinas’ position, however, was not the result of mere pragmatism, still less of something akin to Bultmannian existentialism. Rather, his conclusion was the result of a particular epistemology. Despite the power of human reason, with the aid of the virtue of prudence, to determine to the morally superior choice in a given situation, human reason did not cease to be human and thus fallible. While humans can progress in the development of the virtue of prudence, infallible application of the universal precepts of the natural law is inaccessible to them. Therefore, applications of the natural law do not carry the same certainty or authority as do the explications of general principles. To be clear, it is not the law that changes; the difficulty is epistemological and focuses on the corruptibility of human reason and intelligence.
Does this mean that God’s law, as inscribed in creation ceases to be valid? No. Does it mean that we cannot look to God’s hand in creation for moral insight? Hardly. However, natural law does require human interpretation. Its applications to particular cases, like the cases of particular homosexuals within the Church, never cease to be human applications. And human interpretation, really anything human, can be, indeed is, fallible. The universal corruption of humankind by original sin, according to the Apology of the Augsburg Confession, taints not only our bodily desires but our higher faculties, including our reason, will, and intelligence (10). We are, to some extent, unable to interpret the natural law without blemish. Our reason stands in need of continual correction.
Allow me to offer an example of human reason deducing moral norms from principles of nature. The unknown author of a popular tract on natural law, after examining the biology of several “species,” concluded that the laws he saw written into the natural world reflected the intention of the Creator and thus weigh heavily on moral reflection. He writes, “Such, in conclusion, are the general laws of the organic world, fixed and immutable by the hand of the Infinite, and however willfully or blindly we may butt our heads against them, we of course can only destroy ourselves…The works of God are everlasting and immovable, and no human power, accident, time, or circumstance, can change or modify them the millionth part of an atom.”
Sound familiar? Let us return for a moment to Braaten’s writings: “One does not need to read the Bible to know by reason and conscience that homosexual behavior is against the norm of God’s created order. When God created the world and human beings, he designed all things to obey certain laws…There is the law that male and female were created for each other; their sexual organs match” (11). No lack of consensus, no popular opinion, no changing circumstance can alter this basic assumption. “God has placed all human beings in particular structures of existence, such as ethnicity, race, sexuality, family, work, and governance. The law of God and his (sic) commandments are revealed through these common forms of human existence and function apart from the gospel and faith in Christ” (12). And again, “God works through the law engraved in the nature of the things he (sic) creates.” (13).
There is a similar dynamic at work in both the unknown author I quoted above and Carl Braaten’s recent writings on homosexuality and the natural law. Both rely on particular facts of biological and material reality to deduce norms for ethical behavior apart from consideration of the Gospel. Both also employ a purposive interpretation of Creation, based on the (correct) belief that God exercises God’s Will through God’s creation. Both also argue that we can thus discern God’s Will by looking at Creation, though both also restrict their lens to biology and material reality and draw from thence their moral inferences. We are familiar with what this method terminates in for Braaten, i.e. a rejection of homosexuality. The previous author, however, is not discussing homosexuality. He is the unnamed author of a widely-read anti-abolitionist tract entitled “The Six Species of Men,” in which the biological and genetic differences between the races (“Caucasian, Mongol, Malay, Indian, Esquimaux, and Negro”) are examined and used to support the “natural” differences between them. In context, his conclusions are as follows:
”The several human species, just as all other species in the animal world, are adapted to, and therefore were created in, certain great centres of existence, and they differ from each other in their physical structure, and their qualities or nature, and therefore in the purposes assigned them by the Creator, just as clearly and absolutely as do the several species of animals that belong to a creation or form of being….If we sought to force the lion and panther, or eagle and crow, to live the same life because we had a theory that they have the same nature, of course we would destroy them, just as we may destroy a certain number of whites and negroes in our blind and sinful assumption that they have the same nature; but that is all. The works of God are everlasting and immovable, and no human power, accident, time or circumstance, can change or modify them the millionth part of an atom (14).
Certainly, I do not mean to accuse Braaten directly of so grievous a sin as that of which slavery advocates were guilty. However, the similarities should raise concern for all “reasonable” Christians when confronted with such a rigid focus on the natural law inscribed in our biological being. What the errors of the past demonstrate to us is not the failure of the natural law in itself, but the failure of human reason to deduce moral norms from the natural law at all times adequately. This is especially the case if we remove the Gospel from our considerations of the natural law. In fact, when natural law is viewed through the lens of faith and the Gospel, we reach very different conclusions. Arguments beginning from natural law read in the light of faith tended to be abolitionist. Reliance merely on “universal human reason” was not enough to determine that all arguments would reach the same conclusion. Human reason is simply not capable of being right all of the time.
Is this concept so novel? Lutherans have traditionally been well aware of this epistemological challenge. Indeed, in response to some scholastic theologians, the Smalcald Articles reject the following notions: “1. That after the fall of Adam the natural powers of man (sic) have remained whole and uncorrupted, and that man (sic) by nature possesses a right understanding and a good will…[and] Again, that man (sic) is able by his (sic) natural powers to observe and keep all the commandments of God” (15). It is this epistemological failure on behalf of humans that led to the deplorable employment of biological natural law to determine that blacks were “by nature” well-suited for slavery. It is further testimony to the indeterminancy of applications of natural law that it was the same method that was used to construct most of the abolitionist arguments concerning common dignity and natural rights. These epistemological shortcomings, recognized by Aquinas and ignored by manualists, counter-reformers, and Carl Braaten, should give us pause whenever we encounter arguments based on some form of “universal reason” issuing in a concrete application of a general precept. Our certainty in this area is only as strong as our confidence in our own wisdom and reason, which, by all accounts, should never reach the level of absolute.
There are several consequences for Braaten’s natural law theory, given its formative and epistemological deficiencies. First, faith is displaced from its central priority in the moral life. If moral laws “are in the Bible because [they are] true” (and not vice versa) (16), if moral norms are equally available to “Catholics…Muslims and Hindus and Buddhists [and Christians]” (17), and if the path to moral rightness is readily accessible by “universal” reason, then what happens to the role of faith in the Christian moral life? The answer has already been disclosed by a similar phenomenon among Counter-Reformation reformers: faith is displaced from the center of the Christian life. The Gospel becomes purely spiritual, while the Law stands alone as the primary reference for Christian morality. In fact, “law comes before gospel,” and moral reflection on human sexuality does not concern the latter.
Braaten posits this as the fundamental Lutheran position and rails against the draft statement’s reverse structure. The social statement, unlike Braaten’s preferred method, begins with the incarnation and justification before moving to the law. So certain is he that such an approach, at the very least, is un-Lutheran, that Braaten claims he “can think of no example of such an approach in the history of Lutheran theology” (18). Yet the Formula of Concord argues that the Christian’s proper understanding of the law (and, we can assume then, the proper interpretation and application of the law) begins with the encounter with Jesus Christ. Indeed, apart from the Gospel, the people are still under the “veil of Moses” and do not yet know “what great things God demands of us in the law, none of which we could fulfill, and that we should now seek all our righteousness in Christ” (19). Moreover, “the mere preaching of the law without Christ either produces presumptuous people, who believe that they can fulfill the law by external works, or drives man (sic) utterly to despair. Therefore Christ takes the law into his hands and explains it spiritually” (20). Without Christ as our authoritative interpreter of the law, we are unable to see it for what it is and thus are unable to properly interpret it for and apply it to our moral lives.
This is hardly a new concept. Fond as he is of the dialectic of the orders and the kingdoms, Braaten has lost sight of what his methodology enables: the removal of Christ as the primary referent for the Christian moral life. Even Luther himself was aware of the dangers of viewing the law apart from the gospel:
Even to the present day, the Jews are greatly in error when they hold so strictly and stubbornly to certain laws of Moses. They would rather let love and peace be destroyed than eat and drink with us, or do things of that kind. They do not properly regard the intention of the law; but to understand this is essential for all who live under laws, not for Jews alone” (21).
This “intention of the law” is only understood through the lens of the Gospel. The sense of Christian freedom, with its reference to liberty in service of the neighbor, is eradicated in a moral system which, like Braaten’s removes all reference to Christ and places the Christian person at the service of natural laws.
The second consequence of Braaten’s natural law theory is equally serious. When we fail to allow our reason to be challenged by human experience or history, our knowledge becomes a calcified bulwark upon which we become ready to place our trust. Our symbols become solidified, our language becomes immutable, and we ourselves become infallible, unshakeable in our moral assertions.
A perfect example of this is Braaten’s critique of the lack of Trinitarian language in the draft statement (22). Clearly, with his emphasis on law as the proper lens through which to view sexuality (23), this is a confusing critique. If the incarnation is not an appropriate foundation for a Lutheran discussion of sexual ethics, how and why should we attend to the dynamics of the immanent trinity? I believe that this critique is a thinly-veiled attempt to direct attention to what Braaten sees as another creeping entrée of modern culture into the Church: the androcentric assessment of the terms “Father” and “Son” by feminist theologians (“radicals,” according to Braaten.) Certainly, the relationship described by the use of these terms is central to Christian theology. Attempts to ameliorate the gender-exclusive language by employing symbols such as “Creator-Redeemer-Sanctifier” do not do justice to the interrelationships and personal intimacy present in the immanent trinity and expressed in the economic trinity. (The demarcation of the persons according to their “roles” obliterates the relationship between the Persons that we hold as doctrine.) However, we must be equally clear that all of our language falls short of expressing the being of God in God’s reality. Even terms such as “Father and Son” are, in actuality, only symbols that express our convictions about God. God, in God’s transcendence, cannot be contained in any language, let alone language that restricts God to a male conceptualization.
These symbols can still function to direct our attention to certain aspects of God despite their limitations. But this is so only if we continually recognize the ways in which they fall short. Otherwise, we will be beset, as Braaten’s response demonstrates he is, by a solidification of our symbols and a mistaken notion that they are the reality, not that they symbolize the reality, of God. When symbols, which are constructed by humans and exist in their material form in earthly reality are so concretized that they cease to point beyond themselves to a reality in which they participate but do not exhaust, they become what Scripture continually warns against: idols. We become guilty of idolatry when our human capacities become the measure of reality, rather than God. We become guilty of idolatry when we become so myopically focused on the materiality of the world that we displace God as our primary referent in our relations in the earthly Kingdom. We become guilty of idolatry when we believe that our own abilities, apart from faith and prior to the revelation of Jesus Christ, can discern morality adequately. When this happens, we have created an idol out of human reason; we have lifted it up as the standard for moral rectitude. We have moved one step closer to depicting reason as the dictator, rather than the discerner of God’s Will.
The third and final consequence of Braaten’s particular exposition of natural law is also tragic. This is most clearly seen in the tone of his articles, with their vitriol and heated passion. Though I respect the commitment to the ELCA that has fueled Braaten’s writings both in the JLE and in his open letter to Bishop Hanson, I cannot help but feel that he, like so many of us, has forgotten what this debate is really about. As easy as it would be (indeed, is) to argue back and forth about the phenomenon of homosexuality, we are not here dealing with a mere concept for academic or ecclesial debate. In all instances, we are dealing with real, concrete, human persons. This is not an argument about language, but a heart-wrenching struggle for many to determine the Christian response, not to a concept, but to persons, living images of God. One must wonder how such a narrow focus on natural law would facilitate a pastoral response to a struggling Christian. Moreover, one must wonder what comes first: the human person or the law? Jesus seems to provide us with a response to this when he heals on the Sabbath, the day set aside in the very movement of Creation for rest. Lutheran ethics has always strove to respond to human persons in all their dimensions, especially as they exist in their historical situations. Does Braaten’s system leave room for this? Or, has he so excluded attention to persons via his view of the law that the human is placed at the service of the natural law? Is the vitriol of his articles indicative of the avoidance of methodological human contact (that is, failure to listen to or respond to human beings) consequent on his reduction of Christian sexual morality to biological truisms?
This is certainly the risk that the Catholic Church faced in the eras of manualism and the Counter-Reformation. Luther responded with an emphasis on the freedom of the Christian, the hope that is given to the human being despite his/her condemnation by the law. He also responded with the affirmation that God has set us free to love and serve others with confidence and trust in God’s plan for our salvation. This risk is the same risk that the Catholic Church faces today, in regards to its teachings on contraception, teachings which the ELCA rejects in favor of recommendations attentive to the real, lived existence of human persons.
Moreover, the problem of “doubt” in the “cases of conscience” which dominated the period of manualism left several options open for moral theologians. They could, as many did, choose “tutiorism,” which claimed that when there was a case of moral doubt, one should choose the option that favors the law, the “safer” option. In contrast to tutiorism is the belief that, in cases of doubt, the Christian is allowed to choose in favor of freedom so long as there exist probable reasons for the doubt. Tutiorism, in its essence, focuses on the law and chooses in favor of the law over freedom in morally ambiguous cases. This is one of the principal arguments the Catholic Church has used in recent years when confronted with the question of abortion and has been critiqued persuasively by theologians such as Richard McCormick, S.J.
The other option, the preference for probable freedom, is more akin to the Lutheran tradition. When challenged by the legalism arising from tutiorism and other socio-religious currents in Catholicism, Luther responded with arguments based on the freedom the Christian enjoys by grace. Freedom in doubtful cases, liberty in cases of unclear application of the law, is central to Lutheran theological ethics. The Christian is empowered to exercise graced freedom when confronted with the ambiguities of earthly existence. In a word, Lutheran Christianity is concerned with primarily with the freedom to act and secondarily with restrictions on that freedom, since, logically, one must possess freedom in order to be concerned about its loss.
Braaten, I’m sure, is ready to respond with his typical rigor and announced that there is no doubt in the case of homosexuality. However, the fact is, there is a great deal of doubt among laypersons in the ELCA and other communions. Faithful, reasonable believers have detected ambiguity in the Christian moral response to homosexuality and have sought guidance from the Church. Braaten responds with domineering legalism, which fails to take this doubt seriously. Is this the most appropriate way to respond to the lay faithful, to command a universally binding law that essentially claims the inquiry is, at the outset, the result of moral failure on the part of the questioner, the one who cannot see the “universal reason” Braaten visualizes so clearly? Are the consciences of the faithful laity to be so ignored in Lutheran ethics? The response of legalistic Catholicism, especially concerning sexual ethics, has been “Yes.” Braaten, it seems, agrees with this sentiment. His view begins by excluding the experience of the laity and ends by denying their contributions to Lutheran ethics, since, after all, what use is the experience of the laity if morality can be wholly determined via examinations of created nature? The summary question, then, is: In his zeal to make the ELCA more Lutheran, is Carl Braaten actually striving to make it more Catholic, indeed more in line with the legalistic and overly philosophical Catholicism of yesteryear? To reiterate his own words, “We will have to wait and see what comes out in the end.”
Carl E. Braaten, “A Critique of the ‘Draft Social Statement on Human Sexuality’ Prepared by the Task Force for ELCA Studies on Sexuality, Church in Society [of the] Evangelical Lutheran Church in America,” Journal of Lutheran Ethics 8, no. 7 (July 2008), http://www.elca.org/~/media/Files/JLE/Draft of Social Statement.pdf, para. 8.
Carl E. Braaten, “Reclaiming the Natural Law for Theological Ethics,” Journal of Lutheran Ethics 7, no. 10 (Oct 2007), http://www.elca.org/What-We-Believe/Social-Issues/Journal-of-Lutheran-Ethics/Issues/October-2007/Reclaiming-The-Natural-Law-for-Theological-Ethics.aspx.
Braaten, 2007, para. 17.
Braaten, 2008, para. 1.
Braaten, 2008, para. 11.
Quoted in Braaten, 2008, para. 12.
Braaten, 2008, para. 2.
, Ia.IIae., qq. 94, art. 4.
“Apology of the Augsburg Confession,” in The Book of Concord: The Confessions of the Evangelical Lutheran Church, ed. and trans. Theodore G. Tappert, Jaroslav Pelikan, Robert H. Fischer, and Arthur C. Piepkorn (Philadelphia: Fortress Press, 1959), 103.
Braaten, 2008, para. 11.
Braaten, 2007, para. 6.
Braaten, 2007, para. 8.
“The Six Species of Men,” in Anti-Black Thought: 1863-1925, vol. 1, “Anti-Abolition Tracts and Anti-Black Stereotypes,” ed. John David Smith (New York: Garland, 1993), 130.
“The Smalcald Articles,” in The Book of Concord: The Confessions of the Evangelical Lutheran Church, ed. and trans. Theodore G. Tappert, Jaroslav Pelikan, Robert H. Fischer, and Arthur C. Piepkorn (Philadelphia: Fortress Press, 1959), 302.
Braaten, 2007, para. 19.
Braaten, 2008, para. 11.
Braaten, 2008, para. 3.
“Formula of Concord,” in The Book of Concord: The Confessions of the Evangelical Lutheran Church, ed. and trans. Theodore G. Tappert, Jaroslav Pelikan, Robert H. Fischer, and Arthur C. Piepkorn (Philadelphia: Fortress Press, 1959), 479.
“Formula of Concord,” 559.
Luther’s Works, vol 35, 240-241.
Braaten, 2008, para. 7.
Braaten, 2008, para. 2.